                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 24 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JOSE VELASCO HERNANDEZ,                          No. 12-71954

               Petitioner,                       Agency No. A014-566-461

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted January 21, 2014**

Before:        CANBY, SILVERMAN, and PAEZ, Circuit Judges.

       Jose Velasco Hernandez, a native and citizen of Mexico, petitions for review

of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal

from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. Reviewing de novo questions of law, Renteria-Morales v. Mukasey,

551 F.3d 1076, 1081 (9th Cir. 2008), we deny the petition for review.

      The BIA correctly concluded that Velasco Hernandez’s conviction for

assault with a deadly weapon under California Penal Code § 245(a)(1) constitutes

an aggravated-felony crime of violence that renders him removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) because section 245(a)(1) defines a categorical crime of

violence, and Velasco Hernandez received an actual sentence to imprisonment of at

least one year. See 8 U.S.C. § 1101(a)(43)(F) (defining an “aggravated felony” as

“a crime of violence . . . for which the term of imprisonment [is] at least one

year”); United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (“[A]ssault

with a deadly weapon or by means of force likely to produce great bodily injury

under section 245(a)(1) is categorically a crime of violence . . . .”); Renteria-

Morales, 551 F.3d at 1089 (“[The] language in § 1101(a)(43) requiring that a crime

of conviction be one ‘for which the term of imprisonment is at least one year’ . . .

refers to the actual sentence imposed by the judge on the defendant convicted of

the predicate offense, rather than the ‘potential sentence that the judge could have

imposed.’” (citation omitted)).

      Our case law forecloses Velasco Hernandez’s contentions that

section 245(a)(1) does not contain the mens rea required for a crime of violence


                                           2                                        12-71954
and that California law’s classification of his offense as a misdemeanor prevents it

from qualifying as an aggravated-felony crime of violence under federal law. See

Grajeda, 581 F.3d at 1197 (“[A]ssault under California Penal Code section 245(a)

requires proof of sufficiently intentional conduct to satisfy the mens rea

requirement for a crime of violence.”); Habibi v. Holder, 673 F.3d 1082, 1088

(9th Cir. 2011) (“[W]hether a state classifies an offense as a ‘misdemeanor’ is

irrelevant to determining whether it is an ‘aggravated felony’ for purposes of

federal law.”).

      PETITION FOR REVIEW DENIED.




                                          3                                      12-71954
