Olivas-Motta v. Holder

• Citation: 746 F.3d 907
• Decision Date: 01 April 2014
• Docket Number: No. 10–72459.,10–72459.
• Parties: Manuel OLIVAS–MOTTA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

746 F.3d 907

Manuel OLIVAS–MOTTA, Petitioner,

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

No. 10–72459.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 13, 2011.

Filed May 17, 2013.

As Amended April 1, 2014.

Kara L. Hartzler (argued), Florence, AZ, for Petitioner.

Gregory Darrell Mack (argued), Senior Litigation Counsel, United States Department of Justice, Washington, D.C., for Respondent.

Peter L. Markowitz, Benjamin N. Cardozo School of Law Immigration Justice Clinic, New York, NY, for Amici Curiae Immigrant Defense Project, National Immigration Project of the National Lawyers Guild, Immigrant Legal Resource Center, U.C. Davis Immigration Law Clinic, and Immigration Justice Clinic of the Benjamin N. Cardozo School of Law.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A021–179–705.

Before: PROCTOR HUG, JR., ANDREW J. KLEINFELD, and WILLIAM A. FLETCHER, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Manuel Olivas–Motta is a lawful permanent resident charged with removal under 8 U.S.C. § 1227(a)(2)(A)(ii) based on his alleged “conviction of” two crimes involving moral turpitude (“CIMTs”). Petitioner concedes that the first conviction was for a CIMT. He contends that the second was not.

The Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) concluded that the second conviction was for a CIMT, relying on police reports to determine the nature of the conviction. The Attorney General held in Matter of Silva–Trevino, 24 I. & N. Dec. 687 (A.G.2008), that an IJ may rely on evidence outside the record of conviction to determine whether a petitioner has been “convicted of” a CIMT. We join the Third, Fourth, and Eleventh Circuits in holding that Silva–Trevino was wrongly decided. We hold that an IJ and the BIA are confined to the record of conviction in determining whether an alien has been convicted of a CIMT.

I. Background

Olivas–Motta was brought to the United States by his parents when he was ten days old. At the time of his hearing before the IJ he was thirty-three years old, married, and a lawful permanent resident. He was charged with removal under 8 U.S.C. § 1227(a)(2)(A)(ii), which provides that an alien who has been “convicted of two or more crimes involving moral turpitude ... is deportable.”

In 2003, Olivas–Motta was convicted of facilitation of unlawful possession of marijuana under Arizona law. Ariz.Rev.Stat. §§ 13–1004, 13–3405. He concedes that this was a conviction of a CIMT. In 2007, he pled guilty to “endangerment” under Arizona law. Arizona's endangerment statute provides:

A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury.

B. Endangerment involving a substantial risk of imminent death is a class 6 felony. In all other cases, it is a class 1 misdemeanor.

Ariz.Rev.Stat. § 13–1201. Olivas–Motta contends that his conviction of endangerment was not a conviction of a CIMT.

At Olivas–Motta's removal hearing before the IJ, the government put into evidence the charging document and the written plea agreement for his endangerment conviction. Neither the charging document nor the plea agreement provides information about Olivas–Motta's underlying conduct. The plea agreement states only that Olivas–Motta “committed endangerment by recklessly endangering another person with a substantial risk of imminent death,” and that he was pleading guilty to a class 6 felony. The government also put into evidence before the IJ three police reports containing information about Olivas–Motta's conduct. Relying on the police reports pursuant to Matter of Silva–Trevino, 24 I. & N. Dec. 687 (A.G.2008), the IJ concluded that Olivas–Motta had been “convicted of” a CIMT and was therefore removable. She denied cancellation of removal.

The BIA dismissed Olivas–Motta's appeal. It relied on the police reports pursuant to Silva–Trevino to conclude that Olivas–Motta had been convicted of a CIMT. Olivas–Motta petitioned for review.

II. Jurisdiction and Standard of Review

We have jurisdiction to review questions of law in a petition for review of a removal order. 8 U.S.C. § 1252(a)(2)(D). Latter–Singh v. Holder, 668 F.3d 1156, 1159 (9th Cir.2012). Whether a conviction is for a CIMT is a question of law. Id. We review questions of law de novo. Romero–Mendoza v. Holder, 665 F.3d 1105, 1107 (9th Cir.2011).

III. Discussion

We evaluate the Attorney General's decision in Silva–Trevino under the familiar framework of Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). When we review an agency's construction of a statute that it administers, the first step under Chevron is to determine “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. “If the intent of Congress is clear, that is the end of the matter....” Id. In that event, courts and agencies alike “must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43, 104 S.Ct. 2778. If the intent of Congress is unclear, we move to the next step, which is to determine whether the agency's interpretation of the text “is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. If the agency's interpretation is based on a permissible construction, a court must give deference to that interpretation.

In Silva–Trevino, the Attorney General interpreted two provisions of the Immigration and Naturalization Act (“INA”), one dealing with inadmissibility and the other dealing with removability. In both provisions, a criterion for inadmissibility or removability is “conviction of” one or more CIMTs. The admissibility provision states:

[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a crime involving moral turpitude ... is inadmissible.

8 U.S.C. § 1182(a)(2)(A)(i)(I) (emphasis added). The removability provision states:

(i) Any alien who ... is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status ...) after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

(ii) ... Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude ... is deportable.

8 U.S.C. § 1227(a)(2)(A)(i-ii) (emphasis added).

The Attorney General concluded that the statutory language is ambiguous. He wrote:

This opinion begins, as it must, with the statutory text. The Act refers to “moral turpitude” in two separate provisions [quoting 8 U.S.C. §§ 1182(a)(2)(A)(ii)(I) and 1127(a)(2)(A)(i) ].

The statute does not define the term “crime involving moral turpitude.” It is also silent on the precise method that immigration judges and courts should use to determine if a prior conviction is for a crime involving moral turpitude. To the extent it suggests a method, the text actually cuts in different directions. Some statutory language—for example, use of the phrase “convicted of” rather than “committed”—suggests that the relevant inquiry should be categorical and focus on whether moral turpitude inheres in the statutory elements required for conviction rather than in the particularized facts of the alien's crime. Section [1182](a)(2)(A)(i)(I). Other language—for example, the use of the word “involving” and the reference in section [1182](a)(2)(A)(i)(I) to aliens who admit “committing” certain “acts”—seems to call for, or at least allow, inquiry into the particularized facts of the crime.

Faced with this ambiguity, the Board and the Federal courts have long taken the view that judges should begin by engaging in some sort of “categorical” inquiry to determine whether moral turpitude “necessarily inheres” in a conviction under a particular State or Federal criminal statute. To date, however, the Department has not adopted a preferred methodology for conducting that categorical inquiry, and the Board has chosen instead to make such determinations in accordance with the law of the circuit in which an alien's case arises.

Silva–Trevino, 24 I. & N. Dec. at 692–93 (emphasis added) (some citations omitted).

Later in his opinion, the Attorney General wrote:

[T]he documents generally considered part of the formal record of conviction typically focus only on the charging elements of a specific criminal offense. But moral turpitude is not an element of an offense. And although in many, if not most, cases (for example, cases in which proof of fraudulent intent is required for conviction), examination of the alien's record of conviction may establish that the alien was in fact convicted of a crime involving moral turpitude, there are other cases (such as the instant one) in which an examination of the formal record by itself does not yield an answer to the question. To limit the information available to immigration judges in such cases means that they will be unable to determine whether an alien's crime actually “involv[ed]” moral turpitude.

This restriction is hard to square with the text of the Act. The relevant provisions contemplate a finding that the particular alien did or did not commit a crime involving moral turpitude before immigration penalties are or are not applied. Section [1182](a)(2)(A)(i)(I), the inadmissibility provision at issue in this case, refers to “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude.” Section [1227's] removability provisions similarly pertain only to “[a]ny alien who is convicted of a crime involving moral turpitude” under certain enumerated circumstances, one of which relates to the alien's date of admission—a fact that would not typically be reflected in a criminal record of conviction....