Silva v. Barr

• Decision Date: 10 July 2020
• Docket Number: Nos. 16-70130,17-73272,s. 16-70130
• Citation: 965 F.3d 724
• Parties: Joel Empleo SILVA, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

965 F.3d 724

Joel Empleo SILVA, Petitioner,

v.William P. BARR, Attorney General, Respondent.

Nos. 16-70130

17-73272

United States Court of Appeals, Ninth Circuit.

Submitted April 16, 2020^* San Francisco, California

Filed July 10, 2020

OPINION

IKUTA, Circuit Judge:

Under our precedent, petty theft under section 484(a) of the California Penal Code is a crime involving moral turpitude. See, e.g. , Castillo-Cruz v. Holder , 581 F.3d 1154, 1160 (9th Cir. 2009). Although we question whether this precedent was correctly decided, we have no authority to revisit it here. We also hold that the Board of Immigration Appeals (BIA) did not abuse its discretion in denying the petitioner's motion to reopen.

I

Joel Empleo Silva was admitted to the United States as a lawful permanent resident on June 27, 1996. After admission, Silva was convicted of petty theft offenses under the California Penal Code on three separate occasions: in 1998, he was convicted of petty theft in violation of sections 484(a) and 490.5,¹ and in 2004 and 2007, he was convicted of petty theft with a prior theft conviction in violation of sections 484(a) and 666.² Silva was also convicted of attempted theft in violation of section 664 in 2000.

In May 2015, the Department of Homeland Security charged Silva as removable for having been "convicted of two or more crimes involving moral turpitude," 8 U.S.C. § 1227(a)(2)(A)(ii),³ referencing Silva's three petty-theft offenses and his attempted-theft conviction. An immigration judge held that Silva was removable as charged.

In December 2015, the BIA dismissed Silva's appeal. It rejected Silva's argument that a violation of section 484(a) did not qualify as a crime involving moral turpitude because the Ninth Circuit had "repeatedly held that it is." The BIA expressed no opinion on Silva's argument that the phrase "crimes involving moral turpitude" was unconstitutionally vague, holding that it lacked jurisdiction to declare an act of Congress unconstitutional. Silva petitioned for review.

While the petition was pending, Silva moved to reopen proceedings in light of changed country conditions in the Philippines, for the purpose of applying for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In his motion, Silva made the following allegations. After Rodrigo Duterte was elected president of the Philippines, he instituted an anti-drug program that included an initiative called Oplan Tokhang—roughly translated as "knock and plead"—which focused on low-level sellers and users. Under Oplan Tokhang, police and local officials visited the houses of suspected drug sellers and users and demanded that they cooperate with the police. Suspects who did not cooperate, or who initially cooperated but then returned to using or selling, were reportedly killed.

Silva also alleged that his history of drug use would put him at risk if he returned to the Philippines. In a declaration submitted with his motion to reopen, Silva testified that he had regularly used methamphetamine while in the United States from the late 1990s until 2015 and that he had used a cheap form of the drug called "shabu" daily with friends and neighbors when he returned to the Philippines for three months in early 2000. After being taken into immigration custody in May 2015, Silva stopped using drugs and has continued to abstain from drug use after his release, even though he had "been tempted many times by [a] friend." Despite abstaining from drugs, Silva claims that if he returns to the Philippines, the people who knew him when he was there in 2000 could "rat him out" to the police as a former drug user. Further, Silva believes that "it will be very hard for [him] to resist the temptation to start using shabu" in the Philippines.

The BIA denied Silva's motion to reopen. The BIA reasoned that Silva had not shown that Filipino authorities were aware or would become aware of his past drug use. Nor had Silva shown that he would use drugs in the Philippines. Therefore, the BIA held that Silva had not made out a prima facie case for asylum, withholding of removal, or CAT protection. Silva petitioned for review.

We consolidated Silva's two pending petitions for review. See 8 U.S.C. § 1252(b)(6). We have jurisdiction over both petitions based on 8 U.S.C. § 1252(a)(1). See Mata v. Lynch , 576 U.S. 143, 147, 135 S.Ct. 2150, 192 L.Ed.2d 225 (2015).⁴

II

We first turn to Silva's petition for review of the BIA's December 2015 order of removal. On appeal, Silva argues that he is not removable for having been convicted "of two or more crimes involving moral turpitude," 8 U.S.C. § 1227(a)(2)(A)(ii), because a violation of section 484(a) of the California Penal Code does not involve moral turpitude.

To determine whether an alien's crime of conviction subjects the alien to removal under 8 U.S.C. § 1227(a)(2)(A)(ii), we apply the categorical approach set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Marmolejo-Campos v. Holder , 558 F.3d 903, 912 (9th Cir. 2009) (en banc). That approach requires us to determine "whether the crime of conviction contains all the elements of the generic federal offense." Renteria-Morales v. Mukasey , 551 F.3d 1076, 1081 (9th Cir. 2008).⁵

A

In making this determination, we begin by defining the elements of the generic federal offense, id. , in this case, "crimes involving moral turpitude," 8 U.S.C. § 1227(a)(2)(A)(ii). We "defer to the BIA's articulation of the generic federal definition ‘if the statute is silent’ " and "the BIA's interpretation is ‘based on a permissible construction of the statute.’ " Renteria-Morales , 551 F.3d at 1081 (quoting Parrilla v. Gonzales , 414 F.3d 1038, 1041 (9th Cir. 2005) ). The BIA has defined the term "moral turpitude" as referring to conduct that 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." Matter of Silva-Trevino , 26 I. & N. Dec. 826, 833 (BIA 2016) (citation omitted). The BIA has further explained that "[t]o involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state." Id. at 834 (citing Nino v. Holder , 690 F.3d 691, 695 (5th Cir. 2012) ). Although we have framed our definition of "moral turpitude" in slightly different terms,⁶ it "does not differ materially from the [BIA's]." Marmolejo-Campos , 558 F.3d at 910 (citing Galeana-Mendoza v. Gonzales , 465 F.3d 1054, 1058 n.9 (9th Cir. 2006) ). These definitions, however, are not helpful for our task of identifying the elements of a generic "crime involving moral turpitude" for purposes of the categorical approach, because they fail "to ‘particularize’ the term in any meaningful way." Id.

Given the difficulty of determining the elements of "crimes involving moral turpitude" as opposed to determining the elements of a specific criminal offense, the BIA has adopted a different approach. Because the phrase "crimes involving moral turpitude" refers to a category of crimes rather than a specific offense with identifiable elements, cf. 8 U.S.C. § 1101(a)(43), the BIA has sensibly moved from trying to define the phrase itself to instead giving examples of the types of offenses that qualify as "crimes involving moral turpitude," see, e.g. , Matter of Diaz-Lizarraga , 26 I. & N. Dec. 847, 847 (BIA 2016). We have deferred to this approach when articulated by the BIA in a published opinion. Marmolejo-Campos , 558 F.3d at 910–11.

Using this method of interpretation, the BIA had concluded that only certain theft offenses involve moral turpitude. For purposes of the statutory section providing that the term "aggravated felony" means, among other things, "a theft offense (including receipt of stolen property)," 8 U.S.C. § 1101(a)(43)(G), the BIA has defined a generic "theft offense" as one that involves: "[1] taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Gonzales v. Duenas-Alvarez , 549 U.S. 183, 189, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (quoting Penuliar v. Gonzales , 435 F.3d 961, 969 (9th Cir. 2006) ). For purposes of defining "crimes involving moral turpitude," however, the BIA's cases from the 1940s indicated that only theft offenses which "by their nature necessarily constitute theft or stealing as those offenses are known at common law" would qualify, Matter of D- , 1 I. & N. Dec. 143, 145 (BIA 1941), meaning that a theft offense did not categorically involve moral turpitude unless it "involve[d] a permanent taking as distinguished from a temporary one," Matter of H- , 2 I. & N. Dec. 864, 865 (BIA 1947) ; accord Matter of P- , 2 I. & N. Dec. 887, 887 (BIA 1947). At common law, however, there were certain situations where persons were found guilty of larceny despite not having intended a literally permanent deprivation of property, see People v. Davis , 19 Cal. 4th 301, 308–15, 79 Cal.Rptr.2d 295, 965 P.2d 1165 (1998) (collecting cases), and the BIA had not conclusively resolved whether certain theft offenses could involve moral turpitude even when a person did not intend a literally permanent deprivation of property, see Matter of Jurado-Delgado , 24 I. & N. Dec. 29, 33 (BIA 2006) ("We need not decide whether the premise of the respondent's argument is correct, i.e., that if the offense required only an intent to temporarily deprive the owner of the use or benefit of the property taken, the crime would not be one of moral turpitude.").

Against this backdrop, the BIA reexamined the elements of a theft offense involving moral turpitude in Matter of Diaz-Lizarraga . In doing so, the BIA explained that its "purpose in adopting the ‘intent to permanently deprive’ requirement was to distinguish between substantial and reprehensible deprivations of an owner's property on...