Opinion
Argued April 13, 2001.
Submitted August 8, 2001
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Alien petitioned for review of an order of the Board of Immigration Appeals (BIA) finding him removable as an aggravated felon. The Court of Appeals held that California conviction for driving under the influence of alcohol with prior convictions was not a "crime of violence."
Petition granted.
Petition to Review a Decision of the Board of Immigration Appeals.
Before SCHROEDER, Chief Judge, D.W. NELSON and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Roberto Candelario Castillo-Galvan petitions for review of an order of the Board of Immigration Appeals finding him removable as an aggravated felon under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioner was convicted on May 22, 1998 of driving under the influence of alcohol with prior convictions, in violation of California Vehicle Code §§ 23152(b) and 23175.5.
In United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir.2001), we held that driving under the influence of alcohol and causing bodily injury, in violation of California Vehicle Code § 23153, is not a "crime of violence" as defined in 18 U.S.C. § 16. We reasoned that § 23153 could be violated through negligence, whereas a "crime of violence" could be committed only with a mental state of at least recklessness. See Trinidad-Aquino, 259 F.3d at 1144-1146.
Page 772.
Section 23152 is similar to § 23153, but lacks the element of bodily injury. Like § 23153, it can be violated through negligence, as can § 23175.5, which criminalizes multiple convictions under § 23152 or § 23153.
We therefore hold that Castillo-Galvan was not convicted of a "crime of violence," and accordingly was not convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(F).
PETITION GRANTED.