The BIA held in Matter of Perez Ramirez, 25 I. & N. Dec. 203 (B.I.A. Mar. 17, 2010), that (1) where a criminal alien’s sentence has been modified to include a term of imprisonment following a violation of probation, the resulting sentence to confinement is considered to be part of the penalty imposed for the original underlying crime rather than punishment for a separate offense and (2) an alien’s misdemeanor conviction for willful infliction of corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code qualifies categorically as a conviction for a “crime of violence” within the meaning of 18 USCA § 16(a).
The respondent, Antonio Perez Ramirez, is a native and citizen of Mexico and a lawful permanent resident of the U.S. On August 18, 2004, he was convicted pursuant to a nolo contendere plea in the Superior Court of California, County of Los Angeles, of the misdemeanor offense of inflicting corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code. The trial court did not impose a sentence for this offense but instead suspended imposition of a sentence and granted the respondent 36 months of “summary probation.” As a condition of this probation order, the trial court ordered the respondent to enroll in a 12-month batterer’s counseling program. The respondent was also ordered not to annoy, harass, or molest anyone involved in the case and was served with a copy of a protective order. On July 24, 2007, the respondent stipulated in open court to a probation violation, and the trial court found that he had violated the terms of his probation. His probation was reinstated and continued on the same terms and conditions except that he was also ordered to serve 365 days in the Los Angeles County Jail for his offense. In a decision dated June 24, 2009, an immigration judge (IJ) found the respondent removable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] as an alien convicted of a “crime of violence” for which the term of imprisonment is at least one year, which is an aggravated felony under INA § 101(a)(43)(F) [8 USCA § 1101(a)(43)(F)]. The respondent appealed to the BIA.
INA § 101(a)(43)(F) defines “aggravated felony” to include crimes of violence as defined in 18 USCA § 16(a) that resulted in a term of imprisonment of at least one year. 18 USCA § 16(a) in turn defines “crime of violence” to include either (1) an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or (2) an offense that is a felony that by its nature involves a substantial risk that physical force will be used against another in the course of its commission.
In an opinion written by Board Member Roger Pauley for the panel, which included Board Members Lauri S. Filppu and Patricia A. Cole, the Board rejected the respondent’s arguments that he was not convicted of a crime of violence for which the term of imprisonment was at least one year because (1) the use, attempted use, or threatened use of physical force against the person of another, which is required by 18 USCA § 16(a), need not be shown for a conviction under Cal. Penal Code § 273.5(a) because, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another, thus precluding any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another and (2) under California law, the 365-day jail term imposed by the trial court on July 24, 2007, did not represent a sentence to a “term of imprisonment of at least one year” in connection with his underlying criminal conviction but instead was the result of his probation violation and constituted only a condition of his reinstated and modified order of probation.
The Board first held that under Supreme Court, circuit court, including the Ninth Circuit, the circuit in which this case arose, and Board precedent, the modification of the respondent’s sentence following his probation violation, which resulted in a sentence of confinement for 365 days, must be considered to be part of the penalty imposed against him for the original crime giving rise to immigration proceedings rather than punishment for a separate offense. Thus, the respondent’s 365-day term of imprisonment, imposed following modification of his probation, represented a one-year sentence for violating Cal. Penal Code § 273.5(a).
The Board then turned to the respondent’s argument that his conviction was not a “crime of violence” under 18 USCA § 16 because the use, attempted use, or threatened use of physical force against the person of another, which 18 USCA § 16(a) requires, need not be shown for a conviction under Cal. Penal Code § 273.5(a), which provides that:
Any person who willfully inflicts upon a person who is his or her spouse … corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year …
Preliminarily, the Board found that, while this language would appear to only prescribe the allowable punishment for a felony, when it is read in conjunction with Cal. Penal Code § 17, it is clear that the provision in § 273.5(a) allowing for imprisonment in a county jail for not more than one year is the maximum possible punishment for a misdemeanor since under § 17 a felony is a crime that is punishable by death or imprisonment in the state prison and every other crime or public offense is a misdemeanor except those offenses classified as infractions. Therefore, the Board concluded that, because the respondent was ordered to serve 365 days in county jail, under California law, his offense would be excluded from the definition of a felony. Nevertheless, the Board pointed out, the respondent’s misdemeanor may be an “aggravated felony” since he was sentenced to a term of imprisonment for at least one year. The Board cited U.S. v. Gonzalez-Tamariz, 310 F.3d 1168, 1171 (9th Cir. 2002), which held that a crime may be classified as an aggravated felony under INA § 101(a)(43)(F) without regard to whether the crime is labeled a felony or a misdemeanor under state law when the crime is a “crime of violence” and the sentence imposed by the state court is one year.
The Board then addressed the question of whether the respondent’s conviction was for a “crime of violence.” The Board rejected the respondent’s contention that, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another and thus precludes any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another because California state court decisions have found that the term “willfully” as employed in § 273.5(a) means a purpose or willingness on the part of the actor to commit the act that results in corporal injury and have defined the term “inflicts” as used in § 273.5(a) as meaning that the corporal injury must result from a direct application of force by the perpetrator upon the victim. The Board further noted that § 273.5(c) defines “traumatic condition” as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” Since a person cannot be convicted under § 273.5(a) without willfully and directly applying upon another person a force that is of such violence as to cause a wound or external or internal injury to the victim, the Board was satisfied that the use of physical force against the person of another is an element of the offense within the meaning of 18 USCA § 16(a).
While § 7(1) provides that the term “willfully” does not require any intent to injure another, the Board concluded that the “volition” requirement implicit in the term “use” relates to the application of force against the victim and not to the resulting infliction of injury. Accordingly, the Board agreed with the IJ that the respondent’s California conviction for inflicting corporal injury on a spouse qualifies categorically as a conviction for a “crime of violence” under 18 USCA § 16(a) and that, since his conviction resulted in the imposition of a term of imprisonment of one year following his violation of probation, he is removable as an alien convicted of a “crime of violence” aggravated-felony offense. Accordingly, the respondent’s appeal was dismissed.
