Navarro-Lopez v. Gonzales

• Decision Date: 31 July 2006
• Docket Number: No. 04-70345.,04-70345.
• Citation: 455 F.3d 1055
• Parties: Armando NAVARRO-LOPEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

455 F.3d 1055

Armando NAVARRO-LOPEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-70345.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2006.

Filed July 31, 2006.

James R. Patterson, Law Office of Lilia S. Velasquez, San Diego, CA, for the petitioner.

Saul Greenstein and Daniel E. Goldman, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A92-283-781.

Before: PREGERSON and LEAVY, Circuit Judges, and BEISTLINE,^* District Judge.

LEAVY, Circuit Judge:

Armando Navarro-Lopez petitions for review of a final order of removal, arguing that the Board of Immigration Appeals (BIA) erred in summarily affirming the immigration judge's (IJ) determination that Navarro-Lopez's conviction under California Penal Code § 32 for accessory after the fact was a conviction involving a crime of moral turpitude. Based on this conviction, the BIA concluded that Navarro-Lopez was inadmissible and ineligible for cancellation of removal. We have jurisdiction, and we deny the petition for review.

FACTS AND PRIOR PROCEEDINGS

Navarro-Lopez is a native and citizen of Mexico who entered the United States in June 1984. On August 9, 1999, Navarro-Lopez pleaded guilty to a violation of Cal.Penal Code § 32, accessory after the fact, and was sentenced to 270 days in jail and three years probation. In February 2001, Navarro-Lopez traveled to Tijuana, Mexico. When he tried to re-enter the United States, he was denied entry and detained. Thereafter the Immigration and Naturalization Service (INS) filed an amended Notice to Appear (NTA) charging that he was inadmissible because he did not have valid entry documents under 8 U.S.C. § 1182(7)(A)(i)(I) and for having been convicted of a crime involving moral turpitude under 8 U.S.C. § 1182(2)(A)(i)(I). At his merits hearing Navarro-Lopez conceded the charge of inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I), but argued that his Cal.Penal Code § 32 conviction did not constitute a crime involving moral turpitude. The IJ determined that Navarro-Lopez's conviction of violating Cal.Penal Code § 32 constituted a crime involving moral turpitude under 8 U.S.C. § 1182(2)(A)(i)(I):

It is a crime involving moral turpitude because a conviction under this provision does show conduct contrary to the duty owed to society in general. His conviction was in contradiction of the enforcement of a state law relating to a felony. Furthermore, it involves knowledge that the individual that the respondent is harboring or aiding has committed such a felony, given the fact that it involves the knowledge that the principle has committed the felony and the individual is taking conduct, whether that be harboring or aiding. Such assistance to one known to have committed a felony is clearly contrary to the accepted rules owed between members of society.

This court agrees with the Services [sic] contention that the Board of Immigration Appeals addressed a similar crime of harboring and concealing a person from arrest in violation of 18 U.S.C. Sec. 1071. Matter of Sloan, 12 I & N Dec. 840 (BIA 1966).

The IJ also denied Navarro-Lopez's application for cancellation of removal because, based on his conviction, he did not have the requisite good moral character under 8 U.S.C. § 1229b(b) and because he had been convicted of a crime involving moral turpitude under 8 U.S.C. § 1229b(b)(1)(c). The IJ ordered Navarro-Lopez removed to Mexico. Navarro-Lopez timely appealed to the BIA, which summarily affirmed on December 24, 2003. He then timely filed this petition for review on January 22, 2004.

JURISDICTION

We have jurisdiction to review the petition under 8 U.S.C. § 1252 as amended by § 106(a) of the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B., § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005). See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir.2005). While we have no jurisdiction to review "any final order of removal against an alien who is removable by reason of having committed a criminal offense," including a crime of moral turpitude, 8 U.S.C. §§ 1252(a)(2)(C), and 1227(a)(2)(A), we are not barred from hearing the constitutional claims or questions of law raised in Navarro-Lopez's petition. 8 U.S.C. § 1252(a)(2)(D). Whether Navarro-Lopez's conviction is a crime involving moral turpitude is a question of law. See Notash, 427 F.3d at 695-96.

We review de novo the question of whether a state statutory crime constitutes a crime involving moral turpitude. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005).

ANALYSIS

Navarro-Lopez asserts that the IJ erred when he determined that a conviction for the offense of accessory after the fact under Cal.Penal Code § 32 constituted a crime involving moral turpitude and asks that his petition be remanded to the BIA for a grant of cancellation of removal. To qualify for cancellation of removal an alien must demonstrate, inter alia, that he has not been convicted of a crime of moral turpitude and that he has maintained good moral character for the "10 years immediately preceding the date" of the application. 8 U.S.C. § 1229(b)(1)(C) & (A)-(B). Under 8 U.S.C. § 1101(f)(3) no person may be found to have good moral character who has been convicted of a crime listed in 8 U.S.C. § 1182(a), which includes a crime involving moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ did not rely on facts other than Navarro-Lopez's conviction when he determined that Navarro-Lopez lacked good moral character. Thus, Navarro-Lopez's eligibility for cancellation of removal turns on whether a conviction under Cal.Penal Code § 32 constitutes a crime involving moral turpitude.

To determine whether a conviction is for a crime involving moral turpitude, we apply the categorical and modified categorical approaches established by the Supreme Court 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. We begin with the categorical approach and compare the elements of the statute of conviction to the definition of a crime involving moral turpitude and decide whether the full range of conduct encompassed by the criminal statute constitutes a crime of moral turpitude. Id. In assessing whether a crime involved moral turpitude we consider the elements of the crime as set forth in the relevant statute, rather than the conduct of the alien that led to the conviction. Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994)(per curiam).

Cal.Penal Code § 32 (1999) provides:

Every person who, after a felony has been committed, harbors, conceals, or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.

The crime of being an accessory after the fact has the following essential elements: (1) someone other than the person charged as an accessory, that is to say, a principal, must have committed a specific completed felony; (2) the accused must have harbored, concealed or aided the principal (3) with knowledge that the principal committed a felony; and (4) further, the hiding, concealing or harboring must be with specific intent that the principal may escape from arrest and trial. People v. Prado, 67 Cal.App.3d 267, 136 Cal.Rptr. 521, 523 (Cal.Ct.App.1977).

Thus, a conviction under § 32 requires knowing and active interference with the enforcement of the law and specific intent to help someone avoid prosecution. Under California law, "[t]his crime necessarily involves moral turpitude since it requires that a party has a specific intent to impede justice with knowledge that his actions permit a fugitive of the law to remain at large." In re Young, 49 Cal.3d 257, 264, 261 Cal.Rptr. 59, 776 P.2d 1021, 1024(Cal.1989).

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.

Matter of Fualaau, 21 I. & N. Dec. 475, 1996 WL 413576 (BIA 1996) (internal citations omitted); see also Cuevas-Gaspar, 430 F.3d at 1018.

"Concealment of crime has been condemned throughout our history." Roberts v. United States, 445 U.S. 552, 557, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980). Applying this principle, the Eleventh Circuit in Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), held that the federal offense of misprision of a felony¹ constitutes a crime of moral turpitude: "We conclude that misprision of a felony is a crime of moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity." Id. at 1216; see also Padilla v. Gonzales, 397 F.3d 1016, 1020 (7th Cir.2005) (state obstruction of justice conviction constitutes crime of moral turpitude because of making false statements and concealing criminal activity).

Similarly, because an accessory after the fact conviction under Cal.Penal Code § 32 requires a knowing, affirmative act to conceal a felony with the specific intent to hinder or avoid prosecution of the perpetrator, it is contrary to the duties owed society and constitutes a crime of moral turpitude.

PETITION DENIED.

PREGERSON, Circuit Judge, dissenting:

The majority's decision represents an unwarranted expansion of the definition of crimes involving moral turpitude and contravenes this circuit's precedent. The majority holds that a...