969 F.3d 1012
9th Cir.2020Background
- Syed, an Indian national admitted as a lawful permanent resident in Feb 2011, pleaded guilty (Oct 2013) to one count under California Penal Code § 288.3(a) for contacting a minor with intent to commit a sexual offense.
- § 288.3(a) criminalizes contacting or attempting to contact a minor, knowing or reasonably should know the person is a minor, with intent to commit any of 15 enumerated offenses (including § 288 lewd acts upon a child).
- DHS charged Syed with removability under 8 U.S.C. § 1227(a)(2)(A)(i) as an alien convicted of a crime involving moral turpitude (CIMT) within five years of admission.
- The IJ and BIA found the conviction was predicated on an intent to commit a § 288 offense and that such a conviction is a categorical CIMT; the Ninth Circuit asked the BIA to address whether § 288.3(a) (predicated on § 288) is a categorical CIMT and later reviewed the BIA’s answer.
- Syed argued his plea/factual-basis was intentionally vague to avoid immigration consequences and thus did not establish that his § 288.3(a) conviction was predicated on § 288; the court found the Information, guilty plea, and minutes together established the § 288 predicate and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a § 288.3(a) conviction predicated on intent to commit § 288 is a categorical crime involving moral turpitude | Syed: Communication alone is not morally turpitudinous; some enumerated offenses (e.g., simple kidnapping) are not CIMTs; Menendez indicates lack of knowledge of age undermines CIMT | Govt: When predicated on § 288, the offense requires sexual intent and knowledge of the victim’s minor status, akin to Washington’s statute found CIMT in Morales | Court: Yes — § 288.3(a) predicated on § 288 is a categorical CIMT |
| Whether Syed’s conviction record proves the § 288 predicate so the conviction can be treated as a CIMT | Syed: Factual basis silent and intentionally vague; plea did not specify § 288 intent | Govt: The Information charged Count 2 as intent to commit § 288; plea and minute order show guilty plea to that count; Syed was advised of immigration consequences | Court: Yes — the Information, plea, and minutes establish the § 288 predicate; conviction supports removal |
Key Cases Cited
- Morales v. Gonzales, 478 F.3d 972 (holding that sexual communication with a minor is categorically a crime involving moral turpitude)
- Mathis v. United States, 136 S. Ct. 2243 (establishing the categorical/modified-categorical framework for statutory matching)
- Ramirez-Contreras v. Sessions, 858 F.3d 1298 (defining the generic federal meaning of a crime involving moral turpitude)
- Menendez v. Whitaker, 908 F.3d 467 (analyzing § 288(c)(1) and emphasizing that lack of knowledge of age can negate moral turpitude)
- Moran v. Barr, 960 F.3d 1158 (noting that a higher mens rea makes lesser harms qualify as moral turpitude)
- Coronado v. Holder, 759 F.3d 977 (permitting consideration of minute orders or comparable documents to determine which statutory alternative formed the basis for conviction)