Immigration Law

CA9 on Categorical Approach, CAT: Quijada-Aguilar v. Lynch

Court Staff Summary:

"The panel granted Walter Quijada-Aguilar’s petition for review of the Board of Immigration Appeals’ denial of his applications for withholding of removal under the Immigration and Nationality Act and the Convention Against Torture (CAT), as well as deferral of removal under CAT.

The panel held that the BIA erred in finding that QuijadaAguilar’s conviction and eleven-year sentence for voluntary manslaughter under California Penal Code § 192(a) constituted a categorical crime of violence and particularly serious crime (PSC). The panel held that because a person may be convicted under § 192(a) for reckless conduct, the statute encompasses a broader range of criminal intent than the federal definition of a crime of violence in 18 U.S.C. § 16, which requires intentional use of force or substantial risk that force will be intentionally used. The panel held that Quijada-Aguilar was thus not ineligible for withholding of removal based on having been convicted of an aggravated felony PSC, and granted his petition on that ground.

The panel also granted and remanded for the BIA to evaluate Quijada-Aguilar’s claim for deferral of removal under CAT by considering the aggregate risk of torture arising from Quijada-Aguilar’s family affiliation together with the risk arising from his status as a criminal deportee." - Quijada-Aguilar v. Lynch, Sept. 1, 2015.

[NOTE: Quijada-Aguilar was removed (deported) in 2013.  See footnote 1: "Although Quijada-Aguilar was removed to El Salvador in April of 2013, his case is not moot because his removal order resulted in concrete collateral consequences—specifically, a ten-year ban on returning to the United States—that would be addressed by a grant of this petition. Blandino-Medina v. Holder, 712 F.3d 1338, 1341–42 (9th Cir. 2013)."  Will he be found and brought back to the United States?]

[Hats off to the appointed pro bono team from the Palo Alto office of Gibson, Dunn & Crutcher: Robert E. Dunn, Frederick S. Chung and Shawn Liu (now Product/Privacy Counsel at Facebook)!]