For the purpose of deportable convictions, a carjacking conviction in California does not always qualify as a violent crime, according to a recent federal court decision.

The United States Court of Appeals Ninth Circuit held that carjacking under California Penal Code 215(a) does not qualify as a crime of violence under federal law because the state statute does not require “physical force capable of causing physical pain or injury to another person.”

In the Solorio-Ruiz v. Sessions case, at issue was whether Mexican native Roberto Solorio-Ruiz was deportable because of his 1995 carjacking conviction. Solorio-Ruiz applied for relief from removal under a law that allows residents who had been lawfully domiciled in the United States for seven consecutive years. A waiver is available in certain circumstances but not when the applicant has served more than five years for an aggravated felony.

The Board of Immigration Appeals found Solorio-Ruiz ineligible for a waiver because of his carjacking conviction.

The Ninth Circuit concluded that a conviction for carjacking under California Penal Code 215 is no longer categorically a crime of violence. They based their decision on the United States Supreme Court ruling in Johnson v. United States, 559 U.S. 133, 140 (2010), which held that the physical force that a crime of violence entails must be “violent force—that is, force capable of causing physical pain or injury to another person.” Furthermore, the Ninth Circuit held that their prior holding in Nieves-Medrano  v. Holder, 590 F.3d 1057, 1058 (9th Cir. 2010) no longer has standing after Johnson.

However, the question of whether California carjacking is a theft offense under 8 U.S.C. 1101(a) (43) (G) remains open and the Ninth Circuit remanded the case to the Board of Immigration Appeals to consider that issue.

In Solorio-ruiz v. Sessions DAR 01/30/18 at page 988.

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