Delgado-Hernandez v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BORIS EDEMBER DELGADO- 

HERNANDEZ,

No. 08-70789

Petitioner,

v.  Agency No.

A029-273-534

ERIC H. HOLDER Jr., Attorney

OPINION

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 2, 2012*

Seattle, Washington

Filed October 9, 2012

Before: Michael Daly Hawkins, M. Margaret McKeown and

Jay S. Bybee, Circuit Judges.

Per Curiam Opinion

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

12201

DELGADO-HERNANDEZ v. HOLDER 12203

COUNSEL

Jaime Jasso, LAW OFFICE OF JAIME JASSO, Westlake

Village, California, and Robert B. Jobe, Anna L. Benvenue

LAW OFFICE OF ROBERT B. JOBE, San Francisco, Cali-

fornia, for the petitioner.

Tony West, Assistant Attorney General, Donald E. Keener,

Deputy Director, and Robert M. Markle, Attorney, Office of

Immigration Litigation, Washington, D.C., for the respondent.

12204 DELGADO-HERNANDEZ v. HOLDER

OPINION

PER CURIAM:

Boris Edember Delgado-Hernandez (“Delgado”) seeks

review of a final order of removal following the Board of

Immigration Appeals’ (“BIA”) determination that his convic-

tion for attempted kidnapping under California Penal Code

§ 207(a) is an aggravated felony because it is categorically a

crime of violence.1 We deny the petition because an ordinary

case of kidnapping under this statute presents a substantial

risk of force, and therefore § 207(a) defines a crime of vio-

lence.

BACKGROUND

Delgado, a citizen of El Salvador, was lawfully admitted to

the United States on July 23, 2001, and became a lawful per-

manent resident in 2003. He pled guilty to the attempted kid-

napping of his cousin on April 12, 2006 under California

Penal Code § 207(a), and was sentenced to eighteen months

in prison. The Department of Homeland Security initiated

removal proceedings against Delgado in September of 2006,

charging him as removable under the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii) as an

alien convicted of an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(F). The Immigration Judge found that

attempted kidnapping under § 207(a) was an aggravated fel-

ony. Delgado timely appealed, and the BIA affirmed the deci-

sion in an unpublished opinion.

1

Delgado also appealed the BIA’s determination that he is ineligible for

withholding of removal, asylum, and Convention Against Torture relief

because he committed a particularly serious crime. Delgado waived these

claims because they were not properly briefed. See Singh v. Ashcroft, 361

F.3d 1152, 1157 n.3 (9th Cir. 2004) (“Issues not raised in an appellant’s

opening brief are typically deemed waived.”).

DELGADO-HERNANDEZ v. HOLDER 12205

We have jurisdiction under 8 U.S.C. § 1252(a)(1), which

provides for judicial review of final orders of removal, and

under 8 U.S.C. § 1252(a)(2)(D), which provides for judicial

review of constitutional and legal questions raised by petition-

ers found removable based on criminal activity. “[W]e review

de novo the BIA’s determination of questions of law, except

to the extent that deference is owed to its interpretation of the

governing statutes and regulations.” Garcia-Quintero v. Gon-

zales, 455 F.3d 1006, 1011 (9th Cir. 2006). Because the BIA

resolved this appeal in an unpublished decision, we defer to

its interpretation of the INA only to the extent we find it per-

suasive. See id. at 1014-15.

ANALYSIS

[1] The sole issue on appeal is whether Delgado’s convic-

tion for attempted kidnapping is a crime of violence, thus

making him removable as an aggravated felon. An “aggra-

vated felony” under 8 U.S.C. § 1101(a)(43)(F) means “a

crime of violence (as defined in section 16 of Title 18, but not

including a purely political offense) for which the term of

imprisonment [is] at least one year.” Delgado’s challenge to

the BIA’s determination turns on the definition of “crime of

violence” in 18 U.S.C. § 16:

(a) an offense that has as an element the use,

attempted use, or threatened use of physical force

against the person or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or property of another may be

used in the course of committing the offense.

Under 8 U.S.C. § 1101(a)(43)(U), attempts to commit an

aggravated felony are treated as if they are completed com-

missions of the aggravated felony. Delgado does not dispute

that his conviction under § 207(a) carries a term of imprison-

12206 DELGADO-HERNANDEZ v. HOLDER

ment of at least one year, but he argues that it does not qualify

as a crime of violence.

The government has at its disposal three possible ways to

demonstrate that § 207(a) defines a crime of violence. Under

the categorical approach, it may show that the crime has a

force element under § 16(a). Alternatively, it may show that

§ 207(a) categorically involves a substantial risk of force

under § 16(b). Finally, under the modified categorical

approach, it may bring forth the judicially noticeable docu-

ments in Delgado’s conviction to show that his particular

crime was a crime of violence under § 16(a) or § 16(b).

Although § 207(a) does not include a force element under

§ 16(a), an ordinary kidnapping under § 207(a) presents a

substantial risk of force, thereby categorically triggering

§ 16(b). Because § 207(a) is categorically a crime of violence,

we need not rely on the modified categorical analysis.

A. FORCE ELEMENT UNDER § 16(A)

[2] In determining whether an offense qualifies as an

aggravated felony under 8 U.S.C. § 1101(a)(43)(F), we apply

the “categorical approach” to determine whether the “full

range of conduct covered by” the relevant state criminal stat-

ute “falls within the meaning of” a crime of violence under 18

U.S.C. § 16. Penuliar v. Mukasey, 528 F.3d 603, 609 (9th Cir.

2008) (internal quotation marks omitted). Subsection § 207(a)

provides:

Every person who forcibly, or by any other means of

instilling fear, steals or takes, or holds, detains, or

arrests any person in this state, and carries the person

into another country, state, or county, or into another

part of the same county, is guilty of kidnapping.

[3] Our analysis on this point begins and ends with the

plain text of the statute. Because kidnapping under § 207(a)

can be committed by “any means of instilling fear” instead of

DELGADO-HERNANDEZ v. HOLDER 12207

by force, § 207(a) does not include “the use . . . of physical

force” as an element of the crime. 18 U.S.C. § 16(a). See

United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir.

1988) (holding that kidnapping under the Model Penal Code

does not qualify as a crime of violence under a provision anal-

ogous to 18 U.S.C. § 16(a) because it may be achieved

through trickery or deceit rather than force). As a result, the

“force” element of § 207(a) does not categorically qualify the

kidnapping as defined by the statute as a crime of violence

under 18 U.S.C. § 16(a).

B. SUBSTANTIAL RISK OF FORCE UNDER § 16(B)

[4] The analysis under 18 U.S.C. § 16(b), whether § 207(a)

“involves a substantial risk that physical force . . . may be

used” and thus qualifies as a crime of violence, is not as

straightforward as that under § 16(a). Because we must evalu-

ate gradations of risk, which is an “inherently probabilistic

concept[ ],” unlike in our analysis of § 16(a), the language of

§ 207(a) is not decisive on its face. James v. United States,

550 U.S. 192, 207 (2007).2 Nevertheless, we previously held

that kidnapping by force or fraud under § 207(d) presents a

serious risk of physical injury. United States v. Lonczak, 993

F.2d 180, 183 (9th Cir. 1993). Our sister circuits have also

2

Although the text of § 207 in the abstract may implicate situations

where no force in the generic sense is used, we must assess concrete and

actual risk that force may be used. Therefore our holding in United States

v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc) is inapposite to

the § 16(b) analysis. There, we explained that “when the state statute’s

greater breadth is evident from its text, a defendant may rely on the statu-

tory language to establish the statute as overly inclusive,” and it is “the

Government [that] present[s] . . . affirmative proof that [a state] court has

expressly limited [the state statute] so as to preclude its application.” Id.

at 82-83. However, Vidal, like our analysis of § 16(a), simply required a

more straightforward decision—whether or not the offense satisfied the

generic definition. Our decision here is less black and white: we must

independently consider the risk that the generic factors are satisfied, which

in turn, requires us to consider only the “ordinary case.” James, 550 U.S.

at 207-08.

12208 DELGADO-HERNANDEZ v. HOLDER

treated similar kidnapping statutes as presenting a substantial

risk of force. We conclude again that kidnapping under § 207

is a crime of violence under § 16(b).

Before diving into the commentary on kidnapping statutes,

we step back to consider first principles, especially the evalu-

ation of risk in crime of violence statutes. Under the categori-

cal approach, we consider whether the elements of § 207(a)

constitute a crime of violence, as defined by § 16(b), that is,

whether they present a substantial risk of force. See Shepard

v. United States, 544 U.S. 13, 17 (2005). In evaluating “sub-

stantial risk” as we parse the force and fear elements of kid-

napping in § 207(a), we inquire whether “the conduct

encompassed by the elements of the offense, in the ordinary

case, presents” such a risk. See James, 550 U.S. at 208. The

“risk of physical confrontation with a property owner, law

enforcement official, or other third party” in attempting bur-

glary, for example, presents a sufficient probability of injury

under the statute to qualify burglary as a crime of violence. Id.

at 213.3

Our approach in Lonczak strongly suggests that in the ordi-

nary case the force or fear contemplated in § 207(a) presents

a serious risk of force. 993 F.2d at 183. In Lonczak, we held

that Cal. Pen. Code § 207(d), which criminalized kidnapping

as “tak[ing] by force or fraud,” constitutes a crime of violence

3

Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006), is not in conflict

with the approach outlined in James. Valencia considered whether Califor-

nia’s statutory rape provision, Cal. Penal Code § 261.5, was a crime of

violence under section 16(b). Id. at 1049. The court held that statutory

rape “does not, by its nature, involve a substantial risk of the use of physi-

cal force to commit the offense.” Id. at 1053. That is because statutory

rape—unlike sexual battery—involves the victim’s legal incapacity to

consent rather than the victim’s actual nonconsent. Id. at 1050-51. “[L]ack

of actual consent, rather than legal incapacity to consent, is the ‘touch-

stone’ of § 16(b) analysis . . . .” Id. at 1051. In other words, the “ordinary

case” of statutory rape can include actual, but not legal, consent, and

therefore doesn’t entail a risk of force. By contrast, the “ordinary case” of

kidnapping does entail such a risk.

DELGADO-HERNANDEZ v. HOLDER 12209

for the purposes of then-U.S.S.G. § 4B1.2(l)(ii) as it “pre-

sent[s] a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(l) cmt. n.2. 993 F.2d at 183.

To an extent, Lonczak has been overtaken by developments

in the following decade. In 2002, the California Supreme

Court declared that “the only force required to kidnap an

unresisting infant or child is the amount necessary to move

the victim a substantial distance.” In re Michele D, 59 P.3d

164, 172 (Cal. 2002) (holding a minor defendant guilty of kid-

napping for leaving a store with a friend’s infant child). The

next year, the California Legislature added section 207(e) to

the penal code to codify the standard articulated in Michele D.

See 2003 Cal. Legis. Serv. 209 (West). The result is that the

requirement of an element of force is “relaxed or eliminated

in a kidnapping that involves an infant or small child” in Cali-

fornia under § 207. Michele D, 59 P.3d at 169. Subsection

207(e)’s adoption of this non-“conventionally understood”

meaning of force after Lonczak, id., raises a question as to

whether the force that is possible in a kidnapping under § 207

rises to the level of force contemplated in § 16(b).4 In other

words, merely picking up and carrying away an infant, with-

out any other conflict, does not entail a substantial risk of

force as the term is used in § 16.

4

Another potential distinction between Lonczak and this case is that the

crime of violence guideline in Lonczak concerns the risk of injury whereas

the statute at issue here concerns only the risk of force. As the Supreme

Court has noted, Ҥ 16(b) plainly does not encompass all offenses which

create a ‘substantial risk’ that injury will result from a person’s conduct.

The ‘substantial risk’ in § 16(b) relates to the use of force, not to the possi-

ble [injurious] effect of a person’s conduct.” Leocal v. Ashcroft, 543 U.S.

1, 10 n.7 (2004); see also Malta-Espinoza v. Gonzales, 478 F.3d 1080,

1084 (9th Cir. 2007) (“[M]ere harm to the victim is not sufficient under

§ 16(b); the statute requires use of force against the victim in the course

of committing the crime.”). However, the federal cases discussed below

all concern crime of violence statutes that rely on proving a risk of force

rather than of injury. Therefore, this distinction is not relevant.

12210 DELGADO-HERNANDEZ v. HOLDER

However, the addition of § 207(e) changes little in our

analysis because it does not describe an ordinary case of kid-

napping; rather it merely sets a lower limit on the force

required. Just as the Supreme Court in James was able to

imagine a burglary without the possibility of injury, involving

“an unoccupied structure located far off the beaten path and

away from any potential intervenors,” we too may imagine a

non-custodial parent who refuses to return with her children

from a vacation abroad, thereby effectuating a kidnapping

under § 207, with minimal risk of force. James, 550 U.S. at

207. However, we cannot adopt a Pollyannaish outlook at the

margins of the statute; the evidence before us is that the ordi-

nary case of kidnapping involves a risk of violence.

Michele D. itself involved such a risk, when a “disturbed,

emotionally hurt, and tearful” 15-year old, who had recently

suffered a miscarriage, absconded with an infant temporarily

in her charge, was accosted by a third party trespassing “in a

dark alleyway,” and was turned over to the police soon after.

59 P.3d at 166-67. No force was actually involved—but force

remained a substantial risk from the emotionally distraught

minor. Similarly, the kidnapping cases upon which Michele

D. relies, some decided pre-Lonczak, involved a substantial

risk of force, and sometimes, actual force. See People v. Hill,

3 P.3d 898, 899 (Cal. 2000) (car jacking involving rape of

mother); Parnell v. Superior Court of Alameda Cnty., 173

Cal. Rptr. 906, 912 (Cal. App. 1981) (“One cannot imagine

a more threatening situation: A seven-year-old youngster in a

moving automobile under the control of two adult strangers

who twice countermanded the child’s request to contact his

parents.”); People v. Oliver, 361 P.2d 593, 594 (Cal. 1961)

(defendant “subdued” by officers “after a struggle”). In con-

sidering an attenuated force requirement, Michele D. and

§ 207(e) focus on the actual use of force upon the victim; as

in James, we also consider the risk of force against the victim

and third parties. See also United States v. Hennecke, 590

F.3d 619, 623 (8th Cir. 2010) (“Physically stealing from a

person poses the same risk of violent confrontation with the

DELGADO-HERNANDEZ v. HOLDER 12211

victim or a third person as attempted or completed burgla-

ry.”); United States v. Rodriguez, 659 F.3d 117, 119 (1st Cir.

2011) (same).

[5] The approach of other courts with respect to compara-

ble kidnapping statutes—specifically the federal kidnapping

statute—also lends support to our conclusion that kidnapping

by force or fear ordinarily involves a risk of violence. The

federal kidnapping statute has no force requirement, and pro-

vides merely that “[w]hoever unlawfully seizes, confines,

inveigles, decoys, kidnaps, abducts, or carries away and holds

for ransom or reward or otherwise any person, except in the

case of a minor by the parent thereof” shall be punished in

accordance with the law. 18 U.S.C. § 1201(a). Nonetheless,

the Supreme Court has seen fit to assume, admittedly without

deciding, that this constitutes a crime that presents a substan-

tial risk of force. In United States v. Rodriguez-Moreno, 526

U.S. 275 (1999), the Court considered a venue provision con-

trolled by 18 U.S.C. § 924(c)(1), which prohibits using or car-

rying a firearm during and in relation to a crime of violence.

The Court explained that the fact that the firearm was carried

only in one state did not preclude trying the defendant in

another state where the defendant had committed the underly-

ing crime of violence. The Court throughout characterized

kidnapping under the federal statute as a crime of violence,

under a definition identical to § 16. 18 U.S.C. § 924(c)(3). See

id. at 280 (the underlying crime constitutes the “commi[ssion]

[of] all the acts necessary to be subject to punishment for kid-

naping (a crime of violence).”).

Admittedly, Rodriguez-Moreno did not squarely hold that

federal kidnapping is a crime of violence. But see United

States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th

Cir. 2000) (“Supreme Court dicta have a weight that is greater

than ordinary judicial dicta as prophecy of what that Court

might hold; accordingly, we do not blandly shrug them off

because they were not a holding.”) (internal quotation marks

omitted). However, our sister circuits have been more defini-

12212 DELGADO-HERNANDEZ v. HOLDER

tive in considering the federal kidnapping statute. United

States v. Patino, 962 F.2d 263, 264, 267 (2d Cir. 1992) (“That

the crime of kidnapping involves the threatened use of physi-

cal force against a person and is thus a crime of violence

under this statute cannot be questioned.”); United States v.

Salemi, 26 F.3d 1084, 1087 (11th Cir. 1994) (babysitting

house guest steals infant without force, but court stated that

“[k]idnapping is a violent crime” because “[t]he Commission

recognized that kidnapping inherently involves the threat of

violence”). Similarly, interpreting a state statute that resem-

bles the federal statute, the Sixth Circuit held that kidnapping

under Ohio Code § 2905.01 is a crime of violence under the

Armed Career Criminal Act. United States v. Kaplansky, 42

F.3d 320, 324-25 (6th Cir. 1994). Kaplansky relied on our

decisions in Lonczak and Sherbondy, and reasoned that

the essence of kidnapping is requiring another to do

something against his or her will; and because physi-

cal force or restraint is usually the best way to over-

bear the will of another, physical force or threat of

force is a latent, but more often actual, companion of

the coercive element. That deception may be used to

effect the kidnapping does not erase the ever-present

possibility that the victim may figure out what’s

really going on and decide to resist, in turn requiring

the perpetrator to resort to actual physical restraint if

he is to carry out the criminal plan.

Id. at 324. The same reasoning applies here to kidnapping by

force or fear under § 207(a).

[6] Finally, legislative bodies, including Congress, have

consistently treated kidnapping as a crime of violence.

Although these bodies did not necessarily have in mind a defi-

nition of a “crime of violence” as involving a “substantial risk

of force,” we find it instructive that historically, “kidnapping”

has always been an enumerated violent crime. This history is

part of the common-sense understanding of kidnapping. In

DELGADO-HERNANDEZ v. HOLDER 12213

1926, as part of an effort to regulate firearms after World War

I, the National Conference of Commissioners on Uniform

State Laws promulgated the Uniform Firearms Act (“UFA”),

which, among other things, outlawed gun ownership for per-

sons convicted of a “crime of violence.” See C. Kevin Mar-

shall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L.

& Pub. Pol’y 695, 700-01 (2009). In 1930, the drafters pro-

mulgated another version of the act which defined “crime of

violence” as an enumerated list of (largely) common law

crimes: “murder, manslaughter, rape, mayhem, assault to do

great bodily harm, robbery, burglary [housebreaking, break-

ing and entering, kidnapping, and larceny].”5 National Confer-

ence of Commissioners on Uniform State Laws, Uniform

Firearms Act 3 (1930) (brackets in original). That is, the UFA

defined the term “crime of violence” “to cover such crimes as

are ordinarily committed with the aid of firearms.” Note, The

Uniform Firearms Act, 18 Va. L. Rev. 904, 906 n.11 (1932).

By 1938, the Conference reported that 10 states had already

adopted the UFA. Note, Firearms: Problems of Control, 80

Harv. L. Rev. 1328, 1337 n.60 (1967); see, e.g., Act of June

11, 1931, § 1, 1931 Pa. Laws 497, 497 (“‘Crime of violence,’

as used in this act, means any of the following crimes, or an

attempt to commit any of the same, namely: murder, rape,

mayhem, aggravated assault and battery, assault with intent to

kill, robbery, burglary, breaking and entering with intent to

commit a felony, and kidnapping”).

That same year, Congress adopted the Federal Firearms

Act, the first federal effort to prevent felons from possessing

firearms. Following the conventions recommended by the

National Conference of Commissioners on Uniform State

Laws, the prohibition applied only to felons convicted of a

“crime of violence,” Federal Firearms Act, ch. 850, § 2(f), 52

Stat. 1250, 1251 (1938), which the Act defined as “murder,

5

States were advised to include the various crimes in brackets, including

kidnapping, “to suit local definitions.” National Conference of Commis-

sioners on Uniform State Laws, Uniform Firearms Act 3 n.1 (1930).

12214 DELGADO-HERNANDEZ v. HOLDER

manslaughter, rape, mayhem, kidnaping, burglary, house-

breaking; assault with intent to kill, commit rape, or rob;

assault with a dangerous weapon, or assault with intent to

commit any offense punishable by imprisonment for more

than one year,” id. § 1(6), 52 Stat. at 1250. Congress subse-

quently amended federal law to prohibit the possession of a

firearm by any felon regardless of the offense of conviction.

See Act of October 3, 1961, Pub. L. No. 87-342, 75 Stat. 757;

see also 18 U.S.C. § 922(g)(1).

Although the original definition of kidnapping is no longer

found in the U.S. Code, the understanding clearly survives in

federal law. For one, Congress continues to view kidnapping

as a crime of violence. In enacting “[m]andatory minimum

terms of imprisonment for violent crimes against children,”

Congress provided that “if the crime of violence is kidnapping

(as defined in [18 U.S.C. § ] 1201),” the mandatory minimum

is 25 years. 18 U.S.C. § 3559(f)(2) (emphasis added).6 Simi-

larly, the Sentencing Commission has retained the same defi-

nition. In the Guidelines pertaining to illegal reentry offenders

and offenders under the Armed Career Criminal Act, the Sen-

tencing Commission has defined “crime of violence” to

include a list of enumerated offenses, and kidnapping is

among them. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (“‘Crime of

violence’ means any of the following offenses under federal,

state, or local law: . . . kidnapping . . . or any other offense

6

The legislative history of 18 U.S.C. § 16 also sheds light on the defini-

tion of kidnapping. The Judiciary Committee report accompanying that

law explained that the crime of violence “definition is taken from S. 1630

as reported in the 97th Congress.” S. Rep. No. 98-225, at 307 (1983),

reprinted in 1984 U.S.C.C.A.N. 3182, 3486 (citing S. Rep. No. 97-307).

In turn, that earlier report unequivocally stated that “the Committee con-

siders kidnapping to be a ‘crime of violence’ under section 204(a),” which

provided for extraterritorial jurisdiction over certain crimes of violence. S.

Rep. No. 97-307, at 609 (1981); cf. S. Rep. No. 106-254, at 28 (2000)

(proposing to extend legislation “broadly to all victims of a ‘crime of vio-

lence,’ ” and defining “[c]rime[ ] of violence [to] include all forms of . . .

kidnaping”).

DELGADO-HERNANDEZ v. HOLDER 12215

. . . that has as an element the use, attempted use, or threat-

ened use of physical force against the person of another.”); id.

§ 4B1.2 cmt. n.1 (“‘Crime of violence’ includes . . . kidnap-

ping . . . .”).

The definition also persists through a wide variety of con-

texts in statutes across a large array of jurisdictions. Twenty

states, the District of Columbia, and the Virgin Islands all

define, at some point in their respective codes, “crime of vio-

lence” to include kidnapping. See Ala. Code § 13A-11-70(2)

(offenses relating to firearms and weapons); Ark. Code Ann.

§ 5-73-202(1)(C) (uniform machine gun act); Colo. Rev. Stat.

§ 16-1-104(8.5)(a)(I) (general definitions); Conn. Gen. Stat.

§ 53-202(a)(2) (use of a machine gun during a crime of vio-

lence); Del. Code Ann. tit. 16, § 6647(b)(2)(a) (membership

requirements for volunteer firefighters); D.C. Code §§ 22-

4501(1), 23-1331(4) (weapons offenses); 20 Ill. Comp. Stat.

301/1-10 (alcohol and drug abuse dependency act); Ind. Code

§ 35-50-1-2(a)(7) (consecutive or concurrent terms of sen-

tence); La. Rev. Stat. Ann. § 14:2(B)(15)-(17) (general defini-

tions); Md. Code Ann., Pub. Safety § 5-101(c)(7) (definitions

relating to firearms offenses); Minn. Stat. Ann. § 624.712(5)

(general definitions); N.D. Cent. Code § 12-44.1-31(2)(c)

(requirements for accepting out-of-state inmates); Or. Rev.

Stat. § 475.908(3)(b)(E)-(F) (causing another person to ingest

a controlled substance for the purpose of committing a crime

of violence); 18 Pa. Cons. Stat. Ann. § 4416(b) (offenses

involving carrying deadly weapons); R.I. Gen. Laws § 11-47-

2(2) (definitions relating to weapons offenses); S.C. Code

Ann. § 16-23-10(3) (offenses involving weapons); S.D. Codi-

fied Laws § 22-1-2(9) (general definitions); Tenn. Code Ann.

§ 39-17-1301(3) (offenses against public health, safety, and

welfare); Vt. Stat. Ann. tit. 13, § 11a(d)(7) (provisions for

violent career criminals); Va. Code Ann. § 18.2-288(2) (uni-

form machine gun act); Wash. Rev. Code Ann.

§ 9.41.010(3)(a) (definitions relating to firearms and danger-

ous weapons offenses); V.I. Code Ann. tit. 19, § 451(e) (con-

trol of firearms and ammunition).

12216 DELGADO-HERNANDEZ v. HOLDER

Eighteen more states define kidnapping, or refer to it in

such a way, as to make clear that the jurisdiction considers the

offense to be a violent crime. See Alaska Stat.

§ 11.56.765(a)(1)(B) (characterizing “kidnapping or

attempted kidnapping of a child” as a “violent crime”); Ariz.

Rev. Stat. § 13-706(2)(h) (defining “violent or aggravated fel-

ony”); Cal. Penal Code § 667.5(c)(14) (defining “violent felo-

ny”); Del. Code Ann. tit. 11, § 4201(c) (defining “violent

felonies”); Fla. Stat. § 775.084(1)(b)(1)(d) (defining

“[h]abitual violent felony offender”); Ga. Code Ann. § 17-10-

6.1(a)(3) (defining “serious violent felony”); Haw. Rev. Stat.

§ 351-32(11) (including the term in a list under the heading

“[v]iolent crimes”); Kan. Stat. Ann. § 22-4902(e)(F)-(G)

(defining “[v]iolent offender”); Ky. Rev. Stat. Ann.

§ 532.200(3) (defining “[v]iolent felony offense”); Mass.

Gen. Laws Ann. ch. 127, § 133E (defining “violent crime”);

Mo. Rev. Stat. § 563.011(3) (defining “[f]orcible felony” or

“any felony involving the use or threat of physical force or

violence against any individual”); Mont. Code Ann. § 46-18-

1001(5) (defining “[v]iolent felony offense”); Neb. Rev. Stat.

§ 83-961(8) (defining “[v]iolent offense”); Nev. Rev. Stat.

§ 202.876(3) (defining “[v]iolent or sexual offense”); N.M.

Stat. Ann. § 30-3-14(A) (defining “violent felony”); N.Y.

Penal Law § 70.02(1)(a) (defining “violent felony offenses”);

N.C. Gen. Stat. §§ 14-7.7(b), 14-39(b) (defining “violent felo-

ny”); Okla. Stat. tit. 22, § 982(F)(10) (defining “violent felony

offense”); Utah Code Ann. § 76-3-203.5(1)(c)(O) (defining

“[v]iolent felony”); Wyo. Stat. Ann. § 6-1-104(a)(xii) (defin-

ing “[v]iolent felony”).

[7] In sum, numerous courts have held that kidnapping

generally presents a risk of substantial force. Congress, the

Sentencing Commission, and forty jurisdictions have con-

cluded, consistent with historical practice, that kidnapping is

a violent crime. Based on all the available evidence, the gov-

ernment sufficiently met its burden of showing that an ordi-

nary kidnapping under § 207(a) is a crime of violence because

it results in a substantial risk of force. The BIA did not err in

DELGADO-HERNANDEZ v. HOLDER 12217

its rejection of Delgado’s challenge to the final order of

removal.

PETITION DENIED.