Castillo-Cruz v. Holder

• Decision Date: 17 September 2009
• Docket Number: No. 06-70896.,06-70896.
• Citation: 581 F.3d 1154
• Parties: Isidro CASTILLO-CRUZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

581 F.3d 1154

Isidro CASTILLO-CRUZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06-70896.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2009.

Filed September 17, 2009.

Charles E. Nichol, Esq., San Francisco, CA, for the petitioner.

Peter D. Keisler, David V. Bernal, Colette J. Winston, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A091-517-162.

Before MARY M. SCHROEDER and STEPHEN REINHARDT, Circuit Judges, and LOUIS H. POLLAK,^* Senior District Judge.

REINHARDT, Circuit Judge:

Isidro Castillo-Cruz petitions for review of the order of the Board of Immigration Appeals ("BIA") affirming without opinion the immigration judge's ("IJ") decision to pretermit his application for cancellation of removal. The IJ found that Castillo-Cruz had been convicted of two crimes of moral turpitude, petty theft and receipt of stolen property, rendering him statutorily inadmissible under 8 U.S.C. § 1182(a)(2)(2)(i)(I) and ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C).¹ The IJ found that Castillo-Cruz's criminal convictions, because they involve crimes of moral turpitude, interrupt the period of ten years of continuous physical presence required for cancellation of removal, see 8 U.S.C. § 1229b(d)(1). The IJ further found that Castillo-Cruz's criminal convictions preclude him from showing "good moral character" during the requisite ten-year period, which the IJ stated should be calculated from the date Castillo-Cruz first entered the United States. But see 8 U.S.C. § 1229b(b)(1)(A)-(B) (stating that for the purposes of cancellation, an applicant must demonstrate good moral character "for a continuous period of not less than 10 years immediately preceding the date of such application.")

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of removal, and under 8 U.S.C. § 1252(a)(2)(D) to review the constitutional and legal questions raised by individuals found removable based on criminal activity. See Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1056-57 (9th Cir.2006). We affirm the IJ's determination that Castillo-Cruz's conviction for petty theft constituted a crime of moral turpitude, but reverse with respect to the receipt of stolen property determination. We further reverse with respect to the IJ's good moral character determination. Castillo-Cruz's single conviction for petty theft may fall within the petty offenses exception, see 8 U.S.C. § 1182(a)(2)(ii)(II). If it does, Castillo-Cruz would not be subject to the "stop time" rule of 8 U.S.C. § 1229b(d)(1) precluding him from establishing the requisite period of continuous presence. We therefore remand to the BIA so that it may decide in the first instance whether the petty theft conviction falls within the petty offenses exception, see 8 U.S.C. § 1182(a)(2)(ii)(II), and so that it may resolve any other issues that may exist regarding Castillo-Cruz's application for cancellation of removal.

I. BACKGROUND

Isidro Castillo-Cruz is a Mexican citizen who entered the United States around March of 1984 without inspection. He is the father of four United States citizen children, Lilibethe, Angel Alexis, Jeanette, and Edward Jesus.

In May 2003, the Department of Homeland Security ("DHS") served Castillo-Cruz with a notice to appear, charging him with being removable under the Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being present in the United States without being admitted. The Notice to Appear also alleged that he had been convicted of possession of stolen property in violation of Cal.Penal Code § 496 in April 1990.

Castillo-Cruz admitted the allegations in his Notice to Appear and conceded removability, but sought cancellation of removal under 8 U.S.C. § 1229b(b). In his application for cancellation of removal, he listed his prior convictions, which included, among others,² a 1989 petty theft misdemeanor conviction under Cal.Penal Code § 484/488, and a 1990 conviction for receipt of stolen property under Cal.Penal Code § 496.³ The record of conviction showed that Castillo-Cruz had been sentenced to five months jail time and three years of probation for the latter offense.⁴

The immigration judge ("IJ") granted the DHS's motion to pretermit Castillo-Cruz's cancellation application on the basis that both his 1989 conviction for theft and 1990 conviction for receipt of stolen property were crimes of moral turpitude.⁵

The IJ found that because both crimes occurred within less than ten years of Castillo-Cruz's entry in 1984, he could not establish the requisite ten year period of continuous residence or good moral character. On April 4, 2005, the IJ granted Castillo-Cruz voluntary departure.

The Board of Immigration Appeals ("BIA") affirmed the IJ's decision without issuing an opinion, and reinstated the voluntary departure period. Castillo-Cruz filed a timely petition for review.

II. ANALYSIS

"[W]e review de novo the BIA's determination of questions of law, except to the extent that deference is owed to its interpretation of the governing statutes and regulations." Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006); see also Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 651 (9th Cir.2004).

A. A conviction for receipt of stolen property under § 496 is not categorically a crime of moral turpitude

The IJ relied on Ninth Circuit authority in concluding that Castillo-Cruz's convictions were for crimes of moral turpitude. The IJ correctly determined that Castillo-Cruz's 1989 conviction for petty theft under California Penal Code § 484/488 constituted a crime of moral turpitude under our case law. See Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir.2008); United States v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir.1999), cert. denied, 531 U.S. 842, 121 S.Ct. 107, 148 L.Ed.2d 64 (2000). The IJ erred, however, in relying on Patel v. INS, 542 F.2d 796 (9th Cir. 1976), as a basis for its conclusion that the 1990 conviction for receipt of stolen property under California Penal Code § 496(a) amounted to a crime of moral turpitude. In Patel, the petitioner had conceded that his conviction was for a crime of moral turpitude, see id. at 798, and, in any event, Patel preceded Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which established the mode of analysis that we now follow in deciding whether a conviction is categorically a crime of moral turpitude.⁶

Castillo-Cruz argues that § 496(a) punishes conduct that is categorically broader than a crime of moral turpitude because a person can be convicted under that section even if he did not have the intent to permanently deprive the rightful owner of property. The BIA has held in a number of cases that a theft offense is not categorically a crime of moral turpitude if the statute of conviction is broad enough to criminalize a taking with intent to deprive the owner of his property only temporarily. See, e.g., Matter of Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973) ("Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended."); In the Matter of P, 2 I. & N. Dec. 887 (B.I.A.1947) (holding that offenses like joy riding are not morally turpitudinous because they do not involve the intent to deprive the owner of the property permanently); Matter of H, 2 I & N Dec. 864, 865 (BIA 1947) ("[T]he element which must exist before the crime of theft or stealing is deemed one involving moral turpitude is that the offense must be one which involves a permanent taking as distinguished from a temporary one."). In its recent case law, the BIA continues to consider "whether there was an intention to permanently deprive the owner of his property." See In re Jurado-Delgado, 24 I & N. Dec. 29, 33 (BIA 2006).

We accord substantial deference to established constructions by the BIA of the statutes it is charged to administer. See Perez-Enriquez v. Gonzales, 463 F.3d 1007, 1009 (9th Cir.2006) (en banc). We are aware that the BIA has held that receiving property with the knowledge that it was taken with an intent to deprive the owner of property permanently amounts to a crime of moral turpitude. See, e.g., Matter of Salvail, 17 I. & N. Dec. 19, 20 (BIA 1979); In the Matter of G, 2 I. & N. Dec. 235, 237-38 (BIA 1945).⁷ It has not, however, expressly held that the recipient of stolen property has committed a theft offense amounting to a crime of moral turpitude if he acted with such knowledge, but not with the intent to deprive the owner of property permanently. To the contrary, it has held consistently that in order for an individual to have committed a crime of moral turpitude, that person must have behaved in a way that is "inherently base, vile, or depraved...." In re Jurado-Delgado, 24 I & N. Dec. at 33. In the context of theft offenses, such as receipt of stolen property, the BIA has interpreted this baseness to be evinced in the offender's "intention to permanently deprive the owner of his property." Id.⁸ If joyriding is not a crime of moral turpitude, however, it would seem that receipt of stolen property for the purpose of joyriding would also not be a crime of moral turpitude, or to put it more generally, if an intent to deprive permanently is necessary to find an act of theft morally turpitudinous, the same principle would appear to apply to the receipt of stolen property. A recipient who intends, by receiving the stolen property, to deprive its rightful owner of its possession only temporarily would not seem to have committed an act that may be termed morally turpitudinous. We therefore consider whether § 496(a) criminalizes conduct broader than that undertaken with the intent to deprive the owner of property permanently.

As we noted earlier, we have consistently held that acts...