Menendez v. Whitaker

Decision Date08 November 2018
Docket Number No. 16-70365,No. 14-72730,14-72730
Citation908 F.3d 467
Parties Elisa de Jesus MENENDEZ, Petitioner, v. Matthew WHITAKER, Acting Attorney General, Respondent. Hector Martin Rodriguez-Castellon, Petitioner, v. Matthew Whitaker, Acting Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Sarah V. Perez (argued), Law Offices of Sarah V. Day, Los Angeles, California, for Petitioner.

Colin J. Tucker (argued) and Jane T. Schaffner, Trial Attorneys; Papu Sandhu, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency Nos. AXXX-XX4-042, AXXX-XX5-035

Before: William A. Fletcher, Consuelo M. Callahan, and John B. Owens, Circuit Judges.

Concurrence by Judge Callahan

W. FLETCHER, Circuit Judge:

We deal with two separate petitions for review. Petitioners Elisa de Jesus Menendez and Hector Rodriguez-Castellon are both subject to removal for their respective convictions under Cal. Penal Code § 288(c)(1). In Menendez’s case, No. 14-72730, the BIA determined that § 288(c)(1) is categorically a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Because the commission of such a crime stops the accrual of continuous residence, the BIA held that Menendez failed to accrue the seven years of residence required for cancellation of removal. In Rodriguez’s case, No. 16-70365, the BIA determined that Cal. Penal Code § 288(c)(1) is categorically a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i). On that basis, the BIA denied sua sponte reopening of the case.

We hold that § 288(c)(1) is neither categorically a crime involving moral turpitude nor categorically a "crime of child abuse." We grant Menendez’s and Rodriguez’s petitions for review. We remand both cases to the BIA for further proceedings consistent with this opinion.

I. Background
A. Menendez

Elisa de Jesus Menendez is a native and citizen of El Salvador. She entered the United States without inspection at an unspecified time and place. After entering, she remained in the United States, married, and had three children. On August 17, 2004, Menendez successfully adjusted her status to lawful permanent resident pursuant to the Nicaraguan Adjustment and Central American Relief Act of 1997.

On February 23, 2010, Menendez was convicted of committing a "lewd or lascivious act" in violation of § 288(c)(1) of the California Penal Code. Section 288(c)(1) prohibits the commission of such an act when "the victim is a child of 14 or 15 years, and [the defendant] is at least 10 years older than the child." A conviction under § 288(c)(1) is punishable by imprisonment in state prison for one to three years, or "imprisonment in a county jail for not more than one year." Cal. Penal Code § 288(c)(1). Menendez entered a nolo contendere plea and was sentenced to 180 days in county jail and five years of probation.

In October 2013, the Department of Homeland Security initiated removal proceedings by filing a Notice to Appear ("NTA"). The NTA charged Menendez with removability under 8 U.S.C. § 1227(a)(2)(E)(i), which makes removable any noncitizen convicted of, among other crimes, a "crime of child abuse." Menendez admitted the charge through counsel, but argued that she was eligible for cancellation of removal under 8 U.S.C. § 1229b(a).

The Immigration Judge ("IJ") found Menendez ineligible for cancellation of removal. For lawful permanent residents, eligibility for cancellation of removal requires a person to have established seven years of continuous residence in the United States "after [admission] in any status." 8 U.S.C. § 1229b(a)(2). Under the stop-time rule, the commission of a disqualifying offense, including any crime involving moral turpitude, cuts off the accrual of continuous residence. Id. § 1229b(d)(1) (incorporating 8 U.S.C. § 1182(a)(2) ). The IJ held that Menendez’s conviction under Cal. Penal Code § 288(c)(1) was categorically for a crime involving moral turpitude, and that the stop-time rule therefore applied. Menendez was admitted into the United States on August 17, 2004. The felony complaint charged her with violating § 288(c)(1)"on or about" October 14, 2009, resulting in not quite five years and two months of continuous residence.

The IJ denied cancellation of removal and voluntary departure, and ordered Menendez removed to El Salvador. The BIA affirmed the Immigration Judge on all grounds and dismissed Menendez’s appeal.

B. Rodriguez-Castellon

Hector Rodriguez-Castellon is a native and citizen of Mexico. He was admitted to the United States as a lawful permanent resident on June 16, 1975.

On June 2, 2009, the Department of Homeland Security initiated removal proceedings by serving Rodriguez with an NTA. The NTA charged that on June 7, 2005, Rodriguez entered a nolo contendere plea for a violation of Cal. Penal. Code. § 288(c)(1). An amended NTA brought three charges of removal against Rodriguez: (1) removal due to his alleged status as an aggravated felon, under a statutory subsection defining "aggravated felony" as including "sexual abuse of a minor," 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii) ; (2) removal under a different aggravated felony subsection that applies to noncitizens convicted of a "crime of violence," id. § 1101(a)(43)(F) ; and (3) removal under § 1227(a)(2)(E)(i), which applies to noncitizens convicted of a "crime of child abuse." The IJ sustained all three charges and ordered Rodriguez removed to Mexico.

On appeal, the BIA rejected the IJ’s determination that Cal. Penal Code § 288(c)(1) constitutes sexual abuse of a minor, citing this court’s decision in United States v. Castro , 607 F.3d 566 (9th Cir. 2010). The BIA, however, upheld the IJ’s ruling on an alternative ground, holding that § 288(c)(1) categorically constitutes a crime of violence. It noted that the statutory definition for "crime of violence," 8 U.S.C. § 1101(a)(43)(F), cross-references 18 U.S.C. § 16(b), which in turn, defines the term as including felony offenses that "by [their] nature, involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The BIA reasoned that the age differential required by § 288(c)(1) creates a risk that physical force would be used and that Rodriguez was therefore removable as an aggravated felon. The BIA did not reach the question whether Rodriguez was also removable under 8 U.S.C. § 1227(a)(2)(E)(i) (noncitizen convicted of child abuse).

In October 2013, we denied Rodriguez’s petition for review in a published opinion, holding that a conviction under § 288(c)(1) is categorically a crime of violence because it "raises a substantial risk of the use of force in the ordinary case." Rodriguez-Castellon v. Holder , 733 F.3d 847, 860 (9th Cir. 2013). Two years later, in Dimaya v. Lynch , 803 F.3d 1110, 1120 (9th Cir. 2015), we held that 18 U.S.C. § 16(b) is unconstitutionally vague. The Supreme Court affirmed that decision in Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 1216, 200 L.Ed.2d 549 (2018). In November 2015, in light of our decision in Dimaya , Rodriguez filed a motion to reconsider his removal proceedings. He argued that the BIA’s order of removal was premised on its conclusion that § 288(c)(1) was categorically a crime of violence under § 16(b), and that because Dimaya had held § 16(b) void for vagueness the conclusion could not stand.

The BIA denied Rodriguez’s motion. It acknowledged that Rodriguez’s motion was untimely, but noted that "a fundamental change in law may warrant sua sponte reopening notwithstanding otherwise applicable time and number limitations on motions." The BIA declined to exercise its sua sponte authority to reopen after holding that Rodriguez was removable under § 1227(a)(2)(E)(i) as a noncitizen convicted of a crime of child abuse, even if he was no longer removable as an aggravated felon.

II. Jurisdiction and Standard of Review

We generally lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings. Ekimian v. INS , 303 F.3d 1153, 1159–60 (9th Cir. 2002). However, we have jurisdiction to review the reasoning behind the BIA’s sua sponte denial of reopening "for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error." Bonilla v. Lynch , 840 F.3d 575, 588 (9th Cir. 2016). If the BIA "relied on an incorrect legal premise," we "remand to the BIA so it may exercise its authority against the correct legal background." Id. (internal quotation marks omitted).

We review de novo whether a state conviction is a removable offense, "except to the extent that deference is owed to the BIA’s interpretation of the statutes and regulations it is charged with administering." Fregozo v. Holder , 576 F.3d 1030, 1034 (9th Cir. 2009). "As the BIA has no statutory expertise in ... state law matters, we review de novo its determination of the elements of the offense for which the petitioner was convicted." Id. at 1034.

III. Discussion

To determine whether a state statute describes a removable offense, we apply the categorical approach set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Marmolejo-Campos v. Holder , 558 F.3d 903, 912 (9th Cir. 2009) (en banc). The first step is to identify the elements of the state statute of conviction—here, Cal. Penal Code § 288(c)(1). Castrijon-Garcia v. Holder , 704 F.3d 1205, 1208 (9th Cir. 2013). The second step is to compare those elements to the elements of the generic federal crime. Id. We address these steps in turn.

A. Section 288(c)(1)

Menendez and Rodriguez-Castellon were both convicted of lewd or lascivious conduct in violation of Cal. Penal Code § 288(c)(1). Section 288(a), referenced in (...

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    ...... Martinez-Cedillo 's holding that the BIA's. decision in Soram is entitled to Chevron . deference. Menendez v. Whitaker , 908 F.3d 467, 474. (9th Cir. 2018); Alvarez-Cerriteno v. Sessions , 899. F.3d 774, 781 (9th Cir. 2018). Those decisions ......
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