Anaya-Ortiz v. Gonzales

239 F. App'x 391

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2007
• Docket: No. 03-74666
• Status: Published

Opinion

MEMORANDUM

**

Virgilio Anaya-Ortiz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal and ordering him removed to Mexico. We deny the petition.

In 2001, petitioner was convicted of being a felon in possession of a firearm in violation of CaLPenal Code § 12021(a)(1). Because this conviction is an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(E)(ii), petitioner is removable as charged pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). See United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001). Petitioner contends that the aggravated felony definition may be construed one way in the sentencing context and another in the immigration context, citing Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir.2004). None of the policy concerns articulated in Cazarez-Gutierrez apply here, however. Cf. Lopez v. Gonzales, — U.S. -, 127 S.Ct. 625, 627-28, 166 L.Ed.2d 462 (2006).

The agency applied the correct legal standard in determining that petitioner’s conviction for causing bodily injury while driving under the influence in violation of Cal. Veh.Code § 23153(b) qualified as a “particularly serious crime” within the meaning of 8 U.S.C. § 1231 (b)(3)(B)(ii), and that he is consequently ineligible for withholding of removal. The agency examined “the nature of the conviction, the type of sentence imposed, and the circumstances and facts underlying the conviction.” Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir.1986); see also Afridi v. Gonzales, 442 F.3d 1212, 1217-21 (9th Cir.2006); In re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982).

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.