Guillermo Becerril-Guadarrama v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 21, 2018
• Docket: 14-74030
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 21 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUILLERMO BECERRIL- No. 14-74030 GUADARRAMA, Agency No. A077-271-900 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 20, 2016** San Francisco, California Submission Vacated and Deferred October 20, 2016 Resubmitted for Decision June 18, 2018

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). Before: TASHIMA and M. SMITH, Circuit Judges, and KORMAN,*** District Judge.

Guillermo Becerril-Guadarrama petitions for review of a decision of the

Board of Immigration Appeals (“BIA”) dismissing his appeal of an order of

removal. The BIA determined that Becerril-Guadarrama’s conviction for felony

coercion under Nevada Revised Statute § 207.190(2)(a)1 was categorically a crime

of violence under 18 U.S.C. § 16(a).2 Therefore, the BIA concluded that Becerril-

Guadarrama had an aggravated felony conviction that rendered him removable

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).3

This Court recently held that Nevada felony coercion is not categorically a

“crime of violence” under the United States Sentencing Guidelines. See United

States v. Edling, __ F.3d __, No. 16-10457, 2018 WL 2752208, at *6 (9th Cir. June

*** The Honorable Edward R. Korman, Senior United States District Judge for the Eastern District of New York, sitting by designation. 1 The BIA concluded that Nevada’s coercion statute was divisible into misdemeanor and felony offenses, and that Becerril-Guadarrama’s “judgment of conviction clearly specifie[d] that he was convicted of felony coercion.” 2 The BIA also concluded that Nevada felony coercion was a crime of violence under 18 U.S.C. § 16(b), but the Supreme Court has since held that § 16 (b) is unconstitutionally vague. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018). 3 The Immigration and Nationality Act defines “aggravated felony” to include any “crime of violence . . . for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). 2 8, 2018). The Edling court explained that the “physical force” element of the

Nevada statute proscribes more behavior than the “violent force” necessary to

satisfy the “physical force” standard set forth in Johnson v. United States, 559 U.S.

133, 140 (2010). Edling, 2018 WL 2752208, at *5. Johnson’s standard for

“physical force” also applies to the crime of violence definition in 18 U.S.C. §

16(a). See Rodriguez-Castellon v. Holder, 733 F.3d 847, 853–54 (9th Cir. 2013).

Hence, because the Nevada felony coercion statute criminalizes more conduct than

the generic federal offense, Becerril-Guadarrama’s conviction does not

categorically constitute a crime of violence. We therefore GRANT the petition for

review and VACATE the order of removal.

• ! •

The petition is GRANTED.