Noel Sarmiento v. Loretta E. Lynch

MEMORANDUM

Noel Sarmiento, a native and citizen of the Philippines, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying his timely motion to reopen. We dismiss the petition for lack of jurisdiction.

This Court lacks jurisdiction to review final orders of removal of aliens convicted of an aggravated felony. 8 U.S.C. § 1252 (a)(2)(C). However, we retain jurisdiction to determine whether petitioner is indeed removable on that ground. Zavaleta-Gallegos v. INS, 261 F.3d 951, 954 (9th Cir.2001). Therefore, “the jurisdictional question and the merits collapse into one.” Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000).

Sarmiento’s conviction for California Penal Code § 273.5(a) qualifies as a crime of violence aggravated felony as defined by 8 U.S.C. § 1101 (a)(43)(F). To render an alien removable on these grounds under 8 U.S.C. § 1227 (a)(2)(A)(iii), an offense must meet two criteria: (1) it must be a crime of violence as defined in 18 U.S.C. § 16 that is not a purely political offense; and (2) the term of imprisonment must be at least one year. Id. § 1101(a)(43)(F).

We have held that § 273.5(a) is categorically a crime of violence under 18…