846 F.3d 1019 (9th Cir. 2017), 12-70930, Escobar v. Lynch
|Citation:||846 F.3d 1019|
|Opinion Judge:||Morgan B. Christen, Circuit Judge:|
|Party Name:||NATIVIDAD DE JESUS DURAN ESCOBAR, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent|
|Attorney:||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 Jus...|
|Judge Panel:||Before: Marsha S. Berzon, Morgan B. Christen, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Christen.|
|Case Date:||January 20, 2017|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted November 8, 2016, Pasadena, California
As Corrected February 6, 2017.
[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A075-707-335.
PETITION GRANTED and REMANDED.
The panel granted Natividad De Jesus Duran Escobar's petition for review of the Board of Immigration Appeals' decision finding her ineligible for cancellation of removal because her conviction for witness tampering under California Penal Code § 136.1(a) was a categorical crime involving moral turpitude, and remanded.
The panel held that the Immigration Judge and BIA erred by finding CPC § 136.1(a) a categorical CIMT, because the offense is overly broad and not a categorical match to the generic definition of a CIMT.
The panel granted Duran's petition with respect to her application for cancellation, and remanded for the Agency to consider whether CPC § 136.1(a) is divisible and, if so, to conduct the modified categorical analysis. The panel noted that on appeal the parties did not brief the divisibility issue, and that the BIA had not reached the modified categorical approach. The panel wrote that although it could reach the question of divisibility sua sponte because the BIA is not entitled to deference when interpreting criminal statutes, it was declining to do so.
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 by Judge Christen.
Morgan B. 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.
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.
" 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...
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