Escobar v. Lynch

Decision Date20 January 2017
Docket NumberNo. 12-70930,12-70930
Parties Natividad De Jesus Duran ESCOBAR, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Susan Elizabeth Hill (argued), Hill and Piibe, Los Angeles, California, for Petitioner.

Yanal H. Yousef (argued), Trial Attorney; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Leslie McKay, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Marsha S. Berzon, Morgan B. Christen, and Jacqueline H. Nguyen, Circuit Judges.

OPINION

CHRISTEN, Circuit Judge:

This immigration case turns on whether California Penal Code section 136.1(a), California's witness tampering statute, is a categorical crime involving moral turpitude. Petitioner Natividad De Jesus Duran Escobar (Duran) is a native and citizen of El Salvador, who fled to the United States after several encounters with guerrillas in the 1980s. An Immigration Judge (IJ) denied Duran's application for cancellation of removal, concluding that she was ineligible because her conviction for witness tampering under section 136.1(a) was a categorical crime involving moral turpitude. Duran appealed, the Board of Immigration Appeals (BIA) affirmed, and Duran timely filed a petition for review.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We grant the petition with respect to Duran's application for cancellation of removal because the IJ and BIA failed to consider the broad definition of "malice" in California Penal Code section 136, which indicates that the offense is not a categorical match to the generic definition of a crime involving moral turpitude.

BACKGROUND

Duran is a native and citizen of El Salvador. She entered the United States without inspection on October 4, 1989. Duran applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT) on July 19, 2000, alleging that she and her family "were mistreated and threatened by the guerrillas" in El Salvador in the 1980s. An asylum officer declined to grant the application, and on September 11, 2000, the Department of Homeland Security served her with a Notice to Appear (NTA). The NTA charged Duran with being removable because she was present in the United States without being admitted or paroled under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i). Duran admitted removability, but applied for cancellation of removal based on hardship to her minor U.S. citizen son, Carlos.1

The IJ ruled that Duran is statutorily ineligible for cancellation of removal because she was previously convicted of a crime involving moral turpitude (CIMT). On April 19, 2001, Duran pleaded no contest to violating California Penal Code section 136.1(a), California's witness tampering statute. She was sentenced to sixty days in county jail and two years supervised release. The IJ concluded that section 136.1(a) is categorically a CIMT because malice is an element of the offense. The IJ did not hear the full testimony regarding Duran's application for cancellation of removal because the IJ deemed her statutorily ineligible.2 Duran timely appealed to the BIA. The BIA, in an unpublished opinion, affirmed the IJ's conclusion that Duran was ineligible for cancellation of removal due to her previous conviction.

DISCUSSION

"The determination whether a conviction under a criminal statute is categorically a crime of moral turpitude involves two steps, to which different standards of review apply." Castrijon Garcia v. Holder , 704 F.3d 1205, 1208 (9th Cir. 2013) (alterations omitted) (quoting Uppal v. Holder , 605 F.3d 712, 714 (9th Cir. 2010) ). "The first step is to identify the elements of the statute of conviction," and, because the BIA "has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes," we review the first step de novo. Id. (quoting Uppal , 605 F.3d at 714 ).

"The second step is to compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition." Id. "Because the BIA does have expertise in making this determination, we defer to its conclusion if warranted" under either Chevron , U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) or Skidmore v. Swift & Co. , 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Id. (quoting Uppal , 605 F.3d at 714 ). Chevron applies "if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute)," while Skidmore governs "if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute)." Id. (quoting Uppal , 605 F.3d at 714 ).

I. Generic Definition of a Crime Involving Moral Turpitude

Under 8 U.S.C. § 1229b(b)(1), the Attorney General "may cancel removal of ... an alien who is inadmissible or deportable from the United States if the alien—

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence."3

Section 1182(a)(2) specifies that any alien convicted of "a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime" is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i). "Although the immigration statutes do not specifically define offenses constituting crimes involving moral turpitude, a crime involving moral turpitude is generally a crime that (1) is vile, base, or depraved and (2) violates accepted moral standards.’ " Latter Singh v. Holder , 668 F.3d 1156, 1161 (9th Cir. 2012) (quoting Saavedra Figueroa v. Holder , 625 F.3d 621, 626 (9th Cir. 2010) ).

"Crimes of moral turpitude are generally ‘of two types: those involving fraud and those involving grave acts of baseness or depravity.’ " Rivera v. Lynch , 816 F.3d 1064, 1074 (9th Cir. 2016) (quoting Castrijon Garcia , 704 F.3d at 1212 ). "[F]raud crimes are categorically crimes involving moral turpitude, simply by virtue of their fraudulent nature." Linares Gonzalez v. Lynch , 823 F.3d 508, 514 (9th Cir. 2016) (alteration in original) (quoting Planes v. Holder , 652 F.3d 991, 997 (9th Cir. 2011) ). "Non-fraudulent CIMTs will almost always involve an intent to injure someone, an actual injury, or a protected class of victims." Turijan v. Holder , 744 F.3d 617, 621 (9th Cir. 2014).

"In determining whether an offense is a CIMT, the BIA has examined ‘whether the act is accompanied by a vicious motive or a corrupt mind’ because ‘evil or malicious intent is ... the essence of moral turpitude.’ " Linares Gonzalez , 823 F.3d at 514 (alteration in original) (quoting Latter Singh , 668 F.3d at 1161 ). But "where a protected class of victim is involved, such as children or individuals who stand in a close relationship to the perpetrator, both the BIA and this court have been flexible about the intent ‘requirement,’ extending the category of crimes of moral turpitude to encompass even unintentional acts that only threaten harm." Nunez v. Holder , 594 F.3d 1124, 1131 n.4 (9th Cir. 2010).

II. The Categorical Approach

To determine "whether the conduct proscribed by the statute involves moral turpitude," this court and the BIA apply the "categorical approach" of Taylor v. United States , 495 U.S. 575, 598–602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), "comparing the elements of the state offense to those of the generic CIMT to determine if there is a categorical match." Linares Gonzalez , 823 F.3d at 514 (citing Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2283–86, 186 L.Ed.2d 438 (2013) ). To show that the state offense is broader than the generic definition of a CIMT, and thus not a categorical match, the applicant must demonstrate that there is "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of moral turpitude." Turijan , 744 F.3d at 620 (quoting Nunez , 594 F.3d at 1129 ). "If the statute has been applied in at least one previous case to conduct that does not satisfy the generic definition, then the offense is not a categorical CIMT." Id. at 620–21 (citing Castrijon Garcia , 704 F.3d at 1214–15 ).

A. Elements of the State Offense

California Penal Code section 136.1(a) states:

(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
(1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.

Cal. Penal Code § 136.1(a). The elements of witness intimidation in California are: (1) knowingly and maliciously (2) preventing or dissuading or attempting to prevent or dissuade ...

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    ...... this argument as well. Intent to injure is often indicative. of moral turpitude. See Escobar v. Lynch , 846 F.3d. 1019, 1024 (9th Cir. 2017); Villatoro v. Holder , 760. F.3d 872, 878 (8th ......
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1 books & journal articles
  • "Crimes Involving Moral Turpitude": The Constitutional and Persistent Immigration Law Doctrine.
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    • January 1, 2021
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