Manuel Lopez-Islava v. Loretta E. Lynch

628 F. App'x 547

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 12, 2016
• Docket: 14-71920
• Status: Unpublished

Opinion

MEMORANDUM ***

Petitioner Jose Rodolfo Maganar-Pena (Magana-Pena) petitions for review of a decision of the Board of Immigration Appeals (BIA) that determined MaganaPena’s conviction for residential burglary under Arizona Revised Statute § 131507 was an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(F). Specifically, the BIA determined that Maganar Pena’s burglary offense constituted a crime of violence under 18 U.S.C. § 16(b). 1

As a preliminary matter, we conclude that res judicata did not bar the Department of Homeland Security from raising a new ground of removability on remand from this court because there was never a final judgment on the merits. See Valen-ciar-Alvarez v. Gonzales, 469 F.3d 1319, 1324 (9th Cir.2006),

However, we conclude that our recent decision in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.2015), controls the outcome of this case. In Dimaya, we adhered to the rationale articulated in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2558, 192 L.Ed.2d 569 (2015), where the Court held that the residual clause defining a violent felony under the Armed Career Criminal Act of 1984 was unconstitutionally vague. We held that the similar “residual clause definition of a violent felony [under 18 U.S.C. § 16(b) ] is unconstitutionally vague____” Dimaya, 803 F.3d at 1111 (internal quotation marks omitted). We are bound by this precedent, which does not support the BIA’s determination.

The petition for review is GRANTED and we REMAND to the BIA for further proceedings consistent with this disposition.

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

1 . 18 U.S.C. § 16(b) defines a crime of violence as a felony offense "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”