Natividad De Jesus Duran ESCOBAR, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
No. 12-70930
United States Court of Appeals, Ninth Circuit.
Filed January 20, 2017
1019
Argued and Submitted November 8, 2016, Pasadena, California
Yanal H. Yousef (argued), Trial Attorney; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Leslie McKay, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Before: MARSHA S. BERZON, MORGAN B. CHRISTEN, and JACQUELINE H. NGUYEN, Circuit Judges.
CHRISTEN, Circuit Judge:
This immigration case turns on whether
We have jurisdiction pursuant to
BACKGROUND
Duran is a native and citizen of El Salvador. She entered the United States without inspection on October 4, 1989. Duran applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT) on July 19, 2000, alleging that she and her family “were mistreated and threatened by the guerrillas” in El Salvador in the 1980s. An asylum officer declined to grant the application, and on September 11, 2000, the Department of Homeland Security served her with a Notice to Appear (NTA). The NTA charged Duran with being removable because she was present in the United States without being admitted or paroled under
The IJ ruled that Duran is statutorily ineligible for cancellation of removal because she was previously convicted of a crime involving moral turpitude (CIMT). On April 19, 2001, Duran pleaded no contest to violating
DISCUSSION
“The determination whether a conviction under a criminal statute is categori-
“The second step is to compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition.” Id. “Because the BIA does have expertise in making this determination, we defer to its conclusion if warranted” under either Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) or Skidmore v. Swift & Co., 323 U.S. 134 (1944). Id. at 714 (quoting Uppal). Chevron applies “if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute),” while Skidmore governs “if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute).” Id. (quoting Uppal, 605 F.3d at 714).
I. Generic Definition of a Crime Involving Moral Turpitude
Under
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under
section 1182(a)(2) ,1227(a)(2) , or1227(a)(3) of this title, subject to paragraph (5); and(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien‘s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”3
“Crimes of moral turpitude are generally ‘of two types: those involving fraud and those involving grave acts of baseness or depravity.‘” Rivera v. Lynch, 816 F.3d 1064, 1074 (9th Cir. 2016) (quoting Castrijon-Garcia, 704 F.3d at 1212). “[F]raud crimes are categorically crimes involving moral turpitude, simply by virtue of their fraudulent nature.” Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016) (alteration in original) (quoting Planes v. Holder, 652 F.3d 991, 997 (9th Cir. 2011)). “Non-fraudulent CIMTs will almost always involve an intent to injure someone, an actual injury, or a protected class of victims.” Turijan v. Holder, 744 F.3d 617, 621 (9th Cir. 2014).
“In determining whether an offense is a CIMT, the BIA has examined ‘whether the act is accompanied by a vicious motive or a corrupt mind’ because ‘evil or malicious intent is... the essence of moral turpitude.‘” Linares-Gonzalez, 823 F.3d at 514 (alteration in original) (quoting Latter-Singh, 668 F.3d at 1161). But “where a protected class of victim is involved, such as children or individuals who stand in a close relationship to the perpetrator, both the BIA and this court have been flexible about the intent ‘requirement,’ extending the category of crimes of moral turpitude to encompass even unintentional acts that only threaten harm.” Nunez v. Holder, 594 F.3d 1124, 1131 n.4 (9th Cir. 2010).
II. The Categorical Approach
To determine “whether the conduct proscribed by the statute involves moral turpitude,” this court and the BIA apply the “categorical approach” of Taylor v. United States, 495 U.S. 575, 598-602 (1990), “comparing the elements of the state offense to those of the generic CIMT to determine if there is a categorical match.” Linares-Gonzalez, 823 F.3d at 514 (citing Descamps v. United States, 133 S.Ct. 2276, 2283-86 (2013)). To show that the state offense is broader than the generic definition of a CIMT, and thus not a categorical match, the applicant must demonstrate that there is “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of moral turpitude.” Turijan, 744 F.3d at 620 (quoting Nunez, 594 F.3d at 1129). “If the statute has been applied in at least one previous case to conduct that does not satisfy the generic definition, then the offense is not a categorical CIMT.” Id. at 620-21 (citing Castrijon-Garcia, 704 F.3d at 1214-15).
A. Elements of the State Offense
(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
(1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.
The IJ concluded that a violation of section 136.1(a) is a categorical CIMT because it uses the word “maliciously.” The IJ reasoned: “Each of the elements of the California Section used the term malicious and thus, I see no legal room to define the crime other than one involving elements of moral turpitude.” The BIA agreed with the IJ and emphasized that section 136.1(a) requires the “specific intent to knowingly and maliciously intimidate a witness.” Neither the BIA nor the IJ cited or discussed the California statute‘s definition of “malice” in reaching this conclusion. On appeal, Duran argues that the BIA and IJ erred by failing to consider the statute‘s definition, which demonstrates the statute would apply to conduct that falls outside the generic definition of moral turpitude. We agree.
B. Level of Deference
First, we conclude that the BIA‘s decision is not entitled to Chevron deference with regard to its interpretation of the CIMT provision. ”Chevron deference is afforded to an unpublished decision only when it is ‘directly controlled by a published decision interpreting the same statute.‘” Castrijon-Garcia, 704 F.3d at 1210 (quoting Uppal, 605 F.3d at 714). Although the BIA‘s unpublished decision cites to published decisions, none interprets
The BIA observed “that the statute under which [Duran] was convicted... falls within the federal definition of obstruction of justice under
A separate problem is presented by the BIA‘s use of a more general description of a CIMT as “contrary to justice, honesty, principle, or good morals,” Matter of Serna, 20 I. & N. Dec. 579, 582 (BIA 1992), instead of the two-part generic definition employed by this court and the BIA in its published opinions. See, e.g., Matter of Ruiz-Lopez, 25 I. & N. Dec. 551, 551 (BIA 2011) (“We have long held that moral tur-
Finally, the BIA distinguished Blanco v. Mukasey, 518 F.3d 714, 720 (9th Cir. 2008), which held that falsely identifying oneself to an officer under
Because we find the BIA decision unpersuasive in its delineation of the generic definition of a CIMT as applied to obstruction of justice, and because we generally do not defer to the BIA in interpreting state or federal criminal statutes, see Castrijon-Garcia, 704 F.3d at 1208, we review de novo whether
C. De Novo Review
The model statute “provided that the prosecution could show malice in either of two ways: proving the traditional meaning of malice (to vex, annoy, harm, or injure) or proving the meaning of malice that is unique to the statute (to thwart or interfere in any manner with the orderly administration of justice).” Id. at 420-21. The
In Wahidi, the defendant “was involved in a physical altercation with Farahan Khan and three other individuals in a parking lot, during which Wahidi punched one of Khan‘s friends in the face and then broke the windows of Khan‘s car with a baseball bat while at least one of Khan‘s friends was sitting in the vehicle.” Id. at 417. The day before the preliminary hearing “Wahidi approached Khan following prayer services at Khan‘s mosque,” apologized, and asked Khan if they could settle the matter “outside the court in a more Muslim manner family to family” because they were both Muslim. Id. “Khan responded sympathetically to Wahidi,” “accepted his apology,” told the prosecutor about the conversation, and “asked if the case could be handled in another way.” Id. “Wahidi never demanded that Khan refrain from testifying or threatened Khan with harm if he were to [go] to court.” Id.
The California Court of Appeal found that the evidence demonstrated “Wahidi intended to ‘thwart or interfere in any manner with the orderly administration of justice‘” under the second prong of the “malice” definition in section 136. Id. at 419. Because of the statute‘s “broad” definition, the court held that there “was sufficient evidence to support the finding that Wahidi acted maliciously as well as knowingly under section 136.1 in attempting to persuade Khan from testifying at the preliminary hearing the next day,” even though Wahidi did not intend to “vex, annoy, harm, or injure” Khan. Id. at 421.
Wahidi demonstrates that California would apply
The BIA correctly determined that section 136.1(a) requires a specific intent “to affect or influence a potential witness‘[s] or victim‘s testimony or acts.” McDaniel, 27 Cal.Rptr.2d at 309. But the statute does not require the intent to “injure someone, an actual injury, or a protected class of victims,” such as children. Turijan, 744 F.3d at 621. Similarly, it does not necessarily “involve base, vile, and depraved conduct that shocks the public conscience.” Id. (internal quotation marks and alterations omitted) (quoting Nunez, 594 F.3d at 1131); cf. Latter-Singh, 668 F.3d at 1163 (“The intent to instill great fear of serious bodily injury or death in another constitutes the ‘vicious motive or corrupt mind’ demonstrative of a crime involving moral turpitude.“). Therefore, we conclude,
However, Duran‘s prior conviction for violating section 136.1(a) may still qualify as a CIMT if the statute is divisible and Shepard-compliant documents demonstrate that Duran‘s conviction is a match under the modified categorical approach. See Rivera, 816 F.3d at 1077-78 (citing Descamps, 133 S.Ct. at 2281); see also Shepard v. United States, 544 U.S. 13, 16 (2005). The BIA did not reach the modified categorical approach, and the parties did not brief the divisibility issue on appeal. Although we could reach the question of divisibility sua sponte because the BIA is not entitled to deference when interpreting criminal statutes, we decline to do so.
CONCLUSION
We remand to the Agency to consider whether
PETITION GRANTED and REMANDED.