** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **
Executive Office for Immigration Review
Board of Immigration Appeals
David P. Finn
Assistant Chief Counsel
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony
Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] – Convicted of crime involving moral turpitude
The respondent, a native and citizen of Jamaica, has appealed from the Immigration Judge’s decision dated October 22, 2009. The appeal will be dismissed.
As found by the Immigration Judge, the respondent was admitted to the United States as a lawful permanent resident on April 22, 2004. On December 11, 2006, the respondent was convicted of second degree robbery in violation of section 211 of the California Penal Code and sentenced to a term of imprisonment of 3 years.
We will affirm the Immigration Judge’s determination that the respondent is subject to removal as charged and ineligible for any relief. The respondent’s argument on appeal that his conviction does not qualify as an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101 (43)(F), because the statute covers conduct that would not constitute a crime of violence, is without merit since the record of conviction shows that he pled guilty to count 1 of the felony complaint which charged that he took property unlawfully and by force or fear from the person of another. See also Nieves-Medrano v. Holder, 2010 WL 27339 (9th Cir. 2010). [FN1] The respondent is ineligible for any relief for the reasons stated in the Immigration Judge’s decision (I.J. at 3-4).
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
Roger A. Pauley
FOR THE BOARD
FN1. The respondent’s reliance on United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) to argue that Cal. Penal Code § 211 is broader than a generic robbery statute is misplaced because, unlike the vehicle theft statute involved in that case (Cal. Penal Code § 10851 (a)), which expressly reaches the conduct of an accessory, there is no mention of accessory liability in Cal. Penal Code § 211. The respondent has not identified a case in which California has applied the statute in that way, and it would appear that an accessory to robbery after the fact would be charged and convicted as such under both Cal. Penal Code §§ 32 and 211. Therefore, we cannot conclude that a conviction under Cal. Penal Code § 211 may be based on a finding of something less than conduct which fits within the definition of a generic robbery offense. See Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061-1062 (9th Cir. 2009).