Navarro-Lopez v. Gonzales

• Citation: 503 F.3d 1063
• Decision Date: 19 September 2007
• Docket Number: No. 04-70345.,04-70345.
• Parties: Armando NAVARRO-LOPEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

503 F.3d 1063

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

No. 04-70345.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 13, 2006.

Filed September 19, 2007.

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

Francis W. Fraser, Department of Justice, Washington, DC, for the respondent.

Stephen W. Manning, Jennifer M. Rotman, and Jessica M. Boell, appeared on behalf of Amicus American Immigration Lawyers Association.

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

Before: MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, STEPHEN REINHARDT, ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN, HAWKINS, SIDNEY R. THOMAS, KIM McLANE WARDLAW, W. FLETCHER, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, JAY S. BYBEE, and CARLOS T. BEA, Circuit Judges.

Opinion by PREGERSON;¹ Concurrence by Judge REINHARDT; Dissent by Judge TALLMAN; Dissent by Judge BEA.

PREGERSON, 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 section 32 for accessory after the fact was a conviction for a crime involving moral turpitude. Based on Navarro-Lopez's conviction, the IJ concluded he was inadmissible and ineligible for cancellation of removal. We have jurisdiction pursuant to 28 U.S.C. § 1252(a)(1), and we grant the petition.

FACTS AND PRIOR PROCEEDINGS

Navarro-Lopez is a native and citizen of Mexico. He is married to a U.S. citizen and has applied for permanent residency through his wife. He has two U.S. citizen children, ages thirteen and sixteen, and a twenty-four-year-old child who is a legal permanent resident. He has been working in the United States for over twenty years, and he and his wife own their own home.

Navarro-Lopez entered the United States in June 1984. On August 9, 1999, Navarro-Lopez pled guilty to one count of California Penal Code section 32, accessory after the fact. He was sentenced to 270 days in jail and three years probation. In February 2001, Navarro-Lopez traveled to Tijuana, Mexico to visit his mother who was gravely ill. On February 11, 2001, Navarro-Lopez tried to re-enter the United States at the San Ysidro point of entry. When he presented his employment authorization card, the border patrol denied him entry and detained him. The Immigration and Naturalization Service ("INS")² thereafter commenced removal proceedings.

The INS charged Navarro-Lopez with being inadmissible because he did not have valid entry documents under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and because he had been convicted of a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). At his merits hearing, Navarro-Lopez conceded inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I), but argued that he had not been convicted of a crime of moral turpitude. Although Navarro-Lopez admitted having been convicted under California Penal Code section 32 for accessory after the fact, he disputed the INS's categorization of that crime as one involving moral turpitude.

The IJ nonetheless held that Navarro-Lopez's accessory after the fact conviction constituted a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ, therefore, held Navarro-Lopez removable. The IJ also denied Navarro-Lopez's application for cancellation of removal on the grounds that Navarro-Lopez had been convicted of a crime involving moral turpitude. Further, the IJ held that because Navarro-Lopez had been convicted of a crime involving moral turpitude, Navarro-Lopez did not have the requisite good moral character to be eligible for cancellation of removal. Thus, the IJ's characterization of California Penal Code section 32 as a crime involving moral turpitude served to bar Navarro-Lopez's application in two ways: (1) a conviction for a crime involving moral turpitude renders someone ineligible for cancellation or removal and (2) a conviction for a crime involving moral turpitude demonstrates a lack of the requisite good moral character necessary to qualify for cancellation of removal.

The IJ ordered Navarro-Lopez removed to Mexico. Navarro-Lopez timely appealed to the BIA, which summarily affirmed the IJ on December 24, 2003. Navarro-Lopez timely filed this petition for review on January 22, 2004.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the petition under 8 U.S.C. § 1252 as amended by section 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 (codified as amended at 8 U.S.C. § 1252(a)(2)(D)). See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir.2005). While we do not normally have jurisdiction to review "any final order of removal against an alien who is removable by reason of having committed [certain criminal offenses]," 8 U.S.C. § 1252(a)(2)(C), including crimes involving moral turpitude,³ we are not barred from hearing the constitutional claims or questions of law raised in a 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, which we have jurisdiction to reach. See Notash, 427 F.3d at 696.

We review de novo "whether a state statutory crime constitutes a crime involving moral turpitude." Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005). "Where the BIA affirms an IJ's order without opinion, we review the IJ's decision as the final agency action." Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir. 2004).

ANALYSIS

Navarro-Lopez asserts that the IJ erred in deciding that a conviction for accessory after the fact under California Penal Code section 32 constitutes a crime involving moral turpitude. Navarro-Lopez asks that we remand his petition 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 ten years immediately preceding the date of his application. 8 U.S.C. § 1229b(b)(1). 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)(2)(A), which includes a crime involving moral turpitude. 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 California Penal Code section 32 constitutes a crime of 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, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).⁴ Cuevas-Gaspar, 430 F.3d at 1017.

A. The Categorical Approach

1.

The categorical approach requires us to "make a categorical comparison of the elements of the statute of conviction to the generic definition [of the crime], and decide whether the conduct proscribed by [the statute] is broader than, and so does not categorically fall within, this generic definition." Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir.2003). Therefore, we begin the categorical approach by determining the generic elements of a crime involving moral turpitude for the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I). See Taylor, 495 U.S. at 580-81, 110 S.Ct. 2143.

A difficulty arises here as there are no statutorily established elements for a crime involving moral turpitude. Courts, however, have consistently defined "moral turpitude" as involving conduct that is inherently base, vile, or depraved, and contrary to the private and social duties man owes to his fellow men or to society in general. See, e.g., Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir.2007). This is the definition employed by the BIA, see, e.g., Matter of E___, 2 I & N Dec. 134, 140 (BIA 1944), and the definition is relatively consistent throughout the federal courts, see, e.g., Sosa Martinez v. U.S. Att'y Gen., 420 F.3d 1338, 1341-42 (11th Cir.2005); Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir.2005) (also asking whether the act involved arouses "serious" indignation in the law-abiding public); Omagah v. Ashcroft, 288 F.3d 254, 259-60 (5th Cir.2002) (further adding that morally turpitudinous acts are "per se morally reprehensible and intrinsically wrong"); Medina v. United States, 259 F.3d 220, 227 (4th Cir.2001) (adding that morally turpitudinous conduct "shocks the public conscience").

This widespread judicial consistency is supported by basic notions of moral turpitude. Moral turpitude involves "immoral or depraved" conduct. Random House Dictionary of English Usage Unabridged 930 (1973). Crimes of moral turpitude "involv[e] grave infringement of the moral sentiment of the community." Webster's New International Dictionary Unabridged 1593 (2d ed.1940). Thus, the generic definition of a crime involving moral turpitude is a crime involving conduct that (1) is base, vile, or depraved and (2) violates accepted moral standards.⁵

2.

In his dissent, Judge Tallman states that all crimes involving morally turpitudinous conduct fall into one of two categories: those involving fraud and those involving grave acts of baseness or depravity. Tallman Dissent at 1078-79; accord Reinhardt Conc. at 1074. The dissent draws this formulation from Carty v. Ashcroft, 395 F.3d 1081 (9th Cir.2005), wherein we stated: "Crimes of moral turpitude are of basically two types, those involving fraud and those involving grave acts of baseness or depravity." Id. at 1083 (emphasis added...