Stanford students secure reversal at 9th Circuit regarding deportation of convicted carjackers

Carjacking cannot be considered a violent crime as grounds for deporting noncitizen perpetrators, the 9th U.S. Circuit Court of Appeals ruled Monday, declaring that a 2010 decision by the court stating otherwise was bad law.

In an opinion written by Judge Susan P. Graber, the panel said that a prior decision by the court, Nieves-Medrano v. Holder, 590 F.3d 1057, 1058 (9th Cir. 2010), which held that carjacking was indeed a "crime of violence" under federal law, was no longer sound in light of subsequent instruction from the U.S. Supreme Court.

After the 9th Circuit decided Nieves-Medrano, the Supreme Court clarified, in a 7-2 opinion written by the late Justice Antonin Scalia, what constitutes "physical force" for the purposes of deportation.

In the opinion, the high court said that physical force used in a crime of violence had to have "force capable of causing physical pain or injury to another person" in order for it to be a removable offense. Johnson v. United States, 559 U.S. 133, 140 (2010).

"Johnson altered our understanding of how violent a crime must be to qualify as a crime of violence," Graber wrote. Solorio-Ruiz v. Sessions, 2018 DJDAR 988 (9th Cir. Jan. 29, 2018).

Turning to a recently decided case in the California Court of Appeal, which held that carjacking, under state law, requires only the slightest of excess force to steal a vehicle. Graber said that, in light of the California decision, the state's carjacking statute lacked the required "violent force" discussed by the Supreme Court in Johnson.

The case came to the 9th Circuit when the government tried to remove Roberto Solorio-Ruiz, a Mexican citizen, from the United States based on his 1995 conviction for carjacking.

Solorio-Ruiz had come to the U.S. when he was 4 in 1973 and settled in the Los Angeles area with his family, according to two students at Stanford Law School who represented him before the 9th Circuit. He was sentenced to a prison term of 21 years and four months, the opinion said.

When that period ended in 2015, the government sought to remove him, arguing that the crime was an "aggravated felony."

An immigration judge agreed and ordered Solorio-Ruiz removed, but allowed him to apply for relief available to lawful permanent residents who have lived in the United States for seven consecutive years. The judge then denied the request for relief, citing the length of Solorio-Ruiz's sentence. The Board of Immigration Appeals agreed.

Brittany Benjamin and Adam Hersh, both in their third year at Stanford Law School, represented Solorio-Ruiz under the supervision of Jayashri Srikantiah, who directs the school's Immigrants' Rights Clinic.

"The 9th Circuit swept away an outdated precedent that said this offense was deportable," commented Hersh, noting that the court has slowly stepped away from that position since 2010.

In arguing that Solorio-Ruiz was removable, the government had presented two theories. In addition to the crime of violence claim, the government posited that his 1995 conviction was a "theft offense," also removable under federal law.

Graber's opinion addressed only the violence theory. The court remanded the case back to the Board of Immigration Appeals to consider whether carjacking is a theft offense, and Solorio-Ruiz remains in detention, according to Benjamin and Hersh.

"This case has really highlighted that detention is a real part of immigration cases," Benjamin said, stressing the two years in detention after the end of the 21-year prison term.

Both Benjamin and Hersh will be clerking for federal courts after their graduation and said that the opportunity to work on the case, which came from the Centro Legal de la Raza in Oakland but was moved into the 9th Circuit's pro bono clinic, piqued their interest in immigration and appellate advocacy.

The Justice Department declined to comment on the 9th Circuit's decision.

Judge N. Randy Smith and U.S. District Judge Jennifer G. Zipps, visiting from the District of Arizona, concurred with Graber's opinion.