Javier Arellano Hernandez v. LORETTA E. LYNCH, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER ARELLANO HERNANDEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney
General,
Respondent.
No. 11-72286
Agency No.
A017-214-318
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 12, 2016
San Francisco, California
Filed August 1, 2016
Before: J. Clifford Wallace, Mary M. Schroeder,
and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith

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SUMMARY*
Immigration
The panel denied Javier Arellano Hernandez’s petition for
review of the Board of Immigration Appeals’ decision finding
him removable and ineligible for cancellation of removal
because his conviction for attempted criminal threats
constitutes a crime of violence and aggravated felony.
The panel held that Arellano Hernandez’s conviction for
criminal threats under California Penal Code § 422 is a
categorical crime of violence, and that the § 664 “attempt”
portion did not alter the crime of violence determination. The
panel also held that Arellano Hernandez’s § 422 conviction,
which is a wobbler offense punishable under California law
as a felony or misdemeanor, is an aggravated felony because
the superior court designated it a felony and sentenced him to
365 days in jail. The panel thus found Arellano Hernandez
removable pursuant to 8 U.S.C. § 1101(a)(43)(F) and
ineligible for cancellation of removal.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ARELLANO HERNANDEZ V. LYNCH 3
COUNSEL
John Gore (argued), Jones Day, Washington, D.C.; Beong-
Soo Kim, Jones Day, Los Angeles, California; for Petitioner.
Don Scroggin (argued) and Sarah Maloney, Attorneys; Linda
S. Wernery, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
N.R. SMITH, Circuit Judge:
Javier Arellano Hernandez’s conviction for attempted
criminal threats, pursuant to California Penal Code sections
422 and 664, constitutes an aggravated felony for which he is
removable. See 8 U.S.C. § 1101(a)(43)(F). First, attempted
criminal threats is categorically a crime of violence as defined
under 18 U.S.C. § 16(a). Second, the California superior
court designated the conviction as a felony and imposed a
sentence of “at least one year.”
I.
In 1967, Arellano Hernandez entered the United States
with his parents as a legal permanent resident. In March
2009, Arellano Hernandez pleaded guilty to unlawful
possession of drug paraphernalia and was sentenced to six
days’ imprisonment. In September 2009, a jury convicted
him of three separate crimes: (1) attempted criminal threats,
a felony in violation of California Penal Code sections 422
and 664; (2) simple assault, a misdemeanor in violation of

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ARELLANO HERNANDEZ V. LYNCH 4
California Penal Code section 240; and (3) false
imprisonment, a misdemeanor in violation of California Penal
Code section 236. The superior court imposed a suspended
sentence for attempted criminal threats and placed Arellano
Hernandez on probation for a period of three years with
certain terms and conditions, including 365 days in jail. The
court stayed sentencing the misdemeanor counts of simple
assault and false imprisonment pending Arellano Hernandez’s
probation.
As a result of these convictions, the Department of
Homeland Security (“DHS”) began removal proceedings and
issued a Notice to Appear. DHS alleged that Arellano
Hernandez was removable under 8 U.S.C. § 1101(a)(43)(F),
(U), because of his March 2009 drug paraphernalia
conviction and his September 2009 attempted criminal threats
conviction.
At a hearing before the immigration judge (“IJ”),
Arellano Hernandez conceded removability based on the drug
paraphernalia conviction. However, Arellano Hernandez
contested whether his criminal threats conviction constituted
an aggravated felony; therefore he requested cancellation of
removal.1 The IJ ultimately concluded that Arellano
Hernandez was sentenced to 365 days in jail for the attempted
criminal threats conviction. Thus, Arellano Hernandez had
been convicted of a crime of violence and an aggravated
felony.
1 In a Fed. R. App. P. 28(j) letter, Arellano Hernandez also challenged
his removability based on the drug paraphernalia conviction in light of
Mellouli v. Lynch, 135 S. Ct. 1980 (2015). Because we affirm the BIA on
the aggravated felony charge, we need not address this issue.

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ARELLANO HERNANDEZ V. LYNCH 5
The Board of Immigration Appeals (“BIA”) dismissed the
appeal and affirmed the IJ’s conclusion that Arellano
Hernandez was convicted of a crime of violence and an
aggravated felony. Arellano Hernandez was therefore
ineligible for cancellation of removal.
II.
In its decision, the BIA reviewed the IJ’s findings of fact
for clear error and questions of law de novo. Where the BIA
conducts de novo review of the IJ’s decision, we limit our
review to the BIA’s decision, except to the extent that the
BIA expressly adopted the IJ’s decision. Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006). However,
where the BIA conducts a clear error review, it relies “upon
the IJ’s opinion as a statement of reasons”; therefore, we can
“look to the IJ’s oral decision as a guide to what lay behind
the BIA’s conclusion.” Tekle v. Mukasey, 533 F.3d 1044,
1051 (9th Cir. 2008) (quoting Kozulin v. INS, 218 F.3d 1112,
1115 (9th Cir. 2000)). “In so doing, we review here the
reasons explicitly identified by the BIA, and then examine the
reasoning articulated in the IJ’s oral decision in support of
those reasons.” Id.
We review de novo whether a particular conviction under
state law is a removable offense. Coronado-Durazo v. INS,
123 F.3d 1322, 1324 (9th Cir. 1997). We defer to the BIA’s
interpretation of its own regulation when that interpretation
“is neither clearly erroneous nor inconsistent with the
regulation[].” Singh-Bhathal v. INS, 170 F.3d 943, 945 (9th
Cir. 1999). “We review de novo claims of due process
violations in immigration proceedings.” Simeonov v.
Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). Factual findings

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ARELLANO HERNANDEZ V. LYNCH 6
are reviewed for substantial evidence. Zehatye v. Gonzales,
453 F.3d 1182, 1184–85 (9th Cir. 2006).
III.
Arellano Hernandez argues that his conviction under
California Penal Code sections 422 and 664 is not an
aggravated felony or a crime of violence. We disagree. We
affirm our prior precedent, which held that a conviction under
sections 422 and 664 is categorically a crime of violence.
Further, because the superior court designated Arellano
Hernandez’s conviction as a felony and sentenced him to 365
days in jail, his conviction is also an aggravated felony.
A.
A “crime of violence” includes any “offense that has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C.
§ 16(a). California Penal Code section 422(a) (2009)
provides:
Any person who willfully threatens to commit
a crime which will result in death or great
bodily injury to another person, with the
specific intent that the statement, made
verbally, in writing, or by means of an
electronic communication device, is to be
taken as a threat, even if there is no intent of
actually carrying it out, which, on its face and
under the circumstances in which it is made,
is so unequivocal, unconditional, immediate,
and specific as to convey to the person
threatened, a gravity of purpose and an

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ARELLANO HERNANDEZ V. LYNCH 7
immediate prospect of execution of the threat,
and thereby causes that person reasonably to
be in sustained fear for his or her own safety
or for his or her immediate family’s safety,
shall be punished by imprisonment in the
county jail not to exceed one year, or by
imprisonment in the state prison.
In our prior precedent regarding section 422, we have held
that a conviction under this statute is a crime of violence.
See, e.g., United States v. Villavicencio-Burruel, 608 F.3d
556, 563 (9th Cir. 2010); Rosales-Rosales v. Ashcroft,
347 F.3d 714, 717 (9th Cir. 2003). In Villavicencio-Burruel,
we concluded that, based on the plain language of the statute,
“section 422’s elements necessarily include a threatened use
of physical force ‘capable of causing physical pain or injury
to another person.’” 608 F.3d at 562 (quoting Johnson v.
United States, 559 U.S. 133, 140 (2010)). Arellano
Hernandez challenges the validity of this holding in light of
(1) other California criminal threat statutes, which are not
crimes of violence; (2) Fourth and Fifth Circuit law,
concluding section 422 is not a crime of violence; and (3) our
recent case Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015).
None of these arguments provide a basis for us to overturn
our prior precedent.
First, neither of the other California criminal threat
statutes, California Penal Code sections 692 or 71,3 are
2 Penal Code section 69 is titled “Obstructing or Resisting Executive
Officer in Performance of Duties.”
3 Penal Code section 71 is titled “Threatening Public Officers and
Employees and School Officials.”

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ARELLANO HERNANDEZ V. LYNCH 8
analogous to section 422. As we have previously recognized,
neither section 69 nor section 71 include the elements of a
threatened use of physical force. See Flores-Lopez v. Holder,
685 F.3d 857, 863 (9th Cir. 2012); Bautista-Magallon v.
Holder, 584 F. App’x 300, 301 (9th Cir. 2014).
Second, contrary decisions of our sister circuits have no
effect on our jurisprudence. The Fourth and Fifth Circuits
reasoned that section 422 does not qualify categorically as a
crime of violence under the element test, because one could
threaten to poison another, which is not (under their
precedent) “force,” and therefore not a crime of violence. See
United States v. Torres-Miguel, 701 F.3d 165, 168–69 (4th
Cir. 2012); United States v. Cruz-Rodriguez, 625 F.3d 274,
276 (5th Cir. 2010). However, this reasoning has been
rejected by the Supreme Court. United States v. Castleman,
134 S. Ct. 1405, 1415 (2014) (“The ‘use of force’ . . . is not
the act of ‘sprinkling’ the poison; it is the act of employing
poison knowingly as a device to cause physical harm. That
the harm occurs indirectly, rather than directly (as with a kick
or punch), does not matter.” (alteration omitted)); see also
United States v. De La Fuente, 353 F.3d 766, 770–71 (9th
Cir. 2003) (concluding that a threat of anthrax poisoning
constituted a “threatened use of physical force” because the
defendant’s “letters clearly threatened death by way of
physical contact with anthrax spores”). Further Villavicencio-
Burruel remains the law of this circuit. Absent intervening
higher authority, “a three-judge panel may not overrule a
prior decision of the court.” Miller v. Gammie, 335 F.3d 889,
899 (9th Cir. 2003) (en banc).
Finally, Dimaya does not compel a different conclusion.
In Dimaya, we concluded that 8 U.S.C. § 1101(a)(43)(F)’s
definition of “crime of violence” was void for vagueness as

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ARELLANO HERNANDEZ V. LYNCH 9
it related to 18 U.S.C. § 16(b).4 803 F.3d at 1120 (citing
Johnson v. United States, 135 S. Ct. 2551, 2558 (2015)); see
also United States v. Hernandez-Lara, 817 F.3d 651, 652 (9th
Cir. 2016) (per curiam). However, Dimaya did not “cast any
doubt on the constitutionality of 18 U.S.C. § 16(a)’s
definition of a crime of violence.” 803 F.3d at 1120 n.17.
Arellano Hernandez does not challenge the constitutionality
of § 16(a). Thus, applying our precedent, section 422 is
categorically a crime of violence.
The “attempt” portion of Arellano Hernandez’s
conviction does not alter our determination that the
conviction is a crime of violence. We have “generally found
attempts to commit crimes of violence, enumerated or not, to
be themselves crimes of violence.” United States v. Riley,
183 F.3d 1155, 1160 (9th Cir. 1999); cf. 8 U.S.C.
§ 1101(a)(43)(U) (providing that an aggravated felony
includes the attempt to commit the offense). California’s
attempt statute is coextensive with an “attempt” at common
law. United States v. Saavedra-Velazquez, 578 F.3d 1103,
1110 (9th Cir. 2009). Therefore, Arellano Hernandez’s
conviction for attempted criminal threats is categorically a
crime of violence.
B.
Arellano Hernandez was convicted of violating California
Penal Code section 422, which can be punished as either a
felony or misdemeanor offense. See Cal. Penal Code
4 Crime of violence under subsection (b) is defined as “any other offense
that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense.” 18 U.S.C. § 16(b).

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§ 422(a). This dual classification is also known as a
“wobbler” under California law. See Ewing v. California,
538 U.S. 11, 16 (2003). “Under California law, a ‘wobbler’
is presumptively a felony and ‘remains a felony except when
the discretion is actually exercised’ to make the crime a
misdemeanor.” Id. An offense is “deemed a felony” when a
defendant is convicted and “granted probation without the
imposition of a sentence.” People v. Feyrer, 226 P.3d 998,
1007 (Cal. 2010), superseded by statute on another ground as
stated in People v. Park, 299 P.3d 1263, 1266 n.4 (Cal.
2013). The offense remains a felony unless the sentencing
court subsequently reduces it to a misdemeanor. Id.
Here, Arellano Hernandez’s conviction was “deemed a
felony.” The superior court suspended Arellano Hernandez’s
sentence and placed him on probation. As part of Arellano
Hernandez’s terms and conditions of probation, the superior
court ordered him to serve 365 days in the county jail. At no
time did the superior court ever declare the offense to be a
misdemeanor nor did the superior court ever subsequently
reduce the felony offense. See Cal. Penal Code § 17(b).
Arellano Hernandez argues that the superior court’s
judgment designated his conviction as a misdemeanor.
Arellano Hernandez misreads the superior court’s judgment.
First, the court acknowledged that the jury found Arellano
Hernandez guilty of three separate counts: (1) attempted
criminal threats “in violation of Penal Code section 664/422,
a felony”; (2) simple assault “in violation of Penal Code
section 240, a misdemeanor”; and (3) false imprisonment “in
violation of Penal Code section 236 . . . , a misdemeanor.”
Second, as part of the superior court’s sentence, it ordered
“the misdemeanor counts stayed.” Thus, the record is clear
that the superior court sentenced Arellano Hernandez to 365

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ARELLANO HERNANDEZ V. LYNCH 11
days in jail for the attempted criminal threats, and it did not
reduce the crime to a misdemeanor either directly or
implicitly.
C.
A crime of violence is an aggravated felony if “the term
of imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(F). “Any reference to a term of imprisonment
or a sentence with respect to an offense is deemed to include
the period of incarceration or confinement ordered by a court
of law regardless of any suspension of the imposition or
execution of that imprisonment or sentence in whole or in
part.” Id. at § 1101(a)(48)(B).
Arellano Hernandez was found guilty of a felony offense
under sections 422 (criminal threats) and 664 (attempt).
California Penal Code section 422(a) outlines the punishment
for this charge as either “imprisonment in the county jail not
to exceed one year, or by imprisonment in the state prison.”5
Arellano Hernandez argues that the IJ erred in concluding
the 365-day jail term was for the attempted criminal threats
conviction. We disagree. The record shows that the superior
court imposed a 365-day jail term. This sentence of 365 days
equates to imprisonment of “at least one year.” See Habibi v.
Holder, 673 F.3d 1082, 1085–86 (9th Cir. 2011). If the
superior court had concluded that the conviction was to be
treated as a misdemeanor, the maximum sentence Arellano
Hernandez could have received was six months. Cal. Penal
Code §§ 422, 664. However, the superior court did not
5 Section 664 reduces the penalty, where the crime is merely
“attempted.” Cal. Penal Code § 664(a).

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impose a misdemeanor sentence (as discussed above), but
rather imposed probation on the sole count of attempted
criminal threats.
The superior court was not imposing a sentence on all
three convictions, because it ordered “the misdemeanor
counts stayed.” There is no ambiguity to this statement; the
superior court suspended the sentence and only placed
Arellano Hernandez on probation with regard to the felony
conviction.6 Thus, Arellano Hernandez was sentenced to at
least one year. See United States v. Mendoza-Morales,
347 F.3d 772, 775 (9th Cir. 2003) (holding, in the context of
United States Sentencing Guidelines § 4A1.2(b)(1), days in
incarceration as a term of probation should be counted in
calculating the term of imprisonment).
The BIA properly denied Arellano Hernandez’s
application for cancellation of removal based on his
conviction for an aggravated felony offense.
PETITION FOR REVIEW DENIED.
6 Whether the court was applying California Penal Code section 654 is
not relevant to this court’s determination. California Penal Code section
654(a) provides that an act “that is punishable in different ways by
different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment.” Section 654
therefore provides that a person can only be punished (to the “longest
potential term of imprisonment”) for one crime arising out of the same
conduct. Cal. Penal Code § 654; see also People v. Correa, 278 P.3d 809,
812 (Cal. 2012).

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