Virgilio Anaya-Ortiz 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 Honorable James K. Singleton, United States District Judge for**
the District of Alaska, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIRGILIO ANAYA-ORTIZ,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 03-74666
Agency No. A092-962-367
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 6, 2007
Pasadena, California
Before: BERZON and IKUTA, Circuit Judges, and SINGLETON, Senior**
District Judge.
FILED
JAN 25 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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In this memorandum disposition, we consider only Anaya’s claim that the1
IJ and BIA erred in holding that he was removable as an aggravated felon under §
1101(a)(43)(E)(ii). In a concurrently filed opinion, we address his argument that
the IJ and BIA erred is holding he was not eligible for withholding of removal
because his drunk driving conviction under California Vehicle Code § 23153(b)
does not constitute a conviction of a “particularly serious crime.” See Anaya-Ortiz
v. Holder, __ F.3d __ (9th Cir. 2010).
Anaya argues that his conviction for being a felon in possession of a firearm
under California Penal Code § 12021(a)(1) does not qualify as an “aggravated
felony” conviction under 8 U.S.C. § 1101(a)(43)(E)(ii). We disagree.1
Under the framework articulated in Taylor v. United States, 495 U.S. 575
(1990), the IJ and BIA did not err in determining that Anaya was convicted of all
the elements of an “aggravated felony” under § 1101(a)(43)(E)(ii), and in holding
he was removable under § 1227(a)(2)(A)(iii). The state statute of conviction,
California Penal Code § 12021(a)(1), qualifies as a generic federal offense of being
a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), notwithstanding the fact
that § 922(g)(1) includes an interstate commerce element not present in the state
offense. See United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001)
(holding that a state crime of conviction need not have the interstate commerce
element contained in 18 U.S.C. § 922(g)(1) to qualify as an aggravated felony
under § 1101(a)(43)(E)(ii)).
Anaya did not raise before the BIA (or in his brief to this court) any
argument under the modified categorical approach, concerning the adequacy of the

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documents used to prove that the prior conviction under § 922(g) was for an
aggravated felony. He therefore has not exhausted the question, and we may not
decide it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); 8 U.S.C. §
1252(d)(1).
PETITION DENIED

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