Barrera-Gutierrez v. Ashcroft

31 F. App'x 581

Opinion

MEMORANDUM

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Eloy Barrera-Gutierrez, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals’ (“BIA”) order finding him removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). We have jurisdiction to determine whether the petitioner is removable because he was convicted of an aggravated felony. Matsuk v. INS, 247 F.3d 999, 1000-02 (9th Cir.2001). We review de novo legal questions under the Immigration and Nationality Act. Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994). We grant the petition.

On May 28, 1993, the petitioner was convicted of driving under the influence of alcohol with prior multiple convictions in violation of California Vehicle Code §§ 23152(a) and 23175. A violation of sections 23152(a) and 23175 is not a “crime of violence” as defined by 18 U.S.C. § 16. Montiel-Barraza v. INS, 275 F.3d 1178, 1180 (9th Cir.2002) (per curiam) (applying the analysis of United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir.2001), and reasoning that “if driving under the influence with injury to another does not amount to an aggravated felony, then logically a violation of the lesser offense cannot qualify as an aggravated felony”). We therefore find that the petitioner’s conviction does not qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).

We grant the petition and remand to the BIA to find petitioner not removable.

PETITION FOR REVIEW GRANTED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.