Soto-Rodriguez v. Holder, 041415 FED9, 14-71419

Docket Nº:14-71419
Party Name:JOEL OVED SOTO-RODRIGUEZ, Petitioner, v. ERIC HOLDER, JR., Attorney General Respondent.
Judge Panel:Before: W. FLETCHER, DAVIS, and CHRISTEN, Circuit Judges.
Case Date:April 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

JOEL OVED SOTO-RODRIGUEZ, Petitioner,

v.

ERIC HOLDER, JR., Attorney General Respondent.

No. 14-71419

United States Court of Appeals, Ninth Circuit

April 14, 2015

NOT FOR PUBLICATION

Argued and Submitted March 10, 2015 San Francisco, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A043-991-320

Before: W. FLETCHER, DAVIS, [**] and CHRISTEN, Circuit Judges.

MEMORANDUM [*]

Petitioner Joel Soto-Rodriguez, a native and citizen of El Salvador, seeks judicial review of a final order of removal issued by the Board of Immigration Appeals (BIA) on April 28, 2014. The BIA found him removable as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct under 8 U.S.C. § 1227(a)(2)(A)(ii). In its decision, the BIA affirmed the Immigration Judge's (IJ) denial of Soto-Rodriguez's motion to terminate removal proceedings, discerning no error in the IJ's finding that Soto-Rodriguez's conviction for tampering with a witness in violation of Wash. Rev. Code § 9A.72.120(1) was categorically a crime involving moral turpitude (CIMT). For the reasons that follow, we grant the petition for review and remand to the agency to grant Soto-Rodriguez's motion to terminate proceedings.

1. The BIA's determination that the Washington witness tampering statute is categorically a CIMT merits no deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). The BIA erred in identifying the elements of the witness tampering statute in reasoning that the statute required "a showing that the defendant had the intent to interfere with an official proceeding and therefore undermine the integrity of the process of justice." As the prosecution does not have to specifically and separately prove a defendant's intent to obstruct justice to obtain a conviction under the witness tampering statute, such an intent is not an element of the crime. See State v. Stroh, 588 P.2d 1182, 1183-84 (Wash. 1979) (en banc); State v. Rempel, 770 P.2d 1058, 1061-62 (Wash.Ct.App. 1989) ("In a prosecution for tampering with a witness under RCW 9A.72.120, it is not necessary to prove specific intent to obstruct justice, it is sufficient to show that the defendant knew that the person approached was going to be a witness."), rev'd on other grounds, 785 P.2d 1134 (Wash. 1990) (en banc). Because the BIA "erred at step one" of the categorical approach by failing to identify the elements of the witness tampering statute correctly, we "owe[] its CIMT analysis at step two no deference." Hernandez-Cruz v. Holder, 651 F.3d 1094, 1106 (9th Cir. 2011). We therefore review whether Washington's witness tampering statute is a CIMT de novo.

2. The BIA erred in determining that Soto-Rodriguez's conviction for witness tampering was categorically a CIMT, thereby rendering him removable. Under step two of the categorical approach, this Court determines "whether all of the conduct proscribed by [the statute] falls within [the] generic definition of moral turpitude." Nunez v. Holder, 594 F.3d 1124, 1133 (9th Cir. 2010). Under this approach, a crime does not categorically involve moral turpitude if the conduct proscribed in the statute is broader than the generic definition of a CIMT. Castrijon-Garcia v. Holder, 704 F.3d 1205, 1212 (9th Cir. 2013). "[T]o hold that the statute of conviction is overbroad, we must determine that there is a realistic probability of its application to conduct that falls beyond the scope of the generic federal offense." Id. (internal quotation marks omitted). "This realistic probability can be established by showing that, in at least one other case, " a state court applied the statute to conduct that falls beyond the scope of the generic definition of moral turpitude. Nunez, 594 F.3d at 1129. It can also be established by showing that "the statute was so applied in [the petitioner's] own case." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).

Morally turpitudinous crimes are those "crimes that involve either fraud or base, vile, and depraved conduct that shock[s] the public conscience." ...

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