FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO SOLORIO-RUIZ, AKA No. 16-73085 Alejandro Cervantes-Calderon, AKA Manuel Ortiz Espinosa, AKA Mark Agency No. Anthony Lopez, AKA Robert A034-223-887 Salazar, Petitioner, OPINION v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 6, 2017 San Francisco, California Filed January 29, 2018 Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Jennifer G. Zipps,* District Judge. Opinion by Judge Graber * The Honorable Jennifer G. Zipps, United States District Judge for the District of Arizona, sitting by designation. 2 SOLORIO-RUIZ V. SESSIONS SUMMARY** Immigration The panel granted Roberto Solorio-Ruiz’s petition for review of the Board of Immigration Appeals’ decision, holding that his conviction for carjacking under California Penal Code § 215(a) is not a crime of violence aggravated felony under 8 U.S.C. § 1101(a)(43)(F) that made him ineligible for relief from removal, and remanded for the agency to determine whether the conviction is a theft offense aggravated felony under 8 U.S.C. § 1101(a)(43)(G). The panel held that Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010), which squarely held that a conviction for carjacking under California Penal Code § 215 is categorically a crime of violence under 8 U.S.C. § 1101(a)(43)(F), cannot stand in light of Johnson v. United States, 559 U.S. 133, 140 (2010), which held that the physical force that a crime of violence entails must be “violent force—that is, force capable of causing physical pain or injury to another person.” Examining California case law, the panel concluded that, because the California carjacking statute does not require the violent force that Johnson demands, the statute is not a crime of violence. Because the Board did not consider the immigration judge’s alternate holding that Solorio-Ruiz’s carjacking conviction qualifies as a theft offense aggravated felony ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SOLORIO-RUIZ V. SESSIONS 3 under 8 U.S.C. § 1101(a)(43)(G), the panel remanded for the Board to consider that issue in the first instance. COUNSEL Jayashri Srikantiah (argued), Supervising Attorney; Brittany Benjamin (argued) and Adam Hersh (argued), Certified Law Students; Immigrants’ Rights Clinic, Mills Legal Clinic, Stanford Law School, Stanford, California; for Petitioner. Melissa K. Lott (argued), Trial Attorney; Melissa Neiman- Kelting, Assistant Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. OPINION GRABER, Circuit Judge: Petitioner Roberto Solorio-Ruiz, a native and citizen of Mexico, petitions for review of a final order of removal. Petitioner stands convicted of carjacking in violation of California Penal Code § 215(a). An immigration judge (“IJ”) ruled that Petitioner’s crime of conviction is an aggravated felony, making him ineligible for relief from removal, because (1) the carjacking offense is a crime of violence, and (2) the carjacking offense is a theft offense. The Board ...
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