846 F.3d 1019
9th Cir.2017Background
- Petitioner Natividad Duran, a Salvadoran national, pleaded no contest in 2001 to violating California Penal Code § 136.1(a) (witness tampering) and was later placed in removal proceedings; she applied for cancellation of removal based on hardship to her U.S. citizen son.
- An IJ found Duran ineligible for cancellation because § 136.1(a) is a categorical crime involving moral turpitude (CIMT); the BIA affirmed in an unpublished opinion.
- The IJ and BIA relied on the statute’s requirement that the act be done “knowingly and maliciously,” but did not consider California’s statutory/legislative definition of “malice” (which includes broad, non‑traditionally malicious conduct such as interfering with the orderly administration of justice).
- The Ninth Circuit reviewed whether § 136.1(a) is a categorical CIMT, addressing level of deference to the BIA and conducting de novo review of the state statute’s elements.
- The court concluded § 136.1(a) is overbroad compared to the generic (non‑fraudulent) CIMT definition because California’s malice definition permits convictions for conduct that is not vile, base, depraved, fraudulent, or intended to injure.
- The court remanded for the agency to consider whether the statute is divisible and, if so, to apply the modified categorical approach using Shepard‑compliant documents.
Issues
| Issue | Duran's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 136.1(a) is a categorical crime involving moral turpitude | § 136.1(a) is overbroad because California’s definition of “malice” covers conduct that is not morally turpitudinous (e.g., efforts to settle disputes) | The statute’s requirement of acting “knowingly and maliciously” shows a vicious motive or corrupt mind and thus is a CIMT | Not a categorical CIMT: statute is overbroad because malice definition reaches conduct outside generic CIMT |
| Whether the BIA’s unpublished decision merits Chevron deference on CIMT interpretation | (Implied) BIA decision reasonable and should be afforded deference | BIA’s reasoning insufficient; no published BIA decision directly controls | Chevron deference not appropriate; BIA’s analysis unpersuasive under Skidmore |
| Whether § 136.1(a) is a fraudulent‑type CIMT (implicit intent to defraud) | § 136.1(a) implicates serious interference that could be morally turpitudinous | § 136.1(a) requires intent to affect witness testimony and thus indicates culpable intent | Not a fraudulent CIMT: statute does not require false statements or obtaining a benefit, only interference with administration of justice |
| Whether remand for divisibility/modified categorical analysis is required | N/A (Duran sought full consideration of eligibility) | Agency can apply modified categorical approach if statute is divisible | Remanded to agency to determine divisibility and, if divisible, apply modified categorical approach |
Key Cases Cited
- Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013) (explains two‑step CIMT categorical analysis and standards of review)
- Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) (describes de novo review for identifying statute elements)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for agency deference)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (standard for persuasive weight of agency interpretations)
- Linares-Gonzalez v. Lynch, 823 F.3d 508 (9th Cir. 2016) (discusses malicious intent as essence of moral turpitude)
- Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012) (provides general definition of CIMT)
- Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. 2010) (definition of CIMT quoted for vile/base/depraved standard)
- Rivera v. Lynch, 816 F.3d 1064 (9th Cir. 2016) (addresses fraudulent vs non‑fraudulent CIMTs)
- Turijan v. Holder, 744 F.3d 617 (9th Cir. 2014) (explains realistic‑probability test for overbreadth)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach framework)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (clarifies categorical vs modified categorical approaches)
- Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008) (false‑statement/perjury analysis; impeding law enforcement alone is not CIMT)
- People v. Wahidi, 166 Cal. Rptr. 3d 416 (Cal. Ct. App. 2013) (California court construing § 136.1 and its broad malice definition)