Morales v. Gonzales

• Decision Date: 03 January 2007
• Docket Number: No. 05-70672.,05-70672.
• Citation: 478 F.3d 972
• Parties: Nancy Arabillas MORALES, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

478 F.3d 972

Nancy Arabillas MORALES, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-70672.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 17, 2006.

Filed January 3, 2007.

Antonio Salazar, Seattle, WA, for the petitioner.

Peter D. Keisler, Emily Anne Radford, Molly L. Debusschere, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-840-127.

Before DOROTHY W. NELSON, DAVID R. THOMPSON, and RICHARD A. PAEZ, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

THOMPSON, Senior Circuit Judge.

ORDER

The Respondent's Motion to Amend Decision, which motion was filed February 14, 2007, is granted in part.

The first sentence of the first paragraph of Section II.A.2 of the Opinion filed January 3, 2007, and published at 472 F.3d 689, 695 (9th Cir.2007), is amended by deleting therefrom the following language:

Although we lack jurisdiction to review the IJ's finding that Morales was removable, we have jurisdiction to review the IJ's denial of Morales's applications for asylum and withholding of removal.

The following sentence is inserted in place of the deleted sentence:

Although we lack jurisdiction to review the IJ's finding that Morales was removable, we have jurisdiction to review the IJ's denial of Morales's application for asylum, pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), and to review the IJ's denial of Morales's application for withholding of removal to the extent that Morales raises questions of law, including mixed questions of law and fact, or constitutional claims. See 8 U.S.C. § 1252(a)(2)(D); Ramadan v. Gonzales, No. 03-74351, ___ F.3d ___, ___, 2007 WL 528715, 2007 U.S.App. LEXIS 3803, at *2, 9 (9th Cir. Feb. 22, 2007).

OPINION

Nancy Arabillas Morales, a.k.a. Juan Manuel Arabillas Morales, a male-to-female transsexual, petitions for review of the Board of Immigration Appeals' ("BIA") decision summarily affirming an Immigration Judge's ("IJ") removal order and denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

The IJ concluded that Morales was removable both because she was an alien present in the United States without admission or parole and because she had been convicted of a crime involving moral turpitude — communication with a minor for immoral purposes under section 9.68A.090 of the Revised Code of Washington. The IJ further found Morales would have been eligible for asylum but for her conviction, which the IJ determined was a particularly serious crime. Having made that decision, the IJ denied Morales's applications for asylum and for withholding of removal. The IJ also denied Morales's application for CAT relief on the merits, holding that Morales had not shown it was more likely than not she would be tortured if she were returned to Mexico.

We conclude that we lack jurisdiction to review the IJ's finding that Morales was removable because Morales had been convicted of a crime of moral turpitude. See 8 U.S.C.A. § 1252(a)(2)(C) (West 2005). Nevertheless, we have jurisdiction to review the denial of Morales's applications for asylum, withholding of removal, and CAT relief. See 8 U.S.C.A. § 1252(a)(1), (4) (West 2005). We grant Morales's petition for review of these claims. We conclude the IJ improperly relied on a recitation of facts in the Washington appellate court's opinion affirming Morales's conviction. Relying on those facts, the IJ determined that Morales's conviction was for a particularly serious crime. A substantial portion of the facts the IJ relied upon, however, applied to offenses for which Morales had not been convicted. Therefore, we remand to the BIA with instructions to remand to the IJ for a redetermination of the "particularly serious crime" issue.

We also conclude the IJ applied an incorrect legal standard to Morales's application for CAT relief, and we remand for a redetermination of that issue as well.

I. BACKGROUND

Nancy Arabillas Morales was born Juan Manuel Arabillas Morales on June 24, 1968. She began using the name Nancy when she was fourteen years old because she always felt that she was more of a female than a male.

At the age of fifteen, Morales began working at a bar and dressing as a woman. Around the same time, Morales moved out of her family's home because her father beat her and would not allow her to dress as a woman. At the administrative hearing, Morales testified that at the age of eight she was raped by her brother, and when she began working at the bar, she was raped by one of her customers. Morales was arrested twice and jailed for being a minor working in a bar. She was raped by several men in jail, and her cries were ignored by the prison officials. Morales also suffered at least one beating at the hands of a policeman in her hometown.

When Morales was sixteen, she moved from her hometown of San Luis Potosi to Matamoros, Mexico, to be closer to the United States. On one occasion, Morales attempted to enter the United States from Matamoros. She was picked up by seven men who attacked and raped her. Morales did not report the incident because she believed the police would only arrest her. Morales was arrested several times in Matamoros for dressing as a woman, but she was never charged or convicted of any crime. The police often refrained from arresting her or released her soon after her arrest if she gave them money.

In 1986, Morales came to the United States. She has lived here since then and has returned to visit Mexico on only a couple of occasions — once to receive breast implants and once when her mother died. At the administrative hearing, Morales had difficulty remembering the dates of her visits to Mexico and whether she returned a third time. Morales testified that she wants to remain in the United States because she has never been assaulted here, and she is afraid that, because she is "more of a woman" now, she is more likely to be assaulted in Mexico.

In April 2002, following a jury trial, Morales was convicted of communication with a minor for immoral purposes under section 9.68A.090 of the Revised Code of Washington. State v. Morales, No. 50397-9-I, 2003 WL 22384696, at *1 (Wash.Ct. App. Oct.20, 2003). She had also been charged with third degree rape of a child and third degree child molestation, but the jury was unable to reach a verdict on the rape charge and acquitted Morales of the child molestation charge. Id.

On November 19, 2003, the Department of Homeland Security ("DHS") charged Morales under section 212(a)(6)(A)(i) of the INA, 8 U.S.C.A. § 1182(a)(6)(A)(i) (West 2005), with being an alien present in the United States who had not been admitted or paroled. The DHS also charged Morales with being removable under section 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C.A. § 1182(a)(2)(A)(i)(I) (West 2005), because she had been convicted of a crime involving moral turpitude.

At her hearing before the IJ, Morales was the only witness. The IJ found Morales removable on both charges and denied her applications for asylum, withholding of removal, and CAT relief. The IJ stated that but for Morales's conviction for communication with a minor for immoral purposes, he would have found her eligible for asylum under Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir.2000). With regard to her conviction for communication with a minor for immoral purposes, the IJ relied on facts recited in the Washington appellate court's opinion affirming that conviction and determined she had been convicted of a particularly serious crime; for that reason, the IJ concluded Morales was ineligible for a grant of asylum or withholding of removal.

The IJ determined the only relief for which Morales was possibly eligible was relief under the CAT, but he found Morales had failed to demonstrate it was more likely than not she would be tortured if she were to return to Mexico. He based his denial on Morales's "very general" testimony, her return visits to Mexico, the mention of a Mexico City gay pride parade in the 2002 country report for Mexico, and the respect Morales's siblings living in Mexico had gained for her since she had moved to the United States and started sending them money.

In analyzing the specific incidents of abuse suffered by Morales, the IJ focused on Morales's interactions with the police and other government officials in Mexico. The IJ found it especially significant that these incidents had occurred some substantial period of time in the past, all prior to 1986. The IJ also found it significant that Morales could not remember the dates of her return visits to Mexico, including the date of her mother's death. Nevertheless, the IJ made no adverse credibility finding.

Morales appealed to the BIA, which summarily affirmed the IJ's decision, and this petition for review followed.

II. DISCUSSION

When, as here, the BIA affirms the decision of an IJ without opinion, this court reviews the IJ's ruling as the final agency decision. Acosta v. Gonzales, 439 F.3d 550, 552 (9th Cir.2006). We review de novo the IJ's legal determinations. Id. The IJ's findings of fact are reviewed for substantial evidence and are treated as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006) (quoting 8 U.S.C.A. § 1252(b)(4)(B) (West 2005)).

A. Jurisdiction

1. Order of Removal

Under 8 U.S.C. § 1252(a)(2)(C), this court lacks "juris diction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2). . . ." 8 U.S.C. § 1252(a)(2)(C). The offenses covered in § 1182(a)(2) include crimes involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I).

This court has "jurisdiction `to determine whether jurisdiction exists.'" Matsuk v. INS, 247 F.3d 999,...