FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERMIN NIEVES-MEDRANO, AKA 

Fermin Nedrano Nieves, No. 09-71949 Petitioner,

Agency No.

v.  A044-546-455

ERIC H. HOLDER JR., Attorney ORDER General,

Respondent. 

On Petition for Review of an Order

of the Board of Immigration Appeals

Submitted October 19, 2009

Filed January 7, 2010

Before: Stephen S. Trott, William A. Fletcher and

Johnnie B. Rawlinson, Circuit Judges.

COUNSEL

Fermin Nieves-Medrano, Pro se, petitioner.

Michelle Y. F. Sarko, United States Department of Justice,

Office of Immigration Litigation, Washington, D.C., for the

respondent.

ORDER

Petitioner was convicted of carjacking in violation of California Penal Code § 215 and sentenced to three years of

467
imprisonment. The Board of Immigration Appeals (“BIA”)

affirmed the Immigration Judge’s finding that petitioner was

removable for an aggravated felony “crime of violence.” Petitioner seeks review of the BIA’s decision. We have jurisdiction to review constitutional claims and questions of law. See

8 U.S.C. § 1252(a)(2)(D); Lisbey v. Gonzales, 420 F.3d 930,

932 (9th Cir. 2005) (concluding court has jurisdiction to

determine whether conviction constitutes “crime of violence”). 

This court has held that a conviction for robbery in violation of California Penal Code § 211 is a categorical “crime of

violence” under the Sentencing Guidelines. See United States

v. Becerril-Lopez, 541 F.3d 881, 893 (9th Cir. 2008) (“[W]e

hold that a conviction under Cal. Penal Code § 211 could only

result from conduct that constitutes a ‘crime of violence’ for

purposes of U.S.S.G. § 2L1.2.”). Although the definition in

U.S.S.G. § 2L1.2 differs slightly from that used for immigration cases, 8 U.S.C. §§ 1101(a)(43)(F) (“crime of violence”

defined by 18 U.S.C. § 16), there is no meaningful distinction

for purposes of this petition. Compare U.S.S.G. § 2L1.2, cmt.

n.1 (2008) (defining “crime of violence” as certain listed

offenses or as “any other offense . . . that has as an element

the use, attempted use, or threatened use of physical force

against the person of another”) with 18 U.S.C. § 16(a) (defining “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”) (emphasis added).

The same elements that make § 211 a crime of violence are

also required in § 215. They include the felonious taking of

property in the presence of another “by means of force or

fear.” Compare Cal. Penal Code § 211 with Cal. Penal Code

§ 215. We conclude 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). See Becerril-Lopez,

541 F.3d at 893. Accordingly, petitioner is removable pursuant to 8 U.S.C. § 1227(A)(2)(a)(iii). 

468 NIEVES-MEDRANO v. HOLDER
Petitioner’s contention that the BIA’s decision was boilerplate is without merit. The BIA analyzed the aggravated felony issue in detail. Petitioner’s due process and equal

protection arguments are similarly unavailing.

All pending motions are denied as moot. The temporary

stay of removal confirmed by Ninth Circuit General Order

6.4(c) shall continue in effect until issuance of the mandate.

PETITION FOR REVIEW DENIED.

NIEVES-MEDRANO v. HOLDER 469