TORRES AKA v. WHITAKER (2019)

MEMORANDUM **

Rigoberto Antonio Torres (Torres), a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) finding that Torres was removable and ineligible for cancellation of removal because his conviction under Nevada Revised Statutes Section 207.190 for felony coercion was categorically a “crime of violence” aggravated felony. We grant the petition for review.

1. We have jurisdiction pursuant to 8 U.S.C. § 1252 because Torres’s October 2017 pro se filings are timely petitions for review of the BIA’s reissued decision denying him relief. Upon realizing that Torres never received its original decision dated February 9, 2017, the BIA re-issued the decision on September 20, 2017. On October 6 and October 13, 2017, within thirty days of the reissued decision, Torres filed two submissions with this court explaining that he did not receive the original BIA decision, which he intended to challenge. Construing these documents liberally, as we must, Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir. 2011), we construe them as timely petitions for review of the reissued BIA decision. 8 U.S.C. § 1252(b)(1).

2. The BIA erred in concluding that Torres is removable. Contrary to the BIA’s conclusion, a conviction for felony coercion, Nev. Rev. Stat. § 207.190, is not categorically a “crime of violence” aggravated felony under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(a). The Nevada statute criminalizes conduct beyond the more narrow federal definition of a crime of violence under Johnson v. United States, which clarified that “ ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis in original). The definition of “physical force” in Nevada’s felony coercion statute includes non-violent, or de minimis, force. For example, in Gramm v. State, the Nevada Supreme Court upheld a felony coercion conviction for knocking a cell phone out of the victim’s hand twice. 410 P.3d 982 (Nev. 2018) (unpublished) (order). See also United States v. Edling, 895 F.3d 1153, 1159 (9th Cir. 2018) (holding that Nev. Rev. Stat. § 207.190 is not a crime of violence under the sentencing guidelines and citing Gramm).  ¹

PETITION GRANTED; REMANDED.

FOOTNOTES

1.   The Supreme Court recently issued an opinion on the Johnson standard for “physical force.” Stokeling v. United States, ––– U.S. ––––, 139 S.Ct. 544, ––– L.Ed.2d –––– (2019). The Stokeling Court did not overrule Johnson, noting that its “understanding of ‘physical force’ comports with Johnson.” Id. at 552. The Court held that the degree of force required to commit robbery under Florida law necessitates the use of “physical force.” Id. As illustrated in Gramm, Nevada felony coercion requires a lesser degree of force than the “physical confrontation and struggle” at issue in Stokeling. Id. at 553.