Cerezo v. Mukasey

• Decision Date: 14 January 2008
• Docket Number: No. 05-75213.,No. 05-74688.,05-74688.,05-75213.
• Parties: Angel CEREZO, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Angel Cerezo, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

512 F.3d 1163

Angel CEREZO, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

Angel Cerezo, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.

No. 05-74688.

No. 05-75213.

United States Court of Appeals, Ninth Circuit.

Submitted October 4, 2007.^*

Filed January 14, 2008.

Lucas Guttentag, Monica M. Ramirez, ACLU Foundation Immigrants' Rights Project, Oakland, CA, and Peter J. Eliasberg, Ahilan T. Arulanantham, ACLU Foundation of Southern California, Los Angeles, CA, for petitioner.

Jennifer J. Keeney, Department of Justice, Washington, D.C., for respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A17-169-048.

Before: MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges, and JAMES K. SINGLETON,^** Senior District Judge.

IKUTA, Circuit Judge:

In this case we consider whether a violation of California Vehicle Code § 20001(a) (leaving the scene of an accident resulting in bodily injury or death) is categorically a crime involving moral turpitude for purposes of 8 U.S.C. § 1227(a)(2)(A)(ii). We hold it is not.

I

Angel Cerezo is a native and citizen of Spain who entered the United States in 1966 and was granted immigrant status in 1973. On January 16, 1998, Cerezo was convicted in California state court of inflicting corporal injury on a spouse or cohabitant, in violation of California Penal Code § 273.5. Following this conviction, removal proceedings were initiated against Cerezo, but he was granted cancellation of removal.

According to his abstract of judgment, on November 5, 2001, Cerezo was convicted in California state court of driving under the influence, in violation of California Vehicle Code § 23153, and leaving the scene of an accident resulting in bodily injury or death, in violation of California Vehicle Code § 20001(a).¹ The government again initiated removal proceedings against Cerezo under 8 U.S.C § 1227(a)(2)(A)(ii), which provides that aliens who have been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct are deportable.² On February 17, 2005, an Immigration Judge (IJ) held that Cerezo's 1998 conviction for domestic abuse and his 2001 conviction for leaving the scene of an accident were both crimes of moral turpitude. The IJ then sustained the charge of removability against Cerezo and ordered him removed to Spain.

On March 30, 2005, Cerezo filed a motion to reopen, contending that his conviction under California Vehicle Code § 20001(a) was not a crime involving moral turpitude. The IJ rejected this argument and denied the motion, noting that the elements of a § 20001(a) violation include leaving the scene of an accident knowing that the accident resulted in, or was likely to result in, an injury.

Cerezo then filed two notices of appeal with the Board of Immigration Appeals (BIA), both received by the BIA on May 9, 2005. On July 7, 2005, the. BIA dismissed as untimely the appeal challenging the IJ's removal order, because it was filed more than thirty days after the IJ's February 17, 2005 removal order. See 8 C.F.R. § 1003.38(b), (c).

The second notice of appeal sought review of the IJ's denial of Cerezo's motion to reopen. In his brief, Cerezo argued that leaving the scene of an accident resulting in bodily injury or death was not a crime involving moral turpitude.³ The BIA disagreed, and dismissed Cerezo's appeal on August 15, 2005.

Cerezo timely petitioned this court for review of both BIA decisions. We consolidated Cerezo's two petitions for review on October 18, 2005. Cerezo has not further pursued his challenge to the BIA's decision of July 7, 2005, and we deem the argument abandoned. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1993). Therefore, the only issue before us is whether the BIA erred, in dismissing Cerezo's appeal from the denial of his motion to reopen.⁴ Cerezo raises two arguments in his appeal from the denial of his motion to reopen. First, he argues that his violation of § 20001(a) did not involve moral turpitude. Second, Cerezo contends that the government failed to prove that he pleaded guilty. to a violation of § 20001(a) by clear and convincing evidence.⁵

We have "jurisdiction over the affirmance of a denial of a motion to reopen under 8 U.S.C. § 1252(a)(1)." Lin v. Gonzales, 473 F.3d 979, 981 (9th Cir.2007). We review the BIA's dismissal of such a motion for an abuse of discretion. Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005). The BIA abuses its discretion when it makes an error of law. Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir.2002). We review questions of law de novo. United States v. Chu Kong Yin, 935 F.2d 990, 1003 (9th Cir.1991). Whether a "conviction is a crime involving moral turpitude is a question of law." Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir. 2007) (en banc).

II

We first consider whether a violation of California Vehicle Code § 20001(a) is categorically a crime involving moral turpitude. "To determine whether a specific crime falls within a particular category of grounds for removability, we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)." Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.2007) (quoting Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005)). Under the categorical approach, we "compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition." Id.

Looking first at the federal definition of the crime at issue, we have held that crimes of moral turpitude are of basically two types, "those involving fraud and those involving grave acts of baseness or depravity." Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005). We have defined the second type as involving "conduct that (1) is base, vile, or depraved and (2) violates accepted moral standards." Navarro-Lopez, 503 F.3d at 1068. Because a "crime involving moral turpitude" is not, a separate crime at common law but rather a classification of other crimes, see 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW, § 1.6 (2d ed.2003), we must also compare the crime of conviction with "crimes we have previously determined to be base, vile, and depraved—crimes such as murder, rape, and incest." Navarro-Lopez, 503 F.3d at 1075 (opinion of Reinhardt, J., writing for the majority). We have held that such crimes necessarily include willfulness or evil intent. Quintero-Salazar, 506 F.3d at 693.⁶

After defining the generic federal crime at issue, we turn to the state statute of conviction. "[T]he issue is whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude." Id. at 692. The state crime at issue here is defined by California Vehicle Code § 20001(a). That section, entitled "Duty to stop at scene of injury accident," provides:

The driver of any vehicle involved in an accident resulting in injury to any person, other than himself or herself, or in the death of any person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004.

Section 20003, entitled "Duty upon injury or death," provides:

(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall also give his or her name, current residence address, the names and current residence addresses of any occupant of the driver's vehicle injured in the accident, the registration number of the vehicle he or she is driving, and the name and current residence address of the owner to the person struck or the driver or occupants of any vehicle collided with, and shall give the information to any traffic or police officer at the scene of the accident. The driver also shall render to any person injured in the accident reasonable assistance, including transporting, or making arrangements for transporting, any injured person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if that transportation is requested by any injured person.

(b) Any driver or injured occupant of a driver's vehicle subject to the provisions of subdivision (a) shall also, upon being requested, exhibit his or her driver's license, if available, or, in the case of an injured occupant, any other available identification, to the person struck or to the driver or occupants of any vehicle collided with, and to any traffic or police officer at the scene of the accident.

Section 20004, entitled "Duty upon death," provides:

"In the event of death of any person resulting from an accident, the driver of any vehicle involved after fulfilling the requirements of this division, and if there be no traffic or police officer at the scene of the accident to whom to give the information required by Section 20003, shall, without delay, report the accident to the nearest office of the Department of the California Highway Patrol or office of a duly authorized police authority and submit with the report the information required by Section 20003."

Reading § 20001(a) literally, a driver in an accident resulting in injury who stops and provides identification, but fails to provide a vehicle registration number, has violated the statute. The failure to provide a vehicle registration number under such circumstances is not base, vile and depraved; nor does it necessarily evince any willfulness or evil intent, a requisite element of crimes of moral turpitude. Quintero-Salazar, 506 F.3d at 693.

The government contends that such a literal application of the statute is not realistic and argues that there must be "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Gonzales v....