Juan Hernandez-Gonzalez v. Eric Holder, Jr., 778 F.3d 793

Juan Carlos Hernandez-Gonzalez, a Mexican national and LPR (adjusted status Nov. 5, 2003), pleaded nolo contendere to possession of a billy club under Cal. Penal Code § 12020(a)(1) and admitted a gang enhancement under Cal. Penal Code § 186.22(b)(1); he also had a separate failure-to-appear conviction.
The § 186.22(b)(1) enhancement applies when a felony is committed for the benefit/direction/association of a criminal street gang with the specific intent to promote, further, or assist criminal conduct by gang members.
Immigration authorities charged removability including as a crime involving moral turpitude (CIMT) within five years of admission based on the gang-enhanced weapons conviction; the IJ and the BIA agreed that the gang-enhanced conviction was a CIMT.
The BIA’s unpublished decision characterized acting to promote gang criminal conduct as “inherently base, vile, and depraved,” and concluded § 186.22(b)(1) categorically produces a CIMT.
The Ninth Circuit reviewed de novo whether the gang enhancement can transform a non-turpitudinous predicate offense (weapons possession) into a CIMT and examined whether deference to BIA precedent (published and unpublished) was warranted.
Court’s disposition: the Ninth Circuit held the gang enhancement does not categorically make the predicate offense a CIMT, granted the petition, and remanded unresolved removability issues to the BIA.

Issue	Hernandez-Gonzalez's Argument	Government's Argument	Held
Whether a California gang enhancement (§ 186.22(b)(1)) attached to a weapons-possession conviction converts the conviction into a crime involving moral turpitude (CIMT)	The enhancement does not supply the kind of "evil intent" or elements (intent to injure, actual injury, protected victim class) required for a CIMT; thus a non-turpitudinous predicate (weapon possession) remains non-turpitudinous	The STEP Act and legislative purpose show gang-related conduct is morally reprehensible; applying the enhancement reflects societal condemnation and thus renders the offense a CIMT	Held: No. The enhancement does not categorically elevate a non-turpitudinous predicate to a CIMT; petition granted.
Whether the court should defer to the BIA’s published decision (Matter of E. E. Hernandez) that a gang-enhanced offense is a CIMT	Even Matter of Hernandez is unpersuasive because it fails to explain why the enhancement makes the offense inherently base or depraved; §186.22’s intent element is broad and can cover non-turpitudinous conduct	The BIA’s published ruling warrants Chevron deference and supports finding a CIMT	Held: The court declined to defer. The BIA’s reasoning in Hernandez was insufficient under Chevron and the court concluded de novo that there is a realistic probability the enhancement is applied to non-turpitudinous conduct.

Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (articulates two-step categorical test and deference framework for CIMT analysis)
Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (explains high threshold for CIMT: must offend most fundamental moral values)
Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013) (discusses when to apply Skidmore deference to unpublished BIA decisions)
Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) (refuses Chevron deference where BIA fails to explain why offense meets CIMT definition)
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (analogy: intent to commit any crime can make a statute overbroad for CIMT purposes)