Finau Dominic Takapu v. ERIC H. HOLDER Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FINAU DOMINIC TAKAPU,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-73498
Agency No. A037-267-904
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 2, 2009 **
Pasadena, California
Before: T.G. NELSON, BYBEE and M. SMITH, Circuit Judges.
Finau Dominic Takapu petitions for review of the Board of Immigration
Appeals’ order affirming an Immigration Judge’s (“IJ’s”) denial of Takapu’s
challenge to his removal order and his applications for withholding of removal and
relief under the CAT. We deny the petition.
FILED
NOV 13 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. We have jurisdiction to review Takapu’s purely legal contention that his
conviction for an offense under California Penal Code § 243(d) does not constitute
a crime of violence under 18 U.S.C. § 16(a), and is therefore not an aggravated
felony under 8 U.S.C. § 1101(a)(43)(F) . 8 U.S.C. § 1252(a)(2)(D).
Under the Supreme Court’s opinion in Taylor v. United States, 495 U.S. 575,
588-89 (1990), we compare the state statute of conviction to the federal predicate
offense to determine whether there is a categorical match (i.e., all conduct for
which someone could realistically be convicted under state statute falls within the
federal offense). California Penal Code § 243(d) provides that “[w]hen a battery is
committed against any person and serious bodily injury is inflicted on the person,
the battery is punishable by imprisonment in a county jail not exceeding one year
or imprisonment in state prison for two, three, or four years.” Cal. Penal Code §
243(d). According to California courts, a § 243(d) offense has three elements: (1)
the use of physical force against the victim; (2) the use of force or violence was
willful and unlawful; and (3) the use of force or violence inflicted serious bodily
injury on the other person. People v. Lewis, 120 Cal. App. 4th 882, 887 (2004).
Section 1101(43)(F) of Title 8, meanwhile, defines a “crime of
violence”—by reference to 18 U.S.C. § 16(a)—as “an offense that has as an
element the use, attempted use, or threatened use of physical force against the

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person or property of another.” 18 U.S.C. § 16(a). As used in the statute, the word
“use” “suggests a higher degree of intent than negligent or merely accidental
conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004); see also United States v.
Trinidad-Aquino, 259 F.3d 1140, 1145 & n.2 (9th Cir. 2001) (concluding that the
word “use” requires “some volition to perform the act”).
There is nothing “negligent or merely accidental” about a § 243(d) offense;
it requires the willful use of physical force that causes serious injury, examples of
which include “loss of consciousness; concussion; bone fracture; . . . and serious
disfigurement.” Cal. Penal Code § 243(f)(4). Because a 243(d) offense will
always involve “the use . . . of physical force . . . against the person . . . of
another,” see 18 U.S.C. § 16(a), we conclude that it is categorically a crime of
violence, and therefore, an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(F)
and 1227(a)(2)(A)(iii).
2. Takapu next argues that the IJ erred in determining that Takapu’s
conviction constituted a “particularly serious crime,” thereby rendering him
ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). By
statute, we lack jurisdiction to review the IJ’s discretionary determination. See 8
U.S.C. § 1252(a)(2)(B)(ii); see also Unuakhaulu v. Gonzales, 416 F.3d 931, 935
(9th Cir. 2005) (“[W]hen the Attorney General decides that the alien’s offense was

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a particularly serious crime, we lack jurisdiction to review such a decision because
it is discretionary.”) (internal quotation marks and citation omitted).
3. We have jurisdiction over Takapu’s claim that he was improperly denied
protection under the Convention against Torture. See Bromfield v. Mukasey, 543
F.3d 1071, 1075 (9th Cir. 2008). On the merits, however, substantial record
evidence supports the IJ’s determination that Takapu failed to establish that he
would more likely than not be tortured if he was removed to New Zealand. See 8
C.F.R. § 208.16(c)(2) & (3).
Takapu’s petition for review is DENIED.

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