FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AURORA OLEA-SEREFINA, AKA No. 20-72231 Zerefina Aurora Olea Daza, Aurora Seferina Olea, Aurora Olea-Zerefina, Agency No. Petitioner, A074-306-081 v. OPINION MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 8, 2021 * San Francisco, California Filed May 19, 2022 Before: Susan P. Graber and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves, Judge ** Opinion by Judge Collins * The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. 2 OLEA-SEREFINA V. GARLAND SUMMARY *** Immigration Denying in part and dismissing in part Zerefina Aurora Olea Daza’s petition for review of a decision of the Board of Immigration Appeals, the panel held that Olea’s conviction for corporal injury upon a child, in violation of California Penal Code § 273d(a), is a crime of violence aggravated felony that made her ineligible for cancellation of removal. The Immigration and Nationality Act (“INA”) defines “aggravated felony” to include a “crime of violence (as defined in section 16 of title 18 . . .) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). Because Olea’s conviction records confirmed a jail term of 365 days, the panel explained that whether Olea was convicted of an aggravated felony turned solely on whether a violation of § 273d(a) constitutes a “crime of violence” under 18 U.S.C. § 16. Section 16(a) defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The panel explained that, under the categorical approach, the key question here was whether the offense defined in § 273d(a) contains, as an element, the actual, attempted, or threatened use of “physical force,” which the Supreme Court has held means “violent physical force,” – that is, force capable of causing physical pain or injury. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. OLEA-SEREFINA V. GARLAND 3 The panel explained that the relevant language of § 273d(a) imposes criminal punishment on any “person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” The BIA noted that this phrasing is very similar to California Penal Code § 273.5(a), which punishes any “person who willfully inflicts corporal injury resulting in a traumatic condition upon” specified persons. Because this court has held that a violation of § 273.5(a) is categorically a crime of violence, the BIA concluded that the same must be true for § 273d(a), which includes comparable language and which, in all events, requires physical harm to the child. Olea contended that the statutes differ …
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