                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 13 2009

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

FINAU DOMINIC TAKAPU,                            No. 05-73498

             Petitioner,                         Agency No. A037-267-904

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

             Respondent.


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

                           Submitted November 2, 2009**
                               Pasadena, California

Before: T.G. NELSON, BYBEE and M. SMITH, Circuit Judges.

       Finau Dominic Takapu petitions for review of the Board of Immigration

Appeals’ order affirming an Immigration Judge’s (“IJ’s”) denial of Takapu’s

challenge to his removal order and his applications for withholding of removal and

relief under the CAT. We deny the petition.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      1. We have jurisdiction to review Takapu’s purely legal contention that his

conviction for an offense under California Penal Code § 243(d) does not constitute

a crime of violence under 18 U.S.C. § 16(a), and is therefore not an aggravated

felony under 8 U.S.C. § 1101(a)(43)(F) . 8 U.S.C. § 1252(a)(2)(D).

      Under the Supreme Court’s opinion in Taylor v. United States, 495 U.S. 575,

588-89 (1990), we compare the state statute of conviction to the federal predicate

offense to determine whether there is a categorical match (i.e., all conduct for

which someone could realistically be convicted under state statute falls within the

federal offense). California Penal Code § 243(d) provides that “[w]hen a battery is

committed against any person and serious bodily injury is inflicted on the person,

the battery is punishable by imprisonment in a county jail not exceeding one year

or imprisonment in state prison for two, three, or four years.” Cal. Penal Code §

243(d). According to California courts, a § 243(d) offense has three elements: (1)

the use of physical force against the victim; (2) the use of force or violence was

willful and unlawful; and (3) the use of force or violence inflicted serious bodily

injury on the other person. People v. Lewis, 120 Cal. App. 4th 882, 887 (2004).

      Section 1101(43)(F) of Title 8, meanwhile, defines a “crime of

violence”—by reference to 18 U.S.C. § 16(a)—as “an offense that has as an

element the use, attempted use, or threatened use of physical force against the


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person or property of another.” 18 U.S.C. § 16(a). As used in the statute, the word

“use” “suggests a higher degree of intent than negligent or merely accidental

conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004); see also United States v.

Trinidad-Aquino, 259 F.3d 1140, 1145 & n.2 (9th Cir. 2001) (concluding that the

word “use” requires “some volition to perform the act”).

        There is nothing “negligent or merely accidental” about a § 243(d) offense;

it requires the willful use of physical force that causes serious injury, examples of

which include “loss of consciousness; concussion; bone fracture; . . . and serious

disfigurement.” Cal. Penal Code § 243(f)(4). Because a 243(d) offense will

always involve “the use . . . of physical force . . . against the person . . . of

another,” see 18 U.S.C. § 16(a), we conclude that it is categorically a crime of

violence, and therefore, an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(F)

and 1227(a)(2)(A)(iii).

       2. Takapu next argues that the IJ erred in determining that Takapu’s

conviction constituted a “particularly serious crime,” thereby rendering him

ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). By

statute, we lack jurisdiction to review the IJ’s discretionary determination. See 8

U.S.C. § 1252(a)(2)(B)(ii); see also Unuakhaulu v. Gonzales, 416 F.3d 931, 935

(9th Cir. 2005) (“[W]hen the Attorney General decides that the alien’s offense was


                                             3
a particularly serious crime, we lack jurisdiction to review such a decision because

it is discretionary.”) (internal quotation marks and citation omitted).

      3. We have jurisdiction over Takapu’s claim that he was improperly denied

protection under the Convention against Torture. See Bromfield v. Mukasey, 543

F.3d 1071, 1075 (9th Cir. 2008). On the merits, however, substantial record

evidence supports the IJ’s determination that Takapu failed to establish that he

would more likely than not be tortured if he was removed to New Zealand. See 8

C.F.R. § 208.16(c)(2) & (3).

      Takapu’s petition for review is DENIED.




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