Elisa Menendez v. Matthew Whitaker, 908 F.3d 467

Two consolidated Ninth Circuit petitions: Menendez (convicted under Cal. Penal Code § 288(c)(1)) sought cancellation of removal; BIA held her conviction was a crime involving moral turpitude, triggering the stop‑time rule and rendering her ineligible.
Rodriguez‑Castellon (also convicted under § 288(c)(1)) was ordered removed as an aggravated felon (crime of violence) and later denied sua sponte reopening by the BIA, which alternatively treated his conviction as a "crime of child abuse."
Section 288(c)(1) penalizes willful, lewd or lascivious acts on a 14–15‑year‑old when the defendant is ≥10 years older; California law treats any touching with the requisite sexual intent as unlawful and does not permit a good‑faith mistake of age defense.
The court applied the categorical approach (Taylor/Descamps framework) to compare § 288(c)(1)’s elements to the generic federal definitions of (1) "crime involving moral turpitude" and (2) "crime of child abuse."
The Ninth Circuit held § 288(c)(1) is neither categorically a crime involving moral turpitude nor categorically a crime of child abuse, and remanded both cases to the BIA for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 288(c)(1) is categorically a "crime involving moral turpitude" (Menendez)	Menendez: statute can criminalize conduct without evil/malicious intent (no mistake‑of‑age defense); thus it is not a crime of moral turpitude.	Government/BIA: statute protects a vulnerable class and involves sexual conduct; thus it is a crime involving moral turpitude and triggers stop‑time.	Held: § 288(c)(1) is not categorically a crime involving moral turpitude (lacks corrupt scienter; can criminalize innocuous touching).
Whether § 288(c)(1) is categorically a "crime of child abuse" under § 1227(a)(2)(E)(i) (Rodriguez)	Rodriguez: § 288(c)(1) lacks mens rea of at least criminal negligence and does not require actual injury or sufficiently high risk of harm; therefore it is broader than the BIA’s generic definition.	Government/BIA: conviction constitutes child abuse sufficient to deny reopening; alternatively previously argued crime of violence.	Held: § 288(c)(1) is not categorically a "crime of child abuse" (fails mens rea and maltreatment/risk‑of‑harm elements); BIA relied on an inappropriate ground to deny sua sponte reopening.

Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) (invalidating 18 U.S.C. § 16(b) as unconstitutionally vague)
Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (Supreme Court affirming § 16(b) vagueness decision)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical‑approach presumption: conviction rests on least conduct criminalized)
Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach limits; indivisible statutes preclude use of Shepard materials)
United States v. Castro, 607 F.3d 566 (9th Cir. 2010) (analysis that § 288(c)(1) can criminalize conduct that is not per se abusive)
Nicanor‑Romero v. Mukasey, 523 F.3d 992 (9th Cir. 2008) (comparing similar California statute and finding no categorical moral turpitude)
Mathis v. United States, 136 S. Ct. 2243 (2016) (focus on statutory elements, not underlying facts)