Tinoco-Orozco

MEMORANDUM **

Javier Tinoco-Orozco petitions for review of an order of the Board of Immigration Appeals finding him removable as an aggravated felon under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii). Petitioner was convicted on September 4, 1997 of driving under the influence of alcohol with multi-pie prior convictions, in violation of California Vehicle Code §§ 23152(a) and 23175.

In United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir.2001), we held that driving under the influence of alcohol and causing bodily injury, in violation of California Vehicle Code § 23153, is not a “crime of violence” as defined in 18 U.S.C. § 16 . We reasoned that § 23153 can be violated through negligence, whereas a “crime of violence” can be committed only with a mental state of at least recklessness. See Trinidad-Aquino, 259 F.3d at 1144-1146 .

Section 23152 is similar to § 23153, but lacks the element of bodily injury. Like § 23153, it can be violated through negligence, as can § 23175, which criminalizes multiple convictions. We therefore hold that Tinoco-Orozco was not convicted of a “crime of violence,” and accordingly was not convicted of an aggravated felony as defined by…