Juan Carlos HERNANDEZ-GONZALEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 11-70359
United States Court of Appeals, Ninth Circuit
February 13, 2015
797 F.3d 793
Lynda Anh Do (argued), Attorney; Tony West, Assistant Attorney General; Emily Anne Radford, Assistant Director; Sarah L. Vuong and Stephen Elliott, Attorneys; Joyce R. Branda, Acting Assistant Attorney General; Stephen J. Flynn, Assistant Director, United States Department of Justice, Washington, D.C. for Respondent.
OPINION
REINHARDT, Circuit Judge:
Does a conviction for a felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” constitute a crime involving moral turpitude? We hold that the answer is no.
I
Juan Carlos Hernandez-Gonzalez is a native and citizen of Mexico who entered the United States without inspection in 1989 around the age of three. On November 5, 2003, he adjusted his status to lawful permanent resident. He is married to a United States citizen and has one United States citizen daughter. He has two separate state criminal convictions. First, on June 25, 2007, he was convicted of a violation of
Hernandez-Gonzalez was served a Notice to Appear in March 2010, and ultimately charged2 as removable on four grounds: for having been convicted of (1) a crime involving moral turpitude within five years after the date of admission for which a sentence of one year or longer may be imposed,
The IJ found Hernandez-Gonzalez to be removable as charged on all оf the grounds of removability except charge (2), which alleged that he had been convicted of two or more crimes involving moral turpitude. The IJ found that the weapons possession conviction coupled with the “specific intent to further gang activity of a criminal nature” was a conviction both for a crime involving moral turpitude and a crime of violence, and found that the conviction for failure to appear was an aggravated felony.
Because Hernandez-Gonzalez entered the United States without inspeсtion or admission, the date of his adjustment of status serves as a date of admission that triggers the five-year clock under
The BIA made no determination with respect to grounds (3) and (4), but rejected Hernandez-Gonzalez‘s argument that the removal order was invalid because he did not receive a copy. Hernandez-Gonzalez did not appeal the BIA‘s ruling on the latter issue to this court, and so we do not address that part of its decision.
II
Determining whether a conviction under a state statute is categorically a conviction for a “crime involving moral turpitude” under
A
The first step of the analysis is to identify the elements of the statute of conviction.4 Ceron, 747 F.3d at 778. Hernandez-Gonzalez was convicted of violating
B
1
With these elements of the weapons offense and the enhancement in mind, we turn to the second step of the analysis to determine whether Hernandez-Gonzalez‘s crime of conviction is categorically a crime of moral turpitude.
Because the BIA‘s decision in this case is unpublished, and because the published BIA decisions it cites are not controlling, we give the BIA‘s decision in this case Skidmore deference. Castrijon-Garcia v. Holder, 704 F.3d 1205, 1210 (9th Cir. 2013). Under the Skidmore framework, we defer to an unpublished BIA decision “to the extent it has persuasive effect.” Id. at 1211. The weight afforded to the decision “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140; see also Castrijon-Garcia, 704 F.3d at 1211.
The BIA decided here, in an unpublished decision, that “engaging in any of the conduct criminalized under
Acting with the specific intent to promote, further, or assist in criminal gang activity is inherently base, vile, and depraved, аnd such activity is contrary to
accepted rules of morality and duties owed to society in general. We are unaware of any application of § 186.22(b)(1) to conduct that does not involve moral turpitude, and have no reason to believe there exists a realistic probability that the statute would be so applied.
The BIA‘s reasoning is conclusory and simply echoes the agency‘s definition of moral turpitude. See, e.g., In re Torres-Varela, 23 I. & N. Dec. 78, 83 (BIA 2001) (“We have held that moral turpitude refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.“). “This is no analysis at all.” Castrijon-Garcia, 704 F.3d at 1211. It is also contrary to fact as in this very case
2
It is well settled in this Circuit that in determining whether a state crime of conviction constitutes a crime involving moral turpitude (CIMT), we apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990). Ceron, 747 F.3d at 780. “Under the categorical approach, we ‘compare the elements of the crime to the generic definition of moral turpitude and decide whether the conduct proscribed in the statute is broader than, and so does not categorically fall within, this generic definition.‘” Castrijon-Garcia, 704 F.3d at 1212 (quoting Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010)). “In order to hold that the statute of conviction is overbroad, we must determine that there is a ‘realistic probability’ of its application to conduct that falls beyond the scope of the generic federal offense.” Id. (quoting Nunez, 594 F.3d at 1129).
“Although the immigration statutes do not specifically define offenses constituting crimes involving moral turpitude, a crime involving moral turpitude is generally a crime that (1) is vile, base, or depraved and (2) violates accepted moral standards.” Ceron, 747 F.3d at 779-80 (internal quotation marks omitted). “Not all serious crimes meet this standard.... To be considered a crime of moral turpitude, a crime other than fraud must be more than serious; it must offend the most fundamental moral values of society, or as some would say, shock the public conscience.” Castrijon-Garcia, 704 F.3d at 1212 (quoting Navarro-Lopez, 503 F.3d at 1074-75 (en banc) (Reinhardt, J., concurring for the majority) (internal citations, quotation marks, and alterations omitted)). This high standard is necessary to preserve the distinction between crime in general and crimes involving moral turpitude. As we explained in Navarro-Lopez, at some level all illegal acts violate societal norms and values—that is why the acts are illegal. However, “crimes in-
“Crimes of moral turpitude generally involve some ‘evil intent.‘” Castrijon-Garcia, 704 F.3d at 1213 (quoting Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir. 2010)). We recently reviewed our past cases analyzing whether particular offenses are crimes involving moral turpitude and found that “non-fraudulent crimеs of moral turpitude generally involve an intent to injure, actual injury, or a protected class of victims.” Id. We noted that neither aggravated assault, Uppal v. Holder, 605 F.3d 712, 719 (9th Cir. 2010), nor false imprisonment, Saavedra-Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir. 2010), is a crime of moral turpitude where the statute at issue lacks an intent to injure or harm or a special trust relationship. Castrijon-Garcia, 704 F.3d at 1213. Thus, in Castrijon-Garcia, we held that simple kidnaping under
The BIA did not conclude that
The BIA nonetheless concluded that possessing one of a lengthy list of weapons “for the benefit of, at the direction of, or in association with any criminal street gang” and “with the specific intent to promote, further, or assist in any criminal conduct by gang members” is categorically base, vile, or depraved. This was unquestionably an error. Weapons possession with a gang enhancement “need not involve grave acts of basеness or depravity” as defined in our case law. Navarro-Lopez, 503 F.3d at 1071. Although the gang enhancement statute has a specific intent element, it does not specify what type of “criminal conduct by gang members” a defendant must be intending to promote.
Our review of California case law demonstrates that, quite to the contrary of the BIA‘s unsubstantiated assertion, there is much more than a “realistic probability” that the gang enhancement would be applied to conduct that does not involve moral turpitude.
Similarly, in In re Michael M., No. G037302, 2007 WL 1169375, at *1 (Cal. Ct. App. Apr. 20, 2007), two police officers “spoke to four or five young men,” including the minor defendant, who were known to be members of the Varrio Little Town street gang. An officer “asked [the] minor if he was carrying any weapons. Minor stated he had a bat, pointed to his pocket, and consented to a search. [The offiсer] found an aluminum bat with one end in minor‘s pocket and the other under his shirt.” Id. The bat had gang-related etchings. Id. The minor agreed that “he had the bat because of other gangs,” and stated that it was for protection. Id. He admitted that he had received the bat “from a friend that associated with Varrio Little Town.” Id. The juvenile court sustained allegations that he unlawfully possessed a deadly weapon under
In People v. Nugent, No. E051982, 2012 WL 1231065, at *1 (Cal. Ct. App. Apr. 12, 2012), the defendant‘s property was searched for an unspecified reason, and investigators discovered a nunchaku made from golf club handles, a billy club etched with the name of a gang, and a cane sword. The defendant was convicted of a violation of
Defendant had a tattoo only seen on full members of the gang, possessed gang paraphernalia, displayed affiliation with the gang while in jail, and was convicted of possessing illegal weapons of the kind used by the gang in its assaults. One of the three convictions was for a weapon inscribed with the name of the gang. Thus, the jury could reasonably infer that defendant was a full member of the gang and, as such, he possessed thе weapons to benefit the gang by having them available for his or other members[‘] use in the gang‘s assaults or other criminal activity.
Id. at *3.
The sweeping scope of the California courts’ conception of the intent to promote,
In all of these cases, the defendant was found to have satisfied the gang enhancement statute‘s specific intent requirement based only on the underlying offense itself and the association with other gang members or the possession of gang paraphernalia. As the California Supreme Court has held, beсause the statute requires neither criminal conduct distinct from the charged offense nor that the defendant act with the specific intent to promote, further, or assist the gang itself rather than gang members, the simple act of “commit[ting] the charged felony with known members of a gang” is sufficient to satisfy the specific intent requirement under the statute. Albillar, 51 Cal. 4th at 67-68. In any event, “the bare presence of some degree of evil intent is not enough to convert a crime that is not serious into one of moral turpitude leading to deportation under [the INA].” Rodriguez-Herrera v. INS, 52 F.3d 238, 241 (9th Cir. 1995). The gang enhancement does not provide a sufficient “evil intent” to transform an otherwise non-turpitudinous crime into one involving moral turpitude. Stated differently, the specific intent required under the statute to further criminal conduct by gang members does not necessarily establish the evil intent required to make the offense turpitudinous.
The government argues that any crime becomes morally turpitudinous when a gang enhancement is applied, because “[t]he California Legislature believed that it needed to take steps to prevent this type of crime, and thus, as ‘measured against contemporary moral standards,’ the Board correctly held that a person convicted of a gang enhanced crime has committed a CIMT.” In support of this argument, the government points to the legislative intent behind the California Street Terrorism and Prevention (STEP) Act, asserting that it shows that any act assisting gang members in their criminal conduct is morally turpitudinous. See People v. Hernandez, 33 Cal. 4th 1040, 1047 (2004) (“California is in a state of crisis which has been caused by violent strеet gangs whose members threaten, terrorize, and commit a multi-
This argument, however, mistakes criminality for moral turpitude, and lumps together all members of street gangs as equally culpable. The California Legislature‘s intent in enacting the law “only explains ... why [the state would] choose to criminalize [conduct benefitting a gang] in the first place. It says nothing about whether [such conduct] is worse than any other crime—whether it is ‘more than serious,’ or whether it ‘offends the most fundamental values of society.‘” Robles-Urrea, 678 F.3d at 710 (alteration omitted) (emphasis in original) (quoting Navarro-Lopez, 503 F.3d at 1074-75 (Reinhardt, J. concurring for thе majority)). The Legislature may choose to punish crimes it deems to be part of a pattern of gang criminality under its particular standards of proof, but this legislative determination does not suffice to transform a non-turpitudinous crime into a crime of moral turpitude by means of an enhanced sentence.
Because the intent element of the gang enhancement can be satisfied by an intent to assist gang members in any criminal conduct, whether turpitudinous or not, and even simply to assist them in the non-turpitudinous conduct that is the predicate offense, the gang enhancement statute is not directed solely at turpitudinous conduct. We do not minimize the often serious, antisocial and morally depraved aspects of gang-related crime committed with the speсific intent of furthering criminal conduct by gang members. But we cannot say that such crimes categorically “involve grave acts of baseness or depravity.” Navarro-Lopez, 503 F.3d at 1071. As we held with respect to Washington‘s burglary statute, “[b]ecause ... an intent to commit any crime satisfies the accompanying crime element of burglary, the offense encompasses conduct that falls outside the definition of a crime of moral turpitude.” Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1019 (9th Cir. 2005), abrogated on other grounds by Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012).
Moreover, there is reason to believe that committing a felony with the intent to assist in non-specific criminal conduct by gang members may well be judged differently by society when considered from a moral rather than a criminal perspective, unlike crimes such as rape, murder, and incest. The vast body of social science literature on gangs shows that youths often join gangs for protection, or out of “fear of victimization at the hands of other gang members, community residents, or family members.” Chris Melde & Terrence J. Taylor, I Got Your Back: An Examination of the Protective Function of Gang Membership in Adolescence, 47 Criminology 565, 566 (2009). In addition, gangs offer social structures lacking in certain disadvantaged communities. Getting Out of Gangs, Staying Out of Gangs: Gang Intervention and Desistence Strategies, Nat‘l Gang Ctr. Bull., No. 8, Jan. 2013, at 1.
Such sociological facts in no way excuse the crimes committed by gang members, frequently against members of other gangs or even against their own members, but they do to some extent affect our moral judgment as to the nature and uniformity of their intent. Our task is to judge whether an intent to assist gang members in criminal activity in itself “offend[s] the most fundamental moral values of society.” Castrijon-Garcia, 704 F.3d at 1212. We conclude that it does not. To conclude
Allowing a gang enhancement to transform non-turpitudinous gang-related crimes into crimes of moral turpitude would amount to making California‘s penological judgment that sentences should be increased when felonies are gang-related into a nearly automatic sentence of deportation for a gang member who commits an ordinary felony. Such determinations are for the federal government, not the state, to make. Arizona v. United States, 132 S. Ct. 2492, 2498 (2012); Graham v. Richardson, 403 U.S. 365, 377-78 (1971).
Following completion of briefing and argument in this case, the BIA decided Matter of E.E. Hernandez, 26 I. & N. Dec. 397 (BIA 2014), in a published opinion. In Hernandez, the respondent was convicted of maliciously defacing the property of another with graffiti or other inscribed material under
The government seeks to rebut the conclusions we reach above by relying on Hernandez. Because Hernandez is a published decision, Chevron deference applies to the BIA‘s determination that the petitioner‘s conviction was for a CIMT. Ceron, 747 F.3d at 778; Marmolejo-Campos v. Holder, 558 F.3d 903, 910-11 (9th Cir. 2009) (en banc). Under Chevron, we defer to an agency‘s interpretation of ambiguous statutory language “so long as it is reasonable.” Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012 (9th Cir. 2006) (citing Chevron, 467 U.S. at 843).
Here, however, we do not defer to the BIA‘s conclusion in Hernandez that a gang enhancement can render a non-turpitudinous crime a CIMT.13 In addition to the compelling reasons we have set forth above for rejecting such a conclusion as unreasonable,14 we do not give deference to the BIA‘s statutory interpretation because the BIA failed to explain why the offense with the gang enhancement constituted conduct that is inherently base, vile or depraved as opposed to simply criminal conduct that society rejects, or conduct that the BIA concluded in Hernandez was “inherently reprehensible,” 26 I. & N. Dec. at 402.15 In Robles-Urrea, 678 F.3d at 708-10, we held that the BIA‘s conclusion in a precedential decision that misprision of a felony was a crime involving moral turpitude did not warrant deference under Chevron. We determined that although the BIA properly recited the definition of a crime involving moral turpitude as one that is “inherently base, vile, or depraved” as well as contrary to the accepted rules of morality and the duties owed between persons or to society in general,” it failed to explain why misprision of a felony satisfied this definition. Id. at 708. Specifically, we held that the BIA‘s reasoning that misprision of a felony must be morally turpitudinous because it involves “both knowledge of a crime and some affirmative act of concealment or participation,” and such “behavior ... runs
The identical lack of reasoning by the BIA exists in Hernandez. The BIA notes that “[c]riminal gangs pose a serious danger to public safety and have a taxing burden on society and our moral culture,” and that the California Legislature enacted the STEP Act for the purpose of eradicating criminal activity by street gangs. Matter of E.E. Hernandez, 26 I. & N. Dec. at 400. Like the reasons offered in Robles-Urrea, however, these reasons do not warrant deference because they mistake mere criminality for moral turpitude and fail to explain why this crime in particular constitutes a CIMT. See Robles-Urrea, 678 F.3d at 709. Where, as in Hernandez, the BIA simply states that criminal conduct is morally turpitudinous but fails to provide a reasoned foundation for its conclusion, its “analysis is an impermissible construction оf the INA, and we decline to defer to it.” Id. at 709-10. Accordingly, we conclude that to the extent the BIA‘s holding in Hernandez—that the respondent‘s conviction is categorically one involving moral turpitude—is based on the application of the gang enhancement statute, it is unreasonable, and we need not defer to it. See Chevron, 467 U.S. at 842-45.
Hernandez fares no better on de novo review. Contrary to the BIA‘s assertion, Matter of E.E. Hernandez, 26 I. & N. Dec. at 402, there is a “realistic probability, not just a theoretical possibility,” Castrijon-Garcia, 704 F.3d at 1215 (alteration omitted), that California applies
We reiterate: a crime that in itself does not involve moral turpitude does not become turpitudinous merely because it was committed to promote, further, or assist criminаl activity by gang members. Thus, Hernandez does not affect our holding that the BIA‘s conclusion in the instant case was in error.
Because the offense of weapons possession with a gang enhancement has none of the characteristics of moral turpitude we have identified, and because California cases “demonstrate that there is a realistic probability, not just a theoretical possibili-
III
We hold that application of the gang enhancement provision under
GRANTED AND REMANDED.