Gomez-Gutierrez v. Lynch

• Decision Date: 29 January 2016
• Docket Number: Nos. 14–3374,14–3734.,s. 14–3374
• Citation: 811 F.3d 1053
• Parties: Jose Refugio GOMEZ–GUTIERREZ, Petitioner v. Loretta E. LYNCH, Attorney General of the United States, Respondent. Jose Refugio Gomez–Gutierrez, Petitioner v. Loretta E. Lynch, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

811 F.3d 1053

Jose Refugio GOMEZ–GUTIERREZ, Petitioner

v.Loretta E. LYNCH, Attorney General of the United States, Respondent.

Jose Refugio Gomez–Gutierrez, Petitioner

v.Loretta E. Lynch, Attorney General of the United States, Respondent.

Nos. 14–3374

14–3734.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 22, 2015.

Filed: Jan. 29, 2016.

Julia Lee Decker, argued, Meghan Elizabeth Heesch, on the brief, Minneapolis, MN, for Petitioner.

Nicole N. Murley, argued and on the brief, Washington, DC, for Respondent.

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.

RILEY, Chief Judge.

In these consolidated petitions for review, Jose Refugio Gomez–Gutierrez, a native and citizen of Mexico who obtained lawful permanent resident status in the United States as a child, seeks review of two decisions of the Board of Immigration Appeals (Board). The first affirmed the decision of an immigration judge (IJ) finding Gomez–Gutierrez removable as an alien convicted of two separate crimes involving moral turpitude under § 237(a)(2)(A)(ii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(ii). The second denied his "Motion to Reconsider or Reopen Notwithstanding his Removal from the United States." We deny the consolidated petitions for review.

I. BACKGROUND

Gomez–Gutierrez was admitted to the United States in 1968 at age five; he was the son of a lawful permanent resident. On October 22, 2013, the United States Department of Homeland Security (DHS) initiated removal proceedings against Gomez–Gutierrez as a deportable alien convicted of two separate crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii). The government ultimately charged Gomez–Gutierrez with removability based on a 1983 California marijuana conviction and a 2006 Minnesota solicitation of prostitution conviction. Gomez–Gutierrez only challenges the use of the solicitation conviction.

On September 27, 2006, Gomez–Gutierrez was convicted of soliciting prostitution in violation of Minn.Stat. § 609.324, subd. 2 (2006), which, at the time, criminalized "solicit[ing] or accept[ing] a solicitation to engage for hire in sexual penetration or sexual contact while in a public place."¹ Gomez–Gutierrez pled guilty to solicitation in connection with his agreement to purchase oral sex from an undercover police officer posing as a prostitute. As part of the plea agreement, a Minnesota court stayed adjudication of Gomez–Gutierrez's case to enable him to enter a diversion program, which he successfully completed. On October 2, 2008, the court dismissed the solicitation charge.

On March 13, 2014, Gomez–Gutierrez moved to terminate removal proceedings, arguing (1) he did not have a solicitation "conviction" as defined in 8 U.S.C. § 1101(a)(48)(A) ; and (2) solicitation under Minn.Stat. § 609.324, subd. 2, was not categorically a crime involving moral turpitude. On April 10, 2014, the IJ found Gomez–Gutierrez was removable as charged. With respect to solicitation, the IJ concluded the plea transcript established Gomez–Gutierrez was convicted for purposes of § 1101(a)(48)(A) despite the state-court stay and subsequent dismissal. The IJ further ruled the Minnesota solicitation statute satisfied the mens rea requirement for a crime involving moral turpitude and solicitation was categorically such a crime because "there [wa]s not a realistic probability that the offense would be used to reach non-turpiduous [sic] conduct."²

Gomez–Gutierrez appealed the IJ's decision to the Board. He again argued solicitation under Minnesota law was not categorically a crime involving moral turpitude, providing examples he contended showed a realistic probability Minnesota courts applied the solicitation statute to conduct that did not involve moral turpitude. The Board upheld the IJ's decision. DHS removed Gomez–Gutierrez to Mexico on September 30, 2014.³

Gomez–Gutierrez timely petitioned this court to review the dismissal and concurrently filed a "Motion to Reconsider or Reopen Notwithstanding his Removal from the United States" with the Board. See 8 U.S.C. § 1229a(c)(6), (7) ; 8 C.F.R. § 1003.2(b)(1), (c)(1). We granted Gomez–Gutierrez's motion for a stay pending a decision by the Board.

Arguing his motion before the Board, Gomez–Gutierrez complained the Board failed to consider the case examples Gomez–Gutierrez believed showed Minnesota courts applying the solicitation statute to conduct lacking moral turpitude. Gomez–Gutierrez also submitted five news articles he argued demonstrated sufficient categorical overbreadth to warrant reopening his case.

On November 28, 2014, the Board denied Gomez–Gutierrez relief, concluding he raised "the same or similar [unpersuasive] arguments" as on appeal. The Board also faulted Gomez–Gutierrez for "attempting to raise new arguments related to his solicitation conviction." Gomez–Gutierrez timely petitioned for review of the Board's denial. We consolidated the petitions for review under 8 U.S.C. § 1252(b)(6).

II. DISCUSSION

A. Moral Turpitude

An alien convicted of "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct" is removable under 8 U.S.C. § 1227(a)(2)(A)(ii). Gomez–Gutierrez argues the Board erred in concluding his solicitation conviction qualified as a crime involving moral turpitude. Although we generally lack "jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense ... covered by section 1227(a)(2)(A)(ii)," we have jurisdiction to "review ... constitutional claims or questions of law" raised in Gomez–Gutierrez's petitions for review. 8 U.S.C. § 1252(a)(2)(C), (D).

Whether Gomez–Gutierrez's solicitation conviction qualifies as a crime involving moral turpitude is a legal question, subject to de novo review. See Lateef v. DHS, 592 F.3d 926, 929 (8th Cir.2010). In analyzing that question, we afford substantial deference to the Board's interpretation of ambiguous statutory language in the INA and will uphold its construction if it is reasonable. Id.

"When the Government alleges that a state conviction qualifies as" a crime involving moral turpitude under § 1227(a)(2)(A)(ii), "we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to" the listed federal offense. Moncrieffe v. Holder, 569 U.S. ––––, ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). "[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense ‘necessarily involved facts equating to [the] generic [federal offense].’ " Id. (second and third alterations in original) (quoting Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion)).

"An alien's actual conduct is irrelevant to the inquiry, as the adjudicator must ‘presume that the conviction rested upon nothing more than the least of the acts criminalized’ under the state statute." Mellouli v. Lynch, 575 U.S. ––––, ––––, 135 S.Ct. 1980, 1986, 192 L.Ed.2d 60 (2015) (quoting Moncrieffe, 569 U.S. at ––––, 133 S.Ct. at 1684 ). But "our focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; 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.’ " Moncrieffe, 569 U.S. at ––––, 133 S.Ct. at 1684–85 (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ).

"Congress has not defined the phrase ‘crime involving moral turpitude.’ " Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir.2004). In the absence of a statutory definition, the Board has defined the phrase as follows:

"Moral turpitude refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude."

Id. at 811–12 (quoting In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (per curiam)). "[A]n offense must have two essential elements to constitute a crime involving moral turpitude: a culpable mental state and reprehensible conduct." In re Medina, 26 I. & N. Dec. 79, 82 (BIA 2013). The Board "has long viewed prostitution-related crimes as morally turpitudinous." Florentino–Francisco v. Lynch, 611 Fed.Appx. 936, 938 (10th Cir.2015) (non-precedential decision) (listing cases).

Applying this well-established definition, the Board upheld the IJ's determination that solicitation of prostitution under § 609.324, subd. 2, "categorically constitute[d] a crime involving moral turpitude." The Board rejected Gomez–Gutierrez's argument that the statute lacked "the requisite element of scienter" because the Board concluded "the word ‘solicit’ in the statute implies an intentional act." The Board further reasoned, "even if an unintentional solicitation could be imagined, as the Immigration Judge held, a moral turpitude determination is not based on ‘theoretical possibilities.’ "

Gomez–Gutierrez challenges the Board's decision, arguing solicitation is not categorically a crime involving moral turpitude because "the least culpable conduct in solicitation of prostitution at the time of [his] conviction does not involve moral turpitude." In Gomez–Gutierrez's view, "there is a realistic probability that Minnesota applied its solicitation statute to cases that lacked the necessary degree of scienter or reprehensible conduct." We are not convinced.

Gomez–Gutierrez relies on State v. Burkland, 775 N.W.2d 372, 376 (Minn.Ct.App.2009), to show "the minimum conduct prosecuted under Minn.Stat. § 609.324, subd. 2, ... does not involve moral...