26 I. & N. Dec. 79
BIA2013Background
- Respondent Alfonso Cortes Medina, a native and citizen of Mexico, entered the U.S. as a lawful permanent resident in 1980.
- Medina was convicted multiple times in California for indecent exposure under Cal. Penal Code § 314(1), with varying dispositions from probation to jail time.
- In 2001 Medina pled guilty to annoying or molesting a child under § 647.6(a) and received five years probation with jail time.
- In 2007 Medina was convicted by nolo contendere plea of indecent exposure with priors under § 314(1) and sentenced to 16 months in prison.
- DHS filed a notice to appear in July 2008 alleging removability under § 237(a)(2)(A)(ii) as an alien convicted of two or more CIMTs.
- IJ initially terminated proceedings based on Nunez v. Holder; Board subsequently concluded § 314(1) is categorically a CIMT and remanded for relief considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 314(1) is categorically a CIMT | DHS contends it is a CIMT. | Medina relies on Nunez to limit CIMT applicability. | Yes; § 314(1) is categorically a CIMT. |
| Authority to apply Chevron Brand X deference to classify § 314(1) | DHS argues Brand X deference applies to this ambiguous term. | Medina argues Ninth Circuit precedent prevents deference here. | Brand X deference applies; court adopts its deference to agency construction. |
| Role of lewd intent in constituting a CIMT under § 314(1) | Lewd intent is required to classify indecent exposure as CIMT. | Nunez suggests not inherently CIMT due to broad applicability. | Lewd intent is required; otherwise not CIMT; in § 314(1) it is satisfied by lewdness. |
| Whether there is a realistic probability California would apply § 314(1) to non-CIMT conduct | Courts elsewhere show narrowing lewdness; Nunez not controlling for Brand X. | Medina argues non-CIMT application is possible absent lewd intent. | No; there is no realistic probability that § 314(1) would be applied to non-CIMT conduct; the statute is categorically CIMT. |
Key Cases Cited
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (U.S. 2007) (realistic-probability standard for categorization under Chevron)
- Brand X Internet Servs. v. Brand X, 545 U.S. 967 (U.S. 2005) (deference to agency interpretation when statute ambiguous)
- Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (addressed CIMT status of § 314(1); not controlling after Brand X)
- Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc; supports Chevron deference on CIMT definitions)
- Rohit v. Holder, 670 F.3d 1088 (9th Cir. 2012) (categorical CIMT determination; lewdness evidence in prostitution context)
- Garfias-Rodriguez v. Holder, 2012 WL 5077137 (9th Cir. Oct. 19, 2012) (en banc; adopts Board's interpretation of ambiguous statute)
- People v. Ballard, 16 Cal. Rptr. 2d 624 (Cal. Ct. App. 1993) (lewdness requirement for indecent exposure evidence of CIMT)
- In re Smith, 497 P.2d 807 (Cal. 1972) (lewd intent essential to indecent exposure conviction)