Fernandez v. Barr

969 F.3d 1077

Jose Carmen GOMEZ FERNANDEZ, aka Jobe Carmen Gomez, aka Jose Carmen Gomez, aka Jose Gomez Carmen, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 19-70079

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 2020 San Francisco, California

Filed August 13, 2020

Robert G. Berke (argued), Berke Law Offices Inc., Canoga Park, California, for Petitioner.

Bernard A. Joseph (argued), Senior Litigation Counsel; Derek C. Julius, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX0-213

Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and DAVID A. EZRA,^* District Judge.

M. SMITH, Circuit Judge:

Shortly after Jose Gomez Fernandez, a native and citizen of Mexico, became a lawful permanent resident, a jury convicted him of second degree murder in violation of California Penal Code § 187(a). The Department of Homeland Security (DHS) charged Gomez with being removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(A). An immigration judge (IJ) and the Board of Immigration Appeals (BIA) agreed and denied Gomez's request for deferral of removal pursuant to the Convention Against Torture (CAT). Gomez petitions for our review.

California law defines "murder" as "the unlawful killing of a human being, or a fetus , with malice aforethought." Cal. Penal Code § 187(a) (emphasis added).¹ The principal issue that the petition raises is whether a § 187(a) conviction is broader than the federal generic definition of murder in the aggravated felony provision of the Immigration and Nationality Act (INA) because it includes the killing of a fetus, and, if so, whether § 187(a) is divisible.

We are aware of the sensitive nature that this issue raises. Our limited role, however, is to apply the Supreme Court's method for determining whether an offense qualifies as an aggravated felony under the INA.

Doing so here, we hold that the federal generic definition of murder is "the unlawful killing of a human being with malice aforethought." 18 U.S.C. § 1111(a). Because federal law defines the term "human being" to exclude an unborn fetus, 1 U.S.C. § 8, California Penal Code § 187(a), which criminalizes the unlawful killing of an unborn fetus, is broader than the federal generic definition. However, we also hold that § 187(a) is divisible because it creates distinct crimes for the unlawful killing of a human being and the unlawful killing of a fetus. Gomez's § 187 conviction for the unlawful killing of a human being renders him removable as charged. Finally, we conclude that substantial evidence supports the denial of CAT deferral. Thus, we deny the petition.

BACKGROUND

Gomez became a lawful permanent resident in 2000. Three years later, a jury convicted him of second degree murder in violation of § 187(a), and he was sentenced to fifteen years to life in prison with the possibility of parole.

In December 2017, DHS charged Gomez as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(A). Gomez averred that he was not removable as charged because (1) § 187(a), by criminalizing the killing of a fetus, is broader than the federal generic definition of murder under the INA and (2) § 187(a) is indivisible.² Gomez also sought withholding of removal and CAT relief, claiming a fear of returning to Mexico.

The IJ concluded that Gomez was removable as charged. First, he concluded that Gomez had failed to show that § 187(a) is broader than the federal generic definition of murder. The IJ recognized that in Matter of M–W– , 25 I. & N. Dec. 748, 752, 758 (B.I.A. 2002), the BIA had construed the INA's generic definition of murder to mean the killing of a human being with malice aforethought. But the IJ reasoned that the federal generic definition "implicitly includes murder of ‘a fetus.’ " The IJ observed that 18 U.S.C. § 1841—a federal statute that criminalizes certain conduct that causes the death of or great bodily injury to an unborn child—imposes the same punishments that apply to the federal murder statute, 18 U.S.C. § 1111, when the offense involves the intentional killing of or intentional attempt to kill a fetus. 18 U.SC. § 1841(a)(2)(C). The IJ further reasoned that "[a] significant majority of states also protect fetal life in murder statutes[.]"

Alternatively, the IJ assumed that § 187(a) ’s inclusion of the killing of a fetus rendered it overbroad. The IJ concluded that § 187(a) is divisible because it creates different crimes for the killing of a human being and of a fetus. The IJ then determined that Gomez's conviction satisfies the federal generic definition because he was charged with killing a "human being." The IJ concluded that Gomez was ineligible for asylum and withholding of removal for being convicted of a particularly serious crime. The IJ denied CAT deferral because Gomez had not shown that he would be tortured in Mexico.

The BIA adopted and affirmed the IJ's decision. Gomez timely petitioned for our review.

JURISDICTION AND STANDARD OF REVIEW

When an alien is found removable for having a conviction that is an aggravated felony under the INA, our jurisdiction is limited to review of constitutional questions and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D). Whether a crime is as an aggravated felony under the INA is a question of law subject to de novo review. Jauregui-Cardenas v. Barr , 946 F.3d 1116, 1118 (9th Cir. 2020).

ANALYSIS

I. Gomez's § 187(a) Conviction Is as an Aggravated Felony under the INA

We must decide first whether a § 187(a) offense falls within the generic offense of "murder" as used in the INA's aggravated felony provision, 8 U.S.C. § 1101(a)(43)(A), thus rendering Gomez removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Although we have previously considered whether a California second degree murder conviction pursuant to an aider and abettor theory is an aggravated felony under the INA, there was no dispute that a California conviction for second degree murder is an aggravated felony under federal law. Sales v. Session , 868 F.3d 779, 780 (9th Cir. 2017). Gomez, however, raises that dispute. He contends that a § 187 conviction is not an aggravated felony under the INA because it includes the killing of a fetus. Neither we, nor any of our sister circuits has addressed in a precedential decision whether the federal generic definition of murder in the INA's aggravated felony provision includes the killing of a fetus.³ The sensitive nature of this issue may explain the dearth of any precedent on it. In addressing the issue here, we first describe the framework that guides our analysis.

A. The Framework

We use the categorical and modified categorical approaches set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) to determine whether a state conviction is an aggravated felony under the INA. Lopez-Aguilar v. Barr , 948 F.3d 1143, 1146 (9th Cir. 2020).

Pursuant to the categorical approach, we "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime—i.e. , the offense as commonly understood." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). A state offense with the same or narrower elements as the generic offense defined by federal law is a categorical match. Lopez-Valencia v. Lynch , 798 F.3d 863, 867 (9th Cir. 2015). However, "[a] state statute is overbroad if there is a realistic probability of its application to conduct that falls beyond the scope of the generic federal offense."

Jauregui-Cardenas , 946 F.3d at 1119 (citation and internal quotation marks omitted).

If the statute of conviction is overbroad, we determine whether the statute is divisible. Medina-Lara v. Holder , 771 F.3d 1106, 1112 (9th Cir. 2014). A statute is divisible if it has "multiple, alternative elements, and so effectively creates several different crimes." Almanza-Arenas v. Lynch , 815 F.3d 469, 476 (9th Cir. 2016) (en banc) (citation and internal quotation marks omitted). If an offense has an indivisible set of elements with different means of committing one crime, it is indivisible, and our inquiry ends. Id.

If the statute is divisible, we apply the modified categorical approach and "examine judicially noticeable documents of conviction ‘to determine which statutory phrase was the basis for the conviction.’ " United States v. Martinez-Lopez , 864 F.3d 1034, 1039 (9th Cir. 2017) (en banc) (quoting Descamps , 570 U.S. at 268, 133 S.Ct. 2276 ). These documents include " ‘the charging document, the terms of a plea agreement,’ the ‘transcript of [the plea] colloquy,’ and ‘comparable judicial record[s],’ " such as the judgment. Marinelarena v. Barr , 930 F.3d 1039, 1045–46 (9th Cir. 2019) (en banc) (quoting Shepard , 544 U.S. at 26, 125 S.Ct. 1254 ). If the defendant's conviction satisfies the federal definition in light of such documents, it is an aggravated felony under the INA.

In accordance with this framework, we first ascertain the federal generic definition of "murder" and then compare § 187(a) with that definition.

B. The Federal Generic Definition of "Murder" Under the INA

When Congress added the aggravated felony provision to the INA in 1988, "murder" was one of the few offenses included in that provision. Anti-Drug Abuse Act (ADAA) of 1988, Pub. L. 100-690, §§ 7342, 7344, 102 Stat. 4469, 4470; see also Ledezma-Galicia v. Holder , 636 F.3d 1059, 1063–64 & n.5 (9th Cir. 2010) (discussing the ADAA amendments to the INA). Congress did not define the term ...