523 F.3d 992 (9th Cir. 2008), 03-73564, Nicanor-Romero v. Mukasey

Docket Nº:03-73564.
Citation:523 F.3d 992
Party Name:Arturo NICANOR-ROMERO, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
Case Date:April 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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523 F.3d 992 (9th Cir. 2008)

Arturo NICANOR-ROMERO, Petitioner,

v.

Michael B. MUKASEY, Attorney General, Respondent.

No. 03-73564.

United States Court of Appeals, Ninth Circuit.

April 24, 2008

Submitted Feb. 7, 2006. [*]

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Steven A. Guilin, San Diego, CA, for the petitioner.

Linda S. Wernery, Janice K. Redfern, 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. A92-881-306.

Before: HARRY PREGERSON, W. FLETCHER, and JAY S. BYBEE, Circuit Judges.

OPINION

WILLIAM A. FLETCHER, Circuit Judge:

In 1990, a jury convicted Arturo Nicanor-Romero of a violation of California Penal Code § 647.6(a). At the time of his conviction, § 647.6(a) provided, "Every person who annoys or molests any child under the age of 18 shall be punished by a fine . . ., by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment." It has been changed in immaterial respects since Nicanor-Romero's conviction. A violation of § 647.6(a) is a misdemeanor.

The government now seeks to remove Nicanor-Romero to Mexico, based on his § 647.6(a) conviction, for having committed a "crime involving moral turpitude" within the meaning of 8 U.S.C. § 1227(a)(2)(A)(i)(I). We hold that the government has failed to show that Nicanor-Romero's § 647.6(a) conviction makes him removable on this ground.

I. Background

Nicanor-Romero was born in Mexico in 1956. In April 1981, he entered the United States without inspection. Soon thereafter, he applied for adjustment of status to lawful permanent resident. His application was granted on January 11, 1990. He has lived here as a lawful permanent resident, working steadily and paying taxes, since then.

On July 3, 1990, Nicanor-Romero was charged in San Diego County, California, with two misdemeanor counts of annoying or molesting a child under the age of eighteen in violation of § 647.6(a). The criminal complaint sheds little light on the underlying facts of the § 647.6(a) violation. For both counts, it simply alleges that, "on or about June 29, 1990, . . . a misdemeanor was committed by said defendant who did annoy or molest" a girl "under the age of 18 years ...."

On August 7, 1990, a jury convicted Nicanor-Romero of violating § 647.6(a). The verdict sheet reveals little about the precise nature of Nicanor-Romero's offense. It states only, "We, the jury, . . . find the defendant, Arturo Romero Nicanor, GUILTY of a misdemeanor who did annoy or molest a child under the age of 18 years, in violation of Penal Code section 647.6...." Nicanor-Romero received a 163-day sentence. As one of the conditions of probation, he was ordered to register as a sex offender. See Cal. Penal Code § 290(a)(2)(A).

On January 8, 2001, ten -and-a-half years after his misdemeanor conviction, the government began removal proceedings against him based on the conviction under § 647.6(a). The Notice to Appear charged Nicanor-Romero as subject to removal under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA" or "the Act"), 8 U.S.C. § 1227(a)(2) (A)(iii), as an alien convicted of an aggravated felony "as defined

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in section 101(a)(43)(A) of the Act, a law relating to sexual abuse of a minor."

The government filed an additional charge of removal in a second Notice to Appear on May 7, 2001. The second Notice contains an apparent error. It charged Nicanor-Romero as removable pursuant to

Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as amended, by the Immigration Act of 1990, in that [he was] an alien who has been convicted of a crime involving moral turpitude committed within five years after the date of admission.

The government almost certainly meant to rely on INA § 237(a)(2)(A)(i)(I) rather than INA § 237(a)(2)(A)(ii). As codified at 8 U.S.C. § 1227(a)(2)(A)(ii), INA § 237(a)(2) (A)(ii) makes an alien removable if he or she "at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct ...." Yet the government never argued before the agency that Nicanor-Romero's § 647.6(a) conviction satisfied the criterion of "two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct." Given that Nicanor-Romero's § 647.6(a) conviction was for conduct occurring on a single date, it is highly unlikely that it satisfies this criterion. On the other hand, INA § 237(a)(2) (A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I), makes an alien removable if he or she "is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission[.]" Nicanor-Romero has made no argument against removal based on the government's charge of removability under § 1227(a)(2)(A)(ii) rather than § 1227(a)(2)(A) (i)(I). There is no difference in the definition of "moral turpitude" in these two sections.

Nicanor-Romero applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a), and for waiver of deportation pursuant to former INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). After a brief hearing, an Immigration Judge ("IJ") concluded that a § 647.6(a) violation categorically constitutes both an "aggravated felony" and a "crime involving moral turpitude." He denied Nicanor-Romero's requested relief and issued a final order of removal. The Board of Immigration Appeals ("BIA") affirmed, and this petition followed.

II. Jurisdiction

We have jurisdiction under the REAL ID Act. The jurisdiction -stripping provision of the INA provides that nothing in the statute "which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law ...." 8 U.S.C. § 1252(a)(2)(D). Whether a crime is an aggravated felony or involves moral turpitude is a question of law that we have jurisdiction to review. Notash v. Gonzales, 427 F.3d 693, 696 (9th Cir. 2005); Martinez-Perez v. Gonzales, 417 F.3d 1022, 1024-25 (9th Cir. 2005).

III. Merits

Nicanor-Romero makes several arguments challenging his final order of removal. We need respond only to his argument that the government failed to establish that his § 647.6(a) conviction was categorically either an "aggravated felony" or a "crime involving moral turpitude."

A. "Aggravated Felony"

In United States v. Pallares-Galan, 359 F.3d 1088, 1102-03 (9th Cir. 2004), we held that a violation of § 647.6(a) is not categorically an aggravated felony, and in particular, not "sexual abuse of a minor," as defined in 8 U.S.C. § 1227(a)(2)(A)(iii). We reasoned that sexual abuse "requires

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more than improper motivation; it requires conduct that is abusive." Id. at 1101-02. In contrast, conduct proscribed under § 647.6(a), "regardless of a defendant's lewd intent," may "involve neither harm or injury to a minor, nor the touching of or by a minor," and therefore "does not constitute 'sexual abuse of a minor' ...." Id. at 1102. The government concedes that under Pallares-Galan it cannot establish that Nicanor-Romero committed an aggravated felony for purposes of the INA.

B. "Crime Involving Moral Turpitude"

1. Standard of Review

Whether a crime involves "moral turpitude" requires us to address two issues of statutory interpretation.

First, what is the definition of "crime involving moral turpitude" under 8 U.S.C. § 1227(a)(2)(A)(i)(I)? We defer to the BIA's interpretation of the INA, provided that the interpretation is reasonable and not inconsistent with the statute's plain meaning. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1021 (9th Cir. 2005). As we discuss below, however, the BIA has provided little concrete guidance. We agree with the Seventh Circuit that, "[s]ince the Board hasn't done anything to particularize the meaning of 'crime involving moral turpitude,' giving . . . deference to its determination of that meaning has no practical significance." Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir. 2004).

Second, does a petitioner's misdemeanor conviction under § 647.6(a) come within the definition of "crime involving moral turpitude"? Because this inquiry requires an analysis of a California penal statute rather than the INA, we do not defer to the BIA's interpretation on this question. Rather, "[w]e review de novo whether the statutory basis for an alien's conviction defines a crime involving moral turpitude." Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994).

2. Definition of "Crime Involving Moral Turpitude"

Although "the term 'moral turpitude' has deep roots in the law," Jordan v. De George, 341 U.S. 223, 227, 71 S.Ct. 703, 95 L.Ed. 886 (1951), it has been criticized as an "undefined and undefinable standard," id. at 235, 71 S.Ct. 703 (Jackson, J., dissenting). The phrase "moral turpitude" first appeared in federal immigration law in 1891, when Congress barred "persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude" from entering the country. Act of Mar. 3, 1891, 26 Stat. 1084. In 1950, a Senate Report admitted that, despite repeated use, the phrase "ha[d] not been definitely and conclusively defined by the courts." S. Rpt. No. 1515, at 351 (Apr. 20, 1950). The 1950 Report defined a crime involving moral turpitude as " '[a]n act of baseness, vileness, or depravity, in the private and social duties which a man owes to his fellow man or to society ....' " Id. (quoting United States ex rel. Mylius v. Uhl, 203 F. 152, 154 (S.D.N.Y. 1913)). The Report, however, refused to commit to a single method for...

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