Bolanos v. Holder

California Penal Code § 417.3, brandishing a firearm in the presence of an occupant of a motor vehicle, is an aggravated felony because of the threat of use of force; as such a permanent resident convicted under § 417.3 may be removed.

William Ernesto Jimenez Bolanos, a legal permanent resident of the United States, pled guilty to "brandishing a firearm in the presence of an occupant of a motor vehicle" in violation of Cal. Penal Code § 417.3. Because the crime was gang-related, Bolanos received a sixteen-month sentence in addition to a stayed two-year sentence. The Department of Homeland Security served Bolanos with a notice demanding that he appear for removal proceedings. Under 8 U.S.C. § 1227(a)(2)(C), an individual is removable from the United States if that individual has been convicted of a firearm offense, ineligible for cancellation of that removal under 8 U.S.C. § 1229b(a)(3) as well as ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A)(ii) and (b)(2)(B)(I). The immigration judge ("IJ") found that Bolanos was eligible for removal and ineligible for asylum. He appealed the Board of Immigration Appeals ("BIA"), claiming that Cal. Penal Code § 417.3 was not a violent crime. BIA affirmed the IJ's decision. The Ninth Circuit, found that Bolanos was convicted of a violent crime. The panel looked to the statute's plain language, which stated that to be guilty, an individual had to intentionally have brandished the firearm "in such a way that a reasonable target of the threat would actually fear bodily harm." The panel found this to be a violent crime, due to Bolanos' intent to place the victim in fear, as well as an aggravated felony; therefore Bolanos was ineligible for cancellation of removal from the United States and ineligible for asylum. DISMISSED.