Latter–Singh v. Holder 

• Decision Date: 17 February 2012
• Docket Number: No. 08–71277.,08–71277.
• Citation: 12 Cal. Daily Op. Serv. 2011,668 F.3d 1156,2012 Daily Journal D.A.R. 2210
• Parties: Lakhwinder LATTER–SINGH, AKA Lakhwinder Latter–Latter, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 2011

2012 Daily Journal D.A.R. 2210

668 F.3d 1156

Lakhwinder LATTER–SINGH, AKA Lakhwinder Latter–Latter, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 08–71277.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 2, 2011.Filed Feb. 17, 2012.

James Todd Bennett, El Cerrito, CA, for the petitioner.

Puneet Cheema and Mona Maria Yousif, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072–141–045.Before: MARSHA S. BERZON and JAY S. BYBEE, Circuit Judges, and THOMAS J. WHELAN, Senior District Judge.^*

OPINION

BYBEE, Circuit Judge:

Petitioner Lakhwinder Latter–Singh (“Singh”), a native and citizen of India, petitions for review of the Board of Immigration Appeals's (“BIA”) order dismissing his appeal. Singh claims that the BIA wrongly determined that a violation of California Penal Code § 422 constitutes a crime involving moral turpitude (or “CIMT”), thus rendering him removable. Although we previously determined that a violation of § 422 is an aggravated felony, see Rosales–Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir.2003), we have not yet decided whether § 422 is categorically a crime involving moral turpitude. We do so now and answer the question in the affirmative. We also address and reject Singh's other claimed errors.

I

Singh entered the United States illegally in January 1993 and received a grant of asylum in September of that year. Singh never obtained legal permanent residency in the United States.

Singh came to the attention of asylum officers after he was convicted for making threats “with intent to terrorize” in violation of California Penal Code § 422. In March 2004, the Department of Homeland Security (“DHS”) commenced removal proceedings against Singh by serving him with a Notice to Appear (“NTA”). The NTA alleged, among other things, that Singh was subject to removal from the United States pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude.

Singh sought relief from removal by: (1) submitting a new application for asylum; (2) applying for withholding of removal and relief under the Convention Against Torture (“CAT”); and (3) seeking to adjust his status under § 209(b) of the INA in conjunction with a waiver of inadmissibility under § 209(c), 8 U.S.C. § 1159(b)–(c). In 2007, after fourteen days of hearings and testimony, the immigration judge (“IJ”) denied Singh's application for adjustment of status and a § 209(c) waiver, as well as Singh's application for asylum, withholding of removal, and relief under CAT, and ordered Singh removed to India.

The BIA affirmed the IJ's order and determined that Singh's conviction under § 422 rendered him removable, because § 422 categorically constitutes a crime involving moral turpitude. To reach this conclusion, the BIA relied on Rosales–Rosales, 347 F.3d at 717, where we determined that the full range of conduct embraced by § 422 constitutes an aggravated felony because the statute necessarily requires a showing of willful violence. The BIA also noted that § 422 specifically requires willfulness of conduct to implicate criminal liability. The BIA therefore denied Singh his requested relief.

A petition for this court's review followed.

II

Although 8 U.S.C. § 1252(a)(2)(C) generally precludes judicial review of orders against aliens removable on criminal grounds, we have jurisdiction to review both “constitutional claims [and] questions of law” arising from removal orders. 8 U.S.C. § 1252(a)(2)(D). “Whether a crime involves moral turpitude is such a question of law.” Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir.2010). We therefore have jurisdiction to resolve the moral turpitude question, and we conduct our review de novo. See Galeana–Mendoza v. Gonzales, 465 F.3d 1054, 1057 (9th Cir.2006).

III

To determine whether a crime is categorically one of moral turpitude, we examine “whether the full range of conduct encompassed by the criminal statute constitutes a crime of moral turpitude.” See Mendoza, 623 F.3d at 1302. If the full range of conduct under the statute fits the definition of a crime involving moral turpitude, then any conviction under the statute can subject an alien to removability. As we explained in Marmolejo–Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc), a two-step inquiry applies to a determination of the proper weight to give the BIA's conclusion that a particular crime is (or is not) a crime involving moral turpitude. First, after the BIA determines the offense the petitioner has been convicted of, the BIA must interpret the applicable state statute to ascertain the elements of the offense. Id. Because the BIA has no special expertise in the interpretation of state criminal statutes, we review this determination de novo. See id.

Second, once the BIA has identified the relevant offense elements, it must determine whether the offense constitutes a crime involving moral turpitude as defined by the INA. Id. at 907. To do so, the BIA should assess “the character, gravity, and moral significance of the conduct.” Id. at 910. We have recognized the BIA's special role in interpreting the INA, and as a result, we will afford deference to the BIA's conclusion regarding whether the statute under which Singh was convicted categorically criminalizes turpitudinous conduct. Id. at 908.

The level of deference in turn depends on the character of the BIA's opinion. If the BIA issues or relies on a precedential determination to conclude that a particular crime is a crime involving moral turpitude, we accord it Chevron deference, see Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); otherwise, we defer to the BIA's determination only to the extent that it has the power to persuade (i.e. Skidmore deference), see Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See Marmolejo–Campos, 558 F.3d at 909; see also Saavedra–Figueroa v. Holder, 625 F.3d 621, 625 (9th Cir.2010). The decision here falls into the latter category, so we apply Skidmore deference to the second part of the moral turpitude analysis. Our deference will depend on “the thoroughness evident in [the BIA's] consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161.

A

We begin by identifying the elements of Singh's crime of conviction. Singh was convicted under California Penal Code § 422, which provides, in relevant part:

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

Cal. Penal Code § 422.

As California courts have explained, the elements of the completed crime under § 422 are: (1) willfully threatening to commit a crime that will result in death or great bodily injury to another person; (2) specific intent that the statement be taken as a threat; (3) the threat was “on its face and under the circumstances so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat”; (4) the threat “caused the victim to be in sustained fear for his or her own safety or for his or her immediate family's safety”; and (5) the “victim's fear was reasonable under the circumstances.” People v. Jackson, 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539, 543 (2009).

Although the BIA's analysis is terse and exhibits “less than ideal clarity,” we can uphold its decision “if the agency's path may be reasonably discerned.” Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 285–86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). Here, the BIA properly identified and interpreted § 422 and its analysis is accorded some deference. The BIA correctly observed that § 422 requires “willful” conduct, and, based on that determination, and on this court's holding that a violation of § 422 categorically constitutes a crime of violence, the BIA held that § 422 “requires sufficient mens rea.” ¹ There was no error in the BIA's identification of the elements of the California crime.

B

Having identified the elements of Singh's conviction, we next compare these elements with the definition of a crime involving moral turpitude to determine whether they satisfy that definition. See Uppal v. Holder, 605 F.3d 712, 714 (9th Cir.2010). Although the immigration statutes do not specifically define offenses constituting crimes involving moral turpitude, a crime involving moral turpitude is generally a crime that “(1) is vile, base, or depraved and (2) violates accepted moral standards.” Saavedra–Figueroa, 625 F.3d at 626. The BIA has emphasized that “evil or malicious intent is ... the essence of moral turpitude,” In re Flores, 17 I. & N. Dec. 225, 227 (BIA 1980), and, therefore, one test “to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.” In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999). We have upheld this emphasis on evil intent. See Mendoza, 623 F.3d at 1302.

Although we have held that criminal threats alone, without any attendant serious...