JUAN CARLOS BARRERA-LIMA v. JEFFERSON B. SESSIONS III, Attorney General
No. 13-73022
United States Court of Appeals for the Ninth Circuit
August 24, 2018
Agency No. A087-595-463
Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges. Opinion by Judge Paez; Dissent by Judge Gould
FOR PUBLICATION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 7, 2018 Seattle, Washington
Filed August 24, 2018
SUMMARY*
Immigration
The panel granted Juan Carlos Barrera-Lima‘s petition for review of a decision of the Board of Immigration Appeals that found him ineligible for cancellation of removal and voluntary departure, holding that: 1) Barrera-Lima‘s convictions for indecent exposure under
With respect to Barrera-Lima‘s indecent exposure conviction under
Next, the panel assumed, without deciding, that Cortes Medina is entitled to Chevron deference, explaining that
Applying Cortes Medina, the panel held that
With respect to Barrera-Lima‘s indecent exposure conviction under
Because Cortes Medina did not provide an interpretation of morally turpitudinous conduct for indecent exposures that involve a protected class of victims, the panel addressed for the first time whether indecent exposure under
Accordingly, the panel concluded that, in the absence of a conviction for moral turpitude, Barrera-Lima is eligible to apply for cancellation of removal and voluntary departure, and remanded to the agency to consider those forms of relief.
In a concurrently filed order, the panel denied the government‘s motion to remand, noting that a majority voted to deny the motion, but Judge Gould would grant it. In the opinion, the panel explained that, while it would likely grant an unopposed motion in a run-of-the-mill case, the panel denied the motion because neither of the cases the government relied on has any bearing on Barrera-Lima‘s case.
Dissenting, Judge Gould wrote that he would grant the government‘s unopposed motion to remand. Judge Gould noted the general principle and practice that the court does not decide legal issues absent a need to do so, and observed that there is no way to predict whether the parties on remand might hit upon some innovative solution to resolve the case.
COUNSEL
Alexander Ying-Chi Chan (argued), Bellevue, Washington, for Petitioner.
Victor Matthew Lawrence I (argued), Senior Litigation Counsel; Jeffrey J. Bernstein, Trial Attorney; Carl McIntyre, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
PAEZ, Circuit Judge:
Juan Carlos Barrera-Lima petitions for review of a decision by the Board of Immigration Appeals (“BIA“) concluding that his prior convictions for indecent exposure rendered him statutorily ineligible for cancellation of removal under
Barrera-Lima, a 37-year-old citizen of Guatemala, entered the United States without inspection in 1999 as a teenager. On November 16, 2009, King County prosecutors charged Barrera-Lima in municipal court with one misdemeanor count of indecent exposure pursuant to
On April 22, 2010, Barrera-Lima entered a second guilty plea.2 This time, he pled guilty to one misdemeanor count of indecent exposure under
Pursuant to both pleas, Barrera-Lima entered into—and successfully completed—a year-long sexual deviancy program. The final treatment report opined that Barrera-Lima was at “low risk” of reoffending and noted that there had been no reports of inappropriate behavior with women
following Barrera-Lima‘s admission into the program. The report further highlighted Barrera-Lima‘s commitment to financially providing for his daughter and commented on Barrera-Lima‘s productive involvement with his family, work, and church. Satisfied with Barrera-Lima‘s
The end of Barrera-Lima‘s criminal proceedings did not, however, mark the end of his troubles. The government initiated removal proceedings against Barrera-Lima on December 2, 2009 for staying in the United States without being admitted or paroled. Seeking relief from removal, Barrera-Lima applied for cancellation of removal and, in the alternative, voluntary departure. The immigration judge (“IJ“) denied his application, concluding that although Barrera-Lima‘s 2010 conviction for indecent exposure under
Barrera-Lima unsuccessfully appealed the IJ‘s order to the BIA. In a single-member, unpublished decision, the BIA disagreed with the IJ‘s determination that Washington‘s indecent exposure statute was categorically overbroad and divisible. The BIA rejected Barrera-Lima‘s argument that Washington‘s indecent exposure statute was categorically overbroad because sexual motivation is not required for conviction. In the agency‘s view, “for moral turpitude purposes, what matters is ‘lewd intent,’ not sexual motivation.” Citing Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013),3 the BIA held that “[a] person who intentionally exhibits his private parts in order to harass, humiliate, outrage, or frighten a witness thereby engages in ‘lewd’ (i.e., obscene or indecent) conduct, whether or not the exposure was . . . motivated by a desire for sexual gratification.”
The BIA then concluded that “all violations of
Barrera-Lima timely petitioned for review.
II.
“Whether a crime involves moral turpitude is a question of law that we have jurisdiction to review pursuant to
III.
We employ a “two-step framework for evaluating whether a conviction is categorically a [crime involving moral turpitude].” Rivera v. Lynch, 816 F.3d 1064, 1070 (9th Cir. 2015). The process itself is fairly straightforward: first, we identify the requisite elements for conviction under
the statute. See id. Next, we apply the categorical approach to determine whether the elements of conviction match the generic definition of a crime involving moral turpitude. See id. If there is no realistic probability that “the State would apply its statute to conduct that falls outside the generic definition’ of moral turpitude,” then the statute is a match and our inquiry comes to an end. Nunez, 594 F.3d at 1129 (quoting Nicanor-Romero v. Mukasey, 523 F.3d 992, 1004 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903, 908 (9th Cir. 2009) (en banc)). If, however, there is a realistic probability that the State would apply the statute in a manner that captures non-morally turpitudinous conduct, the statute is not a categorical match and we must next ascertain whether the statute is divisible. See Rivera, 816 F.3d at 1078. Only when the statute is divisible into multiple crimes—at least one of which must categorically match the generic definition of a crime involving moral turpitude—do we apply the modified categorical approach to discern whether the petitioner‘s conviction can be narrowed to the qualifying crime.6
Because Barrera-Lima was convicted under
IV.
A.
A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing
that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure.
The statute therefore requires that the government prove three elements in order to convict a defendant of indecent exposure: (1) the defendant made an “open and obscene” exposure of his or her genitalia or that of another person‘s, see State v. Vars, 237 P.3d 378, 382 (Wash. Ct. App. 2010) (explaining that indecent exposure requires “an exposure of genitalia in the presence of another“); (2) the defendant did so intentionally; and (3) the defendant knew that such conduct would likely cause “reasonable affront or alarm.” See 11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 47.02 (4th ed. 2016) (listing elements).
Relying on Vars, the BIA added a fourth element to the offense: that of lascivious intent, which it further defined to mean “tending to excite lust; lewd; indecent, obscene.” In so doing, it committed the first of several legal errors.
In Vars, the question before the court was whether “the State must prove that a witness observed the defendant‘s naked genitalia as an element of the crime of indecent exposure.” 237 P.3d at 381. Because the statute does not define “open and obscene exposure,” the court relied on Washington common law to shed light on the legislature‘s intended meaning. See id. It was in this limited context that the court defined “open and obscene exposure” to mean “a lascivious exhibition of those private parts of the person which instinctive modesty, human decency, or common propriety require shall be customarily kept covered in the presence of others.” Id. (quoting State v. Galbreath, 419 P.2d 800, 803 (Wash. 1966)). Emphasizing that the “gravamen of the crime is an intentional and ‘obscene exposure’ in the presence of another,” the court concluded that a witness‘s observation of the defendant‘s genitalia was immaterial to guilt. Id. at 382.
There is no indication that the court intended in Vars to add sexual or lewd intent as an element of indecent exposure. See id. at 382-83 (“[T]he issue is whether sufficient circumstantial evidence exists to prove that Vars intentionally exposed himself in the presence of another and in a manner likely to cause affront or alarm.“). Instead, Vars seems to suggest that “obscene” or “lascivious” exposure merely means the act of exposing one‘s genitalia as opposed to the defendant‘s specific intent—lewd, lustful, or otherwise—in exposing himself or herself. See id. at 382 n.16. Indeed, the Washington Supreme Court recently affirmed that “[n]othing in the statute or these definitions [of obscene and lascivious] inherently requires that an exposure be committed with a sexual motive.” State v. Murray, 416 P.3d 1225, 1229 (Wash. 2018) (emphasis in original).
Nor does it make sense to read lewd intent into the statute.
Washington‘s indecent exposure statute is therefore notable for its unusual breadth. The exposure need not have taken
B.
With these elements in mind, we turn to the categorical approach and address whether
1.
As a threshold matter, we first hold that the BIA‘s decision is entitled to neither Chevron nor Skidmore deference. Ordinarily, a decision by the BIA is entitled to Chevron deference when it relies on a precedential BIA decision to determine that certain conduct is morally turpitudinous. See Rivera, 816 F.3d at 1070. Here, however, the BIA‘s failure to properly apply Cortes Medina to Washington‘s indecent exposure statute takes its unpublished order well beyond the bounds of both Chevron and Skidmore.
At issue in Cortes Medina was “whether indecent exposure under California law is categorically a crime involving moral turpitude.” 26 I. & N. Dec. at 81. Rejecting our prior determination in Nunez that it was not,7 the BIA focused on the fact that conviction under California‘s indecent exposure statute requires “a finding of lewdness,” specifically, “lewd intent.” Id. at 84. In the BIA‘s view, the critical distinction between indecent exposure statutes that are categorically crimes involving moral turpitude and those that are not is the inclusion of sexual motivation or lewd intent as an element of the offense. Thus, a juvenile who exposes himself to “annoy and affront others, but not for purposes of sexual gratification,” has not engaged in morally turpitudinous conduct because “he did not act with lewd intent.” Id. On the other hand, someone who engages in masturbation near women in a movie theater has committed
a crime involving moral turpitude because he acted with sexual motivation—i.e., lewd intent. See id. at 83.
The BIA emphasized that under its interpretation of morally turpitudinous conduct, “only a conviction that includes lewd behavior as defined by the California Supreme Court would involve moral turpitude” for crimes involving indecent exposure. Id. at 85. The BIA therefore focused on a California Supreme Court opinion defining lewd purpose or intent to mean “purposes of sexual arousal, gratification, or affront.” See, e.g., id. at 85 (quoting In re Smith, 497 P.2d 807, 810 (Cal. 1972)). Smith itself concluded that “a person does not expose his private parts ‘lewdly’ within the meaning of [the statute] unless his conduct is sexually motivated.” 497 P.2d at 810. Cortes Medina thus embraced a definition of lewd intent that was restricted to sexually motivated exposure. See 26 I. & N. Dec. at 84 (“We conclude that a person convicted of indecent exposure
Cortes Medina‘s definition of lewd intent cannot be squared with the BIA‘s decision in the instant case. Cortes Medina explicitly recognized that exposure with the intent to annoy or affront others—absent some sexual motivation—does not satisfy the requirements for lewd exposure. See id. at 84. Yet the BIA inexplicably concluded here that “lewd intent” encompasses any general intent to “harass, humiliate, outrage, or frighten.” Even more baffling, the BIA concluded—despite clear language from
Cortes Medina to the contrary—that lewd intent is not commensurate with sexual motivation. The result is a decision untethered to any published precedent.
An agency that misapplies its own precedent is not entitled to Chevron deference, which is reserved for those decisions that are precedential or are appropriately “based on” a previously issued precedential decision. Saldivar v. Sessions, 877 F.3d 812, 815 n.3 (9th Cir. 2017). Accordingly, we conclude that where, as here, the BIA erroneously applies its published precedent in an unpublished decision, that decision is entitled only to Skidmore deference. See, e.g., id. (concluding that because the BIA misinterpreted its own precedent, its “interpretation could not govern, regardless of which level of deference it is due“); cf. Padilla-Padilla v. Gonzales, 463 F.3d 972, 980–81 (9th Cir. 2006) (“We defer to an agency‘s interpretation of its own regulations. However, where that interpretation is ‘plainly erroneous or inconsistent with the regulation’ we will not so defer.” (citation and internal alteration omitted) (quoting Salehpour v. INS, 761 F.2d 1442, 1445 (9th Cir. 1985))).
The BIA‘s unpublished decision in this case fares little better under Skidmore, which takes into consideration the “thoroughness evident in [the agency‘s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade, if lacking power to control.” 323 U.S. at 140. As we have explained, the BIA‘s analysis here is plainly inconsistent with Cortes Medina, which gravely undermines its persuasiveness. See Saldivar, 877 F.3d at 815 n.3 (“For the reasons given in this opinion, including the BIA‘s misinterpretation of Blancas-Lara itself, . . . we do
not find the BIA‘s interpretation of
To the extent the BIA sought to expand upon Cortes Medina‘s definition of lewd intent in a single-member, unpublished decision, its lack of explanation or reason for doing so renders its new interpretation of morally turpitudinous conduct exceedingly unpersuasive. See Castrijon-Garcia v. Holder, 704 F.3d 1205, 1211 (9th Cir. 2013) (declining to defer to the BIA‘s decision under Skidmore where the decision contained “no analysis at all” and “little reasoning“). This is particularly true given that the BIA‘s new and expansive definition of lewd intent to include non-sexually motivated exposures would render many, if not most, state convictions for indecent exposure crimes involving moral turpitude—an outcome Cortes Medina expressly disavowed. See Cortes Medina, 26 I. & N. Dec. at 82 (“We have long held that indecent exposure is not inherently turpitudinous in the absence of lewd or lascivious intent.“).
2.
Having concluded that the BIA‘s decision here is not entitled to deference,
We assume, without deciding, that Cortes Medina is entitled to Chevron deference and that the BIA‘s interpretation of morally turpitudinous indecent exposure in Cortes Medina controls in this instance, because Washington‘s indecent exposure statute is overbroad regardless of whether we apply Nunez or Cortes Medina.9
Cortes Medina held that “for the offense of indecent exposure to be considered a crime involving moral turpitude under the immigration laws, the statute prohibiting the conduct must require not only the willful exposure of private parts but also a lewd intent.” 26 I. & N. Dec. at 83. Lewd
intent, in turn, refers to sexually motivated conduct—whether it be for sexual gratification, sexual affront, or some other sexual purpose entirely. See id. at 83-85. Unlike California‘s indecent exposure statute, however,
United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc)). Accordingly, the absence of any lewd intent element from Washington‘s indecent exposure statute means that there is a “realistic probability, not a theoretical possibility, that the State [will] apply its statute to conduct that falls outside the generic definition of a crime.”11 Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). We therefore conclude that indecent exposure under
C.
We turn to the next step of the categorical approach—the modified categorical approach—to determine whether Washington‘s indecent exposure statute is divisible, and if so, whether any of the divisible crimes are categorically crimes involving moral turpitude. We conclude that
A statute is divisible only if it has “multiple, alternative elements, and so effectively creates ‘several different crimes.‘” Almanza-Arenas, 815 F.3d at 476 (quoting
Descamps v. United States, 570 U.S. 254, 264 (2013)). If, however, the statute consists of a “‘single, indivisible set of elements’ with different means of committing one crime, then it is indivisible” and our inquiry comes to an end. Id. at 476-77 (quoting Descamps, 570 U.S. at 265).
V.
Although the analysis is substantially similar, there are a few points of law regarding
A.
person under the age of fourteen years.” To obtain a conviction under this statute, the state must prove beyond a reasonable doubt each of the following four elements: the defendant (1) intentionally (2) made an open exposure of their genitalia (3) to a child under the age of fourteen (4) knowing that such conduct was likely to cause reasonable affront or alarm. See 11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 47.04 (collapsing the first and second elements). As with
B.
The BIA erroneously conflated
in this case—which it did not—its decision would not be entitled to Chevron deference. See Castrijon-Garcia, 704 F.3d at 1210 (”Chevron deference is afforded to an unpublished decision only when it is ‘directly controlled by a published decision interpreting the same statute.‘” (quoting Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010))).
Because Cortes Medina did not provide an interpretation of morally turpitudinous conduct for indecent exposures that involve a protected class of victims, we address for the first time whether all acts forbidden by
We have long lamented the ambiguity inherent in the phrase “moral turpitude,” an amorphous term that has consistently escaped precise definition. See, e.g., Nunez, 594 F.3d at 1130 (“We have previously discussed at some length the inherent ambiguity of the phrase ‘moral turpitude’ and the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.“); see also Rohit v. Holder, 670 F.3d 1085, 1088 (9th Cir. 2012) (acknowledging that the term “moral turpitude”
Gonzales v. Holder, 778 F.3d 793, 801 (9th Cir. 2015) (quoting Castrijon-Garcia, 704 F.3d at 1212).
Applying that definition, we have often—although not always—concluded that crimes directed towards a protected class of victims, such as children, are categorically crimes of moral turpitude. See Nunez, 594 F.3d at 1132. At times, however, we will encounter a statute that is simply written too broadly to capture only depraved conduct that shocks the public conscience. See Nicanor-Romero v. Mukasey, 523 F.3d 992, 1000 (9th Cir. 2008) (concluding California‘s crime of annoying or molesting a child under the age of eighteen was not categorically a crime involving moral turpitude), overruled on other grounds by Marmolejo-Campos, 558 F.3d at 911. This is one such statute.
that C.C. exposed himself for sexual gratification.13 Instead, the court focused on whether there was sufficient evidence to show that C.C. knew exposing himself “would cause reasonable affront or alarm.” Id. at *7. Concluding that there was, the court affirmed his conviction. See id.
C.C.‘s behavior in the car, while inappropriate, cannot fairly be characterized as so vile and depraved as to shock the public conscience. In Nunez, we recognized that a “12-year-old boy who pulled down his pants during class and showed his penis to two female classmates” had acted inappropriately, but concluded that the act itself could not “rationally be characterized as inherently base, vile and depraved.” 594 F.3d at 1137-38. This was despite California‘s requirement that the indecent exposure have been sexually motivated. The lack of a corresponding requirement in C.C. further evidences
Indeed, there are aspects of
“motivated by an unnatural or abnormal sexual interest in the victim.” 523 F.3d at 1000 (quoting People v. Lopez, 965 P.2d 713, 717 (Cal. 1998)).
Taken together, the expansive reach of
realistic probability and not just a theoretical possibility that the State will apply
VI.
In the absence of a conviction for a crime involving moral turpitude, Barrera-Lima is eligible to apply for cancellation of removal and voluntary departure. Accordingly, we grant his petition for review, vacate the order of removal, and remand to the agency to consider whether Barrera-Lima is otherwise eligible for cancellation of removal or voluntary departure.
PETITION GRANTED AND REMANDED.
GOULD, Circuit Judge, dissenting:
I respectfully dissent because I would grant the Respondent‘s Unopposed Motion
Notes
In an order filed concurrently with this opinion, we deny the government‘s unopposed motion to remand this case for further proceedings. In the run-of-the-mill case, we would likely grant a motion of this kind. Indeed, Judge Gould‘s dissent is based on that view. Here, however, the government‘s motion makes no sense.
Neither case relied upon by the government for its motion to remand has any bearing on Barrera-Lima‘s case. United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), addressed whether a petitioner‘s conviction under Washington‘s drug trafficking statute qualified as an aggravated felony when “the Washington drug trafficking law on its face appears to have a more inclusive mens rea requirement for accomplice liability than its federal analogue.” Id. at 1207. We had no occasion in Valdivia-Flores to opine on crimes involving moral turpitude, much less indecent exposure statutes. The government‘s reliance on Matter of Jimenez-Cedillo, 27 I. & N. Dec. 1 (BIA 2017) for its motion to remand is similarly without merit. Jimenez-Cedillo addressed whether “sexual solicitation of a minor is a crime involving moral turpitude.” Id. at 2. There, the BIA concluded that “a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young . . ., even though the statute requires no culpable mental state as to the age of the child,” because “such offenses contravene society‘s interest in protecting children from sexual exploitation.” Id. at 5 (emphases added).
In short, there is no indication that either case relied upon by the government for its motion to remand will change the BIA‘s decision here. We therefore adhere to our obligation to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and deny the government‘s motion for remand.
The majority opinion in its footnote 1 contends that the unopposed motion to remand should be denied because the government‘s motion “does not make any sense,” and the cases cited in the unopposed motion are not relevant. But we should not be deciding case issues when the parties are in agreement that it makes sense to remand to the BIA. We could take up the case again after the BIA decision if either party appealed it, but otherwise there is no need.
The BIA should be permitted to reassess in light of Valdivia-Flores. Instead, the majority gratuitously decides that all crimes of moral turpitude require a heightened mens rea. Where the parties agree to remand, it is unwise for us to render a decision on issues that need not now be decided by us.
We do not address whether Cortes Medina is entitled to Chevron deference under Brand X, because Barrera-Lima failed to raise this argument in his opening brief. See Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (“In general, ‘we will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant‘s opening brief.‘” (internal alteration omitted) (quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992))). We note, however, that while Brand X permits agencies to reject a court‘s interpretation of an ambiguous statutory provision so long as the new interpretation is reasonable, it is not clear that an agency can advance an interpretation that the courts have previously deemed unambiguously foreclosed by law. See Brand X, 545 U.S. at 982–83 (“Only a judicial precedent holding that the statute unambiguously forecloses the agency‘s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.“); cf. Mercado-Zazueta v. Holder, 580 F.3d 1102, 1114 (9th Cir. 2009) (“In sum, neither Brand X nor Duran Gonzales suggests that an agency may resurrect a statutory interpretation that a circuit court has foreclosed by rejecting it as unreasonable at Chevron‘s second step.“), abrogated on other grounds by Holder v. Martinez Gutierrez, 566 U.S. 583 (2012) (concluding the BIA‘s interpretation both times was reasonable).