                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 30 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BHANWAR S. PUROHIT,                              No. 08-75027

              Petitioner,                        Agency No. A036-001-632

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

              Respondent.



BHANWAR S. PUROHIT,                              No. 09-73998

              Petitioner,                        Agency No. A036-001-632

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                            Submitted March 16, 2011 **
                             San Francisco, California

Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.

      As the facts and procedural history are familiar to the parties, we do not

recite them here except as necessary to explain our disposition.

      The Board of Immigration Appeals (BIA) properly rejected Purohit’s

argument that voluntary manslaughter under California Penal Code § 192(a) does

not necessarily involve the use of physical force, see 18 U.S.C. § 16(b); see also 8

U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii). We have rejected this contention

with respect to involuntary manslaughter under California Penal Code § 192(b),

which is materially identical in all relevant respects to voluntary manslaughter

under California Penal Code § 192(a). See Park v. INS, 252 F.3d 1019, 1022 (9th

Cir. 2001), overruled in part on other grounds by Fernandez-Ruiz v. Gonzales, 466

F.3d 1121, 1132 (9th Cir. 2006) (en banc).

      However, under our recent cases, such as Covarrubias Teposte v. Holder,

632 F.3d 1049, 1052–55 (9th Cir. 2011), which applied the “intentional force”

requirement established by Fernandez-Ruiz, 466 F.3d at 1132, we hold that

California Penal Code § 192(a) is not categorically a crime of violence because it


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
can be committed through the reckless use of force, see People v. Rios, 2 P.3d

1066, 1073 n.7 (Cal. 2000); People v. Lasko, 999 P.2d 666, 672 (Cal. 2000).1 We

remand for the BIA to “address the modified categorical approach in the first

instance.” Cortez-Guillen v. Holder, 623 F.3d 933, 936 (9th Cir. 2010) (citing INS

v. Ventura, 537 U.S. 12 (2002) (per curiam)).

      We have jurisdiction over Purohit’s challenge to the BIA’s denial of relief

under the Convention Against Torture, Edu v. Holder, 624 F.3d 1137, 1141–42

(9th Cir. 2010), and the BIA’s denial of Purohit’s motion to reopen proceedings,

Sharma v. Holder, 633 F.3d 865, 868 (9th Cir. 2011). Substantial evidence

supports the BIA’s findings regarding the likelihood of torture, see Wakkary v.

Holder, 558 F.3d 1049, 1068 (9th Cir. 2009), as Purohit’s evidence does not

compel the conclusion that he is both likely to be imprisoned on account of his

proselytizing and likely to be tortured if he is imprisoned, cf. Khup v. Ashcroft, 376

F.3d 898, 907 (9th Cir. 2004). Likewise, Purohit’s evidence does not compel the

conclusion that he is likely to be a victim of anti-Christian violence. “We are not



      1
        Although Purohit did not raise this particular question in his briefing to the
BIA, he has adequately exhausted the question of whether a conviction under
California Penal Code § 192(a) constitutes an aggravated felony under 8 U.S.C.
§ 1227(a)(2)(A)(iii). See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873–74 (9th
Cir. 2008). We therefore have jurisdiction over this question. 8 U.S.C.
§ 1252(d)(1).

                                           3
in a position to second-guess the [BIA’s] construction of the somewhat

contradictory” State Department reports submitted by Purohit. Sowe v. Mukasey,

538 F.3d 1281, 1286 (9th Cir. 2008). The evidence submitted in Purohit’s motion

to reopen does not establish that it was “more likely than not” that he would be

tortured, Cano-Merida v. INS, 311 F.3d 960, 965–66 (9th Cir. 2002), and the BIA

accordingly was within its discretion to deny the motion, e.g., Gui v. INS, 280 F.3d

1217, 1230 (9th Cir. 2002).

      Each party shall bear its own costs.

      PETITION GRANTED IN PART AND DENIED IN PART;

REMANDED.




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