Galeana-Mendoza v. Gonzales

• Decision Date: 06 October 2006
• Docket Number: No. 04-73100.,04-73100.
• Parties: Anicefaro GALEANA-MENDOZA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

465 F.3d 1054

Anicefaro GALEANA-MENDOZA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-73100.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2006.

Filed October 6, 2006.

Alan Diamante, Thelma M. Gonzalez, Law Office of Alan R. Diamante, Los Angeles, CA, for the petitioner.

Andrew C. Maclachlan (on the brief) and Margaret K. Taylor, U.S. Office Dept. of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A77-125-684.

Before THOMPSON, BERZON, and CALLAHAN, Circuit Judges.

BERZON, Circuit Judge.

As has been observed, "[t]ime has only confirmed Justice Jackson's powerful dissent in the De George case, in which he called `moral turpitude' an `undefined and undefinable standard.'" Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir.2004) (quoting Jordan v. De George, 341 U.S. 223, 235, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (Jackson, J. dissenting)). Nevertheless, we are once more called upon to determine whether a particular state crime qualifies as one "involving moral turpitude" under the Immigration and Nationality Act. As did the Board of Immigration Appeals ("BIA") in In re Sanudo, 23 I. & N. Dec. 968, 973 (2006), decided after submission of this petition for decision, we conclude that conviction for domestic battery under California Penal Code section 243(e) does not categorically qualify as a "crime involving moral turpitude."

I.

Anicefaro Galeana-Mendoza, a native and citizen of Mexico, entered the United States without inspection on or around June 1, 1988.¹ Roughly eleven years later, California filed a single-count misdemeanor complaint against Galeana-Mendoza, alleging that on July 19, 1999, he committed the crime of battery by "willfully and unlawfully us[ing] force and violence upon the person of REYNA BAZAN, a person who is the mother of [his] children," in violation of California Penal Code section 243(e). Galeana-Mendoza subsequently pleaded nolo contendere and was convicted on that charge. California later filed another single-count misdemeanor complaint against Galeana-Mendoza, this time alleging that on October 28, 2000, Galeana-Mendoza committed the crime of battery by "willfully and unlawfully us[ing] force and violence upon the person of REINA BAZAN, a person WHO IS THE MOTHER OF HIS CHILD," in violation of California Penal Code section 243(e). Galeana-Mendoza again pleaded nolo contendere and again was convicted.

In the period between his two convictions, the Immigration and Naturalization Service ("INS")² began removal proceedings against Galeana-Mendoza by filing a notice to appear charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i),³ as "[a]n alien present in the United States without being admitted or paroled." At a hearing before the IJ, Galeana-Mendoza conceded removability but sought cancellation of removal pursuant to § 1229b(b).

After Galeana-Mendoza's October 2000 conviction, the INS filed an additional charge of deportability against Galeana-Mendoza. This charge alleged that Galeana-Mendoza is an alien who has been convicted of a "crime involving moral turpitude" under § 1182(a)(2)(A)(i)(I). In support of that allegation the charge relied upon Galeana-Mendoza's two convictions for violation of California Penal Code section 243(e). Galeana-Mendoza admitted the convictions and conceded removability under § 1182(a)(6)(A)(i), but contested his removability under § 1182(a)(2)(A)(i)(I) and sought cancellation of removal pursuant to § 1229b(b) and voluntary departure under § 1229c(b).

After the hearing, the IJ issued an oral decision holding that Galeana-Mendoza was (1) removable as an alien present in the United States "without being admitted or paroled," pursuant to § 1182(a)(6)(A)(i), as Galeana-Mendoza conceded he was; (2) removable as an alien who has been convicted of two "crime[s] involving moral turpitude," pursuant to § 1182(a)(2)(A)(i)(I); and (3) not eligible for cancellation of removal pursuant to § 1229b(b) because (a) he could not establish ten years of continuous presence in the United States immediately preceding the date of the service of his notice to appear, July 30, 1999, as the convictions for crimes involving moral turpitude cut off accrual of the requisite ten year period, see § 1229b(b)(1)(A), (d)(1); (b) he was not a person of "good moral character," see §§ 1101(f)(3) & 1229b(b)(1)(B); and (c) he had been convicted of an offense "involving a crime of moral turpitude," see §§ 1182(a)(2)(A) & 1229b(b)(1)(C).⁴ Finally, given his convictions, the IJ found Galeana-Mendoza ineligible for voluntary departure because he could not establish a five-year period of good moral character immediately preceding his application for voluntary departure. See §§ 1101(f)(3) & 1229c(b)(1)(B).

The BIA affirmed the IJ in a streamlined, summary decision. See 8 C.F.R. § 1003.1(e)(4)(ii). Galeana-Mendoza now timely petitions for review of that decision. He maintains that his convictions for violation of California Penal Code section 243(e) do not qualify as "crime[s] involving moral turpitude" within the meaning of § 1182(a)(2)(A)(i)(I), and that those convictions therefore do not render him ineligible for cancellation of removal.⁵

II.

Our jurisdiction to review BIA removal orders is limited by § 1252. Section 1252(a)(2)(C) states:

except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) . . ., or any offense covered by section 1227(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i).

Section 1252(a)(2)(D) provides, in turn, that "[n]othing in subparagraph . . . (C) . . . shall be construed as precluding review of . . . questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section."⁶ Whether a conviction under California Penal Code section 243(e) qualifies as a crime involving moral turpitude is a question of law excepted from the jurisdiction-stripping provisions of § 1252(a)(2)(C). See Notash v. Gonzales, 427 F.3d 693, 696 (9th Cir.2005). We therefore have jurisdiction to decide the question.

Because the BIA streamlined this case, we review the IJ's oral decision as the final agency action. Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003). We review "the question of whether a state statutory crime constitutes a crime involving moral turpitude" de novo. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005).

III.

An inadmissible or deportable alien is eligible for cancellation of removal if the alien:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title . . .; and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

§ 1229b(b)(1). An alien cannot establish good moral character as required by § 1229b(b)(1)(B) if he has, among other things, been convicted of a "crime involving moral turpitude," § 1182(a)(2)(A)(i)(I); see § 1101(f)(3);⁷ section 1229b(b) (1)(C) likewise renders an alien ineligible for cancellation of removal if he has been convicted of such a crime. See §§ 1182(a)(2)(A)(i)(I) & 1227(2)(A)(ii).⁸ The upshot of these statutory cross-references is that if Galeana-Mendoza's convictions qualify as crimes involving moral turpitude, he is ineligible for the relief he seeks.

We determine whether a conviction qualifies as one involving moral turpitude by applying the categorical and modified categorical approaches, first enunciated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Cuevas-Gaspar, 430 F.3d at 1017. Under the categorical approach, we look "only to the fact of conviction and the statutory definition of the prior offense," and determine whether "the full range of conduct proscribed by the statute constitutes a crime of moral turpitude." Cuevas-Gaspar, 430 F.3d at 1017 (internal quotation marks omitted). If it does not, we apply the modified categorical approach, under which we may "`look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings,'" id. at 1020 (quoting Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004)), to determine whether Galeana-Mendoza was in fact convicted of an offense that qualifies as a crime involving moral turpitude, see id.; see also Notash, 427 F.3d at 696-97 (delineating modified categorical approach). "We do not, however, `look beyond the record of conviction itself to the particular facts underlying the conviction.'" Cuevas-Gaspar, 430 F.3d at 1020 (quoting Tokatly, 371 F.3d at 620).

A.

We have generally divided crimes involving moral turpitude into two basic types: "those involving fraud and those involving grave acts of baseness or depravity." Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 346, 163 L.Ed.2d 57 (Oct. 3, 2005); see also Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994).⁹ California Penal Code section 243(e) does not touch on fraudulent activity and therefore can qualify as a crime involving moral turpitude only if it involves "grave acts of baseness or depravity."...