CA9 on Crime of Violence, CIMT, Reopening: Gutierrez v. Garland

Gutierrez v. Garland

"Sergio Manrique Gutierrez petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an order of removal by an Immigration Judge (“IJ”) based on Gutierrez’s conviction of an aggravated felony crime of violence and for having been convicted of two crimes of moral turpitude. The BIA affirmed the IJ’s holding that Gutierrez’s California carjacking conviction is a categorical crime of violence. The BIA did not reach the second ground for removal, concluding that Gutierrez waived his challenge to the moral turpitude removal charge. Gutierrez separately petitions for review of the BIA’s denial of his motion to reopen his appeal. The petitions were consolidated, and we have jurisdiction under 8 U.S.C. § 1252. We conclude that California carjacking under Cal. Pen. Code § 215(a) is not a categorical crime of violence. We also conclude that the BIA erroneously determined that Gutierrez waived his challenge to the moral turpitude removal charge. We grant the consolidated petition to that extent and remand the case to the BIA to decide, in the first instance, whether Gutierrez is removable for having been convicted of two crimes of moral turpitude. Gutierrez also petitions for review of the IJ’s order reopening his case to consider a change in the law. We lack jurisdiction over that issue and therefore dismiss his petition as to this claim. Gutierrez further petitions for review of the agency’s denial of his application for adjustment of status and waiver of inadmissibility under 8 U.S.C. § 1182(h), denial of protection from removal under the Convention Against Torture (“CAT”), and the agency’s finding that Gutierrez was not credible. He also petitions for review of the BIA’s denial of his motion to reopen his case to consider new evidence that he was incompetent and to consider his ineffective assistance of counsel claim. We deny the consolidated petition as to these claims."

[Hats off to Harper Otawka, Olavo Michel, Vincent J. Brunkow and Kara Hartzler!]