Vasquez-Valle v. Sessions

• Citation: 899 F.3d 834
• Decision Date: 10 August 2018
• Docket Number: No. 13-74213,13-74213
• Parties: Orlando VASQUEZ-VALLE, aka Louis Antonio Contreras, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

899 F.3d 834

Orlando VASQUEZ-VALLE, aka Louis Antonio Contreras, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 13-74213

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2018 Seattle, Washington

Filed August 10, 2018

Kristin Kyrka (argued), Seattle, Washington; Vicky Dobrin and Hilary Han, Dobrin & Han PC, Seattle, Washington; for Petitioner.

Jennifer A. Singer (argued), Trial Attorney; Russell J.E. Verby, Senior Litigation Counsel; Joyce R. Branda, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX1-593

Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

GOULD, Circuit Judge:

Orlando Vasquez-Valle ("Vasquez-Valle") is a native and citizen of Mexico. He was convicted of witness tampering in violation of Oregon Revised Statutes § 162.285 and was referred for immigration proceedings. Vasquez-Valle conceded removability but argued that he was eligible for cancellation of removal. The Immigration Judge ("IJ") held, and the Board of Immigration Appeals ("BIA") affirmed, that Vasquez-Valle was ineligible for cancellation of removal because his conviction for witness tampering was a crime involving moral turpitude ("CIMT"). We conclude that Oregon Revised Statutes § 162.285 is not categorically a crime involving moral turpitude because the statute captures conduct that is neither fraudulent nor base, vile, or depraved. And while we conclude that the statute is divisible, the subsection that formed the basis for Vasquez-Valle’s conviction— § 162.285(1)(b) —is likewise not a categorical match for a crime involving moral turpitude. We therefore grant Vasquez-Valle’s petition and remand to the agency for further proceedings consistent with this opinion.

I.

Vasquez-Valle has lived in the United States for twenty years. He is married to a U.S. citizen, and they have two U.S. citizen children.

Vasquez-Valle pled guilty to tampering with a witness in violation of Oregon Revised Statutes § 162.285 and was sentenced to two years of supervised probation.¹ Three days after entering his guilty plea, Vasquez-Valle was transferred to the custody of the Department of Homeland Security, which issued a Notice to Appear alleging that he was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) because he was present in the United States without admission or parole and because he was convicted of a CIMT in violation of 8 U.S.C. § 1182(a)(2)(A)(i)(I). Vasquez-Valle, through counsel, conceded removability based on his presence without admission or parole but denied that he committed a CIMT. Vasquez-Valle therefore argued that he was eligible for cancellation of removal under 8 U.S.C. § 1229b(b).

The IJ sustained the government’s charge that Vasquez-Valle was removable, and concluded he was not eligible for cancellation of removal because his prior conviction was for a CIMT. The IJ found that the witness tampering statute "closely aligns with other cases the BIA has found to qualify as a crime involving moral turpitude and therefore categorically qualifies as a crime involving moral turpitude." The IJ concluded that witness tampering was more analogous to obstruction of justice than to misprision of felony—the latter of which we held to not be a CIMT in Robles-Urrea v. Holder , 678 F.3d 702 (9th Cir. 2012) —because there was a specific intent to interfere with the process of justice.

The IJ found that to commit a CIMT, one need only intentionally obstruct a government function. Vasquez-Valle was removed to Mexico but reserved his right to appeal the IJ’s decision.

On appeal, the BIA concluded that Vasquez-Valle’s witness tampering conviction was a CIMT, analogizing it to federal obstruction of justice offenses. The BIA largely adopted the IJ’s reasoning, noting that the Board had previously found that "offenses that impair and obstruct the lawful function of government by defeating its efficiency or destroying the value of its operations by graft, trickery, or dishonest means involve moral turpitude." The BIA agreed with the IJ’s conclusion that the Oregon offense "evinces a corrupt intent to influence official action by tampering with a witness." The BIA further concluded that the statute was not divisible and that the statute was not overbroad, adopting the IJ’s determination that "though the Oregon statute is bifurcated, and the type of tampering involved differs, the two separate provisions prohibit the intentional interference with important government functions." Without any citation to Oregon case law, the BIA interpreted the word "knowingly" in Oregon Revised Statutes § 162.285 to mean that a conviction under the statute required a showing that the defendant was "conscious of wrongdoing" and "wrongfully persuaded" another to offer false testimony, withhold testimony, or be absent from a proceeding. Citing State v. Bailey , 346 Or. 551, 213 P.3d 1240, 1243 n.2 (2009), the BIA noted that the Oregon statute does not criminalize attempts to induce a person to exercise their lawful right or privilege not to testify, or to induce a person to avoid service of process by leaving the jurisdiction. The BIA agreed with the IJ that the statute was a CIMT because it requires an "implicit evil intent ... to intentionally and wrongfully disrupt a necessary lawful function of government."

II.

We apply a two-step process when determining whether a conviction under a criminal statute is categorically a CIMT. Castrijon-Garcia v. Holder , 704 F.3d 1205, 1208 (9th Cir. 2013). First, we identify the elements of the statute of conviction. Id. We review the first step de novo because the BIA " ‘has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes.’ " Id. (quoting Uppal v. Holder , 605 F.3d 712, 714 (9th Cir. 2010) ).

Second, we "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 has 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. Chevron deference applies "if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute)," while Skidmore deference 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 ). If neither applies, we review de novo . Escobar v. Lynch , 846 F.3d 1019, 1025 (9th Cir. 2017). Because the BIA decision here was unpublished and was not controlled by any published BIA decision, we apply Skidmore rather than Chevron .

"Under Skidmore , the measure of deference afforded to the agency ‘depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ " Uppal , 605 F.3d at 715 (quoting Skidmore , 323 U.S. at 140, 65 S.Ct. 161 ). Applying this standard, we conclude that the BIA’s analysis does not warrant deference. Although the BIA’s analysis was fairly extensive, it directly conflicted with prior Ninth Circuit case law and was inconsistent both internally and with prior BIA decisions. See id. Specifically, the BIA’s decision here relied on the same definition of a CIMT—"contrary to justice, honesty, principle, or good morals"—that we have previously explicitly rejected. See Escobar , 846 F.3d at 1025. The BIA also unpersuasively analogized the Oregon offense to dissimilar federal obstruction of justice offenses, and relied on federal common law—rather than Oregon law—interpretations of the term "knowing" to arrive at its conclusion. We therefore review de novo .

III.

Vasquez-Valle contends that Oregon Revised Statutes § 162.285 is not a categorical match to a CIMT because the minimum conduct necessary for a conviction is not fraudulent or base, vile, or depraved. Vasquez-Valle also argues that the IJ erred by concluding that Oregon Revised Statutes § 162.285 was not divisible. We agree on both points.

A.

We determine whether a conviction qualifies as a CIMT by applying the categorical approach and, if necessary, the modified categorical approach. Galeana-Mendoza v. Gonzales , 465 F.3d 1054, 1057–58 (9th Cir. 2006). "Under the categorical approach, we look only to the fact of conviction and the statutory definition of the prior offense, and determine whether the full range of conduct proscribed by the statute constitutes a crime of moral turpitude." Id. (internal quotation marks and citation omitted). If it does not, we apply the modified categorical approach, which permits us to look beyond the language of the statute to documents that are part of the record of conviction, but not to the particular facts underlying the conviction. Id. at 1058.

There are two categories of CIMTs: "those involving fraud and those involving grave acts of baseness or depravity." Rivera v. Lynch , 816 F.3d 1064, 1074 (9th Cir. 2016) (internal quotation marks and citations omitted); Latter-Singh v. Holder , 668 F.3d 1156, 1161 (9th Cir. 2012) ("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.’ " (quoting Saavedra-Figueroa v. Holder , 625 F.3d 621, 626 (9th Cir. 2010) ) ). To show that the stated offense is broader than...