U.S. Court of Appeals for the Ninth Circuit, 2009

Shamim v. Holder

U.S. Court of Appeals for the Ninth Circuit · Decided April 28, 2009 · Edmunds, Kozinski, Noonan

324 F. App'x 621

Counsel

Zachary Miller Nightingale, Avantika Shastri, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, CA, for Petitioner., David V. Bernal, Assistant Director, Ernesto Horacio Molina, Jr., Esquire, Senior Litigation Counsel, Carol Federighi, Esquire, Senior Litigation Counsel, OIL, U.S. Department of Justice, Civil Division/Office Of Immigration Litigation, Washington, DC, Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.

Opinion of the Court

MEMORANDUM **

The BIA erred when it determined that petitioner’s conviction under Cal.Penal Code § 69 for resisting an executive officer is a “crime of violence” under 18 U.S.C. § 16 and thus qualifies as an “aggravated felony,” under 8 U.S.C. § 1101(a)(43)(F). The conduct proscribed by Cal.Penal Code § 69 is broader than the “crimes of violence” defined in 18 U.S.C. § 16. See Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir. 2007).

Petitioner also challenges whether his convictions under Cal.Penal Code § 69 for resisting an executive officer, under Cal.Penal Code § 594 for vandalism, and under Cal.Penal Code § 245(a)(1) for assault with a deadly weapon, not a firearm constitute “crimes involving moral turpitude.” We remand to the BIA for reconsideration, in light of Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009), and In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), whether any of petitioner’s convictions constitutes a crime involving moral turpitude.

PETITION GRANTED.

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

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