Quintero-Salazar v. Keisler

Citation506 F.3d 688
Decision Date09 October 2007
Docket NumberNo. 04-73128.,04-73128.
PartiesAlberto Rene QUINTERO-SALAZAR, Petitioner, v. Peter D. KEISLER,<SMALL><SUP>*</SUP></SMALL> Acting Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Assistant Attorney General, and David V. Bernal, Assistant Director, Civil Division, 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. A43-780-675.

Before: ANDREW J. KLEINFELD and SIDNEY R. THOMAS, Circuit Judges, and RONALD B. LEIGHTON,** District Judge.

Opinion by Judge THOMAS; Dissent by judge KLEINFELD.

THOMAS, Circuit Judge:

This case presents the question of whether Cal.Penal Code § 261.5(d) is categorically a crime involving moral turpitude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I), thus making an alien removable. We conclude that it is not, and grant the petition for review from the contrary decision of the Board of Immigration Appeals ("BIA").

I

Alberto Rene Quintero-Salazar is a citizen and national of Mexico who entered the United States in 1990, obtained his conditional residence in 1992, and became a Lawful Permanent Resident in 1994. His wife, three children and two step-children are all United States citizens. Quintero-Salazar runs a home repair and maintenance business at which he employs several United States citizens.

In 1998, Quintero-Salazar pleaded nolo contendere to contributing to the delinquency of a minor in violation of Cal.Penal Code § 272, engaging in intercourse with a minor who is three years younger than the perpetrator in violation of Cal.Penal Code § 261.5(c), and engaging in intercourse with a minor who is under 16 years of age when the perpetrator is 21 years of age or older in violation of Cal.Penal Code § 261.5(d). He was sentenced to eleven months imprisonment and ordered to attend counseling and other rehabilitation programs as directed by his probation officer.1

On April 2, 2002, Quintero-Salazar was returning to the United States from visiting family in Mexico when he was detained by the Immigration and Naturalization Service ("INS") upon seeking admission in San Francisco. On April 12, 2002, the INS filed a notice to appear and began removal proceedings against Quintero-Salazar, charging him with being an inadmissible alien under INA § 212(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude.2 On January 7, 2003, Quintero-Salazar filed an application for waiver of grounds of excludability on the basis of the hardship it would cause his U.S. citizen wife and children pursuant to INA § 212(h).

Aliens charged with removability can apply for a waiver if their removal would result in extreme hardship to a United States citizen spouse or children. See 8 U.S.C. § 1182(h)(1)(B). Waiver of removability of those eligible is at the discretion of the Attorney General. Id. Waiver is not available, however, if the person seeking it has been convicted of an aggravated felony. Id. Thus, the question before the IJ was twofold: (1) whether Quintero-Salazar was removable for committing a crime of moral turpitude and (2) if so, whether his crime constituted an aggravated felony, making him ineligible for waiver of removability.

On February 7, 2003, the immigration judge ("IJ") issued her decision, ordering Quintero-Salazar removed to Mexico. Analogizing to a 1966 BIA decision interpreting a Wisconsin statute,3 the IJ found the California § 261.5 convictions categorically to be crimes involving moral turpitude. The IJ then found Quintero-Salazar ineligible for waiver because she found that § 261.5(d) is also an "aggravated felony" under INA § 101(a)(43)(A). The BIA summarily affirmed pursuant to 8 C.F.R. § 1003.1(e)(4).

This timely petition for review followed. We review de novo the question of whether a state statutory crime constitutes a crime involving moral turpitude. Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005) (citing Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n. 4 (9th Cir.1995)).

II

The BIA erred in holding that a violation of Cal.Penal Code § 261.5(d) is categorically a crime involving moral turpitude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I). "To determine whether a specific crime falls within a particular category of grounds for removability, we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)." Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005).

A categorical analysis requires us to compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition. Id. In doing so, we "cannot examine the underlying facts of the prior offense, but `look only to the fact of conviction and the statutory definition of the prior offense.'" United States v. Corona-Sanchez, 291 F.3d 1201, 1203, 1212-13 (9th Cir.2002) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). If the statute of conviction criminalizes conduct that would not satisfy the federal definition of the crime at issue, then the conviction does not qualify as a predicate offense under the categorical approach. Id. at 1203. In short, under the categorical approach, the issue is whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude. See United States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir.2001). "[T]o satisfy the categorical test, even the least egregious conduct . . . must qualify." United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir.2006).

For a conviction to be a "crime of moral turpitude" under immigration law, it "must be a crime that (1) is vile, base or depraved and (2) violates societal moral standards." Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1072 (9th Cir.2007) (en banc). It "must also be done willfully" or with "evil intent." Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir. 2006); see also Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000) ("it is in the intent that moral turpitude inheres . . . . one way to determine whether a crime involves moral turpitude is whether the act is accompanied by a vicious motive or corrupt mind"). Where an act is only statutorily prohibited, rather than inherently wrong, the act generally will not involve moral turpitude. Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir.2000) (noting difference between malum prohibitum, an act only statutorily prohibited, 13599 and malum in se, an act inherently wrong). For there to be moral turpitude, "the crime [must] involve some level of depravity or baseness `so far contrary to the moral law' that it gives rise to moral outrage." Navarro-Lopez, at 1071 (quoting Jordan v. DeGeorge, 341 U.S. 223, 237 n. 9, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (Jackson, J., dissenting)).

The statute at issue here is Cal.Penal Code § 261.5(d), which provides:

Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

In other words, among the range of conduct criminalized by § 261.5(d), would be consensual intercourse between a 21-year-old (possibly a college sophomore) and a minor who is 15 years, 11 months (possibly a high school junior). That relationship may very well have begun when the older of the two was a high school senior and the younger a high school freshman and have continued monogamously without intercourse for two to three years before the offending event. On its face, such behavior may be unwise and socially unacceptable to many, but it is not "inherently base, vile, or depraved," Hamdan v. INS, 98 F.3d 183, 186 (5th Cir.1996), or accompanied by a "vicious motive or corrupt mind," Michel, 206 F.3d at 263. Nor is it "so far contrary to the moral law" as to "give rise to moral outrage." Navarro-Lopez, at 1071. In short, the conduct discussed does not meet the first Fernandez-Ruiz requirement of being an "act of baseness or depravity contrary to accepted moral standards." Fernandez-Ruiz, 468 F.3d at 1165-66.

Indeed, § 261.5(d) proscribes some conduct that is malum prohibitum. We know it is malum prohibitum and not malum in se because some conduct criminalized under § 261.5(d) would be legal if the adult and minor were married. See Cal.Penal Code § 261.5(a) (defining "unlawful sexual intercourse" for purposes of 261.5(d) as involving intercourse "with a person who is not the spouse of the perpetrator, if the person is a minor"); Cal. Fam.Code § 302 (permitting a minor to marry with written consent of a parent and a court order). We also know it is malum prohibitum because some conduct under § 261.5(d) is legal in other states. See Ark.Code Ann. § 5-14-125(a)(3) (2006) (criminalizing intercourse with minors who are fourteen or under); S.C.Code Ann. § 16-3-655 (2006) (same). Finally, California's purpose in passing the law reveals that it was not moral, so much as pragmatic-they were attempting to reduce teenage pregnancies. See Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 471, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) ("the justification for the statute offered by the State, and accepted by the Supreme Court of California, is that the...

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