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9th Circuit Court of Appeals Finds Immigrant Removable for ‘Attempted Criminal Threats’

The 9th Circuit Court of Appeals denied the appeal for deportation cancellation by one Javier Arellano Hernandez, a legal permanent resident found removable from the country by an immigration court for ‘attempted criminal threats.’ The ruling would later be affirmed by the Board of Immigration Appeals (BIA), forcing Arellano Hernandez to make a final appeal with the 9th Circuit.

Arellano Hernandez moved into the U.S. with his parents as a legal permanent in 1967. In March 2009, he was convicted of illegal possession of drug paraphernalia. For pleading guilty, he served only 6 days in prison. Later that same year, however, a jury found Arellano Hernandez guilty for:

  • Attempted criminal threats, a felony in California
  • Simple assault, a misdemeanor in California
  • False imprisonment, another misdemeanor in California

As punishment for these crimes, the court slapped Arellano Hernandez with a suspended sentence for his attempted criminal threat conviction, for which he was placed on a 3-year probation period, including 1 year in prison. The court, however, withheld sentencing on his other crimes pending the outcome of his probation.

These convictions would have far reaching consequences, getting the attention of the Department of Homeland Security (DHS), which began removal proceedings and sent Arellano Hernandez a summons to appear in an immigration court. The DHS alleged that his crimes, specifically his drug paraphernalia and attempted criminal threats conviction, made him eligible for deportation under 8 U.S.C. § 1101(a)(43)(F),(U).

Appearing before an immigration judge, Arellano Hernandez admitted his removability for illegal possession of drug paraphernalia. However, he also requested cancellation of removal after arguing that his criminal threats conviction was not an aggravated felony. But because Arellano Hernandez was sentenced to 1 year of jail for attempted criminal threats, the judge saw this as a conviction for a violent crime and an aggravated felony.

The BIA would also dismiss Arellano Hernandez’s argument, affirming the IJ’s earlier ruling and finding him ineligible for cancellation of deportation.

With one final option for an appeal left, Arellano Hernandez took his case to the 9th Circuit Court of Appeals. The CA, however, denied his petition for review of removal, affirming the immigration court and the BIA’s ruling that his conviction for attempted criminal threats translated to a crime of violence and aggravated felony.

In cases like these, seemingly small technicalities can have a major effect on an immigration judge’s decision. If you or a loved one is facing a similar situation that requires precise interpretations of immigration law, sit down for a consultation with the legal team of Lyttle Law Firm. Find out how we can help you by calling us at (512) 215.5225.

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