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Matter of Omar A. VALENZUELA, Respondent

Decided November 19, 2021

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The respondent’s conviction for carjacking under section 215(a) of the California Penal 

Code is categorically a conviction for an aggravated felony crime of violence under section 

101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2018).

FOR RESPONDENT: Lacey N. Sipsey, Esquire, San Diego, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: John D. Holliday, Assistant 

Chief Counsel

BEFORE: Board Panel: MULLANE, MANN, RILEY, Appellate Immigration Judges.

RILEY, Appellate Immigration Judge:

This case was last before us on January 10, 2019, when we dismissed the 

respondent’s appeal from an Immigration Judge’s decision after concluding 

that his conviction for carjacking in violation of section 215(a) of the 

California Penal Code was a conviction for an aggravated felony that 

rendered him removable as charged. This case is now before us on remand 

from the United States Court of Appeals for the Ninth Circuit for further 

consideration of the respondent’s removability and other issues. The appeal 

will again be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who was admitted to the 

United States in 1999 on a nonimmigrant visitor visa. In 2013, he was 

convicted of carjacking in violation of section 215(a) of the California Penal 

Code and sentenced to 5 years of imprisonment. Based on this conviction, 

he was placed in removal proceedings and charged with removability under 

section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1227(a)(2)(A)(iii) (2012), as a respondent convicted of an aggravated 

felony crime of violence for which the term of imprisonment is at least 1 year 

as defined in section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) 

(2012). This charge was later withdrawn and replaced with a charge of 

removability under the same provision, but for an aggravated felony theft 
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offense under section 101(a)(43)(G) of the Act. He was also charged with 

removability under section 237(a)(1)(B) of the Act, as a respondent present 

in the United States in violation of law. 

The Immigration Judge sustained the charge of removability under 

section 237(a)(1)(B) and found that the respondent’s carjacking offense was 

an aggravated felony theft offense that rendered him removable under section 

237(a)(2)(A)(iii) of the Act. The respondent declined to apply for any form 

of relief or protection from removal and affirmatively waived any application 

for protection under the Convention Against Torture, and the Immigration 

Judge ordered him removed to Mexico.

We dismissed the respondent’s appeal from the Immigration Judge’s 

decision, concluding that his carjacking offense under California law was 

categorically an aggravated felony theft offense under section 101(a)(43)(G). 

We did not address whether his offense was an aggravated felony crime of 

violence under section 101(a)(43)(F).

The respondent filed a petition for review with the Ninth Circuit, which 

granted the Government’s unopposed motion to remand. In its motion, the 

Government requested that we further consider whether the respondent’s 

carjacking offense is an aggravated felony theft offense under section 

101(a)(43)(G) and address any other issues relevant to the disposition of this

case. Following remand, the respondent argues that his carjacking offense is 

not an aggravated felony theft offense, and thus does not render him 

removable under section 237(a)(2)(A)(iii) of the Act or ineligible for relief 

or protection from removal. He requests that we remand the record to allow 

him to apply for relief before the Immigration Judge in the first instance. 

The parties do not dispute that the respondent remains removable as 

charged pursuant to section 237(a)(1)(B) of the Act. Thus, we need not 

address whether he was convicted of an aggravated felony theft offense that 

renders him removable under section 237(a)(2)(A)(iii) of the Act. The only 

remaining issue is whether the respondent is eligible for relief or protection 

from removal such that remand is warranted. 

For the reasons explained below, the respondent’s carjacking conviction 

is categorically a conviction for an aggravated felony crime of violence under 

section 101(a)(43)(F). In light of this conviction and the length of the

sentence imposed, the respondent is statutorily ineligible for relief and

protection from removal. Because the respondent is removable, ineligible 

for relief and protection, and affirmatively waived any application for 

protection from removal under the Convention Against Torture, we will deny 

his request for remand and dismiss his appeal. 
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II. ANALYSIS

Section 101(a)(43)(F) of the Act incorporates by reference 18 U.S.C. 

§ 16(a) (2018), which 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.” To determine whether the respondent’s 

carjacking offense is an aggravated felony, we “employ a ‘categorical 

approach’ to determine whether [this] offense is comparable” to a crime of 

violence under § 16(a). Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). 

Under this approach, we focus solely on whether the elements of the 

respondent’s statute of conviction match the elements of a crime of violence. 

See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). In so doing, we 

focus on whether the minimum conduct that has a realistic probability of 

being prosecuted under the statute of conviction falls within the definition of 

a crime of violence. Moncrieffe, 569 U.S. at 191. 

Section 215(a) of the California Penal Code provides:

“Carjacking” is the felonious taking of a motor vehicle in the possession of another, 

from his or her person or immediate presence, or from the person or immediate 

presence of a passenger of the motor vehicle, against his or her will and with the 

intent to either permanently or temporarily deprive the person in possession of the 

motor vehicle of his or her possession, accomplished by means of force or fear.

The Ninth Circuit has issued several precedents analyzing whether 

carjacking under section 215(a) of the California Penal Code is a crime of 

violence. This case law has evolved over time as the Supreme Court and the 

Ninth Circuit have refined the definition of a crime of violence under § 16(a),

other Federal statutes, and the United States Sentencing Guidelines. 

The Ninth Circuit first held that a conviction for carjacking under section 

215 of the California Penal Code is categorically a conviction for a crime of 

violence under section 101(a)(43)(F) of the Act in Nieves-Medrano 

v. Holder, 590 F.3d 1057, 1058 (9th Cir. 2010), abrogated by Solorio-Ruiz 

v. Sessions, 881 F.3d 733 (9th Cir. 2018), abrogated by Stokeling v. United 

States, 139 S. Ct. 544 (2019). In Nieves-Medrano, the court noted it had 

previously held that robbery in violation of section 211 of the California 

Penal Code is a categorical crime of violence under the Federal sentencing 

guidelines. Id. at 1057–58 (citing United States v. Becerril-Lopez, 541 F.3d 

881, 893 (9th Cir. 2008), superseded by regulation on other grounds as 

recognized in United States v. Bankston, 901 F.3d 1100, 1103–04 (9th Cir. 

2018)).

1

 Because the “same elements that make [section] 211 a crime of 

 1 In Becerril-Lopez, the court analyzed whether California robbery was a crime of 

violence under section 2L1.2 of the United States Sentencing Guidelines, not § 16(a). The 
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violence”—specifically, the “felonious taking of property in the presence of 

another ‘by means of force or fear’”—are present in section 215, the court 

concluded that a conviction for carjacking under the latter provision is 

a conviction for a crime of violence under § 16(a). Id. at 1058.

Following Nieves-Medrano, the Supreme Court issued Johnson v. United 

States, 559 U.S. 133 (2010), which addressed the degree of force necessary 

to commit a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(i) (2006). 

Section 924(e)(2)(B)(i) defines a “violent felony” as an offense that “has as 

an element the use, attempted use, or threatened use of physical force against 

the person of another.” For purposes of this provision, the Supreme Court 

held that “the phrase ‘physical force’ means violent force—that is, force 

capable of causing physical pain or injury to another person.” Johnson, 599 

U.S. at 140. In Matter of E. Velasquez, 25 I&N Dec. 278, 282 (BIA 2010), 

we held that Johnson’s interpretation of the “physical force” requirement in 

§ 924(e)(2)(B)(i) “controls our interpretation” of the “physical force” 

requirement in § 16(a). See also Arellano Hernandez v. Lynch, 831 F.3d 

1127, 1131 (9th Cir. 2016) (relying on Johnson in interpreting § 16(a)).

In light of Johnson, the Ninth Circuit abrogated its holding in 

Nieves-Medrano that carjacking under section 215 is a crime of violence. 

See Solorio-Ruiz, 881 F.3d at 736 (“Nieves-Medrano cannot stand in light of

Johnson.”). The court concluded that “California’s carjacking statute . . .

does not require the violent force that Johnson demands of a crime of 

violence” because “‘the application of force inherent [in driving a vehicle 

away]’ is enough to sustain a carjacking conviction [under section 215(a)], 

whenever the victim puts up the slightest resistance.” Id. at 737 (first 

alteration in original) (emphasis added) (citation omitted).

2

 While 

Solorio-Ruiz was controlling precedent, a carjacking offense under section 

 

court in Nieves-Medrano recognized that the definition of a crime of violence at section 

2L1.2 “differs slightly from” the one at § 16(a), because while the former is limited to 

offenses “against the person of another,” the latter reaches offenses “against the person or 

property of another.” 590 F.3d at 1058 (quoting U.S. Sentencing Guidelines Manual 

§ 2L1.2 cmt. 1 (U.S. Sentencing Comm’n 2008) and 18 U.S.C. § 16(a) (2006)). However, 

it stated there was “no meaningful distinction” between these provisions in determining 

whether the offense was an aggravated felony under section 101(a)(43)(F). Id.

2 In support of this conclusion, the court cited State case law for the proposition that 

“California carjacking ‘requires only force in excess of that required to seize the vehicle,’ 

however slight that may be.” Solorio-Ruiz, 881 F.3d at 737 (quoting People v. Hudson, 

217 Cal. Rptr. 3d 775, 782 (Cal. Ct. App. 2017)). In Hudson, the defendant was convicted 

of violating section 215(a) after he drove a car away from a dealership “at about 5 to 10 

miles per hour, while the dealership employee was attempting to stop [him].” Id. (citing 

Hudson, 217 Cal. Rptr. 3d at 777). The court found it significant that the defendant in 

Hudson satisfied section 215(a)’s “force requirement,” even though he drove the car “at 

a slow speed—i.e., at a nonviolent speed—and without harming a person or property.” Id.
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215(a) did not qualify as an aggravated felony crime of violence under 

section 101(a)(43)(F) within the jurisdiction of the Ninth Circuit.

After Solorio-Ruiz, the Supreme Court held in Stokeling, 139 S. Ct. at

555, that the “violent force” necessary to commit a “violent felony” under 

18 U.S.C. § 924(e)(2)(B)(i)—that is, “force capable of physical pain or 

injury”—“includes the amount of force necessary to overcome a victim’s 

resistance.” (Emphasis added.) The Court noted its holding “comports with 

Johnson” because “the force necessary to overcome a victim’s physical 

resistance is inherently ‘violent’ in the sense contemplated by Johnson, and 

‘suggest[s] a degree of power that would not be satisfied by the merest 

touching.’” Id. at 552–53 (alteration in original) (quoting Johnson, 559 U.S. 

at 139).

In United States v. Baldon, the Ninth Circuit concluded that “Solorio-Ruiz

is clearly irreconcilable with the Supreme Court’s decision in Stokeling” 

because the Court’s decision abrogated the “analytical distinction between 

substantial and minimal force” that was central to the court’s reasoning in 

Solorio-Ruiz. 956 F.3d 1115, 1120–21 (9th Cir. 2020). “As a result, 

Solorio-Ruiz’s holding is no longer good law.” Id. at 1121. Nevertheless, 

the court concluded that its prior holding in Nieves-Medrano that California 

carjacking was a crime of violence did not control in the Federal sentencing 

context. The court reached this conclusion for two reasons. First, the court 

noted that it recently abrogated Becerril-Lopez, the sentencing case on which 

Nieves-Medrano had relied. Second, the court’s “legal conclusion in 

Nieves-Medrano rested on a crime of violence definition” under § 16(a) that 

was “broader than the one applicable” to the case before it: the definition at 

section 4B1.2(a) of the Federal sentencing guidelines. Id. at 1122.

This provision defines a crime of violence, in relevant part, as an offense 

that “has as an element the use, attempted use, or threatened use of physical 

force against the person of another.” U.S. Sentencing Guidelines Manual 

§ 4B1.2(a)(1) (U.S. Sentencing Comm’n 2018) (emphasis added). Because 

“section 215 may be violated through fear of injury to property alone, without 

any fear of injury to a person,” the court found that “the statute ‘criminalizes 

a broader range of conduct than the federal [sentencing] definition 

captures.’” Baldon, 956 F.3d at 1123–24 (citation omitted). The court 

therefore found that section 215 is not a categorical match for the definition 

of a crime of violence at section 4B1.2(a)(1) of the sentencing guidelines.

Although Baldon controls in the sentencing context, it did not address the 

relevant issue in this case: whether carjacking under section 215(a) of the 

California Penal Code is a crime of violence under § 16(a), and thus an 

aggravated felony under section 101(a)(43)(F) of the Act. Unlike the 

sentencing guidelines’ definition of a crime of violence at section 

4B1.2(a)(1), which does not encompass crimes against property, the 
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definition at § 16(a) explicitly reaches crimes “against the person or property 

of another.” 18 U.S.C. § 16(a) (emphasis added). Thus, although 

a “carjacking accomplished by fear of injury to property” falls outside the 

definition of a crime of violence at section 4B1.2(a)(1), it falls squarely 

within the broader definition of a crime of violence at § 16(a), which covers

crimes against both persons and property. Baldon, 956 F.3d at 1125; see also 

id. at 1122 (providing that the crime of violence definition at § 16(a) is 

“broader than the one” in the sentencing guidelines).

Because the respondent’s statute of conviction “has as an element the use, 

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

property of another,” we hold that his conviction for carjacking under section 

215(a) of the California Penal Code is categorically one for a crime of 

violence under § 16(a). Pursuant to Stokeling, the degree of force necessary 

to accomplish a carjacking under California law—that is, force necessary to 

overcome a victim’s resistance—satisfies the “physical force” requirement 

of § 16(a), and the Ninth Circuit’s decision in Solorio-Ruiz is no longer 

controlling. Baldon, 956 F.3d at 1121. The respondent does not dispute that 

his State crime—for which he was sentenced to 5 years of imprisonment—

is one “for which the term of imprisonment [is] at least one year” as required 

by section 101(a)(43)(F) of the Act. 

Consequently, remand is not warranted in this case. The respondent is 

removable as charged under section 237(a)(1)(B) of the Act, his conviction 

for an aggravated felony renders him ineligible for relief and protection from 

removal,

3 and he affirmatively waived his opportunity to seek deferral of 

removal under the Convention Against Torture. See 8 C.F.R. § 1208.17 

(2021). Accordingly, his appeal will again be dismissed.

ORDER: The respondent’s appeal is dismissed.

 3 The respondent did not specify the forms of relief or protection from removal he would 

seek on remand. However, his aggravated felony conviction, for which he was sentenced 

to 5 years in prison, renders him ineligible for asylum, withholding of removal under the 

Act and the Convention Against Torture, cancellation of removal, and voluntary departure. 

See sections 208(b)(2)(A)(ii), (B)(i), 240A(b)(1)(C), 240B(b)(1)(C), 241(b)(3)(B) of the 

Act, 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i), 1229b(b)(1)(C), 1229c(b)(1)(C), 1231(b)(3)(B) 

(2018); 8 C.F.R. § 1208.16(d)(2) (2021). There is also no indication that the respondent

has satisfied the prerequisites for adjustment of status.