Jose Velasco Hernandez v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE VELASCO HERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-71954
Agency No. A014-566-461
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Jose Velasco Hernandez, a native and citizen of Mexico, petitions for review
of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal
from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C.
FILED
JAN 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

§ 1252. Reviewing de novo questions of law, Renteria-Morales v. Mukasey,
551 F.3d 1076, 1081 (9th Cir. 2008), we deny the petition for review.
The BIA correctly concluded that Velasco Hernandez’s conviction for
assault with a deadly weapon under California Penal Code § 245(a)(1) constitutes
an aggravated-felony crime of violence that renders him removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) because section 245(a)(1) defines a categorical crime of
violence, and Velasco Hernandez received an actual sentence to imprisonment of at
least one year. See 8 U.S.C. § 1101(a)(43)(F) (defining an “aggravated felony” as
“a crime of violence . . . for which the term of imprisonment [is] at least one
year”); United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (“[A]ssault
with a deadly weapon or by means of force likely to produce great bodily injury
under section 245(a)(1) is categorically a crime of violence . . . .”); Renteria-
Morales, 551 F.3d at 1089 (“[The] language in § 1101(a)(43) requiring that a crime
of conviction be one ‘for which the term of imprisonment is at least one year’ . . .
refers to the actual sentence imposed by the judge on the defendant convicted of
the predicate offense, rather than the ‘potential sentence that the judge could have
imposed.’” (citation omitted)).
Our case law forecloses Velasco Hernandez’s contentions that
section 245(a)(1) does not contain the mens rea required for a crime of violence
12-71954 2

-- 2 of 3 --

and that California law’s classification of his offense as a misdemeanor prevents it
from qualifying as an aggravated-felony crime of violence under federal law. See
Grajeda, 581 F.3d at 1197 (“[A]ssault under California Penal Code section 245(a)
requires proof of sufficiently intentional conduct to satisfy the mens rea
requirement for a crime of violence.”); Habibi v. Holder, 673 F.3d 1082, 1088
(9th Cir. 2011) (“[W]hether a state classifies an offense as a ‘misdemeanor’ is
irrelevant to determining whether it is an ‘aggravated felony’ for purposes of
federal law.”).
PETITION FOR REVIEW DENIED.
12-71954 3

-- 3 of 3 --