Plasencia-Ayala v. Mukasey

• Decision Date: 07 February 2008
• Docket Number: No. 06-73728.,06-73728.
• Citation: 516 F.3d 738
• Parties: Reynaldo PLASENCIA-AYALA, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

516 F.3d 738

Reynaldo PLASENCIA-AYALA, Petitioner, v. Michael B. MUKASEY,^* Attorney General, Respondent.

No. 06-73728.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 3, 2007.

Filed February 7, 2008.

Bryan M. Westhoff, Dewey & LeBoeuf LLP, Chicago, IL, argued the cause for the petitioner; William J.T. Brown, Dewey & LeBoeuf LLP, New York, NY, was on the brief.

Liza S. Murcia, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., argued the cause for the respondent; Peter

D. Keisler, Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, United States Department of Justice, Washington, D.C., were on the brief.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A91-966-521.

Before: JEROME FARRIS, ROBERT R: BEEZER, and SIDNEY R. THOMAS, Circuit Judges.

THOMAS, Circuit Judge:

This case presents the question of whether failing to register as a sex offender in violation of Nev.Rev.Stat. § 179D.550 is a crime involving moral turpitude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I). We conclude that it is not, and grant the petition for review from the contrary decision of the Board of Immigration Appeals ("BIA").

I

A

Reynaldo Plasencia-Ayala is a native and citizen of Mexico. He was born on May 18, 1968 and first came to the Unites States in 1986 at the age of eighteen. On December 1, 1990, Plasencia-Ayala was admitted for permanent residence in Chicago, Illinois.

Plasencia-Ayala has two criminal convictions relevant to this appeal. On June 4, 2002, Mr. Plasencia-Ayala pled guilty to the offense of Open or gross lewdness, in violation of Nev.Rev.Stat. § 201.210, a "gross misdemeanor." Plasencia-Ayala was sentenced to a term of nine months in Washoe County Jail, and ordered to pay fees and costs.

The open or gross lewdness conviction is considered a sexual offense under Nevada law. Nev.Rev.Stat. § 179D.410(11). As a convicted sexual offender, Plasencia-Ayala is required to register with the local law enforcement agency within 48 hours of being present in any Nevada county or city. Nev.Rev.Stat. § 179D.460(1-3). Although the burden is on the sexual offender to register, Nevada has adopted a variety of procedures to ensure that offenders initially register and are informed of their registration responsibilities.¹ Nevada law provides that following the imposition of a sentence for a sexual offense, the court shall "[i]nform the defendant of the requirements for registration" and "[r]equire the defendant to read and sign a form stating that the requirements for registration have been explained to him." Nev. Rev.Stat. § 176.0927(1)(b)-(c). The court is also required to notify the "Central Repository" of the conviction, which in turn must "notify the local law enforcement agency so that a record of registration may be established." Nev.Rev.Stat. §§ 176.0927(1)(a), 179D.450(1). Additionally, for offenders like Plasencia-Ayala who are incarcerated, the "Department of Corrections or a local law enforcement agency in whose facility the sex offender is incarcerated" shall "[i]nform the sex offender of the requirements for registration." Nev.Rev.Stat. § 179D.450(3). There is no evidence in the record regarding whether the Nevada court or relevant law enforcement agency informed Plasencia-Ayala of his registration responsibilities. In his guilty plea for open or gross lewdness, Plasencia-Ayala stated that "I understand that I will have to register as a sex offender."

After completing his sentence for the open or gross lewdness conviction, Plasencia-Ayala returned to his home in Reno, where he had resided prior to his conviction. The police subsequently discovered that Plasencia-Ayala was not registered as a sex offender. On March 11, 2004, Plasencia-Ayala pled guilty to "Failure to Register as a Sex Offender" in violation of Nev. Rev.Stat. §§ 179D.460, 179D.550 and 193.130, a felony. In his plea, Plasencia-Ayala admitted that "I did, willfully and unlawfully fail to register" with the relevant law enforcement agencies. At his removal hearing, Plasencia-Ayala indicated that he was aware that he was required to register, but thought that because the authorities knew where he lived he only needed to notify them if he moved. Plasencia-Ayala was sentenced to a prison term of 12-32 months, and ordered to pay fees and costs.

B

On February 14, 2006, the government filed a Notice to Appear (NTA) in which it charged that Plasencia-Ayala was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having committed two crimes involving moral turpitude. Plasencia-Ayala's removal hearing was held on April 24, 2006. Following the hearing, the immigration judge issued an oral decision holding Plasencia-Ayala removable on the ground that he had committed two crimes involving' moral turpitude, and denying his requests for cancellation of removal and voluntary departure.

The IJ held that Plasencia-Ayala's convictions for gross lewdness and failure to register constituted crimes involving moral turpitude. The IJ found that the proliferation of sexual offender laws "indicates a clear demand by the people of the United States to have knowledge of the location and the crimes of individuals who must register as sex offenders." The IJ concluded that due to the dangerousness of sexual offenders and the risk of recidivism, "this crime is considered morally turpitudinous and of such a nature that the people of the State of Nevada find it to be vile, base and of a nature to offend their morals." Finally, the IJ found that while Mr. Plasencia-Ayala was eligible for cancellation of removal, he was undeserving of the discretionary relief.

Plasencia-Ayala appealed the IJ's decision to the BIA. In his brief, Plasencia-Ayala argued that the failure to register as a sex offender could not constitute a crime of moral turpitude because it can occur without a willful mens rea, and that the IJ erred in his discretionary denial of cancellation of removal by not giving sufficient weight to Plasencia-Ayala's long years of residence, family ties and limited criminal history.

In a July 21, 2006 order, the BIA dismissed Plasencia-Ayala's appeal. In its decision, the BIA first observed that Plasencia-Ayala did not dispute that his conviction for gross lewdness constituted a crime of moral turpitude and deemed the issue abandoned. The BIA then turned to Plasencia-Ayala's conviction for failure to register. It concluded that Nev.Rev.Stat. § 179D.550 "punishes some behavior that might be considered a crime involving moral turpitude, such as providing false information to police, as well as some nonturpitudinous behavior, such as the catchall 'otherwise violates' provision." The BIA concluded that Plasencia-Ayala's failure to register was a crime of moral turpitude, agreeing with the IJ that "when the respondent willfully failed to register, he attempted to avert being labeled a sex offender, thereby preventing the members of the community from protecting their families from him,"

In its decision, the BIA did not address Mr. Plasencia-Ayala's contention that the IJ had erred by denying his request for cancellation of removal.

On July 27, 2006, Plasencia-Ayala timely filed a petition for review with this Court. Plasencia-Ayala subsequently filed a motion to reconsider with the BIA on April 11, 2006, arguing that the BIA had erroneously found him removable and had failed to address the IJ's denial of his request for cancellation of removal. In a May 15, 2007 order, the BIA granted the motion to reconsider but again dismissed the appeal. In its decision, the BIA began by explaining the scope of its review: "Because we previously did not address the respondent's argument challenging the Immigration Judge's discretionary denial of his cancellation of removal application, we will reconsider the appeal for the limited purpose of addressing that argument." At the conclusion of its decision, the BIA again stated that it was "grant[ing] the motion for the limited purpose of addressing the respondent's challenge" to the denial of cancellation.

Nonetheless, the BIA went on to address the issue of whether Plasencia-Ayala's conviction for failure to register constituted a crime involving moral turpitude. The BIA largely adopted the analysis from its recent decision Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 146-47 (BIA 2007), in which it held that the willful² failure to register under the California sex offender registration statute represents a base or depraved act. Following Matter of Tobar-Lobo, the BIA determined that because convictions under the Nevada registration statute do not require proof of any specific state of mind, they could not "categorically" amount to crimes of moral turpitude. However, the BIA concluded that under the "modified categorical" approach, Plasencia-Ayala's "willful and unlawful" failure to register was morally turpitudinous. Finally, the BIA found that the IJ had properly exercised its discretion in denying Plasencia-Ayala's application for cancellation of removal. Plasencia-Ayala has not petitioned for review of the BIA's May 15, 2007 order.

II

Where the BIA conducts a de novo review and issues its own decision, rather than adopting the IJ's decision as its own, we review the BIA's decision. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). To the extent the BIA incorporates the IJ's decision as its own, we review both the decisions of the BIA and IJ. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 n. 3 (9th Cir.2004).

We review de novo "whether a state statutory crime constitutes a crime involving moral turpitude." Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir.2007) (en banc) (internal quotations omitted). The government argues that the BIA's decision is entitled to Chevron deference because it was based on its prior precedential decision and cited Ninth Circuit precedent. However, as...