Jose Gonzalez-Cervantes v. Eric Holder, Jr.

summary erly granted judgment favor

of Wilshire.

III. CONCLUSION

We affirm.

Jose Crisanto GONZALEZ-CER-

VANTES, aka Jose Crisanto

Gonzalez, Petitioner, HOLDER, Jr., Attorney

Eric H.

General, Respondent. Gonzalez-Cervantes,

Jose Crisanto Gonzalez,

aka Jose Crisanto

Petitioner, Holder, Jr., Attorney

Eric H.

General, Respondent. 10-72781,

Nos.

United States of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 2012.

Filed March BIA’s turрitudinous and the morally to denying his motion reconsider.

decision jurisdiction pursuant to 28 U.S.C. We have 1252(a)(2)(D), deny petitions. and we the I. OF REVIEW STANDARD novo BIA’s review de the We statute of conviction interpretation where, here, BIA not issue does to its con published coming decision clusion, de to the BIA’s Court defers termination that the statute of conviction to turpitude” constitutes a “crime of BIA’s has the the extent that the decision v. Nunez “power pеrsuade.” to (internal 1124, 1129 (9th Cir.2010) omitted) Skidmore quotation (citing marks Co., 140, 65 S.Ct. v. & 323 U.S. Swift v. (1944)); see also Rohit L.Ed. (9th Cir.2012). 1085,1088

II. ANALYSIS categorical approach, Under the Phoenix, Kelly (argued), Kathleen Kahn statutory looks definition to AZ, for Petitioner. offense, not to particu state Insenga (argued), Andrew B. Office of conviction, lar to de underlying facts Division, Immigration De- Litigation, Civil within termine whether the offense falls Justice, D.C., Washington, partment of the crime. generic federal definition of Respondent. States, See Taylor United U.S. 110 S.Ct. 109 L.Ed.2d

(1990). applies To show a statute a state generic outside the crimes definition crime, show petitioner the listed must in her own case or in another either NELSON, Before: DOROTHY A. W. actually applied case the state courts have TASHIMA, MARY H. WALLACE she in the manner for which statute MURGUIA, Judges. Circuit Duenas-Alvarez, argues. Gonzales v. 183, 193, L.Ed.2d U.S. 127 S.Ct. OPINION Mukasey, Ortiz-Magana NELSON, Judge: D.W. Senior Circuit (9th Cir.2008). There theo probability, “a realistic nоt a peti- Jose Crisanto must be Gonzalez-Cervantes ap possibility, retical that the State would Immigra- tions for review of Board (“BIA”) that falls outside Appeals’ holding ply its statute conduct tion decision probability” generic definition” of moral there is no “realistic that Cali- Duenas-Alvarez, 193, 127 fornia would California Penal Code 243.4(e) (“ 243.4(e)”) A if ful turpitudinous crime is it is parts. victim’s intimate “vile, base, depraved,” Chavez, “violates ac- See Peоple 84 Cal.App.4th standards”; cepted (2000); moral “the essence of 100 Cal.Rptr.2d 680 People Day- an, is an “evil or turpitude” 707, malicious 34 Cal.App.4th Cal.Rptr.2d Latter-Singh intent.” 668 F.3d B182215, People Rodriguez, No. (9th Cir.2012) (internal 1156, quota- WL 1903041 (Cal.Ct.App. July omitted). tion marks In the context of 2006); Jones, C045990, People v. No. offenses, sexual whether crime involves WL 2160425 (Cal.Ct.App. Sept. turns on turpitude whether there is instance, Chavez, For in court held (1) (2) protected actual harm or class of battery misdemeanor sexual is a Nunez, 1132; victim. 594 F.3d at see also crime turpitude of moral because it is a Mendoza v. 1303 n. crime, specific intent simple “[u]nlike Cir.2010) Nunez). (interpreting or even felony battery, battery sexual does The term “harm” in this context includes not result a simple push or offensive psychological harm. See Cal.Rptr.2d touch.” 100 at 682. Sexual at 1136. battery, found, the court involved “the de- battery Misdemeanor sexual another, grading will, use of against her 243.4(e) (1) § three has elements: for one’s own sexual arousal.” Id. at 682- touching of an intimate another omitted). 83 (quotations and citations directly person, through the clothing of Jones, upheld court the defendant’s (2) victim; the perpetrator against or the conviction for misdemeanor sexual (3) will; person’s with specific where the up victim testified she ‍‌‌​‌‌​​‌​​‌‌‌‌‌​‌​‌​​​​‌‌‌‌‌​​‌​‌‌​​​‌‌‌‌​​​​‌​‌‍woke arousal, grati- intent to cause sexual sexual naked from the waist find down to fication, or abuse. sexuаl CabPenal Code naked lying top on her. 2005 T., § 243.4(e); In re Shannon 144 Cal. WL at *3. In Dayan, court (2006). App.4th Cal.Rptr.3d upheld the defendant’s conviction for mis- part” “Intimate is defined “the sexual demeanor intentionally anus, organ, groin, or of any per- buttocks unlawfully groping women in his den- son, and the breast of a female.” CaLPe- tal office. Cal.Rptr.2d at 392-95. And nal 243.4(g)(1). Code in Rodriguez, the court evidence found the touched the victim’s 1. The BIA’s Decision Persuasive against breast her will established the BIA cited four California battery. crime of misdemeanor Appeal reaching cases its con WL *7-8. clusion probabili that there no “realistic 243.4(e) ty” California would Since the sexual conduct in these cases falling generic outside actually through fed harmed the victims turpitude. eral definition non-consensual of their intimate each, the Court of Appeal applied parts, the acts fall within the fed- generic to acts where the defendant eral had definition of moral as ap- arousal, the specific intent to cause sexual plied the context sex-related of- abuse, 1132; sexual gratification, or sexual and fenses.1 See F.3d at see Mendoza, actually inflicted harm also through unlaw- 623 F.3d at 1303 n. 7. 1. The contends gratification dissent that the BIA’s decision cases in which sexual arousal or necessary "does not rеflect the was a current state Califor- element of a of- solely nia law” because BIA "relied fense.” Dissent at 1271. But the BIA cor- but- Bur- the center of the victim’s poked to Meet His he Fails Petitioner tocks, an inch. 2011 penetrating about

den *1. The court stressed WL On Gonzalez-Cervantes appeal, abuse included conduct the term sexual showing met the California his burden physical injury which beyond that caused to conduct appliеd have courts otherwise the sexual bat- pain because defini generic federal falling outside the permit perpetrator “would tery statute See Duenas-Al tion of moral intentionally humiliate or intimidate 815; varez, Or at by her an unwanted woman Though at 542 F.3d tiz-Magana, violating sec- or breasts without genitalia in cites three cases Gonzalez-Cervantes at *3. 243.4.” Id. Because the defen- tion 243.4(e) § applied arguing California has. cоmpanions with as he laughed his dant not rise to the level of that did conduct derogatory the victim and used touched vile,” base, in each case “depraved, and the language, the court found evidence actually upon harm the inflicted defendant purpose was the defendant’s demonstrated com specific with intent to the victim the Id. at *4. sexual abuse. T., In re mit sexual abuse. See Shannon C, Finally, court in In re Carlos the 618, 564 Cal.Rрtr.3d 50 Cal.App.4th evidence to found there was substantial A.B., G043493,2011 WL (2006); In re No. the support the conclusion that 20, 2011); In re (Cal.Ct.App. Jan. specific with to embar- purpose acted the C., B233338, 2012 No. WL Carlos when, upon rass and humiliate the victim 2012). 20, Mar. (Cal.Ct.App. the seeing slap victim’s two of friends T., instance, the In In re Shannon “smack[edj” end, rear he victim’s breast pinched minor defendant area, laughed, away. ran crotch victim, her dis- causing minor emotionаl 925029, *1, 3. act WL at Based “the significant a bruise. resulting tress and in surrounding its together itself with circum- 565, 567. The court Cal.Rptr.3d stances,” had the specific a that the defendant inflicted sexual found sexually victim when he intent abuse the 243.4(e) specific with the battery under (quoting her. Id. at Shannon touched *3 he first purpose of sexual abuse because 566). T., Cal.Rptr.3d her, my phone. You’re told “Get off Though argues Gonzalez-Cervantes ho,” victim responded, when the these show issue did cases “whatever,” away, the defen- and walked base, “depraved, not rise the level of face, her, slapped her pursued dant vile,” case defendant actu- in each arm, her breast. grabbed pinched her upon ally inflicted harm sex- Id. at 566-67. Moreover, ually her. it is abusing precise- A.B., court the minor cases ly In re found because the defendants these intent to cause the victim specific when had defеndant committed 20, C., B233338, 2011); 243.4(e) "a In re No. rectly specific as Jan. Carlos defined 20, (Cal.Ct.App. at *2 touching an intimate 2012 WL Mar. crime that consists will, correctly against com the BIA stated the law another the victim’s As arousal, here, we not find that the purposes of sexual it do mitted for the represent grounds supporting opinion a gratification, This is our or sexual abuse.” theory,” applied BIA a precisely “new nor that the definition of used understanding in con- petitioner In re different statute all the cases cites. See T., cluding Cal.App.4th Cal. Shannon A.B., involving Rptr.3d No. crime See Dissent re G043493, (Cal.Ct.App. at *2 at 1271. 2011 WL psychological comparte] harm that the courts found it with crimes that previ have were elements satisfied. ously turpi been found to involve course, will specific Of intent alone Rohit, (internal tude.” 670 F.3d at 1089 morally turpitudinous if render crime omitted). quotations Misdemeanor sexuаl “trivial,” at issue are see acts Galeana- “base, vile, akin to the kind of Gonzales, Mendoza v. 465 F.3d 1061 depraved” sex-related offenses this Court (9th Cir.2006) (citing Ashcroft, v.Mei See, moral turpitude. found involve (7th Cir.2004)), “mere [ ] Cruz, e.g., United States v. Santa taste, humor,” provocation, bad failed [or] Cir.2009) (9th curiam) (know (per However, 594 F.3d at 1138. we do ing possession of pornography); child that pinching not find another’s breasts to Gonzales, Morales point bruising, shoving finger into 2007) (communication Cir. with a mi end, another’s rear or smacking another’s nor for immoral purposes); Navarro-Lo easily merely crotch is characterized as Gonzales, pez (9th v. 503 F.3d taste, provocative, in bad or gone humor Cir.2007) (Reinhardt, J., concurring for awry. majority) (rape), overruled on other The argues psychologi- dissent that the grounds by United v. Aguila- States cal harm the victim experienced In re Oca, (9th Montes de 655 F.3d Carlos C.—embarrassment humilia- and (en Cir.2011) banc); Gonzalez-Alvarado type tion—does not constitute of “actu- INS, (9th 1994) 39 F.3d (per Cir. required al harm” under Nunez to elevate curiam) (incest); Rohit, see also F.3d to a crime categorically involv- (solicitation at prostitution). of moral ing turpitude.2 Dissent at 1272-73. battery necessarily Because sexual inflicts But this assumes that the non-consensual harm —the touching the victim’s inti touching of an is not part intimate itself part against mate his or her will—it is solely Analyzing actual harm. harm from distinguishable from sex-related offenses post-actus perspective ignores reus during violation that this do categorically occurs sexual act. found not considering severity See, And e.g., involve moral psychological may experi- (indecent harm a victim exposure); F.3d Ni incorrectly ence the inquiry focuses v. Mukasey, canor-Romero 523 F.3d may awhat be able to endure rath- (9th Cir.2008) molesting or (annoying morally reprehensible ‍‌‌​‌‌​​‌​​‌‌‌‌‌​‌​‌​​​​‌‌‌‌‌​​‌​‌‌​​​‌‌‌‌​​​​‌​‌‍er than on the na- 18), age child under the overruled on Sexually ture the act itself. abusive grounds other by Marmolejo-Campos battery necessarily inflicts actual harm on Cir.2009) (9th the victim. (en Keisler, banc); Quintero-Salazar Cir.2007) (9th (statutory 3. Section Other Resembles rape). Morally Turpitudinous Crimes physical argues dissent ele- determining In whether crime involves turpitude, helpful moral “it is often to ... ment in еnough sexual examples 2. The dissent also demon- these two which asserts that involved conduct “Nunez always "relatively strates that actual harm is not suffi- Court described harmless” "base, cient to find that a crime involved that the Court were not sexual found acts vile, turpitude,” examples depraved.” and cites two F.3d Thus, exposure agree indecent referenced Dis- we cannot Nunez. Nunez precisely proposition sent 1271-72. But it was bеcause stands the dissent asserts. for damage person another involving psychologically into a crime convert private parts it is turpitude. Dissent at 16. But his or her most touching touch, simply nature not malicious certainly evidences an evil and itself, bat- distinguishes which sexual gen- touch easily distinguishable from the non-morally turpitudinous sex- tery eral intent to touch. exposure like indecent

related offenses Nica- molesting or a child. аnnoying III. CONCLUSION nor-Romero, instance, the harmless 243.4(e)(l)’s requirement Section satisfy that could the actus reus intend to dam- specifically 647.6(a) (annoying §of or molest- element evidences age psychologically his victim child) not constitute ing a did is the malicious intent the essence (1) because turpitudinous conduct turpitude. Latter-Singh, F.3d necessarily require harm or the act did not universally ... at 1161. “Sexual abuse (2) pos- the defendant need not injury сonscience, by Americans of condemned crime, any specific intent to commit sess a merely wrong because it is but because F.3d at otherwise. 523 society.” its evil tendrils are detrimental contrast, 243.4(e), physical Efagene v. touching of the victim’s intimate Cir.2011) J., (O’Brien, in the concurring always always for the non-consensual result). this The BIA’s decision that kind arousal, gratification, purpose morally is per reprehensible of behavior sе reason, this of type sexual abuse. For See intrinsically wrong persuasive. is a victim of sexual physical touch Skidmore, (citing 594 F.3d at 1129 can never be harmless. suffers see also 140, 161); 323 U.S. 65 comparison to We also find the dissent’s Rohit, 670 F.3d at 1088. Because we Galeana-Men- battery inapt. In domestic there no agree probabili- that “realistic doza, simple this held that domestic ty” apply courts that California would battery, a intent crime under Cali- general 243.4(e) § falling to conduct outside the Lara, People see law, fornia 44 Cal. of generic turpi- federal definition 402, Cal.Rptr.2d App.4th See Duenas- tude, deny petitions. (1996), not, categorically, a crime of was Alvarez, 549 U.S. at 127 S.Ct. 815. turpitude. analysis to the Court’s was that Critical DENIED. PETITIONS require specific the crime not intent did injure, required only instead

to but TASHIMA, Judge, dissenting: Circuit person. general intent to touch another I hold that the BIA erred when it would contrast, Id. guilty violating to be of probabili- there no held that was “realistic touch, 243.4(e)(1), § must an individual ty” that California would Penal Code consent, parts intimate without another’s § to conduct that insult, humiliate, intent specific with the to fact, turpitudinous. California done In re Shannon or intimidate victim. BIA did just that cases the not consider. Tillis, T., 567; People Cal.Rptr.3d I therefore ‍‌‌​‌‌​​‌​​‌‌‌‌‌​‌​‌​​​​‌‌‌‌‌​​‌​‌‌​​​‌‌‌‌​​​​‌​‌‍dissent. (Cal.Ct. D054245, 2011 No. WL 5117721 C., In In re Carlos 2011) (“[Sjexual ... WL App. Oct. abuse applied (Cal.Ct.App.2012), California in- оccurs when sexual mistreatment student, § to a middle school who pain inju- to psychological tended cause T., open ry.”) (citing In re Shannon 50 Cal. slapped his classmate-victim “with Id. her area.” at *1. The specific intent to hand in crotch Rptr.3d at deference, friends told defendant claimed that his had entitled to Skidmore see “mad, him to. Id. The victim was embar- Marmolejo-Campos v.

rassed, (9th Cir.2009) (en banc), She and ‘kind of scared.” Id. and be- defendant, away who “ran chased the cause it does not reflect the current state laughing.” explained Id. The court that it law, do persua- California I not find it (“Under was reasonable to conclude the defen- Skidmore, See sive.2 id. dant that his “understood action would measure deference the agen- afforded to embarrass and humiliate” the victim. Id. cy ‘depending] upon varies thorough- at *3. consideration, ness evident in its validi- ty сonsistency of its its reasoning, with reasoning

In re Carlos C followed the pronouncements, earlier and later and all T., Cal.App.4th In re Shannon give those factors power per- which it (2006), Cal.Rptr.3d in which California ” suade, if lacking power to control.’ interpreted require not Co., (quoting Skidmore v. & be shown have acted for Swift 65 S.Ct. 89 L.Ed. 124 purpose gratifica- of sexual arousal (1944))). A.B., tion. Id. at See also In re

WL 193402 (Cal.Ct.App.2011) (holding Our case law reveals that the conduct in “an intimаte of [another’s] “base, vile, In re Carlos C. was not so body purpose insulting for the or humili- depraved” as to reach the level moral ating” person statutory meets the ele- In Nunez v. 243.4(e)). ments of (9th Cir.2010), we found that convic- cases,

This line of was not exposure which consid- tions for indecent under Califor- BIA, ered sharp departure marks a nia Penal Code are relied, turpitudinous. 243.4(e), the cases which the BIA all morally Like specific which involved an 314 is a element crime. Its mens See, gratification.1 e.g., People requirement substantially arousal or rea is not differ- Dayan, 243.4(e), v. 34 Cal.App.4th may 40 Cal. ent that of from be (1995) (dentist Rptr.2d by showing 391 kissed satisfied that groped women without consent in of- “his for of exposed genitals purposes his sexu- fice). arousal, gratification, The BIA’s decision in this al or case affront.” In re limited, specific 1. I also that the requirement note because C. the mens rea is not so required longer no requires under provides now what it be a more considers to gratification, may sexual or arousal but now (and different) uphold adequate basis to the humiliate, by be an satisfied intent to insult or majority goes decision. The BIA's thus be- the crime of in misdemeanor yond ground by relied on BIA in may "categorically grouped California not be finding categorically morally tur- offense predation’ with the of elic crimes 'sexual that and, so, ‍‌‌​‌‌​​‌​​‌‌‌‌‌​‌​‌​​​​‌‌‌‌‌​​‌​‌‌​​​‌‌‌‌​​​​‌​‌‍pitudinous doing in runs afoul of the it moral revulsion” characteristic of other propriety agency’s of an rule that decision involving turpitude. crimes moral See Nica judged "solely by grounds be in- must Mukasey, no-Romero F.3d Chenery Corp., agency." SEC v. voked (9th Cir.2008) (holding that misdemeanor 194, 196, L.Ed. annoying molesting of or a child under the Gonzales, see also Altamirano v. age years categorically of 18 a crimе (9th Cir.2005) (refusing to involving turpitude). moral theory support finding affirm under new in of alien violated that had 8 U.S.C. solely 2. relied The BIA on cases in which 1182(a)(6)(E)(i) where IJ's decision had gratification or arousal was a neces- understanding been based on different of that sary element offense. But the statute). majority, recognizing that In re Carlos annoy Smith, 362, 365, shocking genitalia, to Cal.Rptr. display his 7 Cal.3d (1972). Moreover, female classmates.” Id. or offend his our 497 P.2d 807 ac- reаsoning in Nunez demonstrates case, the with In each defendant acted find always not sufficient to tual harm is sexually or specific intent insult turpi- involved moral sexual crime victims, he in each case offend his examples inde- two provided tude: we however, explained, We caused harm. exposure cent cases California level of that the conduct did not rise requisite had the which the defendants “the differ- because sеxually vic- specific intent to insult their the provoca- between their acts and ence tims, actual victims suffered and where the that we pranks tive insults and tasteless harm, criminal proposition non-morally previously held to be have not to the in those cases did rise sexuality is the element of turpitudinous depravity level character- of baseness and involved.” turpitude. See 594 F.3d base, istic moral are no more facts In rе Carlos C. vile, than depraved, shocking those M. Archer. Lionel Archer, case, People The first 98 Cal. a physical- Section does contain .2d App.4th Cal.Rptr not in the inde- present contact element (2002), in rage involved extended road context, our exposure cent but decision “exposed cident in which Gonzales, Galeana-Mendoza [my] at the yelled dick’” penis and ‘suck (9th Cir.2006), pres- shows gun point pulling out before of a does not auto- physical ence element ing it her. 594 F.3d at matically a crime to the level of raise Archer, Cal.Rptr.2d at 786- (quoting categorically involving turpitude. that she The victim was so shaken Galeana-Mendoza, held that domes- directly to a light “ran red and drove [a] a crime tic Archer, nearby sheriffs substation.” involving Id. at 1061. Cal.Rptr.2d at 785. The California Court explained of contact nec- We that the level separate require Appeal held that “the essary satisfy the “use of force or vio- be ment that the intent of the [defendant] 243(e)(1) too lence” element under was ‘lewd’” was satisfied because “the defen slight categorically turpitudi- to be purposes of ‘sexu exposed dant himself Id. at 1059. The amount of force ” nous. Smith, (quoting al Id. at affront.’ no necessary greater; 365, 102 497 P.2d Cal.Rptr. Cal.3d at “touching” simple suffices. Cal.Penal 243.4(e). Code Galeana-Mendoza 12-year-old boy “pulled second “special, also that held domestic pants during down class and showed his required be- relationship nature” of the Nu- penis to two female classmates.” victim not an tween the assailant and was nez, People F.3d at 1137 (citing evidencing grave acts of “inherent element M., (Cal.Ct.App. Lionel 2007 WL 2924052 depravity.” Id. 1059-61. baseness or 2007)). explained victims later relationship One between the as- If a domestic the inci- day upset by categorical- that she was sailant and his does dent, inappropriate. found it See raise a the level of moral ly M., turpitude, requirement *2. The then the Lionel 2007 WL an that the Appeal California found be to intimate “intended, evidencing grave inherent element through defendant had “other acts of or depravity” baseness either. See

id. at 1061. ENTERTAINMENT, SOFA INC., a California corporation,

None of this is tо excuse minimize the Plaintiff-Appellant, criminal conduct at issue. As the Califor- nia Court of Appeal A.B., noted in In re good there are policy reasons for adopting 243.4(e). broad interpretation §of See DODGER PRODUCTIONS, INC., a New 2011 WL at *3. The broadening of York corporation; Dodgers Theatri- its interpretation to reach the conduct at cals, Ltd., a New York Corporation, means,

issue In re Carlos however, C. Defendants-Appellees. that there is at least a probabili- “realistic ty” that California will apply its misde- Entertainment, Sofa Inc., a California ‍‌‌​‌‌​​‌​​‌‌‌‌‌​‌​‌​​​​‌‌‌‌‌​​‌​‌‌​​​‌‌‌‌​​​​‌​‌‍meanor statute to conduct corporation, Plaintiff-Appellant, not involving (and, fact, so). has already done See F.3d at 1129 (stating that one case is suffi- Dodger Productions, Inc.,

cient establish that a New a crime York does not corporation; Dodgers involve turpitude). Theatricals, Ltd., a New Corрoration, York Defen- The majority concludes mischaracter- dants-Appellees. 243.4(e)(1) izing as including a “require- ment the defendant specifically intend 10-56535, Nos. to damage his victim psychologically,” and such an intent “evidences the malicious United States Court of Appeals, is the essence of turpi- Ninth Circuit. But, tude.” Ias have emphasized, the intent required by § is an Argued and Submitted Feb. 2013. intent to humiliate, insult and we have Filed March held that such intent is not morally turpi- tudinous. See 594 F.3d at 1138.

The majority, zeal, in its sight loses

fact that we making are categorical anal- 243.4(e).

ysis §of

I would therefore reverse the decision of Further,

the BIA. because Gonzalez-Cer- plea

vantes’ proceedings and the judicially

noticeable documents associated with his

plea do not contain sufficient facts to es-

tablish moral under the modified

categorical approach, see Sanchez-Avalos

Cir.2012), I grant would petition

review.

I respectfully dissent.

Case Details

Case Name: Jose Gonzalez-Cervantes v. Eric Holder, Jr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 8, 2013

Citation: 709 F.3d 1265

Docket Number: 10-72781, 10-73789

Court Abbreviation: 9th Cir.