NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICARDO JOSE HERDOCIA JARQUIN, No. 19-70266 AKA Ricardo Jose Herdocia, Agency No. A028-749-019 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 2, 2021 Portland, Oregon Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,** District Judge. Petitioner Ricardo Jose Herdocia Jarquin petitions for review of a final order of the Board of Immigration Appeals (“BIA”) finding him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because of his conviction under California Penal * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. Page 2 of 4 Code § 417.8. We have jurisdiction under 8 U.S.C. § 1252 and review de novo whether a conviction under state law constitutes a removable offense. Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016). We grant the petition and remand. In 2018, the Immigration Judge (“IJ”) ordered Herdocia Jarquin removed as a person who has committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), based on his conviction for a crime of violence pursuant to 8 U.S.C. § 1101(a)(43)(F). A crime of violence is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another[.]” 18 U.S.C. § 16(a). The sole ground of removability was Herdocia Jarquin’s 2014 conviction under California Penal Code § 417.8, which makes it a crime to “draw[] or exhibit[] any firearm, whether loaded or unloaded, or other deadly weapon, with the intent to resist or prevent the arrest or detention of himself or another by a peace officer[.]” The IJ concluded that Herdocia Jarquin’s conviction under California Penal Code § 417.8 also rendered him ineligible for asylum and withholding of removal. See 8 U.S.C. § 1158(b)(2)(A)(ii); 1158(b)(2)(B)(i). On appeal to the BIA, Herdocia Jarquin argued that his offense under California Penal Code § 417.8 was not a crime of violence. The BIA discerned no basis to reverse the Immigration Judge’s decision, relying on our opinion in Reyes- Page 3 of 4 Alcaraz v. Ashcroft, in which we held that a conviction under California Penal Code § 417.8 necessarily involves a threatened use of physical force and is thus a crime of violence under 18 U.S.C. § 16(a). 363 F.3d 937, 941 (9th Cir. 2004). Herdocia Jarquin argues that California Penal Code § 417.8 is not a crime of violence because it does not categorically require force against another. The government contends that this argument is foreclosed by our holding in Reyes- Alcaraz. However, in Reyes-Alcaraz we did not consider whether a conviction under California Penal Code § 417.8 required the use or threatened use of …
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals