Jose Gonzalez-Cervantes v. Eric Holder, Jr.
709 F.3d 1265
9th Cir.2013Background
- Gonzalez-Cervantes petitions for review of the BIA's denial of relief on the ground that California would not apply Cal. Penal Code § 243.4(e) to non-morally turpitudinous conduct with a realistic probability.
- The BIA held there is no realistic probability that California would apply § 243.4(e) to conduct outside the generic definition of moral turpitude and denied his motion to reconsider.
- The court reviews de novo the BIA's statutory interpretation, and defers to the BIA's moral turpitude determination only to the extent it has power to persuade.
- Under the categorical approach, the court compares the state offense definition to the generic federal definition, not the specific facts of conviction.
- § 243.4(e) requires touching an intimate part without consent, with specific intent to cause sexual arousal, gratification, or abuse; the elements import harm and intent.
- The majority upholds the BIA, concluding no realistic California application outside the federal definition; petitions are denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA's realistic-probability standard is persuasive | Gonzalez-Cervantes argues California has applied § 243.4(e) to non-turpitous conduct. | BIA reasons there is no realistic probability of such application. | No realistic probability; BIA's view persuasive. |
| Whether § 243.4(e) is categorically a crime involving moral turpitude | Gonzalez-Cervantes contends California has applied § 243.4(e) to non-turpitudinous conduct. | BIA treats § 243.4(e) as categorically moraly turpitudinous due to specific intent and harm. | § 243.4(e) is categorically morally turpitudinous as applied by California in relevant contexts. |
| Whether California case law supports applying § 243.4(e) to non-turpitudinous conduct | Gonzalez-Cervantes cites Shannon T., A.B., Carlos C. showing broader California application. | BIA relied on Chavez, Dayan, Rodriguez, Jones cases focusing on arousal-specific contexts. | California cases show actual harm and specific intent; the Court finds no clear non-turpitudinous application. |
| Whether the case is controlled by the modified-categorical approach | Gonzalez-Cervantes argues plea/proceedings lack sufficient facts for moral turpitude under modified-categorical approach. | BIA's analysis remains premised on statute interpretation; not controlled by different grounds. | Petitions denied; court does not adopt a new theory beyond agency grounds. |
Key Cases Cited
- Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (standard Skidmore deference; harm may be psychological)
- Taylor v. United States, 495 U.S. 575 (Supreme Court 1990) (categorical approach to it's us federal offense comparison)
- Duenas-Alvarez v. Mukasey, 549 U.S. 193 (U.S. 2007) (realistic probability requirement for moral turpitude)
- In re Shannon T., 144 Cal.App.4th 618 (Cal. Ct. App. 2006) (sexual battery under § 243.4(e) involves specific intent to sexual abuse)
- In re Carlos C., 2012 WL 925029 (Cal. Ct. App. 2012) (California applies § 243.4(e) to non-arousal contexts; specific intent to embarrass)