Cuevas-Gaspar v. Gonzales

• Decision Date: 07 December 2005
• Docket Number: No. 03-73562.,03-73562.
• Citation: 430 F.3d 1013
• Parties: Enrique CUEVAS-GASPAR, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

430 F.3d 1013

Enrique CUEVAS-GASPAR, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-73562.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2005.

Filed December 7, 2005.

COPYRIGHT MATERIAL OMITTED

Soren M. Rottman, Northwest Immigrant Rights Project, Granger, WA, for the petitioner.

Bryan S. Beier, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-268-157.

Before: FERNANDEZ, TASHIMA, and GOULD, Circuit Judges.

TASHIMA, Circuit Judge:

Enrique Cuevas-Gaspar ("Cuevas-Gaspar"), an alien with legal permanent resident status, petitions for review of the Board of Immigration Appeal's ("BIA") conclusion that Cuevas-Gaspar is removable. Cuevas-Gaspar was convicted for being an accomplice to residential burglary under Washington law. Cuevas-Gaspar asserts that the BIA erred in concluding that he was removable because his conviction constituted a crime of moral turpitude. Cuevas-Gaspar also asserts that his presence in the United States as an unemancipated minor residing with his lawfully-admitted mother should count towards the requirement, under Immigration and Nationality Act ("INA") § 240A(a)(2), 8 U.S.C. § 1229b(a)(2), that he have resided in the United States continuously for seven years "after having been admitted in any status."

We have jurisdiction over Cuevas-Gaspar's petition for review pursuant to INA § 242(b)(2), 8 U.S.C. § 1252(b)(2). See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir.2005). We grant the petition and remand to the BIA for further proceedings.

BACKGROUND

Petitioner Enrique Cuevas-Gaspar ("Cuevas-Gaspar") is a 21-year-old native and citizen of Mexico. He was admitted to the United States as a lawful permanent resident on December 4, 1997. Cuevas-Gaspar asserts that he entered the United States with his parents in 1985, when he was one year old, and that his mother attained permanent resident status in 1990, when Cuevas-Gaspar was seven years old.¹

On October 16, 2002, Cuevas-Gaspar pled guilty in Washington Superior Court to the offense of being an accomplice to residential burglary, in violation of Washington Revised Code §§ 9A.52.025(1) and 9A.08.020(3). The Statement of Defendant on Plea of Guilty requires the defendant to state "in [his] own words, what [he] did that makes [him] guilty of this crime." In the guilty plea statement, Cuevas-Gaspar responded: "On March 13, 2002, in Yakima County, I helped another person take property without permission from a residence where no one was home." He was sentenced to a three-month term of confinement.

On February 28, 2003, the Immigration and Naturalization Service² issued Cuevas-Gaspar a Notice to Appear, charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(i) for having been "convicted of a crime involving moral turpitude committed within five years ... after the date of admission ... for which a sentence of one year or longer may be imposed." Cuevas-Gaspar denied the charge that he was removable and denied that his conviction constituted a crime involving moral turpitude. He conceded that he was a native and citizen of Mexico, that he was admitted as a lawful permanent resident in December 1997, and that he was convicted of being an accomplice to residential burglary under Washington law. He also said that he did not have lawful status prior to December 1997. Cuevas-Gaspar then asserted that he was eligible for cancellation of removal.

Noting that Cuevas-Gaspar's arguments presented only issues of law, the IJ concluded that Cuevas-Gaspar's conviction constituted a crime involving moral turpitude and that Cuevas Gaspar therefore was removable. The IJ also reasoned that, because Cuevas-Gaspar did not have lawful status until December 1997, Cuevas-Gaspar could not establish seven years of continuous residence "after having been admitted in any status." The IJ concluded that Cuevas-Gaspar therefore was not eligible for cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a). The IJ ordered that Cuevas-Gaspar be removed to Mexico.

Cuevas-Gaspar appealed to the BIA, arguing (1) that his conviction was for an offense that is not a crime involving moral turpitude, and (2) that he satisfies the seven-year continuous residence requirement for cancellation of removal because his presence in the United States as a minor residing with his lawfully-admitted parents should count towards that requirement.

The BIA rejected both arguments. First, the BIA concluded that Cuevas-Gaspar's conviction constituted a crime of moral turpitude. The BIA stated: "It is well-settled that generic burglaries of this sort constitute crimes involving moral turpitude.... The respondent's conviction as an accomplice to the underlying crime also constitutes a crime involving moral turpitude. Accordingly, we affirm the Immigration Judge's ruling that the respondent is removable as charged." The BIA then reasoned that, because Cuevas-Gaspar was not "admitted" to the United States until December 4, 1997, Cuevas-Gaspar could not satisfy the seven-year continuous residence requirement for cancellation of removal. The BIA dismissed the appeal. Cuevas-Gaspar filed a timely petition for review.

DISCUSSION

I. Crime Involving Moral Turpitude

We review de novo the question of whether a state statutory crime constitutes a crime involving moral turpitude. Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005) (citing Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n. 4 (9th Cir.1995)).

Cuevas-Gaspar argues that his conviction for being an accomplice to residential burglary does not constitute a crime involving moral turpitude because the offense of burglary encompasses conduct that does not involve moral turpitude. To determine whether a specific crime falls within a particular category of grounds for removability, we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Tokatly v. Ashcroft, 371 F.3d 613, 622 (9th Cir.2004); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994) (applying modified categorical approach to determine whether petitioner's state conviction constituted a crime involving moral turpitude).

A. Categorical Approach

The categorical approach requires us to "make a categorical comparison of the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed [by the statute] is broader than, and so does not categorically fall within, this generic definition." Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir.2003). We look "only to the fact of conviction and the statutory definition of the prior offense," and not to the particular facts underlying the conviction. Id. The issue is not whether the actual conduct constitutes a crime involving moral turpitude, but rather, whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude. See United States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir.2001).

"The phrase `crime involving moral turpitude' has without exception been construed to embrace fraudulent conduct." Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 95 L.Ed. 886 (1951). See Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir.1994) (holding that grand theft is a crime involving moral turpitude). In addition, "certain crimes necessarily involving rather grave acts of baseness or depravity may qualify as crimes of moral turpitude even though they have no element of fraud." Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th Cir.1995). See Gonzalez-Alvarado, 39 F.3d at 246 (holding that incest is a crime involving moral turpitude). Where an act is only statutorily prohibited, rather than inherently wrong, the act generally will not involve moral turpitude. Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir.2000) (noting difference between malum prohibitum, an act only statutorily prohibited, and malum in se, an act inherently wrong).

We have not, thus far, decided whether burglary is a crime involving moral turpitude under the categorical approach set forth in Taylor.³ In Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir.2004), we did not decide the issue, but rather, remanded to the BIA to determine whether burglary constituted a crime involving moral turpitude. Id. at 936-37. We concluded in United States v. Becker, 919 F.2d 568, 573 (9th Cir.1990), that burglary constitutes a crime of violence for federal sentencing purposes, but did not discuss whether burglary is a crime involving moral turpitude. Although we summarily concluded in Baer v. Norene, 79 F.2d 340 (9th Cir.1935), that the petitioner's convictions for forgery and for burglary in the second degree were offenses that involved moral turpitude, id. at 341, we did not analyze whether the full range of conduct covered by the statute falls within the definition of a crime involving moral turpitude. See Castillo-Rivera, 244 F.3d at 1022 (explaining the categorical approach). Similarly, the BIA has concluded, in cases predating Taylor, that "[b]urglary and theft or larceny, whether grand or petty, are crimes involving moral turpitude." Matter of De La Nues, 18 I. & N. Dec. 140, 145 (BIA 1981). In sum, neither this court nor the BIA has addressed the issue of whether, under the Taylor categorical approach, burglary is a crime involving moral turpitude.

The BIA has reasoned, however, that an offense involving breaking and entering or trespass may be deemed to involve moral turpitude only if accompanied by the intent to commit a morally turpitudinous act after entry. See Matter of M, 2 I. & N. Dec. 721, 723 (BIA 1946); Matter of G, 1 I. & N. Dec. 403, 404-406 (BIA 1943). The BIA explained that, for example, pushing ajar the unlocked door of an unused structure and putting one's foot across the threshold would constitute a...