Delgado-Hernandez v. Holder

Ordinary kidnapping under California Penal Code § 207(a) “is a crime of violence because it results in a substantial risk of force.”

Boris Edember Delgado-Hernandez (“Delgado”), a citizen of El Salvador, became a lawful permanent resident of the United States in 2003. Delgado was sentenced to eighteen months in prison after he pled guilty under California Penal Code § 207(a) for the attempted kidnapping of his cousin. Removal proceedings were initiated against Delgado by the Department of Homeland Security under the Immigration and Nationality Act (“INA”) as “an alien convicted of an aggravated felony.” Delgado appealed the Immigration Judge’s conclusion. The Board of Immigration Appeals (“BIA”) affirmed the decision because § 207(a) is categorically a crime of violence. Delgado appealed arguing that § 207(a) does not qualify as a crime of violence. The Ninth Circuit applied the categorical approach to see if § 207(a) fit as a crime of violence under the two definitions provided in 18 U.S.C. §16. Under § 16(a), § 207(a) did not qualify as a crime of violence because on its face it does not contain physical force as an element of the crime. Under §16(b), the language of §207(a) on its face did not show § 207(a) as crime of violence because the statute did not say it involved a substantial risk of force. However, the Ninth Circuit previously held that kidnapping by force or fraud under § 207(d) presents a serious risk of physical injury. The Ninth Circuit concluded that kidnapping under § 207 is a crime of violence under § 16(b). Consistent with historical practice, forty jurisdictions, Congress, and the Sentencing Commission have concluded that kidnapping was a violent crime. The Ninth Circuit used the categorical approach and held that under § 207(a) ordinary kidnapping was a crime of violence because there was a substantial risk of force. The Ninth Circuit concluded that BIA did not err in deciding to deny Delgado’s appeal. PETITION DENIED.