Betansos v. Barr, 15-72347

• Decision Date: 05 July 2019
• Docket Number: No. 15-72347,15-72347
• Citation: 928 F.3d 1133
• Parties: Felipe Cruz BETANSOS, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

928 F.3d 1133

Felipe Cruz BETANSOS, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 15-72347

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 2018 Pasadena, California

Filed July 5, 2019

MURGUIA, Circuit Judge:

Felipe Cruz Betansos, a native and citizen of Mexico, appeals the Board of Immigration Appeals’ ("BIA") dismissal of his application for cancellation of removal. In dismissing his appeal, the BIA affirmed the Immigration Judge’s ("IJ") conclusion that Betansos’s conviction for indecent exposure under California Penal Code § 314(1) is categorically a crime involving moral turpitude ("CIMT"). Betansos’s criminal record also includes a petty theft conviction, which he does not dispute is a CIMT. Therefore, if Betansos’s indecent exposure conviction is a CIMT, Betansos is ineligible for cancellation of removal because aliens convicted of two CIMTs are ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(C).

In affirming the IJ’s determination that Betansos’s indecent exposure conviction is a CIMT, the BIA relied on its published decision in Matter of Cortes Medina , 26 I. & N. Dec. 79 (BIA 2013), which held that a conviction under § 314(1) is categorically a CIMT. Cortes Medina contradicts our 2010 decision, Nunez v. Holder , 594 F.3d 1124 (9th Cir. 2010), in which we rejected the BIA’s determination that § 314(1) is categorically a CIMT because the BIA decision we reviewed in Nunez rested entirely on an unproven statement that § 314(1) requires sexual motivation. Nunez , 594 F.3d at 1133. In Nunez , we held that indecent exposure under § 314(1) is not categorically a CIMT. Id. at 1138.

We must now decide whether to defer to the BIA’s more recent determination in Cortes Medina that a violation of § 314(1) categorically constitutes a CIMT. If we defer to Cortes Medina , we must also decide whether we will do so retroactively. For the reasons explained below, we conclude that we must defer to Cortes Medina pursuant to the framework outlined in National Cable & Telecommunications Association v. Brand X Internet Services , 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). We also conclude that Cortes Medina applies retroactively in Betansos’s case. We therefore deny Betansos’s petition for review.

I.

Betansos entered the United States in 1989 and has resided here since. He is unmarried, but he lives with his longtime girlfriend with whom he has a 17-year-old daughter who is a United States citizen.

Betansos has five criminal convictions in California. Relevant here are his 1989 petty theft, Cal. Penal Code § 484(a), and 2002 indecent exposure, Cal. Penal Code § 314(1), convictions.¹

On April 22, 2010, the Department of Homeland Security ("DHS") served Betansos with a Notice to Appear, which initiated his removal proceedings. At that time, Betansos was in custody. On May 11, 2012, Betansos, represented by counsel, admitted that he is not lawfully present in the United States and is a citizen of Mexico and conceded removability. On September 14, 2012, Betansos and his attorney appeared before the IJ to file his application for cancellation of removal. About a year later, in October 2013, the IJ held another hearing and denied Betansos’s application for relief.

A.

Betansos requested cancellation of removal as relief from deportation. To be eligible for cancellation of removal, Betansos had to demonstrate, among other things, that he was not convicted of certain enumerated offenses.² 8 U.S.C. § 1229b(b)(1)(C).

In denying Betansos’s application for cancellation of removal, the IJ concluded that because Betansos had been convicted of two CIMTs—petty theft and indecent exposure—he was statutorily ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(B), (C). The IJ relied on Cortes Medina to conclude that indecent exposure constitutes a CIMT, noting that Cortes Medina held that indecent exposure under § 314(1) includes "the element of lewd intent." Cortes Medina was decided on January 8, 2013, after Betansos applied for cancellation of removal but before the IJ held the October 2013 hearing. Because Betansos sought no other form of relief, the IJ ordered Betansos removed to Mexico. Betansos timely appealed the IJ’s decision to the BIA.

B.

The BIA dismissed Betansos’s appeal on June 29, 2015. In dismissing the appeal, the BIA agreed with the IJ that Betansos was ineligible for cancellation of removal because he was convicted of two CIMTs. The BIA noted that Betansos did not contest that his petty theft conviction is a CIMT. Then, citing to Cortes Medina , the BIA affirmed the IJ’s conclusion that Betansos’s indecent exposure conviction was categorically a CIMT. In explaining why the BIA affirmed the IJ’s decision, the BIA noted that Betansos bears the burden of demonstrating he is eligible for relief. The BIA found that Betansos had not met his burden of showing that "under current law a realistic probability exists that California would apply the [indecent exposure] statute, either in his case or generically, to conduct that would not involve moral turpitude."³ In other words, Betansos failed to show that California would prosecute non-morally turpitudinous conduct under § 314(1). The BIA also highlighted that it found no published or unpublished California cases since Nunez applying § 314(1) to non-morally turpitudinous conduct. Accordingly, the BIA concluded that Cortes Medina applied, that the IJ did not err in relying on Cortes Medina , and that Betansos’s conviction under § 314(1) was a CIMT.

Betansos timely appealed the BIA’s decision.

II.

We lack jurisdiction to review a final order of removal based on a petitioner’s conviction of a CIMT. See Marmolejo-Campos v. Holder , 558 F.3d 903, 907 (9th Cir. 2009) (en banc) (citing 8 U.S.C. § 1252(a)(2)(C) ). However, we retain jurisdiction to determine whether a petitioner’s conviction is in fact a CIMT as defined in the Immigration and Nationality Act ("INA"). Id.

III.

Generally, when determining whether a petitioner’s conviction is categorically a CIMT, we undertake a two-step process. See Rivera v. Lynch , 816 F.3d 1064, 1070 (9th Cir. 2016) (citing Marmolejo-Campos , 558 F.3d at 907–11 ). "First, we identify the elements of the statute of conviction, reviewing the BIA’s conclusions on this point de novo." Vinh Tan Nguyen v. Holder , 763 F.3d 1022, 1027 (9th Cir. 2014) ; see also Marmolejo-Campos , 558 F.3d at 907.

Second, after identifying the elements of the statute of conviction, we engage in the categorical approach and "compare the elements of the statute of conviction to the generic definition of a [CIMT] and decide whether the conviction meets that definition." Castrijon-Garcia v. Holder , 704 F.3d 1205, 1208 (9th Cir. 2013). In so doing, "[w]e rely on our own generalized definition of moral turpitude, which divides almost all CIMTs into two basic types: those involving fraud and those involving grave acts of baseness or depravity." Rivera , 816 F.3d at 1070 (internal quotation marks omitted).

However, our review of the BIA’s conclusion that a statute of conviction is categorically a CIMT is "governed by the same traditional principles of administrative deference we apply to the [BIA’s] interpretation of other ambiguous terms in the INA." Marmolejo-Campos , 558 F.3d at 911. Accordingly, where "the [BIA] determines that certain conduct is morally turpitudinous in a precedential decision, we apply Chevron deference regardless of whether the order under review is the precedential decision itself or a subsequent unpublished order that relies upon it." Id. at 911. Under 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), we defer to an agency’s interpretation of ambiguous language in a statute where Congress has delegated authority to the agency to enforce the statute containing the ambiguous text. Id. at 908–09. Nevertheless, where the BIA issues a precedential decision with "no reasoned explanation for its conclusion," Chevron deference is unwarranted. Rivera , 816 F.3d at 1070. Instances where we do not defer to the BIA’s interpretation of ambiguous statutory language, however, are rare. Id. at 1071.

A.

We first interpret the statute of conviction to identify its essential elements. In relevant part, Cal. Penal Code § 314(1) states, "[e]very person who willfully and lewdly ... [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby ... is guilty of a misdemeanor." Cal. Penal Code § 314(1), (2). California Jury Instructions provide that to find a defendant guilty under § 314, the government must prove:

(1) The defendant willfully exposed (his/her) genitals in the presence of another person or persons who might be offended or annoyed by the defendant’s actions; [AND] (2) [w]hen the defendant exposed (himself/herself), (he/she) acted lewdly by intending to direct public attention to (his/her) genitals for the purpose of sexually arousing or gratifying (himself/herself) or another person, or sexually offending another person.

Judicial Council of Cal. Crim. Jury Instr. No. 1160, Indecent Exposure (2018). Further, under California law,

[A] person does not expose his private parts "lewdly" within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.

People v. Archer , 98 Cal.App.4th 402, 119 Cal. Rptr. 2d 783, 785 (2002) (citing In re Smith , 7 Cal. 3d 362, 366, 102 Cal.Rptr. 335, 497 P.2d 807 (1972) ); see also People v. Ballard , 13 Cal.App.4th 687, 16 Cal. Rptr. 2d 624, 630 (1993) ("This requirement of lewdness, which is needed for a conviction of indecent...