SAN FRANCISCO (CN) – A prior conviction for carjacking in California can no longer serve as the sole basis for deporting an immigrant with legal permanent resident status, a Ninth Circuit panel ruled Monday.
A three-judge panel held that violating California’s anti-carjacking law is not inherently a “crime of violence” that makes a lawful permanent resident deportable under federal law.
“I think this case really clarifies that only truly violent offenses can be deportable,” said Brittany Benjamin, a third-year Stanford University law student, with the college’s Mills Legal Clinic, who represented the petitioner, Roberto Solorio-Ruiz.
Solorio-Ruiz, 48, was convicted of carjacking in 1995 and sentenced to 10 years in prison, which was increased to 21 years and four months for evading arrest and other aggravating factors.
Upon his release from prison in 2015, Solorio-Ruiz was immediately arrested and held at an immigration detention center where he remains today. The 48-year-old arrived in the U.S. in 1973 when he was four years old, and is a legal permanent resident, according to his attorney.
In September 2016, Solorio-Ruiz challenged a Board of Immigration Appeals finding that his prior carjacking conviction made him ineligible for a waiver from removal, a form of relief from deportation available to permanent residents that have lived in the U.S. for at least seven years.
The Board of Immigration Appeals sided with the U.S. government’s interpretation that violating California’s carjacking law is a “crime of violence” that makes one ineligible for relief from deportation.
While the Ninth Circuit had previously held that violating California’s carjacking law was a “crime of violence” under federal law, it changed its thinking on Monday.
Writing for the panel, U.S. Circuit Judge Susan Graber said the U.S. Supreme Court’s 2010 ruling in Johnson v. United States redefined what a “crime of violence” is under federal law and forced the appeals court to reconsider its prior conclusions.
In Johnson, the Supreme Court held that a crime of violence must entail “violent force … capable of causing physical pain or injury to another person.”
Another ruling by the California Court of Appeals made clear that one need not commit an act of violence to be convicted of carjacking under California law.
In 2017, the California appeals court upheld the conviction of a man who stole a car from a dealership as an employee tried to stop him by banging on the trunk, opening the driver’s door, and trying to grab the thief.
In that 2017 ruling, People v. Hudson, there was no evidence that the defendant drove the car “forcefully or fast,” yet he was still convicted of carjacking.
“As Hudson shows, one can satisfy section 215(a)’s force requirement by driving a car at a slow speed—i.e., at a non-violent speed—and without harming a person or property,” Graber wrote in the 11-page opinion.
This finding contradicts the Ninth Circuit’s prior 2010 ruling in Nieves-Medrano v. Holder, which held that carjacking under California law was “categorically a ‘crime of violence'” under federal law.
“Importantly, this Ninth Circuit ruling overrules prior Ninth Circuit precedent,” Benjamin said. “The Ninth Circuit recognized the Supreme Court ruling that says it’s only the worst of the worst who the federal government is going to deport.”
However, the panel separately held that being convicted of carjacking under federal law would still qualify as a crime of violence because the federal statute requires “intent to cause death or serious bodily harm” or taking a vehicle “by force and violence or by intimidation.”
The Ninth Circuit reversed the finding that Solorio-Ruiz is ineligible for relief from deportation and remanded the case back to the Board of Immigration Appeals.
The board must now consider the U.S. government’s separate argument that the carjacking is a crime of felony theft under federal law, which would also make Solorio-Ruiz deportable.
“If the board determines that carjacking is an aggravated felony theft, then we will continue to appeal but we feel the law is strong for our client,” Benjamin said.
Benjamin’s colleague, fellow third-year Stanford law student Adam Hersh, also represented Solorio-Ruiz in the case under the supervision of Stanford University professor Jayashri Srikantiah. Hersh argued before the Ninth Circuit panel in December 2017.
Solorio-Ruiz has assumed various aliases including Alejandro Cervantes-Calderon, Manuel Ortiz Espinosa, Mark Anthony Lopez, and Robert Salazar, according to his appeals court case docket.
U.S. Circuit Judge N. Randy Smith and U.S. District of Arizona Judge Jennifer Zipper, sitting by designation, joined Graber on the panel.
A U.S. Justice Department spokesperson declined to comment.