CLAUDE STEPHEN BENT, AKA Claude Bent v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDE STEPHEN BENT, AKA Claude
Bent,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-72631
Agency No. A037-050-176
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2019
San Francisco, California
Before: WALLACE, TASHIMA, and McKEOWN, Circuit Judges.
Petitioner Claude Bent is a United States lawful permanent resident and
Jamaican national. In 2006, Bent was convicted of voluntary manslaughter and
attempted murder in California superior court. The Department of Homeland
Security (DHS) subsequently commenced removal proceedings, and the
Immigration Judge (IJ) concluded that Bent was removable for committing an
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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aggravated felony. The IJ denied Bent’s claim for withholding of removal because
he had been convicted of a particularly serious crime. The Board of Immigration
Appeals (Board) affirmed, and Bent petitioned this court for review. We have
jurisdiction under 8 U.S.C. § 1252, and we grant the petition and remand for
further proceedings.
Bent argues that the Board erred in its removability analysis because
California attempted murder is broader than generic Immigration and Nationality
Act (INA) attempted murder, as used in 8 U.S.C. § 1101(a)(43)(A).1 Contrary to
DHS’s contentions, we have jurisdiction to consider this argument because Bent,
acting pro se, argued to the Board that “the state offense does not match up with
the generic offense,” and the Board adjudicated whether California attempted
murder was a categorical match for INA attempted murder. This argument is
therefore exhausted. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873-74 (9th
Cir. 2008).
On the merits, the Board held that Bent was removable because “the full
range of conduct punishable as ‘murder’ under section 187(a) of the California
Penal Code corresponds categorically to generic ‘murder’ under [8 U.S.C.
§ 1101(a)(43)(A)].” However, the Board did not consider whether generic INA
1 Bent initially argued that the IJ lacked jurisdiction because Bent’s
notice to appear was inadequate. Bent has since conceded that this argument fails
in light of Karingithi v. Whitaker, 913 F.3d 1158, 1162 (9th Cir. 2019).

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murder encompasses feticide, which is punishable conduct under California’s
murder statute. See Cal. Penal Code § 187(a). We therefore think it prudent to
remand for the Board to consider whether “murder” as used in that provision
categorically includes the unlawful killing of a fetus as prohibited by California.
See Velazquez-Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir. 2006) (remanding
under similar circumstances because “we think it prudent to allow the BIA in the
first instance to settle upon a definition of child abuse in a precedential opinion”).
DHS argues that we should nonetheless deny the petition because Bent is
removable under the “modified categorical approach.” Under this approach, when
a non-citizen has pleaded guilty to a state crime that is divisible into two sets of
elements,2 one of which is overbroad to the INA and one of which is not, we
consult the charging document, plea agreement, plea colloquy, or other
“comparable judicial record of the factual basis for the plea” to determine upon
which set of elements the non-citizen’s conviction rests. Moncrieffe v. Holder, 569
U.S. 184, 190-91 (2013) (quotation marks omitted) (quoting Nijhawan v. Holder,
557 U.S. 29, 35 (2009)). DHS argues that, while Bent’s California judgment of
conviction only reflects that he was convicted of attempted murder under sections
187(a) and 664, the California information clearly and convincingly shows that he
2 Bent concedes that California attempted murder is divisible and that
the modified categorical approach is applicable here, so we do not separately
determine whether it is divisible.

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was convicted of the attempted murder of a human being, rather than a fetus.
DHS’s argument fails because we cannot infer that crimes of conviction in
the judgment refer to the charges set forth in the information. See United States v.
Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) (“[W]hen the record of
conviction comprises only the [information] and the judgment, the judgment must
contain the critical phrase “as charged in the Information”) (quotation marks and
citations omitted); Ruiz-Vidal v. Lynch, 803 F.3d 1049, 1054 (9th Cir. 2015)
(applying Vidal’s standard). Furthermore, DHS cannot rely on handwritten marks
on Bent’s information to argue that the information was amended by interlineation
because this argument was raised for the first time at oral argument, and the Board
has never considered the significance of the handwriting. On remand, however, we
leave open the possibility that DHS may prevail under the modified categorical
approach by raising this interlineation argument or by further developing the
record of Bent’s judgment of conviction.3 Our disposition should not be read to
prevent the Board from taking any action it deems appropriate under the
3 After oral argument, DHS submitted a Rule 28(j) letter, to which was
attached a transcript of Bent’s state court plea colloquy. Bent disputes whether the
plea colloquy establishes that his conviction was for the attempted murder of a
human being, but that dispute is not relevant at this time because the plea colloquy
is not part of the administrative record. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court
of appeals shall decide the petition only on the administrative record on which the
order of removal is based”). We therefore do not consider the transcript, but DHS
may offer it during further agency proceedings and the agency may determine its
import in the first instance.

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circumstances.
Finally, Bent also argued that the Board’s withholding of removal analysis
was faulty because it erred in its particularly serious crime determination. The
Board did not consider this argument, but, if it has not been waived, may do so on
remand.
PETITION GRANTED; REMANDED.

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