901 F.3d 1108
9th Cir.2018Background
- Barrera-Lima, a Guatemalan national, entered the U.S. without inspection and was convicted twice in Washington for indecent exposure: (1) 2009 gross misdemeanor for exposure to a person under 14 (Wash. Rev. Code § 9A.88.010(2)(b)); (2) 2010 misdemeanor under § 9A.88.010(1). He completed sexual deviancy treatment and was deemed low risk of reoffense.
- DHS initiated removal proceedings; an IJ found the 2009 conviction involved moral turpitude and denied cancellation of removal and voluntary departure, ordering removal to Guatemala.
- The BIA, in an unpublished single-member decision, affirmed, holding Washington’s indecent exposure statute categorically involves moral turpitude by reading a lewd intent element into the statute and conflating the two subsections.
- Barrera-Lima petitioned for review in the Ninth Circuit challenging the BIA’s moral-turpitude determination and the application of the categorical/modified-categorical approaches.
- The Ninth Circuit majority concluded the BIA misapplied its own precedent (Matter of Cortes Medina), rejected Chevron/Skidmore deference to the BIA decision, held both convictions are not categorically crimes involving moral turpitude, found the statute indivisible, vacated removal, and remanded for consideration of eligibility for relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barrera-Lima’s indecent-exposure convictions are categorically crimes involving moral turpitude | Barrera-Lima: Washington’s statutes lack a lewd/sexual-motivation element and are therefore overbroad and not categorically morally turpitudinous | Government/BIA: Statute necessarily involves "lewd" intent (broadly read to include intent to harass/outrage) and thus constitutes moral turpitude | Held: Not categorically; statute lacks required lewd/sexual-motivation element and captures non-turpitudinous conduct |
| Whether the statutes are divisible for the modified-categorical approach | Barrera-Lima: Statutes consist of a single indivisible set of elements (no alternative elements) | Government: (argued divisibility to narrow to turpitudinous variant) | Held: Indivisible; modified-categorical approach inapplicable |
| Whether the BIA’s unpublished decision merits Chevron or Skidmore deference | Barrera-Lima: BIA misapplied its own precedent (Cortes Medina) and conflated subsections, so deference is not warranted | Government: BIA’s interpretation controls or merits deference | Held: BIA misapplied its precedent; its unpublished decision is not entitled to Chevron and is unpersuasive under Skidmore |
| Remedy / relief available given convictions | Barrera-Lima: Because convictions are not crimes involving moral turpitude he remains eligible for cancellation of removal and voluntary departure | Government: Maintain that convictions bar relief | Held: Petition granted; order of removal vacated; remanded to agency to determine eligibility for cancellation of removal or voluntary departure |
Key Cases Cited
- Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (applying categorical approach to indecent exposure and related guidance on moral turpitude)
- Moncrieffe v. Holder, 569 U.S. 184 (Sup. Ct. 2013) (presumption that conviction rested on least conduct criminalized)
- Descamps v. United States, 570 U.S. 254 (Sup. Ct. 2013) (distinguishing divisible statutes and explaining modified categorical approach)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (Sup. Ct. 2007) (realistic probability test for categorical overbreadth)
- Valdivia-Flores v. Sessions, 876 F.3d 1201 (9th Cir. 2017) (cited by government but court explained it was inapposite to moral-turpitude question)