Benjamin Bautista-Magallon v. Eric H. Holder Jr.

MEMORANDUM

Benjamin Bautista-Magallon petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge’s decision finding that his convictions under sections 69 and 71 of the California Penal Code (“CPC”) render him removable as an alien convicted of an aggravated felony under 8 U.S.C. § 1227 (a)(2)(A)(iii). The BIA concluded that Bautista-Magallon’s conviction for resisting an executive officer under CPC § 69 satisfies the definition of a categorical “crime of violence” aggravated felony under 8 U.S.C. § 1101aXJSXF). We have jurisdiction under 8 U.S.C. § 1252 (a)(2)(D) and grant Bautista-Magal-lon’s petition for review.

CPC § 69 is a statute that may be violated in two distinct ways: by attempting through threats or violence to deter an officer from performing a duty imposed by law, or by resisting an officer in the performance of his duty by force or violence. See Flores-Lopez v. Holder, 685 F.3d 857, 862 (9th Cir.2012) (citing People v. Lopez, 129 Cal.App.4th 1508 , 29 Cal.Rptr.3d 586 (2005)). Neither version of the offense matches the generic definition of a crime of violence. The “actually resisting an officer”…