Jose Banuelos-Ayon (“Banuelos-Ayon” or “petitioner”) is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on July 3, 1985. Following his 2000 conviction for a domestic violence offense, Banuelos-Ayon was charged with removability for committing a crime of violence pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). On October 26, 2006, Banuelos-Ayon conceded removability and submitted an application for cancellation of removal. The BIA denied his application, holding that his conviction under California Penal Code § 273.5(a) is categorically a crime of domestic violence. We agree and deny his petition for review.
In Spring 2000, Banuelos-Ayon and his girlfriend — the mother of his children — were engaged in a heated argument. At some point during the argument petitioner’s girlfriend drove away because “she never wanted to see [Banuelos-Ayon] again.” Banuelos-Ayon chased after her in his car. He tried to block her car in at a stop sign “simply so [they] could talk.” As a result, the two vehicles collided, and his girlfriend was injured. Banuelos-Ayon left the scene of the accident and was later arrested at his place of work.
On April 5, 2000, he pleaded guilty to “Corporal Injury to a Spouse/Cohabitant” in violation of California Penal Code § 273.5(a) and to a sentencing enhancement under California Penal Code § 12022(b) for use of a deadly weapon in the commission of the offense. On September 12, 2006, the Department of Homeland Security (“DHS”) issued a Notice to Appear charging Banuelos-Ayon with being removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). Banuelos-Ayon conceded the charge of removability and on October 26, 2006, submitted an application for cancellation of removal.
On December 20, 2006, the Immigration Judge (“IJ”) issued a written decision and two separate orders. In the first order, the IJ held that Banuelos-Ayon was not removable because DHS failed to establish by clear and convincing evidence that he had been convicted of a crime of domestic violence within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). In the second order, the IJ concluded that if the BIA determined Banuelos-Ayon was removable because his conviction qualified as a crime of domestic violence, his application for cancellation of removal would be denied as a matter of discretion.
Judge(s): Kozinski, Callahan, Martinez
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
| District Court Judge(s) | District Court Judge Jurisdiction(s) |
| Ricardo S. Martinez |
| Circuit Court Judge(s) | Circuit Court Judge Jurisdiction(s) |
| Consuelo M. Callahan | |
| Alex Kozinski |
| Petitioner Lawyer(s) | Petitioner Law Firm(s) |
| Richard Frankel | Georgetown University Law Center Appellate Litigation Program |
| Charlotte Jennifer Garden, Supervisory Attorney | Georgetown University Law Center Appellate Litigation Program |
| Steven H. Goldblatt | Georgetown University Law Center's Appellate Litigation Program |
| Susan Gardinier | Georgetown University Law Center's Appellate Litigation Program of Washington, D.C. |
| Katherine Swan | Georgetown University Law Center's Appellate Litigation Program of Washington, D.C. |
| Respondent Lawyer(s) | Respondent Law Firm(s) |
| David V. Bernal, Assistant Director | U.S. Department of Justice |
| Jesse Matthew Bless | U.S. Department of Justice |
| Jeffrey S. Bucholtz, Acting Assistant Attorney General | U.S. Department of Justice |
| Tiffany Walters Kleinert, Trial Attorney | U.S. Department of Justice |
| Ernesto Horacio Molina, Jr., Esquire, Senior Litigation Counsel | U.S. Department of Justice |
| Liza Murcia, Attorney | U.S. Department of Justice |
