Islas-Veloz v. Whitaker

• Citation: 914 F.3d 1249
• Decision Date: 04 February 2019
• Docket Number: No. 15-73120,15-73120
• Parties: Antonio ISLAS -VELOZ, AKA Antonio Islas, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

914 F.3d 1249

Antonio ISLAS -VELOZ, AKA Antonio Islas, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 15-73120

United States Court of Appeals, Ninth Circuit.

Filed February 4, 2019

Submitted August 27, 2018^* Seattle, Washington

McKEOWN, Circuit Judge:

Antonio Islas-Veloz petitions for review of a final order of removal following the dismissal of his appeal by the Board of Immigration Appeals ("BIA"). We conclude that Supreme Court and circuit precedents require us to deny the petition.

Islas-Veloz was convicted of communication with a minor for immoral purposes in violation of Revised Code of Washington ("RCW") § 9.68A.090. An immigration judge found that Islas-Veloz's conviction constituted a crime involving moral turpitude committed within five years of admission to the United States and found him removable on that basis. See 8 U.S.C. § 1227(a)(2)(A)(i). The BIA dismissed Islas-Veloz's appeal, ruling that communication with a minor for immoral purposes in violation of RCW § 9.68A.090 was categorically a crime involving moral turpitude.

Islas-Veloz argues that the phrase "crime involving moral turpitude" is unconstitutionally vague in light of the Supreme Court's decisions in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). In the alternative, he claims that the crime of "communication with [a] minor for immoral purposes" in violation of RCW § 9.68A.090 is not categorically a crime of moral turpitude, and hence that his final order of removal is invalid.

In assessing the constitutional status of the phrase "crime involving moral turpitude," we remain bound by the Supreme Court's decision in Jordan v. De George , 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951). In De George , the Court held that the phrase "crime involving moral turpitude" was not unconstitutionally vague. Id. at 231–32, 71 S.Ct. 703. The Court's more recent decisions in Johnson and Dimaya did not reopen inquiry into the constitutionality of the phrase. Notably, Dimaya acknowledged that the Court in De George had "ultimately uph[e]ld" the phrase "crime involving moral turpitude" against an unconstitutional vagueness attack. Dimaya , 138 S.Ct. at 1213.

We have repeatedly echoed the holding that the Supreme Court laid down in De George . In Tseung Chu v. Cornell , we cited De George in ruling that the phrase "crime involving moral turpitude" was constitutional. 247 F.2d 929, 938–39 (9th Cir. 1957). More recently, in Martinez-De Ryan v. Sessions , we again held that the phrase is not unconstitutionally vague. 895 F.3d 1191, 1194 (9th Cir. 2018); see also Olivas-Motta v. Whitaker , 910 F.3d 1271, 1281 (9th Cir. 2018). De Ryan explicitly addressed Sessions v. Dimaya , explaining that the Supreme Court's opinion in that case did not change the constitutional status of the phrase. See 895 F.3d at 1193–94. As the concurrence acknowledges, our precedent cannot be read differently.

Islas-Veloz's alternate claim that communicating with a minor for immoral purposes is not a crime of moral turpitude is foreclosed by our decision in Morales v. Gonzales , 478 F.3d 972 (9th Cir. 2007), abrogated on other grounds in Anaya-Ortiz v. Holder , 594 F.3d 673, 677–78 (9th Cir. 2010). In Morales , we "conclude[d] that [a] conviction for communication with a minor for immoral purposes" constitutes a crime of moral turpitude. Id. at 978. We elaborated: "The full range of conduct prohibited by section 9.68A.090 of the Revised Code of Washington categorically constitutes a crime involving moral turpitude." Id.

Apart from any ongoing debate about the degree of ambiguity inherent in the phrase "crime involving moral turpitude," these precedents are directly on point, bind us here, and foreclose Islas-Veloz's arguments.

PETITION DENIED.

W. FLETCHER, Circuit Judge, concurring:

We are bound by our court's precedent in Martinez-De Ryan v. Whitaker , 909 F.3d 247 (9th Cir. 2018), and I therefore concur in the panel's opinion. However, I write separately because the Supreme Court's recent decisions in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), should lead us, were we not bound, to conclude that the phrase "crime involving moral turpitude" is unconstitutionally vague when used as the basis for removal of a noncitizen. See 8 U.S.C. § 1227(a)(2)(A)(i)-(ii).

I. "Moral Turpitude" in Immigration Law

The Immigration and Nationality Act ("INA") imposes severe penalties on noncitizens convicted of a "crime involving moral turpitude" ("CIMT"). See 8 U.S.C. §§ 1182(a)(2)(A) (inadmissibility), 1227(a)(2)(A)(i)-(ii) (removal), 1229b(b)(1)(C) (ineligibility for cancellation of removal and adjustment of status). Section 1227(a)(2)(A)(i)–(ii) renders removable any noncitizen who is (a) convicted of a "crime involving moral turpitude" within five years of entry for which a sentence of one year or more is imposed or, (b) convicted of any two "crimes involving moral turpitude" at any time after entry, regardless of sentence length or type. The noncitizen is also ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(C). "[R]emoval is a virtual certainty" no matter how long an individual may have previously resided in the United States. Dimaya , 138 S.Ct. at 1211.

In recent years, the United States has deported many tens of thousands of noncitizens under § 1227(a)(2)(A) after having been convicted of CIMTs. See Transactional Records Access Clearinghouse, Individuals Charged with Moral Turpitude in Immigration Court , SYRACUSE UNIV. (last accessed Dec. 21, 2018), http://trac.syr.edu/immigration/reports/moral_turp.html (collecting data that shows that from 1996-2006 the United States brought removal proceedings against over 135,000 noncitizens for "crimes involving moral turpitude"); Transactional Records Access Clearinghouse, Immigration Court Post-Trump Cases: Latest Data , SYRACUSE UNIV. , tbl. 6 (March 21, 2017), http://trac.syr.edu/immigration/reports/462/ (collecting data from 2012 to 2017).

The term "moral turpitude" first appeared in federal immigration law in 1891, when Congress barred entry to persons "who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude." Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084. Sixteen years later, "Congress expanded the class of excluded persons to include individuals who ‘admit’ to having committed a crime of moral turpitude." Padilla v. Kentucky , 559 U.S. 356, 361 n.2, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (citing Act of Feb. 20, 1907, ch. 1134, § 2, 34 Stat. 899). Ten years later, in the Immigration Act of 1917, Congress "rendered deportable" noncitizens who are "sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years" of entry and "noncitizen recidivists who commit two or more crimes of moral turpitude at any time after entry." Id. at 361, 130 S.Ct. 1473 (citing Immigration Act of 1917, ch. 29, § 19, 39 Stat. 889). The INA, enacted in 1952 and amended thereafter, included these same penalties. In none of those statutes has Congress defined the term "moral turpitude." Id.

II. Void for Vagueness

In two recent cases, the Supreme Court has revitalized the void-for-vagueness doctrine in both criminal and civil cases.

First, in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Court upheld a vagueness challenge to a provision of the Armed Career Criminal Act ("ACCA"). Federal criminal law prohibits convicted felons from possessing firearms. 18 U.S.C. § 922(g). If a felon convicted under § 922(g) has previously been convicted of three or more "serious drug offenses" or "violent felonies," the ACCA increases the prison term by a minimum of fifteen years and a maximum of life. Id. at § 924(e)(1). The ACCA defines "violent felony" as a crime punishable by a term exceeding a year that (i) either has as an element the actual, attempted or threatened use of force or (ii) "is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another ." Id. at § 924(e)(2)(B) (emphasis added). The italicized language is the ACCA's "residual clause."

In an opinion by Justice Scalia, the Court held the residual clause unconstitutionally vague. The Court wrote, "Two features of the residual clause conspire to make it unconstitutionally vague." Johnson , 135 S.Ct. at 2557. First, the clause "leaves grave uncertainty about how to estimate the risk posed by a crime." Id . Second, the clause "leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony." Id. at 2558. The combination produced "more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. at 2557.

The Court described, and lamented, four recent cases in which it had reached disparate results under the ACCA residual clause: "[T]his Court's repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminancy." Id. at 2558. The Court pointed out that, in addition to its own disparate results, the residual clause had " ‘created numerous splits among the lower federal courts,’ where it has proved ‘nearly impossible to apply consistently.’ " Id. at 2559–60 (quoting Chambers v. United States , 555 U.S. 122, 133, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (Alito, J., concurring in judgment) ). The Court concluded:

Nine years' experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.... Invoking so shapeless a provision to condemn someone to prison for fifteen years to life does not comport with the Constitution's guarantee of due

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