By Kaylynn Chang
SAN FRANCISCO, CA – The Ninth Circuit Court of Appeals this past week issued a ruling in the case of Gutierrez v. Garland, addressing various aspects of immigration law with a focus on the impact of criminal convictions on removal proceedings.
Sergio Manrique Gutierrez, a permanent lawful resident of California, was granted consolidated petitions for review, dismissed in part, and denied in part, with the case remanded for further proceedings, according to the ruling as reported by Justia US Law.
Gutierrez, who was convicted of carjacking under California Penal Code § 215(a), faced removal proceedings after an immigration judge initially found Gutierrez chargeable for having been “convicted of an aggravated felony crime of violence and for having been convicted of two crimes of moral turpitude.”
The Justia US Law article states the Board of Immigration Appeals upheld the judge’s decision, determining that Gutierrez’s carjacking conviction was a categorical crime of violence and that Gutierrez had waived his challenge to the moral turpitude removal charge.
However, the Ninth Circuit panel found Gutierrez’s conviction for carjacking did not constitute a categorical crime of violence, noting per Justia, “fear alone is enough to convict without the use, attempted use, or threatened use of physical force.”
Additionally, the court noted the generic crime of violence defined in requires a higher level of intent carjacking, which can be committed with a lower level of intent.
Justia US Law wrote the panel further held that the approach was inapplicable to Gutierrez’s conviction because the statute “identifies just one set of elements to be proven and therefore is not a divisible statute,” and the Board’s conclusion Gutierrez was removable for committing an aggravated felony crime of violence was reversed.
The panel remanded the case to the Board to determine if Gutierrez is removable based on his convictions for two crimes involving moral turpitude. The government had conceded the Board incorrectly found this argument waived, creating a need for a reassessment by the Board.
However, Justia US Law explains the court dismissed Gutierrez’s petition for review of the reopening of his case. The panel explained judicial review of the agency’s discretion to reconsider or reopen a case is limited to instances where the agency misinterprets its authority. Since this was not the case here, the petition was dismissed for lack of jurisdiction.
Gutierrez’s remaining claims were denied by the panel, including challenges to the credibility finding, the discretionary denial of his application for waiver of admissibility, the denial of protection under the Convention Against Torture (CAT), and the Board’s denial of his motion to reopen the case to present new evidence regarding his competency and claims of ineffective assistance of counsel.
The Ninth Circuit’s ruling in Gutierrez v. Garland provides a detailed examination of the complexities involved in determining removability based on criminal convictions, said Justia US Law, adding the Ninth Circuit’s decision to remand the case to the BIA for further proceedings on the moral turpitude charge ensures a more thorough evaluation of Gutierrez’s removability status.
Justia US Law suggests this decision reveals the importance of precise interpretation and the limits of judicial review in immigration proceedings.
So now carjacking is not a crime of violence. Tell that to the people or families who get carjacked.