by Sam Rutherford

The U.S. Court of Appeals for the Ninth Circuit held that a carjacking conviction under California Penal Code § 215(a) is not categorically a crime of violence under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-­1537, because that state crime does not require proof that the defendant used, attempted to use, or threatened to use physical force against the person or property of another.

Background

Sergio Manrique Gutierrez was born in El Salvador and entered the U.S. with his family in 1986 when he was three or four years old, becoming a lawful permanent resident shortly thereafter. In 2006, Gutierrez was convicted of carjacking under Cal. Pen. Code § 215(a). Gutierrez was also convicted of petty theft under Cal. Pen. Code § 484(a) in a separate incident on an unspecified date.

The Government served on Gutierrez a Notice to Appear in immigration court, contending that he was removable because of these convictions. Specifically, the Government contended that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because the carjacking was an aggravated felony crime of violence as defined in 8 U.S.C. § 1101(a)(43)(F) and an aggravated felony theft offense as defined in 8 U.S.C. § 1101(a)(43)(G). The Government also asserted that Gutierrez was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two or more crimes of moral turpitude based on his carjacking and petty theft convictions.

The immigration judge sustained the charge that Gutierrez was removable for having been convicted of a crime of violence based on the carjacking conviction but declined to sustain the two or more crimes of moral turpitude charge because the Government failed to provide evidence of the theft conviction. The immigration judge later reversed itself on the moral turpitude charge, concluding that Gutierrez was in fact removable for this reason as well. The immigration judge never addressed whether he was removable because carjacking is an aggravated theft offense.

Gutierrez then applied for asylum, withholding of removal, and Convention Against Torture (“CAT”) protection, but the immigration judge denied the requests. The immigration judge specifically held that Gutierrez was not credible in connection with these requests.

Gutierrez timely appealed these determinations to the Board of Immigration Appeals (“BIA”), which affirmed. The BIA concluded that carjacking is a crime of violence under the INA and therefore rendered him removable. The BIA also held that Gutierrez waived any challenge to the immigration judge’s moral turpitude ruling by failing to brief the issue. The BIA also said that it would have refused Gutierrez’s request waiver of inadmissibility as a matter of discretion, so it refused to address the immigration judge’s ruling on this issue. Finally, the BIA affirmed the immigration judge’s adverse credibility determinations and rejection of Gutierrez’s requests for asylum and CAT protection.

Gutierrez retained new counsel and attempted to reopen his BIA appeal, arguing that he was mentally incompetent based on newly presented evidence and that he had received ineffective assistance of counsel. The BIA rejected this request and again affirmed the immigration judge.

Gutierrez filed two petitions for review of the BIA decisions, which the Ninth Circuit consolidated, affirming in part and reversing in part.

Analysis

The Court’s decision in this case covers many topics beyond the scope of this opinion summary, but its primary ruling addresses whether carjacking under Cal. Pen. Code § 215(a) is categorically a crime of violence for purposes of the INA. The other issues in this case are only briefly discussed, so readers are encouraged to review the Court’s full opinion for more information.

Before turning to the Court’s analysis on that issue, however, it is important to note that the Ninth Circuit held, in a case decided after the immigration proceedings in Gutierrez’s case, that carjacking convictions under § 215(a) are not aggravated theft offenses as defined in 8 U.S.C. § 1101(a)(43)(G) and therefore do not provide grounds for removal. United States v. Orozco-­Orozco, 94 F.4th 1118 (9th Cir. 2024) (holding that § 215(a) carjacking “is not a categorical match for a generic theft offense and thus is not an aggravated felony”). So, even though the immigration judge and BIA never addressed this charge, it clearly does not provide grounds for Gutierrez’s removal.

The Court held in the present case that carjacking is not a crime of violence. Under the INA, any noncitizen previously convicted of an aggravated felony crime of violence is removable. § 1227(a)(2)(A)(iii). Courts apply the categorical approach when determining whether a conviction constitutes an aggravated felony crime of violence under 18 U.S.C. § 16(a). See Taylor v. United States, 495 U.S. 575 (1990). Under this approach, courts compare the elements of the state crime with the federal definition of “crime of violence” to determine whether the state offense criminalizes a broader range of conduct than the federal definition. United States v. Baldon, 956 F.3d 1115 (9th Cir. 2020).

“If the state offense proscribes conduct beyond the federal definition, it will not qualify as a crime of violence.” Id. But there must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Gonzales v. Duenas-­Alvarez, 549 U.S. 183 (2007). The noncitizen’s actual conduct underlying the state offense is irrelevant. Moncrieffe v. Holder, 569 U.S. 184 (2013). Instead, courts focus on the “outer contours” of the conduct the state statute criminalizes by reference to state court decisions interpreting the statute. Baldon.

The Ninth Circuit had previously determined that carjacking under California law does not qualify as a crime of violence because the state statute permits a conviction based on only “slight force” necessary to overcome the victim’s resistance; whereas, the federal definition requires proof of “violent force—that is, force capable of causing physical pain or injury to another person.” Solorio-­Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018). The Solorio-­Ruiz Court based this holding on Johnson v. United States, 559 U.S. 133 (2010), which adopted a similar construction of “violent force.” However, in 2019, the U.S. Supreme Court revisited Johnson and reformulated the definition of “violent force” as force sufficient to overcome “a victim’s resistance, ‘however slight’ that resistance might be.” Stokeling v. United States, 586 U.S. 73 (2019). This new formulation undermined the holding in Solorio-­Ruiz, requiring the Ninth Circuit to address the issue anew in Gutierrez’s case.

Gutierrez argued that carjacking under § 215(a) is not a crime of violence as defined by federal law because “(1) a defendant can be convicted of California carjacking on fear alone—force is not required as it is in the generic crime; and (2) California carjacking criminalizes the reckless use of force, while the generic crime requires purposeful or knowing use of force.” The Court addressed each contention in turn and agreed with Gutierrez.

“In the crime of violence context, [courts] compare the state statute to 18 U.S.C. § 16(a), rather than a generic assault statute, and we will only find a categorical match if every violation of the statute necessarily involves violent force.” Amaya v. Garland, 15 F.4th 976 (9th Cir. 2021) (internal quotation marks and citation omitted). Carjacking is not a crime of violence under this test because § 215(a) describes the use of “force or fear” to overcome a victim’s resistance, while 18 U.S.C. § 16(a) prohibits only the use of “force.” Thus, the state statute is not a categorical match to the federal definition because it “defines the crime more broadly than the generic federal offense.” United States v. Bautista, 989 F.3d 698 (9th Cir. 2021).

Federal law defines the generic “crime of violence” as the “use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). California law, however, states that carjacking may be “accomplished by means of force or fear.” Cal. Pen. Code § 215(a). California law does not separate the “force or fear” requirement into separate elements and permits a jury to convict a defendant of carjacking even if its members are not unanimous as to the means used to commit the crime. See Baldon. Thus, a “plain reading” of § 2015(a) “defines carjacking more broadly than section 16(a) by not requiring the use of force.”

California case law also supports this conclusion. As Gutierrez pointed out, at least one published decision upheld a carjacking conviction based solely on evidence that the defendant used fear alone to overcome the victim’s resistance. In People v. Magallanes, 173 Cal. App. 4th 529 (2009), the defendant jumped in the open door of a vehicle as its owner was attempting to place her infant child in the rear seat. The defendant never said a word to or even looked at the victim and instead simply drove off while she screamed obscenities at him. Her testimony that she was scared was sufficient to uphold the carjacking conviction. No proof of force was required.

The Government argued that § 215(a) is not broader than the generic crime because its proscription of carjacking through fear alone is consistent with § 16(a)’s definition that a crime of violence is one that involves the “threatened use of force.” But as noted above, the categorical approach requires determining whether there is a “realistic possibility” that the state statute applies to conduct that “falls outside” the generic federal definition. Moncrieffe. Here, while it is possible California might apply the carjacking statute in some cases involving the threatened use of force, the appellate opinion in Magallanes “rejected the proposition that the use of fear necessarily includes the threat of force.” In fact, the California court specifically stated that a defendant need not “directly engage or threaten [the victim] in order to accomplish the carjacking through fear.” Magallanes.

The Court therefore concluded “that California carjacking is not a categorical crime of violence” because the “plain language of Cal. Pen. Code § 215(a) and Magallanes demonstrate that there is a ‘realistic probability, not a theoretical possibility,’ … that a defendant could be convicted of carjacking” based on conduct not defined as a crime of violence under 18 U.S.C. § 16(a). Quoting Duenas-­Alvarez.

But this was not the only reason § 215(a) was not categorically comparable to § 16(a). In Leocal v. Ashcroft, 543 U.S. 1 (2004), the U.S. Supreme Court reasoned that the “key phrase in § 16(a)—the ‘use … of physical force against the person or property of another’—most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” The Supreme Court has also stated that “[t]he ‘against’ phrase indeed sets out a mens rea requirement—of purposeful or knowing conduct.” Borden v. United States, 593 U.S. 420 (2021). The Ninth Circuit, sitting en banc, has similarly concluded that § 16(a) requires “the intentional use of force against the person or property of another” and does not “include offenses committed through the reckless, or grossly negligent, use of force.” Fernandez-­Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc).

Section 215(a), however, does not require that the defendant have any mens rea, or intent, with respect to the force or fear used to accomplish carjacking. Instead, under the statute, a defendant need only “intend” to “deprive” someone of their “motor vehicle.” California’s model jury instructions confirm this interpretation of the statute, as does California case law demonstrating that “the willful application of force in effecting an escape is key, rather than the perpetrator’s intent to apply force against a victim.” People v. Hudson, 11 Cal. App. 5th 831 (2017).

California’s interpretation of its robbery statute also supports this interpretation of § 215(a) since carjacking is an “offshoot” of robbery. Baldon. In robbery cases, the defendant need not intend to use force to acquire property and, in fact, may accomplish it through the accidental use of force. See United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015). In Dixon, the Ninth Circuit held that robbery under California law is not a crime of violence under the Armed Career Criminal Act and therefore may not be used to enhance a federal offender’s sentence because it is not comparable to the federal definition which requires purposeful or knowing conduct.

Similarly, § 16(a)’s definition of crime of violence requires that the defendant knowingly and purposefully use force; whereas, § 215(a) permits someone to be convicted of carjacking when they accidently or recklessly use force. Given this difference in the mens rea elements, the Court concluded that “Cal. Pen. Code § 215(a) is not a categorical match to 18 U.S.C. § 16(a).”

Thus, the Court concluded that the BIA erred in holding that carjacking under California law is an aggravated felony that renders a noncitizen removable under the INA. The Court also held that the BIA erred in determining that Gutierrez waived his right to challenge the immigration judge’s determination that his carjacking and petty theft convictions amounted to two or more convictions for crimes involving moral turpitude, thereby rendering him removable under 8 U.S.C. § 1227 (a)(2)(A)(ii). As the Government conceded, the BIA wrongly held that Gutierrez “raise[d] no argument” concerning this issue, so the Court remanded his appeal to the BIA for it to consider in the first instance whether this “only remaining” charge against him warranted removal.

Conclusion

Accordingly, the Court reversed the BIA order in Gutierrez’s appeal and remanded the case for further proceedings consistent with its opinion. See: Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024).  

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