Navarro-Lopez v. Gonzales

1063 are bet “reasonableness” factors These NAVARRO-LOPEZ, conve Armando to claims of non

ter suited forum niens, Petitioner, also based on “consider which is convenience, fairness, judicial and ations of Int’l v. Ma economy.” Sinochem Co. Ltd. — U.S. —, Shipping Corp., laysia Int’l GONZALES, Attorney Alberto R. 1184, 1187, 15 167 L.Ed.2d S.Ct. General, Respondent. (“For (2007).1 1404(a) See 28 U.S.C. No. 04-70345. witnesses, in parties of and convenience justice, of a district court the interest Appeals, United States Court of any any civil action to other dis transfer Ninth Circuit. might have been trict or division where Indeed, the seven reasonable brought.”). Argued 13, Dec. and Submitted parallel private public factors and ness 19, Sept. Filed weigh that a district court must interests considering a non when claim forum Piper conveniens. See Co. Aircraft 235, 241, 252, 102 S.Ct.

Reyno, 454 U.S. (1981); Corp.

L.Ed.2d 419 Oil v. Gil Gulf bert, 508-09, 839, 67 S.Ct. 330 U.S. (1947).2

L.Ed. 1055 swimming against

I that I am recognize tide, proceed but I refuse to without my objections respect- known. I

making I

fully opinion part, concur in the and

fully judgment. concur obtaining Supreme Court and the attendance of will- 1. The case in which the cost witnesses; has held that these factors determined ing, possibility premises, of view of question personal jurisdiction action; was in a suit appropriate to the if view would be foreign corporations which between two practical problems that make all other evenly divided over whether the Court expeditious inexpen- easy, trial of a case minimum contacts were sufficient. See Asahi Corp., sive.” Oil 330 U.S. at Gulf Co., Superior Ltd. v. Metal Indus. Court of include: S.Ct. 839. Public factors "adminis- California, 480 U.S. 107 S.Ct. congestion; trative difficulties from court (1987). might just L.Ed.2d 92 The defendant having 'local interest in localized controver- easily have invoked non conveniens. forum home’; having decided at the interest in sies Malaysia See Sinochem Int’l Co. Ltd. v. Int’l diversity the trial of a case in a forum that is Shipping Corp.,-U.S.-, 127 S.Ct. govern with the law that must home (2007); Piper 167 L.Ed.2d 15 Co. v. Aircraft action; unnecessary prob- the avoidance of Reyno, U.S. S.Ct. laws, application lems in conflict of or in the (1981). L.Ed.2d 419 law; foreign unfairness burden- ing jury citizens in an unrelated forum with 2. Private factors in the non conveniens forum include; Co., duty.” Piper 454 U.S. at balancing ac- test "relative ease of Aircraft (quoting Corp., 102 S.Ct. 252 Oil proof; availability cess to sources of of com- Gulf 839). pulsory process unwilling, for attendance of U.S. at 67 S.Ct. Fraser, Department Francis of Jus- W. DC, tice, Washington, respondent. for the M. Rot- Stephen Manning, W. Jennifer n Boell, man, appeared and Jessica M. Immigration of Amicus American behalf Lawyers Association. SCHROEDER, MARY M.

Before: HARRY Judge, Chief Circuit PREGERSON, STEPHEN KOZINSKI, REINHARDT, ALEX O’SCANNLAIN, F. DIARMUID HAWKINS, THOMAS, KIM SIDNEY R. WARDLAW, FLETCHER, McLANE W. PAEZ, A. RICHARD RICHARD C. TALLMAN, B. JOHNNIE RAWLINSON, CLIFTON, RICHARD R. BEA, BYBEE, and T. JAY S. CARLOS Judges. Circuit PREGERSON;1 Opinion by REINHARDT; by Judge Concurrence TALLMAN; by Judge Dissent Dissent Judge BEA.

PREGERSON, Judge: Circuit Navarro-Lopez for petitions Armando removal, arguing review of a final order of Immigration Appeals that the Board of (“BIA”) summarily affirming erred (“IJ”) determination immigration judge’s Navarro-Lopez’s conviction under section 32 for acces- California Penal Code sory after the fact was a conviction for a Based conviction, the IJ con- Navarro-Lopez’s ineligible cluded he was inadmissible and ju- for cancellation of removal. We have Patterson, Law James Robert Office CA, pursuant 28 U.S.C. risdiction Velasquez, Diego, Lilia for the S. San 1252(a)(1), grant petition. § and we petitioner. special opinion Judge Pregerson’s opinion is to be viewed as 1. This serves as majority para- court save for the four concurrence. graphs comprise section A.2. That section held that Navarro- IJ nonetheless The PROCEEDINGS PRIOR AND FACTS fact accessory after the conviction Lopez’s and citizen is native Navarro-Lopez a crime constituted citizen married to a U.S. isHe Mexico. 1182(a)(2)(A)(i)(I). tude under 8 U.S.C. residency- permanent applied has and IJ, therefore, re- Navarro-Lopez held citizen two U.S. He has his wife. through The IJ also denied Navarro- movable. sixteen, children, thirteen ages re- cancellation of application for Lopez’s legal is a child who twenty-four-year-old Navarro-Lopez grounds moval on the working been He has resident. permanent of a crime years, had convicted twenty for over been States United Further, their own home. the IJ held wife he and his own convict- Navarro-Lopez had been because the United Navarro-Lopez entered involving moral of a crime ed 1999, 9, August On in June 1984. States requisite not have the Navarro-Lopez did count of to one Navarro-Lopez pled guilty for eligible to be moral character good 32, accesso- Penal section Code California Thus, IJ’s of removal. cancellation sentenced to fact. He was ry after the Penal Code of California characterization years probation. jail and three days in 2001, involving traveled to moral Navarro-Lopez 32 as a crime February section who Navarro-Lopez’s appli- his mother Tijuana, Mexico to visit tude served bar February ill. On a gravely was a for ways: in two conviction cation the Unit- tried to re-enter Navarro-Lopez renders involving turpitude moral crime entry. of point at the San Ysidro States ed or re- ineligible for cancellation someone employment au- presented his he When a crime a conviction for moval and card, denied patrol the border thorization demonstrates involving turpitude moral him. The Immi- detained entry and him moral requisite good lack character of Naturalization Service gration cancellation of re- necessary qualify for (“INS”)2 removal commenced thereafter moval. proceedings. Navarro-Lopez ordered removed The IJ Navarro-Lopez charged The INS timely Navarro-Lopez appeal- to Mexico. did not have because he being inadmissible BIA, summarily which affirmed ed to under 8 U.S.C. entry documents valid 24, 2003. Navarro- the IJ on December 1182(a)(7)(A)(i)(I) had because he § for review timely petition filed this Lopez involving a crime moral of convicted been January 2004. U.S.C. 1182(a)(2)(A)(i)(I). At his merits hear- § AND STANDARD JURISDICTION inadmissibil- Navarro-Lopez conceded ing, OF REVIEW 1182(a)(7)(A)(i)(I), § but 8 U.S.C. ity under jurisdiction to have review We convicted of that he had been argued § 1252 as amended under 8 U.S.C. petition Although turpitude. moral Na- crime 106(a) Act of the REAL ID by section having been convict- varro-Lopez admitted 109-13, B., No. Div. Pub.L. Penal section 32 under California Code ed (codi 106(a)(1)(A)(iii), § 119 Stat. fact, disputed he 8 U.S.C. fied amended that crime as categorization of the INS’s Gonzales, 1252(a)(2)(D)). § See Notash moral one Security Security. Act Homeland Homeland On March INS was dissolved as 107-296, 471, agency § United Stat. independent within the No. Pub.L. Justice, Department States and its func- Department tions were transferred to Cir.2005). of a crime of moral While not been convicted good and that he has maintained normally jurisdiction have do not we years character for the ten immedi moral “any against order of removal review final ately preceding application. the date of his by reason of an alien who is removable 1229b(b)(1). § 8 U.S.C. Under 8 U.S.C. criminal of- having [certain committed 1101(f)(3), 1252(a)(2)(C), § no fenses],” person § includ- be found 8 U.S.C. good have moral who has character been ing turpitude,3 convicted of a crime listed in 8 U.S.C. hearing from the constitu- are not barred 1182(a)(2)(A), § in in a which includes a crime questions claims or of law raised tional 1252(a)(2)(D). volving § 8 U.S.C. petition. 8 U.S.C. 1182(a)(2)(A)(i)(I). rely did not conviction is a IJ Navarro-Lopez’s Whether Navarro-Lopez’s on facts other than con ques- is a crime law, jurisdiction to viction when he determined Navarro- tion of which we have Notash, Lopez good lacked moral character. 427 F.3d at 696. reach. See Navarro-Lopez’s eligibility for cancellation de novo “whether a We review of removal turns on whether a conviction statutory state crime constitutes under California Penal Code section 32 turpitude.” Cuevas-Gas turpitude. constitutes a crime of moral Gonzales, (9th par v. 430 F.3d 1017 To determine a conviction is for whether Cir.2005). BIA “Where the affirms IJ’s involving turpitude, ap- a crime moral we opinion, without we review the IJ’s order ply categorical categori- the and modified agency Khup decision as the final action.” cal approaches established Ashcroft, v. 376 F.3d 902 Cir. States, in 495 Taylor Court United U.S. 2004). 575, 599-602, 110 S.Ct. 109 L.Ed.2d ANALYSIS (1990).4 Cuevas-Gaspar, 430 F.3d at 1017. that the IJ erred Navarro-Lopez asserts deciding that a conviction for Categorical Approach A. The after the fact under California Penal Code 1. involving

section 32 constitutes a crime turpitude. Navarro-Lopez asks requires moral categorical approach us petition that we remand his to the BIA for categorical comparison “make a of the ele- grant of cancellation of removal. To to the ments of the statute of conviction crime], removal, qualify generic for an alien and de- [of cancellation definition demonstrate, alia, proscribed by cide whether the conduct must inter that he has See, 1252(a)(2)(C), 1182(a)(2), e.g., precedent. §§ & flicts with our Fernan 3. See 8 U.S.C. 1227(a)(2)(A). Gonzales, This case involves a sin- 468 F.3d dez-Ruiz gle alleged Gonzales, which (9th Cir.2006); crime moral Kepilino 454 F.3d jurisdictional alone would not fall within the (9th Cir.2006); Cuevas-Gas However, 1252(a)(2)(C). § limitations of be- Instead, Judge par, Bea 430 F.3d 1017. Navarro-Lopez cause the crime rendered in- urges us to look at the manner in which re-entry admissible and occurred before his judicial turpitude applied moral has been States, scope within the into the United falls Bea Dissent at 1086. This is in decisions. 1182(a)(2)(A)(i), accordingly, § ap begin categorical essence how we 1252(a)(2)(C). § turpitude. proach involving moral for crimes below, explained lacks a As dissent, argues Judge Bea that we 4. In his statutory we look to definition and instead Taylor categorical ap- apply should not decisions") (i.e. "judicial to de common law determining proach whether a crime when plainly generic of the crime. involves moral This con- termine the definition than, is intrinsically broader and so does wrong”); [the statute] Medina v. United within, States, (4th Cir.2001) categorically generic fall this 259 F.3d Ashcroft, (adding definition.” Huerta-Guevara v. morally turpitudinous conduct (9th Cir.2003). conscience”). public There- “shocks the fore, begin categorical approach by widespread judicial consistency This determining generic elements supported by basic notions of moral turpi involving crime for the tude. Moral involves “immoral 1182(a)(2)(A)(i)(I). purposes of 8 U.S.C. depraved” or conduct. Random House 580-81, Taylor, 495 U.S. at 110 S.Ct. Dictionary English Usage Unabridged (1973). Crimes of moral turpitude “in grave infringement volv[e] of the moral difficulty A arises here as there are no sentiment of community.” Webster’s statutorily established elements New Dictionary International Courts, Una crime (2d ed.1940). bridged however, ge consistently have defined “moral neric definition of a crime turpitude” conduct that is in turpitude is a base, conduct that vile, herently depraved, and con base, vile, depraved vio trary private and social man duties accepted lates moral standards.5 owes to his fellow men or society See, Gonzales, general. e.g., Morales v. (9th Cir.2007). This is BIA, see, employed by dissent,

the definition his Tallman states that , e.g., Matter I & N Dec. 140 all involving morally turpitudinous E — (BIA 1944), and relatively the definition is conduct fall into one of categories: two courts, throughout consistent the federal involving those involving fraud and those see, Gen., e.g., Att’y Martinez v. grave Sosa U.S. acts of depravity. baseness or Tall (11th Cir.2005); 1078-79; 1341-42 man Dissent at accord Reinhardt Cone, Gonzales, Padilla v. at 1074. The dissent draws this (7th Cir.2005) (also asking whether the act Carty formulation from v. Ashcroft, 395 involved indignation Cir.2005), arouses “serious” in F.3d 1081 wherein we stat the law-abiding public); Omagah v. Ash ed: “Crimes of moral turpitude are of h (5t Cir.2002) croft, basically types, two involving those fraud (further morally adding turpitudinous and involving grave those acts of baseness “per morally reprehensible acts are depravity.” se or Id. at (emphasis add- decision, Flores, slight- his oral the IJ set forth a The IJ cited Matter 17 I & N Dec. of ly different (BIA definition of moral stat- 1980), definition, for his but the IJ ing involving turpitude that "[a] crime moral appears to have misread that case. Matter of generally refers to conduct which inherent- Flores set forth the correct definition of moral base, vile, ly depraved, contrary or or is to the turpitude: turpitude "Moral is a nebulous accepted morality rules of and to the duties concept generally which refers to conduct society.” (emphasis owed between men in base, vile, inherently which depraved, or added). The IJ’s definition differs from the contrary accepted morality to the rules of generic turpitude definition of moral in one man, the duties owed between man and either key respect. turpi- The IJ stated that moral society general.” one’s fellow man or Mat- tude involves conduct that is either inher- Flores, Thus, ter 17 I & N Dec. at 227. base, vile, of ently depraved contrary or or support Flores does not Matter the defini- accepted duties owed between man and turpitude tion of moral used the IJ. society. This definition is incorrect because crimes of moral involve both ele- ments. ed). security check mistak- Carty can be read to stand then cashes social Although enly deceased father. The involving issued her proposition that crimes woman that she does not knows have fall into these turpitude generally moral money. fa- right forges She her categories these two do not categories, two But, signature. money ther’s she needs explained As turpitude. define moral hungry Although feed her children. above, involving crimes moral base, vile, illegal, conduct is it is not base, vile, depraved conduct involve depraved. Both of crimes involve these contrary that shocks the conscience and is fraud, they present very but different cir- duties owe each other. to the societal we a large cumstances. Because such swath involving per fraud are not a se Crimes fraud, of crimes involve we should conduct involving moral category of crimes in- analysis an individualized for offenses fraud, depending involving tude. Crimes volving immediately fraud —not label them circumstances, merely present ex- involving turpitude. moral may of conduct that fall under the amples As circuit and the BIA have consis this inherently and vile base con- umbrella held, tently in an engage must individu Indeed, duct that shocks the conscience. analysis challenged alized of each statute involving the intent to de- some crimes to determine whether falls under the def- (especially fraud the dissent’s broad rubric of crimes inition, any in- encompasses which See, Morales, 978; e.g., 478 F.3d at Cue necessarily volving “dishonesty”) are not vas-Gaspar, 430 F.3d 1017. As the turpitude.6 crimes majority of crimes involve some element of “involving encompasses fraud” Crimes dishonesty oper Enron executives —from offenses, category possible such broad ating public massive fraud on the to a proper that it is not all such simply label twenty-year-old using his older brother’s morally turpitudinous. crimes There buy classifying ID to all such beer— fraud that do involve crimes as would example,- For someone phrase turpitude” any rob the “moral perpetrating deprive a vast fraud to wid- Tail- meaning. Judge distinct while pension employees ows of benefits man’s dissent and Reinhardt’s con base, qualify ERISA benefits would as accessory inquire currence into whether vile, depraved, shocking society’s con- fraud, involving after the fact is a crime hand, science. On the other some actions accessory question the real is whether af base, may qualify involving fraud not inherently ter the fact is a crime that is vile, base, vile, depraved. example depraved Take the of a or and contradicts ac falsely cepted welfare mother who endorses and moral standards.7 Cone, concurrence, Judge specifi- I praved. In section III of his Reinhardt 1074. cally involving hold that fraud do not crimes my approach Reinhardt states that dilutes the compel holding. involving A such a crime meaning turpitude of moral and would broad- base, vile, turpitude moral must be one that is category involving en the of crimes moral depraved society's or and shocks conscience. Cone, My turpitude. Reinhardt at 1075-76. fraud, a an element of Where crime includes approach exactly opposite. does the Al- standard must be met. this same though prior case law describes as a fraud category involving of crimes moral 7. Even if we were to hold that crimes involv- involving crimes fraud can be crimes of moral ing always crimes moral fraud necessarily but are not in- crimes turpitude, accessory pursuant to after the fact volving in- Reinhardt Penal Code 32 is not a California section terprets “compelling” us to label all necessarily involving this as crime fraud. It is not base, vile, enough and de- that an offense involve some sort fraud as boring must be with specific the intent may that principal escape from ar- generic determining After ele rest and trial. crime, step the next ments Prado, People Cal.App.3d categorical approach compare is to those (1977). Thus, Cal.Rptr. a convic- question. the state in elements with statute requires tion under section Here, knowing Cuevas-Gaspar, 430 F.3d at 1017. interference with the enforcement of the accessory whether after the fact assess specific law a help prin- a with the intent to under California Penal Code section 32 is cipal avoid arrest or trial. Whether a crime involves moral “is deter applied The IJ his incorrect definition of statutory byor by mined definition turpitude8 and then held that a specif nature of the crime not [and] conviction under California Penal Code in ic conduct that resulted the conviction.” necessarily section 32 implicates a crime of INS, McNaughton all circumstances. He (9th Cir.1980) curiam). (per We explained: the circumstances under consider which It is a crime moral turpitude the crime was committed. provision because conviction under this pro- California Penal Code section 32 contrary duty does show conduct to the vides: society owed to in general. His convic- who,

Every felony after a tion person has was contradiction of the enforce- committed, harbors, been or ment relating felony. conceals of a state law to a felony, Furthermore, principal aids a such with the knowledge it involves principal may that said or intent avoid respondent the individual that is arrest, trial, escape from conviction or harboring aiding or has committed such punishment, having knowledge that felony, said given the fact that it involves principal felony has committed such or knowledge principal has charged felony has been with such felony committed the and the individual thereof, convicted is an conduct, [undertaking whether that felony. harboring aiding. Such assistance felony one known to have committed a law, Under California the crime of accesso- clearly contrary accepted rules ry following after the fact has the essential society. owed between members of elements: holding The IJ based his the fact someone other than the person duty violates a owed to soci- charged accessory, as an say, is to ety obey impede the law and not to principal, specif- must have committed a However, completed felony; investigation ic of crimes. the accused com- harbored, crime, definition, any must have concealed mission of or aided runs (3) contrary with to principal knowledge duty society. that the some owed to If principal felony; committed a this were the sole benchmark for a crime further, hiding, concealing or har- turpitude, every moral crime sneaky or statutory language dishonest behavior —we look for A review the of Califor- Carty, intent to See 395 F.3d at nia Penal Code section 32 demonstrates that defraud. (holding prohibiting that a statute conduct intent to defraud is not an essential element "specific with intent to evade a tax” did not of a conviction under the statute. contain, as an essential element the of defraud); fense: an intent to see also Goldesh supra n. INS, (9th Cir.1993). tein v. 8 F.3d 647-48 cer decision about societal values. The broad turpitude. moral We involve would destroy duty society not to tainly owe a of acts under California range proscribed another, not to assault property, another’s give do not all rise Penal Code section 32 proper private and enter and not break outrage. “Any to moral kind of overt or Yet, we have held that convictions ty. to a known felon” affirmative assistance involve mor categorically acts not these do can be the of a conviction under basis Cuevas-Gaspar, 430 E.g., al turpitude. People Duty, v. 269 Cal. section 32. intent to com (burglary F.3d at 1020 App.2d Cal.Rptr. residence); v. mit a crime within the Carr added). a (emphasis harboring The act of Cir.1996) (9th INS, F.3d 950-51 simple providing felon can as food or be (assault Rodri deadly weapon); with a shelter to who has committed a someone INS, guez-Herrera felony family that is a person where —even Cir.1995) (9th maliciously (“knowingly and Hill, member. See United States damage property ... causing] physical (9th Cir.2002). Yet such another”). hardly deprav conduct entails baseness or apparent It is IJ’s definition ity. because un- moral is overbroad harmful than the Actions that are more definition, his all crimes would der underlying accessory conduct an after the reading a crimes of moral Such fact conviction have been deemed not to If Congress of the statute is untenable. categorically involve moral To any had intended conviction to make accessory that a conviction for removal, hold ineligible alien for cancellation of necessarily no the fact is a crime of moral it would have said so. There would be categories of designate specific reason to turpitude leads to an result where absurd example, crimes. For 8 U.S.C. a a crime principal who commits 1182(a)(2)(A)(i) § are in- states aliens morally turpitudinous have undertaken they admissible where have committed act, gave principal person but the who crime crime moral or a necessarily food and shelter did. See 9 If all relating to a controlled substance. Dep’t Foreign of State Affairs Manual U.S. “contrary duty owed to conduct 40.21(a) 2.4(b) (“[W]here an n. alien has society general” rendered an individual convicted of ... before or been prohibition inadmissible under underlying ... after the and the fact turpitude, the sec- crimes is not deemed to involve category relating to con- ond 1182](a)(2)(A)(i)(I) would [8 then U.S.C. surplus- trolled substances would be mere applicable.”); not be Goldeshtein cf. age. Cir.1993) INS, 647 n. 6 crucial ele The IJ omitted the second in (“[CJonspiracy commit an offense ment of the definition of a crime un volves moral when the turpitude: the crime involve in derlying substantive offense is a crime or baseness “so far depravity some level of volving turpitude.”) contrary gives to the moral law” underlying The motivation v. De outrage. rise to moral Jordan of a friend or of protection crimes is often n. George, 341 U.S. S.Ct. trouble, family during a time of member (1951) (Jackson, J., 703, 95 L.Ed. 886 dis criminal, actions, do not and such while accessory after the senting). The crime of y depravity. evidence grave fact need not involve acts of base necessaril circuit, states, Many including one in this a depravity. Determining or whether ness facing subjective recognized the difficult choices depraved is a have crime is base of an family escaping people members felon under Penal Code section 32 for family exempted and have members from acts that fall generic would outside the liability. fact accessory after the See Nev. involving definition for turpi- California, however, § 195.030. Rev.Stat. tude. Tallman Dissent at pres- 12598. He Thus, explicit exception. has no such ents a list of cases where defendants were California, a could be wife convicted of prosecuted under section acting 32 for husband, or a harboring her father or accessories to serious crimes. This list harboring daughter. a son or mother of It point. misses the The issue is not whether illogical society would be conclude in some cases violators of section 32 have call the action of general would harbor- been involved in a turpi- crime of moral ing daughter son or a crime that one’s is tude. The everyone pros- issue whether inherently depraved many base or when ecuted under that necessarily section has states do not even such conduct consider committed a crime criminal. nothing tude. There is inherent in the Supreme recently The Court examined crime of the fact Taylor categorical approach and cau it a makes crime moral turpitude against employing “legal imagina tioned in all cases. determining tion” when whether a state A examples few illustrate point. this definition generic statute under the falls case, a prosecuted recent California Mal — Duenas-Alvarez, a crime. Gonzales colm, juvenile, a for after the U.S. —, 815, 822, 127 S.Ct. 166 L.Ed.2d fact principal where the was charged with (2007). Specifically, the court stated possession of an weapon. assault In re that to that a state find statute falls out M., Cal.App.4th Malcolm 54 Cal. definition, generic side of a there must be (2007). Rptr.3d 74 Although the Califor a probability, “realistic not a theoretical nia Appeal Court of held that Malcolm was possibility, that the State would apply its responsible aiding and abetting instead statute to conduct falls outside the acting fact, as an accessory after the id. generic definition of a crime.” Id. at his case demonstrates that in Cali Court was indicating that fornia one can be charged and convicted we should simply hypothesize unusual with accessory after the fact for crimes cases that would fall generic outside the that do not involve moral turpitude. No definition of a crime. See James v. United court has ever possession found of a weap — States, U.S. —, 1586, 1597, 127 S.Ct. on to be a crime moral turpitude. (2007). Indeed, 167 L.Ed.2d 532 the Court Carr, 86 F.3d at 950-51 (holding that Cf. explained has that we should look to the deadly assault weapon was not a “nature” of the offense issue. Id. crime turpitude). More question before us is whether Califor over, Malcolm’s weap efforts conceal a nia Penal Code section 32 describes by placing feet, it under his see In re by crime that its nature involves moral M., Malcom 54 Cal.Rptr.3d at do not clearly It does not. Accessory demonstrate conduct that is its nature after the fact is not a very crime whose base, depraved, or vile. base, vile, nature is depraved; nor necessarily contradicting moral Additionally, people regularly con- standards. victed under California Penal Code section harboring 32 California for argues Tallmaris dissent or conceal- requires ing Duenas-Alvarez provide principals us to who have committed assault specific examples See, prosecuting California or burglaries. e.g., Shortridge v. categorical ap- that a modified Ct., explained 198 Cal. Cal.App.3d Mun. of (accessory burglary when a statute is divisible Rptr. proach proper is Luna, 140 home); Cal. People crimes, a trailer may some of which into several (1956) (accessory 662, 295 P.2d 457 App.2d turpitude and some of which involve moral Goldman, assault); 88 P. 819 Parte Ex Carty, not. to theft of (accessory (Cal.Ct.App.1906) categorical approach, modified how- not actions do property). Such personal ever, particular when the ele- only applies offending societal con the level of rise to of conviction are broad- ments in the crime grave acts They do not constitute science. any than violation immorality any more crime. When the generic er than the have held that nei does.9 We of the law missing an element crime of conviction deadly with a nor assault burglary ther altogether, we can generic of the turpi of moral crimes weapon constitute actually jury that “a was re- never find F.3d at 1020 Cuevas-Gaspar, 430 tude. to find all the elements of’ quired commit a crime with intent to (burglary Ashcroft, crime. See Li v. generic Carr, residence); 86 F.3d at within (9th Cir.2004) (Kozinski, 892, 899-901 (assault deadly weapon). awith J., concurring) (providing examples). crimes would not abetting Aiding moral tur conduct demonstrate Accessory after the fact under California accessory after the as an pitude. Acting 32 lacks an element of Penal Code section necessarily not fact to such crimes should i.e., the moral generic crime — do so either. tude, depravity. The crime requisite accessory after underlying an Conduct can never be of conviction narrowed necessarily not fact conviction does generic crime because the conform to baseness or conduct that involves involve man- jury required Taylor —as Penal Code California depravity. ge- find all the elements dates —to potential refers to a set section 32 if had Navarro-Lopez crime.10 Even neric generic than the definition crimes broader acts, depraved those admis- admitted to turpitude.” a “crime modify used to sions could not be categorical approach, Taylor Under necessary they were not for crime because Navarro-Lopez’s conviction Shepard United a conviction. the ge- fact not fall under after the does States, 13, 24, 125 544 U.S. S.Ct. for a crime and was not neric definition govern- (holding L.Ed.2d 205 “a conviction prior show that ment must (and prior plea nec- ‘necessarily’ involved Categorical Approach B. The Modified admitted) equating gener- facts essarily Circuit, we have held In the Ninth categorical burglary”). The modified ic categorically statute is that where state used to conform thus cannot be approach generic definition of a than the broader accessory after the fact Navarro-Lopez’s crime, categorical a modified employ we generic definition conviction to Gonzales, Kepilino approach. Cir.2006). Carty, cases, earlier, analysis applies as the illegal all acts 10. This same at some level 9. As noted us, why review currently and values—that is where courts violate societal norms one before However, illegal. "crimes involv- jury agreements the acts verdicts. plea instead category of ing turpitude” is a limited all con- not extend to cover crimes and does violates the law. duct that 1074

CONCLUSION pitude,” but rather fraud is “an example of conduct that fall under the umbrella A crime must inherently base and vile conduct that vile, be a crime that base or de- shocks the conscience.” According to the praved and violates societal moral stan- Judge Pregerson, courts should evaluate Accessory dards. after the fact under Cal- crimes involving fraud way the same ifornia Penal Code section 32 does not fall they crimes, evaluate other by determining under this categorical definition. The base, vile, whether they are or depraved. modified categorical approaches outlined in would, Doing however, so directly contra- Taylor support this conclusion. There- dict what the Supreme Court stated un- fore, grant we the petition and remand to equivocally in to be Jordan the universal the BIA for full consideration of Navarro- rule: “Without exception ... a crime in Lopez’s application for cancellation of re- which fraud is an ingredient involves moral moval. turpitude.” 341 U.S. 71 S.Ct. 703. PETITION GRANTED and RE- It would directly also contradict what we MANDED. reiterated years ago in Carty two “Crimes of moral turpitude are REINHARDT, Ashcroft: Judge, Circuit basically types, two those involving Concurring, joined by Chief Judge fraud and those involving grave acts of KOZINSKI, SCHROEDER Judges depravity.” baseness or 395 F.3d HAWKINS, MICHAEL THOMAS, DALY (9th Cir.2005). was, fact, There WARDLAW, FLETCHER, WILLIAM A. nothing new in Carty, as far as this and PAEZ: circuit is concerned. thirty years Almost earlier, join I Judge Pregerson’s opinion except said “A Winestoclc INS: A(2). for Section Although I agree that having as an element the intent to defraud accessory after the fact is not a crime of clearly a crime involving moral turpi- I cannot agree that of- (9th tude.” 576 F.2d Cir.1978); fenses subject fraud are INS, see also McNaughton v. 612 F.2d same test as other crimes when we deter- (9th Cir.1980). mine which offenses fall within that classi- fication. There are other Generally, crimes are offenses that deemed are so base, vile, be offenses of depraved they they if qualify base, vile, depraved as crimes of they moral turpitude offend soci- “even though —if ety’s values, they most fundamental have no element of fraud.” shock Rodri society’s guez-Herrera INS, (9th offenses, conscience. Fraudulent however, Cir.1995). are so simply by classified These virtue offenses involve “rather of their fraudulent grave nature. Such has acts of depravity” been baseness or clearly established respect murder, rule with rape, and incest. Id. Not all fraud since at least Jordan v. standard, serious De crimes meet this howev George, 223, 227-32, 341 U.S. Indeed, S.Ct. er. determined, we have for ex (1951). Nevertheless, L.Ed. 886 ample, burglary, Cuevas-Gaspar v. Pregerson is “accessory Gonzales, correct that (9th Cir. the fact” is not crime of moral 2005), and assault with a deadly weapon, INS, Carr v. 86 Cir.

I. 1996), do not involve moral To Judge Pregerson’s opinion be considered a states crime of moral turpitude, a “crimes fraud are not a per crime other than fraud must be more than se category of serious; crimes involving moral tur- it must offend the most funda- expanded crimes would be ally offensive society, or as some of moral values mental recognition. beyond conscience.” public the say, “shock[ ] would States, F.3d v. United Medina turpi- term “crimes The Danesh, Cir.2001) (4th Matter (quoting losing of its mean- already risk of tude” is 1988)). (BIA Dec. 19 I. & N. in points out his Judge Pregerson As ing. overly-broad definition of an opinion, II. would leave of moral crimes earlier, from nothing distinguish those offenses we explained the reasons For “untena- crimes or felonies—an other Pregerson’s all Judge follow free to are not care in must exercise ble” result. We crimes that we treat suggestion special categories limits of of defining the base, crimes, the like all other fraud categories disappear. will or the offenses Moreover, vile, standard. depraved and purport does not Immigration Code The controlling law would of in the face do so all aliens con- deportation the require incoherent. totally doctrine render our Instead, Con- crime. victed of serious to label all crimes compelled We would the term “crime of used gress base, depraved, vile and involving fraud as crimes: categories two apply to tude” to fraud all to deem instances and thus 2) 1) offenses; and crimes of an fraudulent than numer- society offensive more morally offensive character. especially felonies that even violent and ous serious distinction between fraud Maintaining the but by lengthy sentences punishable are vile, base, are and offenses offenses turpitudinous. we deem not integrity helps preserve depraved and Pregersoris ap Judge only would Not of “crimes the classification inco existing doctrine render our proach not adhere to If we do turpitude.” meaning of herent, it also dilute would scope of limiting the precedents our “base,” like Terms term, sooner or later category will subjective and “vile,” “depraved” are “crimes.” This not simply to mean come nebulous, comparisons with rely on so we language, it would dilute our only would when morally turpitudinous other Congress’s intent. contravene also fits that de a crime considering whether test for mor our current III. scription. Under deprav a crime’s compare al is not an turpitude” “moral The term previously have that of crimes we ity with that lose their example of words isolated vile, base, and de to be determined interpretation. meaning through expansive murder, rape, and such as praved' felony,” defined “aggravated —crimes term See, e.g., Rodriguez-Herrera, incest. 1101(a)(43), now includes crimes U.S.C. approach Pregersoris at 240. F.3d actually United misdemeanors. addition, compare would, require us to Gonzalez-Tamariz, 310 F.3d States that of minor a crime depravity of with Cir.2002) (“An (9th offense 1170-71 in offenses, providing false fraud under state as a misdemeanor classified application. See passport on a formation aggravated may ... be considered law 437-38 Hogan, Bisaillon think that felony....”). One would Cir.1958). (9th all fraud cases in Sweeping felony” would “aggravated .category of felonies, most immoral category but within the the most serious clude for what we crimes that are not actually lower the bar includes would offenses Likewise, the word base, vile, at all. depraved, felonies to be deem even beyond rec expanded would has felonies “violence” been likely result all have held that courts ognition. mor- Various the definition of be included and soon pickpocketing, United States v. Mobley, 40 the argument dissenters’ that fraud is in- (4th Cir.1994); tampering by F.3d herent crime of after the operation vehicle, unlawful United fact. Johnson, States v. analyze When we a statute to de (8th Cir.2005); escape, United States termine whether the conduct it criminal Mathias, Cir. fraudulent, izes is and thus whether the 2007), are “violent” crimes. qualifies offense as a crime of turpi Expanding categories these beyond rec- tude, we consider whether the statute ognition expense at the of depriving com- meets either of two conditions: that inten mon “felony” words like and “violence” of tional offense; fraud is an element of the ordinary meaning their does a disservice or that the nature of the crime is inherent to the law. In order judges apply for to ly INS, fraudulent. See Goldeshtein v. 8 them, laws and for obey citizens to words 645, Cir.1993); must have meanings that are consistent McNaughton, 612 F.2d at 459. Judge As predictable. Precision in language is Pregerson’s states, opinion it is clear that necessary not for effective communi- California’s accessory after the fact statute cation, but also for a well-functioning legal not, face, does on its require fraud for system. guardians law, As of the rule of conviction. necessary it is to deter-

we should be careful not to contribute to mine whether “implicit fraud is in the na- the deterioration English language, Winestock, ture of the crime.” 576 F.2d at respect the loss of for the law that 235. inevitably results. Our cases hold that in order to

IV. fraudulent, be inherently a crime must in Judge Pregerson’s knowingly volve opinion persuasively representations false dispenses with the claim that made order gain something of value. vile, after base, the fact Goldeshtein, is and depraved.1 See 8 F.3d at 649.2 Accesso I will at greater length, however, address ry after the fact does not necessarily in- Judge 214, 757, Tallman's reliance on Rptr. (1978) ("Habitu the California 575 P.2d 758 Supreme holding Young, interests, Court's in In re neglect 49 al constituting of client wil Cal.3d Cal.Rptr. 261 776 conduct, P.2d 1021 grossly negligent ful or involves (1989), § that Penal Code 32 is a crime of under Business and Profes purposes for the of California 6106.”). sions Code section § Business and Professions Code 6106 is mis Tallman claims in his placed. dissent that turpitude” The term "moral encom Goldeshtein does not hold passes establishing that far more conduct in California state requires fraud that a defendant have disciplinary proceedings bar made than it does in representations false in order immigration the federal to obtain some context. The Califor Instead, thing. he explained nia contends that "[a]ny Court has Goldeshtein merely found such factors to be reflecting or misconduct "instructive.” dishonesty, Goldeshtein, reading Id. particularly This is when erroneous. In committed in the course of distinguished practice, clearly question his is the statute relevant to tire fitness from attorney law, solely an other statutes practice to continue to on the basis that and thus is latter all conduct involved falsification in order to ob purposes tangible tain some disciplinary pro State Bar benefit. 8 F.3d at 649 Bar, ("Unlike Flores, ceedings.” however, Baker v. State the alien in Cal.3d Gol Cal.Rptr. anything 781 P.2d 1350 n. deshtein did not obtain from the (1989). Indeed, deceit, lawyer’s government by graft, conduct need trickery, not or dis even amount to a crime to be considered honest means.... upon other cases morally turpitudinous § 6106. See rely subject which the INS and the BIA Bar, Martin distinction....”). v. State 20 Cal.3d 144 Cal. the same plain It is from from 1935), occupational deferment does nor representations, volve false , service, I. N. 5 & military Matter gain. While personal necessarily result R—of 1952). (BIA Helping another Dec. Code under California Penal conviction prevent involves penalties evade criminal making repre from false result 32 could gain liberty, securing see, ing a loss of authorities, People v. e.g., sentations . tangible value something of Cal.App.4th Plengsangtip, (“It clear Cal.Rptr.3d 165 cites Itani v. Judge Tallman’s dissent or ‘affirmative falsehoods’ certain lies (11th Cir.2002), Ashcroft, 298 F.3d authorities, requisite when made with the Gonzales, 397 F.3d Padilla v. intent, will constitute knowledge (7th Cir.2005), argument for its support by sec contemplated concealment aid or the fact an inherent- 32.”), prerequi is not a conduct tion per- Neither case is ly fraudulent offense. convic accessory after the fact Many site. the court found suasive. Itan% concealment or assistance result from tions felony was a crime of moral misprision of not in authorities and do evading in the necessarily “it involves turpitude because or representations affirmative false volve or partic- act of concealment an affirmative Riley, 20 Cal. People v. deceit. See that runs con- felony, in a behavior ipation 1816-17, Cal.Rptr.2d 25 676 App.4th duties and in- trary accepted societal (1993) dispose attempting to (stating that activity.” fraudulent or volves dishonest accesso weapon murder constitutes All crimes “run con- F.3d at 1216. Gunn, fact); ry People the after societal duties.” trary accepted 408, 415-16, Cal.Rptr. Cal.App.3d does misprision that the court’s statement principal (holding driving that the justify at the classifica- so serves most assisting in con scene and from the crime crime, not as a crime that as a tion of act to acces weapon the could amount cealing court offers no The of Scott, fact); People v. sory the after pronouncement its explanation all for at 267, 269-70, Cal.Rptr. 618 Cal.App.3d dishonest or misprision involves that geta (holding that the driver simply It offers that activity. fraudulent after way can be convicted car Further, court bare conclusion. fact). government Depriving dishonest behavior with wrongly equates not, however, does evidence or information faulty rea- uses the same fraud. Padilla Goldeshtein, 8 of fraud. to the level rise concluding that obstruction soning in at 649. be- turpitude of moral justice is a crime dishonesty.” entails “specifically the fact cause when Even Most crimes involve at 1020. 397 F.3d representa false does involve conviction kind, prece- our dishonesty some but authorities, will the defendant tions to the to be for an offense require more dents something of value. gain often not . See, e.g., Carty, considered fraudulent. in fraud cases is at issue type of benefit Goldeshtein, 1084; F.3d at but penalties, of criminal not evasion specific is a term with tangible, such as “Fraud” something more rather synonymous law—it is meaning F.2d at money, McNaughton, 612 “dishonesty.” A construction mor- Bisaillon, natu with 257 F.2d at passport, acts of dis- includes all al rel. Po States ex papers, ralization United (2d expansive coupled with Reimer, honesty, when Cir. poff v. purpose of deceit for the representations opinion order to establish our offense, something gaining criminal- of value. in an is inherent fraud necessarily false must involve ized conduct base, vile, the dissent would construction undoubted- or depraved. Given that we are ly give prong to the other of moral turpi- not free to eliminate fraud from the set of tude, undoubtedly would result in the in- turpitudinous, considered all criminal clusion of almost offenses in a must retain the distinction between the intended to category single was out two classes of offenses order to keep the types particularly certain of crimes as of- concept of within its his- If, society’s fensive to values. logic toric bounds. suggests, of the dissent the term “moral Under our two-pronged approach, acces- turpitude” applies to the offense of assist- sory after the fact under California Penal ing any person who has committed a Code 32 is neither a crime of fraud anor underlying crime—whether that crime is a depravity. crime of Accordingly, agree I not, whether, crime of that it is not a crime involving indeed, underlying crime is a mis- tude. simply because that offense is demeanor — “dishonest,” then the difference between TALLMAN, Judge, Circuit with whom criminal conduct and crimes of moral tur- O’SCANNLAIN, Judges Circuit pitude truly has been eliminated and all RAWLINSON, CLIFTON, and BYBEE finally equally crimes have become turpitu- join, dissenting: dinous. tookWe this case en clarify banc to our jurisprudence regarding crimes of moral

Conclusion turpitude. The fractured decision we an Judge Pregerson’s opinion combines the today only nounce compounds the uncer two prongs of moral turpitude our doctrine tainty attending this subject arcane by applying the same standard both to criminal opprobrium. Navarro-Lopez’s offenses involving fraud and to offenses petition for review of his final order of involving depravity, contrary to controlling removal should be denied because the Supreme Court and Ninth Circuit law. crime of being fact Moreover, analysis method would in violation of California Penal Code sec have the rendering effect of the term tion 32 is a crime turpitude “crimes of moral turpitude” even more dif- categorical under the approach established ficult to apply already than it is. We in Taylor States, v. United 495 U.S. required would be compare crimes that 2143, 109 (1990). 110 S.Ct. L.Ed.2d 607 entirely kind, different in and the inev- reaching the opposite conclusion, the ma itable result greater would be even inco- jority employs dubious reasoning ig herence in Furthermore, our decisions. nores relevant case law from our such an sister approach lacks clear limits and circuits, creating yet another unnecessary could lead expansion of the defini- circuit split. I respectfully tion of crimes of moral dissent. turpitude to the point of nearly including every criminal I analytical offense. Our method, current under opinion which fraud The turpitudinous is deemed authored Judge Preger- under a different son applica- standard than is offers various definitions for “moral crimes, ble to other a limiting turpitude,” vivid,1 has effect quite some before con- the scope offenses that cluding deemed that a conviction under California majority is even content to cite 237 n. 71 S.Ct. 95 L.Ed. 886 dissent support in order to its (Jackson, characteriza- J., Indeed, dissenting)). in its zeal tion Maj. of moral op. See at 1071 high finding to set a bar for a of moral (quoting George, Jordan v. De 341 U.S. Thus, I can- not, turpitude.”). of moral scope categori 32 does Penal Code section attempt to shoehorn agree with the appropriate definition.2 fit within the cally, larger umbrella cate- fraud crimes within For reasons 1067-68. Maj. op. at depraved. that are base or gory of crimes Judge Reinhardt’s in Part I of outlined analyt- categories as 1074-75, Recognizing I the two concurrence, and which pp. see distinct, hold that a convic- here, ically I would is a fundamen there will not belabor 32 of the California majority’s approach tion under section with the problem tal rec a crime qualifies fails to Penal Code as turpitude defining —it prong address- in both under important distinction ognize an juris conduct. ing Court fraudulent Ninth Circuit estab plainly case law prudence. Our II wholly cate distinct lishes two broad quali- section 32 Determining whether turpitude: gories of warrants a crime of moral fies as “involving fraud and those those judicial decisions ad- an examination depravity.” Car grave acts of baseness Jordan, statutes. See dressing similar Ashcroft, ty (stating that Cir.2005) 71 S.Ct. 703 v. U.S. at (citing Rodriguez-Herrera (9th Cir.1995)); to the manner which INS, courts must “look 238, 240 see turpitude’ ap- has been the term ‘moral 341 U.S. George, v. De also Jordan decision”). Indeed, by judicial plied 95 L.Ed. 886 71 S.Ct. addressed this issue (“[F]raud circuits that have regarded few consistently been has that moral any have all determined contaminating component such a have, statutes attaches to convictions courts without that American of crime.3 criminalizing concealment crimes within exception, included such it, tude, turpitude when it sees morally turpitudi- moral majority knows refers to the 32 isn't it. The Penal Code section contrary California which is “so far conduct as that nous nothing clarify criteria to the opinion does gives to “moral law” that it rise to the moral determining employ which one should surprising- Not outrage.” Maj. op. at 1071. “base, vile, depraved,” fraud crimes (in outrage” so far as it ly, phrase the "moral 1069, see, Maj. op. and which are not. e.g., at appears turpitude) pertains to moral concludes, contrary opinion of the to It the dissent to all of federal law—in once in California, Code that Penal Supreme Court of case. panel decision in this the now-vacated a moral can crime of section 32 never Gonzales, Navarro-Lopez v. 455 F.3d Young, Compare In re 49 Cal.3d J., 1055, (9th Cir.2006) (Pregerson, dis- 1060 1024 Cal.Rptr. 776 P.2d senting). (1989), Maj. op. at 1074. with Pregerson’s to definitions citation 2. question a crime Though of whether multiple dictionaries illus circuits and from immigra- turpitude for federal involves moral recognized problem court over a our trates analysis requires an of federal purposes tion years ago namely, that strict definitions fifty — law, Su- persuasive that the California it is very helpful. In turpitude” are not “moral of a preme held that conviction Court has (9th Cornell, Tseung 247 F.2d Chu v. necessarily involves Code section Penal 1957), that we were not un we observed Cir. Cal.Rptr. Young, 261 turpitude. See "myriad sponsoring decisions mindful of the attorney's (upholding an at 1024 776 P.2d turpitude,” concepts hut of moral declaring various 32 conviction and section any “well settled crite turpi- offered necessarily none of them involves moral crime "[t]his making help specif- this a requires party would us a has ria” which tude since knowledge cobbling together justice By impede its own ic determination. intent term, fugitive permit a of the law opinion actions the court’s that his definition large”). at saying than it remain today little more amounts to ” Ashcroft, the Eleventh (quoting Smalley Itani Cir conceal.’ Id. v. Ash- (5th cuit that a conviction croft, Cir.2003)); determined under the 354 F.3d statute, felony misprision Itani, (“General- federal 18 see also 298 F.3d at 1215 4, qualified § as a crime of moral ly, U.S.C. a involving dishonesty crime or false (11th 298 F.3d Cir. statement is considered to be one 2002). a conviction (internal Like under section 32 turpitude.” quotation Code, Penal omitted)). of the California a federal result, marks As a appel- misprision felony requires conviction for late court concluded that “Padilla was con- that the accused showing knowledge has victed of ... specifically a crime that en- felony and “conceals and does tails dishonesty implicates and thus possible soon as make known the same to Padilla, turpitude.” at 1020. As 4. High [civil authorities].” U.S.C. element, to the second intent to conceal a lighting misprision the fact statute crime, the court cited Itani with approval concealment, requires an affirmative act of and held that concealment in- “likewise court concluded that a Itani conviction turpitude.” 1021; volves moral Id. at see turpi under the statute is crime of moral INS, (1st also Cabral v. tude because it involves “behavior that Cir.1994) that an (holding alien convicted contrary accepted runs societal duties after the fact to murder com- dishonesty and involves or fraudulent ac mitted a moral turpitude tivity.” at intentionally because he prin- assisted the authorities). cipal evading Gonzales,

Similarly, in Padilla v. Seventh Circuit determined that a convic- Section 32 of the California Penal Code justice tion under Illinois’s obstruction of punishes essentially the same behavior ad- statute a crime involving was misprision dressed the federal felony Cir.2005). tude. 397 F.3d statute justice and Illinois’s obstruction of law, Under Illinois guilty defendant is law. Each statute contains a specific in- if “knowingly obstruction he furnish[es] element, tent and each addresses the con- false information ‘with prevent intent protection cealment or of a criminal or his apprehension or obstruct the prosecu- crime. It makes little sense to treat ” any person.’ tion or defense of Id. 1019 same conduct punishments: with different 5/31-4(a)). (quoting Comp. 720 Ill. Stat. Circuit, in the Eleventh an alien is remova- Focusing specific statute’s intent actively ble for concealing felon, a known requirement, our sister circuit noted that a but under the majority’s reading, in the conviction under the statute could be char- Ninth Circuit friend who harbors the acterized as malum in designation se—a same criminal in California is not. More- generally associated with over, I persuasive find the reasoning cited turpitude. Id. at (“Specific approval Padilla, in equating fraudu- intent is inconsistent with a crime that is lent intent with conduct intended to mis- prohibitum.”). malum conceal, because, lead or very its na- ture, an in

The act Seventh Circuit then furtherance of evasion addressed two from prosecution elements of the knowingly Illinois statute: entails some form of deceit. making Smalley, Therefore, false 354 F.3d at intentionally statements and I Cf. concealing activity. criminal would follow As to the for- the California mer, the court noted that Court’s Young courts decision in “[s]ome and our sister intent,’ have read ‘fraudulent and thus circuits and hold that a conviction under moral turpitude, into conduct likely ‘the accessory California’s after the fact statute effect of which would be to mislead or necessarily involves moral turpitude, ren- crime; particular in a from that fraud is inherent Navarro-Lopez removable dering may fairly identify- read as country. holding our be this but not nec- ing such conduct as sufficient III essary light particu- in of the facts of that Nevertheless, holding that Young, in Ita lar case. reasoning employed ni, prior with our to a conviction and Padilla is consistent attaches turpitude as a crime accessory definition of moral after the fact statute California’s fraud. the test set forth reasoning. Under is consistent with this INS, in v. 8 F.3d 645 Goldeshtein suggested pecuniary Goldeshtein Cir.1993), in with these conformance necessary. id. at 649 & n. gain is not See I would hold that precedents, extra circuit gain tangible. 9. Nor need the See id. an after the fact a conviction as (citing —, at 649 Matter 5 I. & N. Dec. of R as a crime qualifies categorically 1952) (BIA that fraud (finding an alien made a false state inherent where Goldeshtein, that a we determined occupational ment an deferment to obtain conviction under federal law for structur entitled)). which he was not Further currency ing financial institutions to avoid more, holding we short of that the stopped a crime reports did not constitute individual, benefit must accrue to the In reach Id. 647-48. (citing a third id. opposed party. conclusion, acknowledged ing this Reimer, Popoff ex rel. United States if fraud crimes involved moral (2d Cir.1935) (holding intent to defraud is an essential ele an fraud is inherent where individual (2) “if intent ment of the crime or an makes statements on behalf of false ” the crime.’ Id. at ‘implicit the nature of obtaining alien to aid the alien in natural INS, (quoting Winestock ization)). , (9th Cir.1978)); see also 234 an fact while INS, McNaughton personally under California law (9th Cir.1980) may look (noting that courts value, certainly pro gain something of he statutory or ... the na to “the definition principal for the in the cures benefit crime”); Flores, 17 I. ture of the Matter of freedom from detection prolonged form of (BIA 1980) (“[W]here & N. Dec. after the apprehension. This assistance offense, it fraud is inherent is not felony may allow evidence commission necessary prohibiting statute estale, give or becom disappear phraseology concerning include the usual to flee the coun principal opportunity turpi for it to involve moral fraud order worse, him to commit anoth try, or enable tude.”). offense of struc “[t]he Because Regardless of the exact benefit er crime. financial to avoid cur turing transactions however, help of an principal, ... involve the use rency reports does not administration accessory impedes the swift of false statements or counterfeit docu justice, morally repre a which is result obtaining anything ]or [the of] ments[ hensible. we concluded that government,” from the in the nature of this

“fraud is not inherent in punishes a host of acts Section 32 Goldeshtein, 8 F.3d at 649. offense.” principal evading in tended to assist however, base, At the statute capture. Notably, in we did not hold Goldeshtein regardless of whether punishes deception, false statements or obtain- providing in of false statements or it comes the form government from the for ing something of concealment or aid. The required to establish some other act one’s own benefit was 1082 evading a felon in misleading premises. to assist detection somewhat As an

intent prosecution matter, remains the same. In majority initial misguided is in deed, cases have made California clear its attempt range look to “the broad under section proper that a conviction 32 is acts” punishable accessory under the after accessory engaged in only if the “overt or support the fact statute as for its conclu- v. People Duty, affirmative assistance.” “providing sion that food or shelter to one 74 Cal.App.2d Cal.Rptr. 269 609 felony” who has committed a does not fall Elliott, (1969); People v. 14 see also Cal. within the definition of moral Cal.Rptr.2d App.4th 18 430 Maj. op. at 1072. I fail to see the benevo- (1993) (reiterating that a conviction under providing lence of shelter to a known fel- something section 32 must be for “more on, by at least in the manner prohibited incitement”). encouragement than mere California’s law. Let us be Therefore, simply failing to disclose the clear here: punish statute does not location of a felon does not violate the merely provide those who food and shel- statute; requires some form section 32 felon; ter to a it punishes those who do prin actual assistance intended to aid the specific so with the intent that the felon cipal avoiding detection authorities. Prado, escape arrest or trial. See eases, many invariably this assistance Cal.Rptr. at majority’s 523. The citation will false manifest itself as statements. Hill, to our decision in United States However, long as as the net effect is one Cir.2002); Maj. see deception help up cover the crime or op. at is unavailing because in Hill delay apprehension perpetrator,4 of its I we emphasized culpability attached narrowly see no reason to limit the overt Oregon’s accessory statute act to statements order to conclude that upon a showing provision that the of food fraud is in a inherent conviction under purpose shelter was for the of helping California’s statute. escape known felon detection. Id. at light holdings of our (“Hill provided [her husband] analysis sister circuits and the fraud food and shelter in northern Mexico so Goldeshtein, articulated in I would follow that he would not have go back to the the California Court’s authorita- United States to retrieve their belongings interpretation tive of its own laws and hold and she did so she knew himself that a conviction under section 32 of the felony there was a warrant his ar- qualifies California Penal Code added)). (emphasis rest.”

Moreover, majority’s analogy to the IV (or provision of food and shelter any other example sympathy, intended to evoke majority opinion does little un- example as the classic analysis priest offering dermine the of extra circuit prec- Instead, sanctuary) edent or misplaced Goldeshtein. the ma- for another reason: jority proceeds faulty exactly on several this type hypothe creative car, Scott, cites a driving getaway People Reinhardt handful of Califor- see 267, 271, support argument nia cases to Cal.App.3d that a Cal.Rptr. (1985), conviction under section 32 does not principal neces- "with the intent sarily trial,” representations may escape involve "false or affir- People from arrest cone, Prado, mative Cal.App.3d deceit.” Reinhardt Cal.Rptr. However, (1977), disposing anything I cannot see how aof 523 other than an overt act, weapon, People Riley, Cal.App.4th v. see 20 the effect of which is to mislead or other 1808, 1816-17, (1993), Cal.Rptr.2d 25 676 wise confound the efforts of law enforcement.

1083 In Maj. op. at 1071-72. that the trouble.” See categorical cases sizing Taylor in deed, In recently finding helpful example might condemned. such a Supreme Court Duenas-Alvarez, v. survey a brief prove quite Gonzales difficult as and held that a convic reversed us Court dem cases statute 10851(a) of the Califor under section tion to onstrates that the state has not chosen abetting a aiding nia Vehicle Code easily those whose actions are prosecute scope vehicle theft falls within See, grounds. e.g., on moral defensible federal law. theft definition under generic 518, People Nguyen, Cal.App.4th v. 21 26 — 815, 818, —, 166 127 S.Ct. U.S. (1993) Cal.Rptr.2d (accessory 328 to (2007). Rejecting Duenas- L.Ed.2d 683 Wilson, People v. 17 genital penetration); argument wording that the Alvarez’s 21 421- Cal.App.4th Cal.Rptr.2d to might punishment law lead California (1993) (accessory attempted to volun 23 federal defini for acts outside the relevant with a fire tary manslaughter assault tion, made clear that the Court (ac arm); Prado, at Cal.Rptr. 136 522-23 a creates a to find that state statute cessory robbery); Duty, to armed 74 Cal. generic definition of crime outside arson); (accessory People at to Rptr. requires listed crime a federal statute 830, Cal.Rptr. Allsip, Cal.App.2d application legal more than (1969) (accessory rape); People lan- imagination to a state statute’s Kloss, Cal.App. 19 P.2d requires probability, It a realistic guage. (1933), on part overuled in other possibility, not a theoretical grounds, People McCoy, 25 Cal.4th statute to conduct apply State would its 188, 24 Cal.Rptr.2d P.3d generic outside the definition falls murder). (accessory to possi- of a crime. To show that realistic addition, the fact that one state with- offender, course, may bility, an show exempts family circuit expressly our in his applied the statute was so accessory liability, see Nev. members from at point own case. But he must least 195.030, bearing has no Rev.Stat. his own case or other cases which whether conviction California’s apply in fact did the statute state courts (nongeneric) manner for statute is a crime special in the argues.5 legislative prerogative which he state’s tude. One exempt family members is no more 822; at also James v. United Id. see — indi- important eight than the other states’ States, U.S. —, 1586, 1597, 127 S.Ct. exempt decisions not them. vidual (reiterating the 167 L.Ed.2d 532 Moreover, say exempting I cannot reasoning). Duenas-Alvarez liability family from members Duenas-Al majority’s treatment of matter practical makes much sense as and it fails to identi unpersuasive, varez is likely felons are often most fleeing because in which an individual has fy any cases any- family from before to seek assistance under section 32 for the prosecuted been case, Indeed, in at least one one else. food benign providing acts of particularly family to make mem- a time of decision “during to a loved one California’s or shelter lack majority charging gorically a crime of moral agree that the I with the provide in this case do not suffi- documents specific information is irrelevant since glean detail which to the factual cient from categorical ap- employ need not the modified Navarro-Lopez's conviction under basis for Taylor, proach. See 495 U.S. accessory after the fact statute. the California Corona-Sanchez, 2143; United States v. S.Ct. However, Maj. op. I at 1074. because (9th Cir.2002). section 32 is cate- believe a conviction under bers liable illustrates the wisdom of the statute criminalizing such behavior. Rob See, Wilson, 21 statutory e.g., erts, 557-58, inclusion. at U.S. 100 S.Ct. 1358. that a Cal.Rptr.2d (noting at 422-23 wife acknowledged, As the Roberts Court where, an charged accessory could as “gross duty indifference to the report knowing her husband had committed a known criminal badge behavior remains a felony, complied request she his irresponsible citizenship.” Id. at locate and hide a firearm that he had used principle S.Ct. 1358. This is as true during a in which car chase he wounded today itas was in the 1200s.7 ,men one the two he was pursuing).

Finally, by focusing categoriza- on the V felony, underlying majority tion of the A conviction under section 32 of completely ignores analytically distinct California Penal qualifies categorical- Code morally reprehensible and nature of con- ly as a crime moral turpitude viction under section 32 of the California analysis under the fraud of Goldeshtein. principal's Penal Code. The conduct should Holding unnecessary otherwise creates an analysis be irrelevant to the any because tension between us and our sister circuits attempt to assist in the evasion the due recognized morally that have turpitudi- justice society’s administration merits nature of nous convictions involving the reprobation.6 The Court has re- concealment of crime. Because the court “[cjoncealment minded us of crime opposite reaches the conclusion based on throughout has been condemned our histo- dubious reasoning adding only more con- — States, ry.” See Roberts United jurisprudence fusion to our on crimes of 552, 557, U.S. S.Ct. 63 L.Ed.2d respectfully dissent. —I (1980); Branzburg Hayes, see also 665, 696, 408 U.S. 92 S.Ct. BEA, Judge, Circuit dissenting, with (1972) (emphasizing L.Ed.2d 626 that each joins: whom O’SCANNLAIN responsibility citizen bears the to “raise Navarro-Lopez cry’ report the ‘hue and was convicted of a felonies to the crime, authorities”); being id. after the fact in S.Ct. 2646 (“[Concealment violation of a of California deserves no Penal Code section crime] encomium.”). The universal disdain To determine whether this section 32 concealment crime “was an estab- conviction is a crime involving turpi- Anglo-Saxon lished tenet of law at least as tude so as to render Navarro-Lopez inad- early century,” making the 13th it no missible country, to this a federal court surprise Congress first our enacted must “look to the manner in which the majority nonbinding Depart- cites to a majority's 7. The citation to California convic- Foreign ment of sup- State Affairs Manual to firearms, tions under section 32 as- port argument its that an after the sault, burglary offenses is therefore un- fact conviction cannot involve moral persuasive. Maj. op. at 1072-73. These underlying tude where the offense was not serious, quite crimes are they still cer- morally turpitudinous. Maj. op. at 1071. tainly majority’s do not reflect the concern However, majority pro- overlooks another proba- in California there is a "realistic manual, vision of the same which states that Duenas-Alvarez, bility,” see 127 S.Ct. at against governmental “[c]rimes committed that an individual will be convicted under authority which fall within the definition of particularly benign section 32 for or charita- [h]arboring include ... a fu- ble acts. (with gitive justice guilty knowledge).” from Dep’t Foreign 9 U.S. of State Affairs Manual 40.21(a) 2.32(a)(6). n. with elements similar by of moral applied been has turpitude’ ‘moral term from, to, a crime of George, v. De different state Jordan or judicial decision.” 95 L.Ed. simple 71 S.Ct. reason moral 341 U.S. (1951).1 turpitude. state crime of moral there is no crime, burglary, has to have a One crime whether state question The categorical analysis. Taylor use the to turpi involving moral as a “crime qualifies Furthermore, tur- the term crime of moral meaning of 8 U.S.C. tude” within in a federal statute pitude is not defined answered, 1182(a)(2)(A)(i)(I) cannot be § law, case with re- do, Supreme nor in Court turning by majority attempts as the harboring a felon. Taylor spect of of approach categorical States, 110 S.Ct. 495 U.S. United binding federal definition of Instead of a (1990). The cate 109 L.Ed.2d turpitude,” what we “crime moral asks whether Taylor of gorical approach binding Supreme Court case have is a proscribes crime of the state the definition to look to in order to telling us what probability with a realistic any set of acts a state crime fits the determine whether that fall outside by the state prosecution of moral appellation “crime federal federal, definition “generic,” or Jordan, 223, 71 341 U.S. S.Ct. turpitude.” Duenas-Alvarez, crime. See Gonzales George De was an 95 L.Ed. 886. — 815, 822, —, 127 S.Ct. U.S. guilty conspiring found alien twice (2007); at Taylor, 495 U.S. L.Ed.2d 683 of tax on alco- defraud the United States ques To answer 110 S.Ct. 2143. deported beverages and was ordered holic what a determination of requires tion first in- having committed a “crime for twice crime. For of the federal are the elements turpitude,” carrying each volving moral Gonzales, example, in Fernandez-Ruiz year. over one imprisonment sentence Cir.2006) (en banc), a F.3d 1121 224-25, 71 703. He filed a Id. at S.Ct. supplied the answer: federal statute claiming the petition, federal habeas immigration re of violence” “crime turpitude. not involve moral crimes did in the defined elsewhere moval statute was court 703. The district Id. at S.Ct. an element the require “as U.S. Code Ap- Id. The Court petition. denied use, use, threatened use of attempted or reversed, for the Seventh Circuit peals against person prop physical force majority here as does the finding—much (quoting Id. at 1126 erty of another.” a criminal—that respect harboring 16(a)). § U.S.C. not involve actions to evade tax did intent is no federal crime But here there such as characteristic of compare is there one to define. Much less vileness, violence, baseness, depravity, asked, for crime. are not to a state We crime therefore not a and was instance, mispri- the elements of to define 703. Id. S.Ct. 4,§ and com- felony, 18 U.S.C. sion reversed. It stated: Court felon, CaLPenal pare harboring it to Court, case before the deciding Rather, to de- we are asked Code manner in which the term we look to the within a state crime falls termine whether by turpitude” applied has been “moral “crime the federal term exception, decision. Without judicial is not itself a turpitude.” That term that a courts have held federal and state generic is no federal crime. There ion. and result reached I concur in the research dissenting opin- Judge Tallman's in Part II of an ingredient reasoning crime in which fraud is majority: used an at- involves conduct, tempt to find than other harbor- felon, ing “vile,” added). which courts have found (emphasis Id. at 71 S.Ct. 703 “base,” “depraved,” and have labeled surveyed federal and state deci- Court sions, unanimously involving which had held that crimes moral and then crimes of fraud were crimes mor- muse harboring whether a felon is similar- 227-29, turpitude. al Id. at 71 S.Ct. 703. “vile,” “base,” ly “depraved.” Such a The Court concluded: “It is therefore ineluctably task calls on our court to state clear, judicial under an unbroken course of subjective its precisely evaluation. That is decisions, that conspiring the crime of majority what the does here. It tests the in- defraud the United States is ‘crime various sorts “harborings of felons” ” volving turpitude.’ moral Id. at 71 against own, its unarticulated standards of S.Ct. 703.2 what “turpitudi- “moral” and what If we follow method mandated in course, nous.” Of if question asked Jordan, it is clear that harboring felon were whether the crime involved baseness just prosecution intent to frustrate or depravity, perhaps evolving standards prove will to be a crime moral decency might trump judicial mere prior turpitude. As discussed Part II of judges decisions. But and “Justices are dissent, Judge Tallman’s all federal cir- platonic not guardians appointed to wield question cuits to consider the have held authority according personal to their that statutes similar to section involv- predilections.”3 Jordan judges tells to de- ing concealing a a felony, felon or termine whether a crime involves moral turpitude. Signifi- seat, philosopher’s from the cantly, Supreme the California Court has but from a less elevated by location: sit- held violation of section 32 to be a crime ting in the library law reading In re Young, cases. 49 Cal.3d Cal.Rptr. 776 P.2d (1989). contrary No case I respectfully dissent. nor, indeed, by has been cited parties majority. seemingly Given the

unanimous status of “ju- federal and state decision,”

dicial we must conclude Navar-

ro-Lopez’s crime moral turpitude involves

under Court’s mandate.

There is permissible “judicial no basis—no

decision”—to conclude does not involve Jordan, 341 U.S. at 227-

29, 71 S.Ct. 703. not,

We need not—and should secondary,

Jordan —resort to the indirect against Brennan, It backdrop Jr., was of Jordan that 3. William J. The Constitution of Congress enacted following Contemporary Ratification, section 1182 the United States: (Jack Interpreting year. Act, Immigration Constitution 25 Nationality N. ed., 1990) (reprint Rakove Address to the Pub.L. No. 66 Stat. Teaching Symposium, Georgetown Text and (1952). (Oct. 12, 1985)). University

Case Details

Case Name: Navarro-Lopez v. Gonzales

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 19, 2007

Citation: 503 F.3d 1063

Docket Number: 04-70345

Court Abbreviation: 9th Cir.