789 F.3d 1049
9th Cir.2015Background
- Petitioner John Coquico, a Philippines citizen, was convicted (2006) of misdemeanor “unlawful laser activity” under Cal. Penal Code § 417.26 for aiming a laser at a courthouse peace officer; he was later convicted of second-degree robbery under Cal. Penal Code § 211.
- DHS sought removal as an alien convicted of two or more crimes involving moral turpitude (CIMTs) under the INA; an IJ found Coquico removable and the BIA affirmed as to both convictions.
- The BIA held § 417.26 was a CIMT because it allegedly involved use of a device that appears to be a deadly weapon and was committed against a peace officer.
- Coquico challenged only the BIA’s conclusion that § 417.26 is categorically a CIMT; the Ninth Circuit retained jurisdiction to decide that legal question.
- The Ninth Circuit reviewed the BIA’s legal interpretation under Skidmore deference but found the BIA misidentified the elements of § 417.26 (it does not require a device that appears to be a deadly weapon) and therefore analyzed the CIMT question de novo.
- Applying the categorical approach and comparing § 417.26 to established CIMTs (notably Cal. Penal Code § 422), the court held § 417.26 is not categorically a crime involving moral turpitude and granted the petition for review.
Issues
| Issue | Plaintiff's Argument (Coquico) | Defendant's Argument (Lynch/DHS) | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 417.26 is categorically a CIMT | § 417.26 proscribes conduct that can be innocuous (laser pointers) and lacks elements of depravity required for a CIMT | § 417.26 is a CIMT because it targets peace officers and involves devices that give the appearance of deadly weapons | Not a categorical CIMT — statute can criminalize non-turpitudinous conduct; petition granted |
| Whether the BIA’s characterization of § 417.26 (appearance of a deadly weapon) is correct | N/A (challenge to BIA’s legal conclusion) | BIA treated statute as involving devices that appear deadly, supporting turpitude finding | BIA mischaracterized elements; no deference to its CIMT analysis on that basis |
| Whether crimes against peace officers are presumptively CIMTs | § 417.26’s peace-officer element makes it a CIMT | DHS relied on victim’s special status to support CIMT designation | Mere commission against a peace officer is insufficient; CIMT requires more (e.g., tangible harm) |
| Whether to apply categorical or modified categorical approach | N/A (government did not request modified approach) | Government asserted categorical analysis suffices | Court applied categorical approach only and declined to reach divisibility/modified approach |
Key Cases Cited
- Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (two-step categorical test for CIMT analysis)
- Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) (BIA misidentifying state statute elements defeats deference)
- Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012) (Cal. Penal Code § 422 is a CIMT; contrast with non-turpitudinous statutes)
- Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006) (simple assault not necessarily a CIMT)
- Gonzalez-Cervantes v. Holder, 709 F.3d 1265 (9th Cir. 2013) (using established CIMTs as comparative guide)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations receive weight proportionate to their persuasiveness)
- Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006) (trivial crimes, even with intent, are not CIMTs)
- Mei v. Ashcroft, 393 F.3d 737 (9th Cir. 2004) (crime must be inherently grave to be a CIMT)