In United States v. Orozco-Orozco, --- F.4th ---, No. 22-50146 (9th Cir. 2024), the Court reversed the district court’s order denying Orozco’s motion to dismiss under 8 U.S.C. § 1326(d), and remanded for further proceedings.
Orozco was originally removed from the United States in 2013 through an expedited process after an immigration officer determined that his 2005 conviction for carjacking in violation of California Penal Code § 215 was an aggravated felony under the Immigration and Nationality Act (INA).
The district court (in the SDCA) denied Orozco's motion, agreeing with the government that his carjacking conviction qualified as a “theft offense,” and thus as an aggravated felony, under the INA.
The Ninth Circuit reversed: "In sum, despite § 215’s use of the common-law phrase 'felonious taking,' carjacking in California does not require a showing of intent to steal. Rather, § 215 requires only that the defendant intend to permanently or temporarily deprive the current driver or passengers of their possession of the vehicle, by force or by fear. We are bound by the California Supreme Court’s statement of the elements of § 215. We therefore hold that § 215 is not a categorical match for a generic theft offense and thus is not an aggravated felony under the INA."
The Court thus reversed and remanded for the district court to consider whether Orozco satisfied all three prongs of § 1326(d).
