Tinoco-Orozco v. Immigration & Naturalization Service

22 F. App'x 767

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2001
• Docket: No. 99-70983; I & NS No. A35-813-689
• Status: Published

Opinion

MEMORANDUM

**

Javier Tinoco-Orozco petitions for review of an order of the Board of Immigration Appeals finding him removable as an aggravated felon under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioner was convicted on September 4, 1997 of driving under the influence of alcohol with multi-pie prior convictions, in violation of California Vehicle Code §§ 23152(a) and 23175.

In United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir.2001), we held that driving under the influence of alcohol and causing bodily injury, in violation of California Vehicle Code § 23153, is not a “crime of violence” as defined in 18 U.S.C. § 16. We reasoned that § 23153 can be violated through negligence, whereas a “crime of violence” can be committed only with a mental state of at least recklessness. See Trinidad-Aquino, 259 F.3d at 1144-1146.

Section 23152 is similar to § 23153, but lacks the element of bodily injury. Like § 23153, it can be violated through negligence, as can § 23175, which criminalizes multiple convictions. We therefore hold that Tinoco-Orozco was not convicted of a “crime of violence,” and accordingly was not convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(F).

PETITION 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.