Manuel Reyes-Alcaraz v. John Ashcroft, Attorney General

Petitioner Manuel Reyes-Alcaraz, who is a native and citizen of Mexico, petitions for review of a final order of removal. The immigration judge (“IJ”) held that Petitioner is an alien, not a national of the United States, and that he is removable for having committed an aggravated felony. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision in a one-judge order.

We hold that service in the armed forces of the United States, along with the taking of the standard military oath, does not alter an alien’s status to that of a “national” within the meaning of the Immigration and Nationality Act (“INA”) and, therefore, does not distinguish Petitioner’s situation from the one we addressed in Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (9th Cir.2003), cert. denied, — U.S. -, 124 S.Ct. 1041 , 157 L.Ed.2d 887 (2004). We also hold that exhibiting a deadly weapon with the intent to resist arrest, in violation of California Penal Code § 417.8, is a “crime of violence,” 18 U.S.C. § 16 , which therefore qualifies as an “aggravated felony” under 8 U.S.C. § 1101 (a)(43)(F). Finally, as we held in Falcon Carriche v. Ashcroft, 350 F.3d 845, 850 (9th Cir.2003), the BIA did not violate…