MIGUEL ANGEL ORELLANA, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 19-70164
United States Court of Appeals for the Ninth Circuit
July 28, 2020
Agency No. A072-937-494; Submitted May 6, 2020; Pasadena, California
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Before: MILAN D. SMITH, JR., JOHN B. OWENS, and DANIEL A. BRESS, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.; Concurrence by Judge Owens
* The panel unanimously concludes this case is suitable for decision without oral argument. See
Immigration
Denying Miguel Orellana‘s petition for review of a decision of the Board of Immigration Appeals, the panel held that 1) a conviction for criminal stalking, in violation of
Reviewing the statute of conviction de novo, the panel first concluded that the BIA did not err in identifying the elements of a
The panel explained that the BIA‘s reliance on its published decision in In re Ajami, 22 I. & N. Dec. 949 (B.I.A. 1999), was not entitled to deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), because Ajami did not interpret
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
The panel also concluded that there was not a “realistic probability” that the statute applies to conduct that is not morally turpitudinous because all the conduct that
The panel also held that the BIA reasonably concluded that Orellana‘s two
Concurring, Judge Owens joined the majority opinion in full because it correctly applied the law as it now stands, but wrote separately to express his view that the court‘s current CIMT approach is, in the words of his Grandpa Harold, “dumb, dumb, dumb.” He wrote that other judges share that view and that a smarter (and more just) approach would be to look to a more objective standard, such as the length of the underlying sentence, before deciding if someone should be removed.
COUNSEL
Rosana Kit Wai Cheung, Los Angeles, California, for Petitioner.
Joseph H. Hunt, Assistant Attorney General; Stephen J. Flynn, Assistant Director; Robert Michael Stalzer, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
M. SMITH, Circuit Judge:
Petitioner Miguel Orellana is a native and citizen of El Salvador who became a lawful permanent resident of the United States. Decades after his admission to the United States, he was convicted of two counts of criminal stalking in violation of
We hold that the BIA did not err in concluding that a
BACKGROUND
Orellana has resided in the United States since 1986. He obtained lawful permanent resident status in 1997. Twenty years later, a California state court convicted him in 2017 of two counts of criminal stalking in violation of
We have jurisdiction pursuant to
ANALYSIS
I. A § 646.9(a) Criminal Stalking Conviction is Categorically a CIMT
The threshold issue we must decide is whether the BIA erred in concluding that a
To determine whether a
A. The Elements of California Penal Code § 646.9(a)
Pursuant to California law, one commits the crime of stalking if one “willfully, maliciously, and repeatedly follows, or willfully and maliciously harasses another person and... makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family[.]”
The first element is “willfully, maliciously, and repeatedly follow[ing] or willfully and maliciously harass[ing] another person[.]”
The second element is “mak[ing] a credible threat.”
The third element is that a violator must make the credible threat with “the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family.”
Orellana identifies no error at this step. Although the BIA did not analyze the statute extensively, the BIA
B. Comparison of § 646.9(a) ‘s Elements with the Federal Definition
We next compare the offense‘s elements with the federal definition of a CIMT to determine whether the offense is a categorical match. Fugow, 943 F.3d at 458. The INA does not define the term “crime involving moral turpitude.” Id. at 457. We have observed that “‘[m]oral turpitude’ is perhaps the quintessential example of an ambiguous phrase.” Marmolejo-Campos, 558 F.3d at 909. We have defined a CIMT as involving “either fraud or base, vile, and depraved conduct that shocks the public conscience.” Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010) (internal quotation marks and brackets omitted), superseded in other part as stated by, Betansos v. Barr, 928 F.3d 1133, 1142 (9th Cir. 2019). We have also explained that “[CIMTs] generally involve some evil intent.” Castrijon-Garcia, 704 F.3d at 1213 (citation and internal quotation marks omitted).
Notwithstanding our CIMT definition, we apply “traditional principles of administrative deference” when the BIA interprets an ambiguous INA phrase in its adjudication of a particular case. Marmolejo-Campos, 558 F.3d at 910–11. Here, the BIA relied on its precedential decision in In re Ajami, 22 I. & N. Dec. 949 (B.I.A. 1999) to conclude that a
Chevron deference does not apply here. Although Ajami is a published BIA decision, that decision did not interpret
2. Skidmore Deference is Due
Skidmore deference may nevertheless apply. “Pursuant to Skidmore, a reviewing court ‘may properly resort’ to an agency‘s interpretations and opinions ‘for guidance,’ as they constitute ‘a body of experience and informed judgment.‘” Garcia v. Holder, 659 F.3d 1261, 1266–67 (9th Cir. 2011) (quoting Skidmore, 323 U.S. at 140). The measure of deference varies “depend[ing] 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. The BIA‘s analysis here was not extensive. That shortfall, however, does not preclude Skidmore deference. An analysis of Ajami leads us to conclude that the BIA properly relied on that BIA decision to conclude that a
In Ajami, the Michigan aggravated stalking offense at issue criminalized “the making of 1 or more credible threats
Section 646.9(a) prohibits conduct that is materially identical to the aggravated criminal stalking offense in Ajami. Both offenses require: (1) a “willful” pattern of conduct, compare
Orellana argues, however, that
Next, Orellana homes in on the “credible threat” element of the offense at issue in Ajami. He observes that the Michigan offense defined “credible threat” to mean “a threat to kill another individual or a threat to inflict physical injury upon another[.]”
C. Section 646.9(a) Does Not Reach Non-Turpitudinous Conduct
Although the BIA‘s decision is entitled to Skidmore deference, Orellana raises a more fundamental issue about
Doubt is not the standard that we apply to assess a claim that a criminal statute does not categorically constitute a CIMT. Orellana must establish that there is a “realistic probability” that
Orellana‘s argument implicates the second approach, and thus requires us to determine whether all the conduct that
We start with our decision in Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006). There, we considered whether two misdemeanor domestic assault convictions pursuant to Arizona law categorically constituted CIMTs. Id. at 1161. We concluded that the statute of conviction was not a CIMT because (1) it did not require a willful or intentional act, which “alone” rendered the offense not a categorical match, id. at 1166–67, and (2) it contained no element of injury at all, id. at 1167. We summarized that “[a] simple assault statute which permits a conviction for acts of recklessness, or for mere threats, or for conduct that causes only the most minor or insignificant injury is not limited in scope to crimes of moral turpitude.” Id. (emphasis added). Similarly, in Uppal, we concluded that an aggravated assault offense pursuant to Canadian law did not constitute a CIMT because the offense required no
Our decision in Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012), stands in stark contrast to our analysis in Fernandez-Ruiz and Uppal. In Latter-Singh, we held that a
(1) willfully threatening to commit a crime that will result in death or great bodily injury to another person; (2) specific intent that the statement be taken as a threat; (3) the threat was “on its face and under the circumstances so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat“; (4) the threat “caused the victim to be in sustained fear for his or her own safety or for his or her immediate family‘s safety“; and (5) the “victim‘s fear was reasonable under the circumstances.”
Id. at 1160 (quoting People v. Jackson, 100 Cal. Rptr. 3d 539, 543 (Ct. App. 2009)).
We proffered three independent reasons for why the offense was a CIMT. First, we explained that “the underlying conduct threatened is itself a [CIMT],” and a
Although we recognize that
Enacted in 1990,
Orellana implicitly recognizes that if the statute were still limited to threats of death or great bodily injury, then the statute would categorically be a CIMT. Latter-Singh would compel that conclusion. We do not think, however, that the absence of “death or great bodily injury” from
Although
Instead,
Further, “[t]he BIA has emphasized that ‘evil or malicious intent is ... the essence of moral turpitude,’ and, therefore, one test ‘to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.‘” Latter-Singh, 668 F.3d at 1161 (second alteration in original) (quoting In re Flores, 17 I. & N. Dec. 225, 227 (B.I.A. 1980); then quoting Ajami, 22 I. & N. Dec. at 950). We have affirmed that “[t]he BIA is entitled to place great weight on the presence or absence of a mens rea element when determining whether a crime involves moral turpitude.” Id. at 1162 (emphasis added); see also Castrijon-Garcia, 704 F.3d at 1213. Although
Pursuant to our review of the statutory text and in light of our CIMT precedents, we conclude that
II. The BIA Reasonably Concluded that Orellana‘s Two § 646.9(a) Counts of Conviction Do Not Arise Out of a Single Scheme of Criminal Misconduct
To be removable pursuant to
First, the BIA‘s determination accords with its precedential decision in Matter of Adetiba, 20 I. & N. Dec. 506, 509 (B.I.A. 1992), to which we accord Chevron deference. Szonyi, 942 F.3d at 890. In Adetiba, the BIA construed the phase to mean that an alien is removable “when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, ... even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct.” 20 I. & N. Dec. at 509. Applying that construction, the BIA determined that the alien there had committed “separate and distinct crimes each time he used a different credit card and obtained through its unauthorized use” something of value. Id. at 512 (emphasis added). The BIA reasoned that “[t]he use of additional cards did not flow from and was not a natural consequence of a single act of criminal misconduct,” noting that “[a]fter use of any one credit card, the alien had the opportunity to dissociate
Here, the BIA relied in part on Adetiba to conclude that Orellana was convicted of two CIMTs not arising out of a single scheme of criminal misconduct.9 Count 1 of the state felony complaint involved Orellana willfully and maliciously following and harassing one person between June 1, 2015 and April 26, 2017. Count 2 involved the same conduct by Orellana against a different person between March 1, 2017 and April 26, 2017. Relying on Adetiba, the BIA concluded that Orellana‘s criminal offenses, which occurred on different dates over different periods of time, did not arise out of a single scheme. That was not a misapplication of Adetiba. And, like the offenses at issue in Adetiba, Orellana‘s stalking in Count 1 was not a natural consequence of Orellana‘s stalking of a different person in Count 2. 20 I. & N. Dec. at 512. He had the opportunity to dissociate himself from stalking the first person before stalking the second. Thus, the BIA reasonably determined that Orellana‘s two
The BIA also relied in part on our decision in Leon-Hernandez v. U.S. I.N.S., 926 F.2d 902 (9th Cir. 1991) to conclude that Orellana‘s two counts of conviction did not arise out of a single scheme. In Leon-Hernandez, we observed that the then-applicable statutory text provided that “[a]n alien may be deported if ‘convicted of two crimes
Leon-Hernandez recognized a rebuttable “presumption of separate crimes created by the fact that the crimes were committed on different dates[.]” 926 F.2d at 905 (citing Khan v. Barber, 253 F.2d 547, 549 (9th Cir. 1958), cert. denied, 357 U.S. 920 (1958)). Because this presumption applies “[i]n the absence of evidence of a more conscious, coherent plan or program of future action, the BIA‘s determination that [the alien‘s] crimes did not arise from a single scheme of criminal misconduct is reasonable.” Id. (citation and internal quotation marks omitted). The evidence before the BIA presumptively showed that Orellana‘s two
CONCLUSION
We hold that a conviction for criminal stalking in violation of
PETITION DENIED.
OWENS, Circuit Judge, concurring:
“Dumb, dumb, dumb!” my Grandpa Harold would exclaim when I tried to explain a legal concept that made little sense. I can only imagine what he would say about the “CIMT” approach that case law currently compels us to apply.
I do not have to imagine what other judges have said about this approach. Like me, they think it is dumb, dumb, dumb. See, e.g., Romo v. Barr, 933 F.3d 1191, 1199–1200 (9th Cir. 2019) (Owens, J., concurring) (listing cases where judges from various circuits have criticized CIMT jurisprudence).
We should avoid doing dumb things. Especially ones that are dumb3.
A smarter (and more just) approach would be to “look to a more objective standard, such as the length of the underlying sentence, before deciding if someone should be removed from our country.” Almanza-Arenas v. Lynch, 815 F.3d 469, 482–83 (9th Cir. 2016) (en banc) (Owens, J., concurring, joined by Tallman, Bybee, and Callahan).