Mendoza v. Holder Jr

• Decision Date: 27 October 2010
• Docket Number: No. 06-72865.,06-72865.
• Parties: Luis Enrique MENDOZA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

623 F.3d 1299

Luis Enrique MENDOZA, Petitioner,

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

No. 06-72865.

United States Court of Appeals,Ninth Circuit.

Submitted Oct. 5, 2010. ^*

Filed Oct. 27, 2010.

John M. Pope, Stender and Pope, P.C., Phoenix, AZ, for the petitioner.

Joseph D. Hardy, 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. A076-612-890.

Before: PAMELA ANN RYMER and N. RANDY SMITH, Circuit Judges, and RONALD B. LEIGHTON, District Judge. ^**

OPINION

N.R. SMITH, Circuit Judge:

Robbery under California Penal Code section 211 is a crime involving moral turpitude (CIMT) for the purposes of Immigration and Nationality Act (INA) § 212(a)(2)(A)(i)(I). Therefore, the robbery conviction of Luis Enrique Mendoza, a native and citizen of Mexico, renders him inadmissible and ineligible for adjustment of status. We must then deny the petition for review.

Facts and Procedural History

Mendoza entered the United States without inspection on or about December 2, 1983. On April 5, 2005, he was convicted of robbery under California Penal Code section 211 in the Superior Court of California and sentenced to 365 days imprisonment. Based on this conviction, the Department of Homeland Security issued a Notice to Appear (NTA) on October 3, 2005. The NTA charged that Mendoza was subject to removal because (1) Mendoza was present in the United States without being admitted or paroled (INA § 212(a)(6)(A)(i)), and (2) he had been convicted of a CIMT ¹ (INA § 212(a)(2)(A)(i)(I)). ²

At the master calendar hearing on November 28, 2005, the immigration judge (IJ) determined that Mendoza had been convicted of a CIMT (as charged in the NTA) when he was convicted for robbery in 2005, because robbery was both a crime of theft and a crime of violence. He also determined that Mendoza was present in the United States without being admitted. After receiving Mendoza's application for adjustment of status, he then set an individual hearing to address whether Mendoza qualified for a waiver of inadmissibility under 8 U.S.C. § 1182(h) (“212(h) waiver”). ³

At the individual hearing on February 8, 2006, the IJ again found that Mendoza was removable under both 8 U.S.C. § 1182(a)(6)(A)(i) (present without admission) and 8 U.S.C. § 1182(a)(2)(A)(i)(I) (having been convicted of a CIMT). He also determined that robbery was both a crime of violence and an aggravated felony, making Mendoza ineligible for most forms of relief. Regarding the 212(h) waiver, the IJ found that Mendoza had not shown that his removal would result in extreme hardship to his parents. Further, even if Mendoza had shown such hardship, the IJ determined that Mendoza did not warrant a favorable exercise of discretion in light of Mendoza's criminal record. Lastly, the IJ denied (1) the motion to terminate proceedings, (2) the 212(h) waiver, (3) adjustment of status, and (4) voluntary departure. Mendoza was then ordered removed to Mexico based on the allegations in the NTA.

Mendoza timely appealed to the Board of Immigration Appeals (BIA). The BIA found “no error in the Immigration Judge's conclusion that the respondent is removable for commission of a crime involving moral turpitude.” The BIA incorrectly stated that Mendoza argued that “his conviction for burglary does not constitute a [CIMT].” The BIA cited De la Cruz v. INS, 951 F.2d 226, 228 (9th Cir.1991) (which mentions that burglary is a CIMT) and Matter of De La Nues, 18 I. & N. Dec. 140, 145 (BIA 1981) (“Burglary and theft or larceny, whether grand or petty, are crimes involving moral turpitude.”) to uphold the IJ's determination that Mendoza was removable for a conviction for a CIMT. ⁴ The BIA did not specifically address the IJ's denial of Mendoza's 212(h) waiver, stating only that Mendoza “d[ id] not meaningfully identify any error in the Immigration Judge's conclusion that the respondent is ineligible for relief from removal and any such arguments have been waived.”

Mendoza petitions for review of the BIA's determination that he was convicted of a CIMT and therefore was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I). He also petitions for review of the IJ's discretionary denial of a 212(h) waiver that would allow him to adjust status.

Jurisdiction

8 U.S.C. § 1252(a)(2)(C) generally precludes judicial review of orders against aliens removable on the criminal grounds enumerated in 8 U.S.C. § 1182(a)(2). However, we may review “constitutional claims [and] questions of law.” 8 U.S.C. § 1252(a)(2)(D). Whether a crime involves moral turpitude is such a question of law. Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir.2007) (en banc). In this appeal, we therefore review only “whether [Mendoza] is an alien who has committed an act that constitutes the essential elements of a crime involving moral turpitude.” Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir.2007). We lack jurisdiction to review the IJ's exercise of discretion in denying the 212(h) waiver ⁵ and summarily deny Mendoza's petition as to that issue. 8 U.S.C. § 1252(a)(2)(B)(i).

Standard of Review

We review the BIA's interpretation of the conduct proscribed by a state statutory crime de novo. Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc), cert. denied, --- U.S. ----, 130 S.Ct. 1011, 175 L.Ed.2d 620 (2009). However, the court applies Chevron deference to the BIA's precedential determination that the specified conduct constitutes a CIMT. Id. at 908-11.

Analysis

This court has not previously decided whether robbery under California Penal Code section 211 is a CIMT, although both this court and petitioners have previously assumed that it is. See, e.g., Wood v. Hoy, 266 F.2d 825, 826 (9th Cir.1959) (challenging only whether the two robbery counts under section 211 arose from a single scheme); Aguilar-Ramos v. Holder, 594 F.3d 701, 703 (9th Cir.2010) (not disputing second degree robbery is a CIMT); Delgadillo v. Carmichael, 332 U.S. 388, 389-90, 68 S.Ct. 10, 92 L.Ed. 17 (1947) (not disputing that a California robbery conviction is a CIMT). We therefore directly address this issue for the first time.

A CIMT is not defined in immigration law. We have previously held that “crimes are deemed to be offenses of moral turpitude if they are base, vile, or depraved-if they offend society's most fundamental values, or shock society's conscience.” Navarro-Lopez, 503 F.3d at 1074 (Reinhardt, J., concurring for the majority). Therefore, in general, such offenses are those that are intrinsically wrong ( malum in se ) or require evil intent. See Uppal v. Holder, 605 F.3d 712, 716 n. 2 (9th Cir.2010). In addition, “a crime in which fraud is an ingredient involves moral turpitude.” Jordan v. De George, 341 U.S. 223, 227, 71 S.Ct. 703, 95 L.Ed. 886 (1951).

“To determine whether a specific crime [qualifies as a crime involving moral turpitude], 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).” Cuevas-Gaspar, 430 F.3d at 1017. “Under the categorical approach, we ask whether the full range of conduct encompassed by the criminal statute constitutes a crime of moral turpitude.” Morales, 478 F.3d at 978 (internal quotation marks, alteration, and citation omitted). Because 8 U.S.C. § 1182(a)(2)(A)(i)(I) does not specifically define moral turpitude and does not specify rules for determining whether a crime involves moral turpitude, ⁶ we determine whether a state crime involves moral turpitude by comparing it with crimes that have previously been found to involve moral turpitude.

Nunez v. Holder, 594 F.3d 1124, 1131 & n. 4 (9th Cir.2010). This involves comparing the elements of the state crime with the elements of crimes already determined to involve moral turpitude. ⁷ See Cuevas-Gaspar, 430 F.3d at 1018-19 (comparing Washington burglary statute requiring proof of “intent to commit any crime” with BIA determination that burglary is only a CIMT “if accompanied by the intent to commit a morally turpitudinous act after entry.”). “[I]n determining the categorical reach of a state crime, we consider not only the language of the state statute, but also the interpretation of that language in judicial opinions.” Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir.2006). If the statute proscribes only conduct that involves moral turpitude, we do not proceed to the modified categorical approach. See Marmolejo-Campos, 558 F.3d at 912. Generally, “once the conduct proscribed by the petitioner's statute of conviction is identified (e.g., fraud), the question whether such conduct involves ‘moral turpitude’ is not in doubt and thus merits little or no analysis from the court.” Id. at 908 n. 7.

Also, because Congress's intent is not clear regarding the definition of moral turpitude, we apply Chevron deference to the BIA's precedential case-by-case adjudications determining which crimes involve moral turpitude. Id. at 908-09. The BIA's interpretation is entitled to deference so long as it is “a permissible construction of the statute.” Id. at 909 (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). See also Chevron, 467 U.S. at 845, 104 S.Ct. 2778 (The question is whether the agency's view “is a reasonable one.”)

California defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Cal.Penal Code § 211. The BIA has already specifically determined that robbery under section 211 is a crime involving moral turpitude. Matter of G-R-, 2 I. & N. Dec. 733, 734 (BIA 1946); Matter of Kim, 17 I. & N. Dec. 144, 145 (BIA 1979). Therefore, under the categorical approach, because the specific crime has already been determined to be a CIMT, we can...