Milton Rosales Rivera v. Loretta E. Lynch
816 F.3d 1064
9th Cir.2016Background
- Rosales Rivera, an El Salvador citizen removable for unlawful entry, pled no contest in California to felony perjury under Penal Code §118 for false statements on a driver’s license application.
- Immigration Judge and BIA found the §118 conviction to be a crime involving moral turpitude (CIMT), which barred cancellation of removal; Rosales Rivera petitioned for review.
- The Ninth Circuit framed the legal question under its two-step CIMT framework: (1) identify the statutory elements; (2) apply the categorical approach to determine whether the statute categorically involves moral turpitude.
- The court examined whether BIA precedent deserved Chevron or Skidmore deference and concluded Martinez-Recinos lacked reasoned analysis, so no Chevron (and no Skidmore) deference applied.
- The court interpreted §118 as encompassing two distinct offenses—oral perjury (under oath) and written perjury (under penalty of perjury)—and applied the modified categorical approach based on divisibility and conviction documents.
- Holding: §118 is not categorically a CIMT; it is divisible into written and oral perjury; written perjury (the offense of conviction) is not a CIMT, so the petition was granted and the case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether California Penal Code §118 is categorically a CIMT | §118 criminalizes perjury and perjury has historically been a CIMT | §118 reaches beyond common-law perjury and covers non-turpitudinous conduct | §118 is not categorically a CIMT |
| Whether BIA precedent (Martinez-Recinos) is entitled to Chevron deference | N/A (government relied on BIA precedent) | BIA decision supports CIMT classification | No Chevron deference—Martinez-Recinos gave no reasoned explanation, so no deference afforded |
| Whether §118 is divisible into alternative offenses (oral vs written perjury) | §118 contains multiple alternative elements creating distinct offenses | §118 may be a single crime with alternative means | §118 is divisible: oral perjury and written (penalty-of-perjury) perjury are separate offenses |
| Whether written perjury (Rosales Rivera’s conviction) is a CIMT under modified categorical approach | Rosales Rivera’s conduct was non-turpitudinous (no intent to defraud, no grave baseness) | Government argued fraud/false statement elements render it a CIMT | Written perjury is not a CIMT: lacks explicit or implicit intent-to-defraud and need not involve base or depraved conduct |
Key Cases Cited
- Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (sets Ninth Circuit two-step CIMT framework and addresses deference to BIA)
- Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008) (analyzes when false-statement statutes implicate intent to defraud for CIMT purposes)
- Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (explains modified categorical approach and divisibility analysis)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (requires a realistic probability that state would apply statute to non-CIMT conduct)
- Chein v. Shumsky, 373 F.3d 978 (9th Cir. 2004) (articulates elements of oral perjury under California law)