Background
Sokhean Keo, a non-citizen living in California, was placed in removal proceedings after the government charged that his conviction under California Penal Code § 245(a)(2) — assault with a firearm — qualified as an “aggravated felony” under federal immigration law. An aggravated felony is a statutory category that triggers some of the harshest immigration consequences, including mandatory removal and bars to most forms of relief. The government’s theory was that the California offense constituted a “crime of violence” under 18 U.S.C. § 16, which would in turn make it an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
Both the Immigration Judge and the Board of Immigration Appeals (BIA) agreed with the government. The IJ ordered Keo removed and denied his applications for adjustment of status (a path to a green card) and a waiver of inadmissibility. The BIA affirmed and later denied his motion to reconsider. Keo then petitioned the Ninth Circuit for review.
While his petition was pending, the Ninth Circuit issued its en banc decision in United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026), directly addressing whether California Penal Code § 245(a)(2) convictions can serve as predicates for federal legal consequences tied to the “crime of violence” definition. That decision changed the legal landscape entirely.
The Court’s Holding
The Ninth Circuit granted Keo’s petition, vacated the removal order, and remanded to the BIA for further proceedings. The court held that, in light of the en banc decision in United States v. Gomez, Keo’s conviction under California Penal Code § 245(a)(2) does not qualify as a “crime of violence” under 18 U.S.C. § 16 and therefore cannot support removal on the aggravated felony ground charged in his Notice to Appear. Crucially, the government itself conceded the point, acknowledging that Gomez resolved whether Keo remained removable as charged under 8 U.S.C. § 1227(a)(2)(A)(iii).
The court declined the government’s request to let the BIA assess Gomez’s impact in the first instance. Whether a particular offense can serve as a predicate for removal is a pure question of law that the Ninth Circuit reviews de novo — meaning independently, without deference to the agency — and the court resolved that question directly. The court also declined to address Keo’s remaining arguments, as doing so was unnecessary given the outcome on the removal charge.
Key Takeaways
- California Penal Code § 245(a)(2) — assault with a firearm — does not qualify as a “crime of violence” under 18 U.S.C. § 16 following the Ninth Circuit’s en banc ruling in United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026).
- A § 245(a)(2) conviction therefore cannot serve as the predicate offense for removal on the aggravated felony ground under 8 U.S.C. § 1227(a)(2)(A)(iii), at least as charged under the crime-of-violence theory.
- Whether an offense qualifies as a removal predicate is a question of law the Ninth Circuit decides de novo — the BIA does not get deference on this issue, and the court will not defer simply to let the agency address a new circuit precedent first.
- Defense counsel in criminal cases should affirmatively advise non-citizen clients that a § 245(a)(2) conviction, standing alone, does not trigger the aggravated felony removal ground under the crime-of-violence theory — a significant change from prior practice.
- Non-citizen clients already under removal orders premised solely on a § 245(a)(2) aggravated felony charge should promptly seek review or reopening in light of Gomez and this decision.
Why It Matters
For California criminal defense and immigration attorneys, this decision has immediate, practical consequences. California Penal Code § 245(a)(2) — assault with a firearm — is one of the most commonly charged felonies in the state. For years, government immigration authorities argued that this offense was an aggravated felony, exposing non-citizen defendants to mandatory deportation, permanent bars to re-entry, and elimination of most avenues for relief. Keo v. Blanche, following the en banc Gomez decision, forecloses that theory. A conviction under § 245(a)(2) can no longer support removal on the crime-of-violence aggravated felony ground.
The ruling matters beyond Keo’s individual case. Defense counsel advising non-citizen clients facing § 245(a)(2) charges — or clients already convicted — must update their analysis of immigration consequences. Clients with existing removal orders based solely on this charge may have viable grounds for reopening proceedings. Immigration practitioners should review pending cases before the BIA and any circuit courts to ensure Gomez and Keo are raised. The government’s own concession in this case signals that it does not intend to contest the Gomez holding, making the path to relief clearer for similarly situated individuals.