United States v. Ramon Beltran-Sandoval

MEMORANDUM

Defendant Beltran-Sandoval, a Mexican citizen, appeals the district court’s denial of his motion to dismiss an indictment charging him with reentering the United States after being removed, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004).

Beltran-Sandoval collaterally attacks his removal order by arguing that he was not removable as charged because his state conviction was not for a crime of violence and that the immigration judge’s failure to advise him of his eligibility for a section 212(h) waiver prejudiced him. We hold that he was removable as charged but that he showed a plausible ground for relief under section 212(h).

Beltran-Sandoval was removable because assault with a firearm in violation of California Penal Code section 245(a)(2) is categorically a crime of violence, United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir.2009); see United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir.2009), and is thus an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(F).

Ceron v. Holder, 747 F.3d 773 (9th Cir.2014) (en banc), did not…