Barrera-Lima v. Sessions

• Citation: 901 F.3d 1108
• Decision Date: 24 August 2018
• Docket Number: No. 13-73022,13-73022
• Parties: Juan Carlos BARRERA-LIMA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

901 F.3d 1108

Juan Carlos BARRERA-LIMA, Petitioner,

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

No. 13-73022

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2018—Seattle, Washington

Filed August 24, 2018

Alexander Ying-Chi Chan (argued), Bellevue, Washington, for Petitioner.

Victor Matthew Lawrence I (argued), Senior Litigation Counsel; Jeffrey J. Bernstein, Trial Attorney; Carl McIntyre, Assistant Director; 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-XX5-463.

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

PAEZ, Circuit Judge

Juan Carlos Barrera-Lima petitions for review of a decision by the Board of Immigration Appeals ("BIA") concluding that his prior convictions for indecent exposure rendered him statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b) as crimes involving moral turpitude. Because the BIA misapplied its own published precedent, we grant the petition for review and remand to the BIA to consider anew Barrera-Lima's request for cancellation of removal and voluntary departure.¹

I.

Barrera-Lima, a 37-year-old citizen of Guatemala, entered the United States without inspection in 1999 as a teenager. On November 16, 2009, King County prosecutors charged Barrera-Lima in municipal court with one misdemeanor count of indecent exposure pursuant to Wash. Rev. Code § 9A.88.010(1). A little over two weeks later, on December 2, 2009, Barrera-Lima pled guilty to one count of indecent exposure to a victim under the age of fourteen, see Wash. Rev. Code § 9A.88.010(2)(b), a gross misdemeanor. As part of his plea statement, Barrera-Lima admitted that he "intentionally made an open and obscene exposure of [his] person to a person under the age of fourteen years knowing that such conduct was likely to cause reasonable affront or alarm." The court sentenced Barrera-Lima to 364 days in jail with 301 days suspended and ordered him to pay a $5,000 fine. The court further ordered Barrera-Lima to have no contact with two underage individuals or Kimble Elementary School and to "obtain [a] sexual deviancy evaluation and comply with recommended treatment."

On April 22, 2010, Barrera-Lima entered a second guilty plea.² This time, he pled guilty to one misdemeanor count of indecent exposure under Wash. Rev. Code § 9A.88.010(1). Unlike his first plea statement, Barrera-Lima omitted any mention of minor involvement in his plea statement and admitted only to "intentionally ma[king] an open and obscene gesture of [his] person knowing that conduct was likely to cause reasonable affront or alarm." The court sentenced Barrera-Lima to a fully-suspended sentence of 365 days in jail and fined him $5,000, all but $200 of which was suspended. As with the first plea, the court ordered Barrera-Lima to remain in compliance with his sexual deviancy treatment.

Pursuant to both pleas, Barrera-Lima entered into—and successfully completed—a year-long sexual deviancy program. The final treatment report opined that Barrera-Lima was at "low risk" of reoffending and noted that there had been no reports of inappropriate behavior with women following Barrera-Lima's admission into the program. The report further highlighted Barrera-Lima's commitment to financially providing for his daughter and commented on Barrera-Lima's productive involvement with his family, work, and church. Satisfied with Barrera-Lima's progress, the provider terminated Barrera-Lima's treatment at the end of his probation period on September 1, 2011.

The end of Barrera-Lima's criminal proceedings did not, however, mark the end of his troubles. The government initiated removal proceedings against Barrera-Lima on December 2, 2009 for staying in the United States without being admitted or paroled. Seeking relief from removal, Barrera-Lima applied for cancellation of removal and, in the alternative, voluntary departure. The immigration judge ("IJ") denied his application, concluding that although Barrera-Lima's 2010 conviction for indecent exposure under Wash. Rev. Code § 9A.88.010(1) did not constitute a crime involving moral turpitude, his 2009 conviction for indecent exposure to a minor under the age of fourteen pursuant to Wash. Rev. Code § 9A.88.010(2) did. After determining that Washington's indecent exposure statute was categorically overbroad under Nunez v. Holder , 594 F.3d 1124 (9th Cir. 2010), the IJ applied the modified categorical approach and concluded that subsection (2) of Wash. Rev. Code § 9A.88.010 was a crime involving moral turpitude because it captured "crime[s] of a sexual nature committed against a protected class of victim." This, in turn, rendered Barrera-Lima ineligible for both cancellation of removal and voluntary departure. See 8 U.S.C. §§ 1229b(b)(1)(C), 1229c(b)(1)(B). The IJ then ordered Barrera-Lima removed to Guatemala.

Barrera-Lima unsuccessfully appealed the IJ's order to the BIA. In a single-member, unpublished decision, the BIA disagreed with the IJ's determination that Washington's indecent exposure statute was categorically overbroad and divisible. The BIA rejected Barrera-Lima's argument that Washington's indecent exposure statute was categorically overbroad because sexual motivation is not required for conviction. In the agency's view, "for moral turpitude purposes, what matters is ‘lewd intent,’ not sexual motivation." Citing Matter of Cortes Medina , 26 I. & N. Dec. 79 (BIA 2013),³ the BIA held that "[a] person who intentionally exhibits his private parts in order to harass, humiliate, outrage, or frighten a witness thereby engages in ‘lewd’ (i.e., obscene or indecent) conduct, whether or not the exposure was ... motivated by a desire for sexual gratification."

The BIA then concluded that "all violations of Rev. Code. Wash. § 9A.88.010 necessarily involve both willful exposure of the offender's private parts and intentional lewdness" and that the offense was therefore categorically a crime involving moral turpitude.⁴ The BIA thus affirmed the IJ's order of removal, concluding that Barrera-Lima's convictions for indecent exposure rendered him ineligible for both cancellation of removal and voluntary departure.

Barrera-Lima timely petitioned for review.

II.

"Whether a crime involves moral turpitude is a question of law that we have jurisdiction to review pursuant to 8 U.S.C. § 1252(a)(2)(D)." Nunez , 594 F.3d at 1129. We review de novo the BIA's interpretation of the statute of conviction. Id. If the BIA's "conclusion that a particular crime does or does not involve moral turpitude" relies on—or is itself—a precedential decision, we accord the decision Chevron⁵ deference. Id. Otherwise, we apply Skidmore v. Swift & Co. , 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), and defer to the BIA's conclusion only to the extent that it has the power to persuade. See Nunez , 594 F.3d at 1129. If the offense in question is not categorically a crime involving moral turpitude, we review de novo whether the statute of conviction is divisible for purposes of the modified categorical approach. See Almanza-Arenas v. Lynch , 815 F.3d 469, 477 (9th Cir. 2015) (en banc) ("Divisibility, like element identification, is reviewed de novo, because it ‘is a purely legal question which does not require any additional fact finding.’ " (quoting Medina-Lara v. Holder , 771 F.3d 1106, 1117 (9th Cir. 2014) )).

III.

We employ a "two-step framework for evaluating whether a conviction is categorically a [crime involving moral turpitude]." Rivera v. Lynch , 816 F.3d 1064, 1070 (9th Cir. 2015). The process itself is fairly straightforward: first, we identify the requisite elements for conviction under the statute. See id. Next, we apply the categorical approach to determine whether the elements of conviction match the generic definition of a crime involving moral turpitude. See id. If there is no realistic probability that " ‘the State would apply its statute to conduct that falls outside the generic definition’ of moral turpitude," then the statute is a match and our inquiry comes to an end. Nunez , 594 F.3d at 1129 (quoting Nicanor-Romero v. Mukasey , 523 F.3d 992, 1004 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos v. Holder , 558 F.3d 903, 908 (9th Cir. 2009) (en banc)). If, however, there is a realistic probability that the State would apply the statute in a manner that captures non-morally turpitudinous conduct, the statute is not a categorical match and we must next ascertain whether the statute is divisible. See Rivera , 816 F.3d at 1078. Only when the statute is divisible into multiple crimes—at least one of which must categorically match the generic definition of a crime involving moral turpitude—do we apply the modified categorical approach to discern whether the petitioner's conviction can be narrowed to the qualifying crime.⁶

Because Barrera-Lima was convicted under Wash. Rev. Code § 9A.88.010(1) in 2010 and under Wash. Rev. Code § 9A.88.010(2)(b) in 2009, we address each conviction in turn.

IV.

A.

Wash. Rev. Code § 9A.88.010(1) provides, in relevant part, that:

A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure.

The statute therefore requires that the government prove three elements in order to convict a defendant of indecent exposure: (1) the defendant made an "open and obscene" exposure of his or her genitalia or that of another person's, see State v. Vars , 157 Wash.App. 482, 237 P.3d 378, 382 (2010) (explaining that indecent exposure requires "an exposure of genitalia in the presence of another"); (2) the defendant did so intentionally; and (3) the...