Juan Barrera-Lima v. Jefferson Sessions, III , 901 F.3d 1108 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS BARRERA-LIMA, No. 13-73022
Petitioner,
Agency No.
v. A087-595-463
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 7, 2018
Seattle, Washington
Filed August 24, 2018
Before: Raymond C. Fisher, Ronald M. Gould,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Gould
2 BARRERA-LIMA V. SESSIONS
SUMMARY *
Immigration
The panel granted Juan Carlos Barrera-Lima’s petition
for review of a decision of the Board of Immigration Appeals
that found him ineligible for cancellation of removal and
voluntary departure, holding that: 1) Barrera-Lima’s
convictions for indecent exposure under Wash. Rev.
Code § 9A.88.010(1) and under Wash. Rev. Code
§ 9A.88.010(2)(b) are not categorically crimes involving
moral turpitude; and 2) both statutes are indivisible such that
the modified categorical approach is inapplicable, and
remanded.
With respect to Barrera-Lima’s indecent exposure
conviction under Wash. Rev. Code § 9A.88.010(1), the
panel concluded, as a threshold matter, that the BIA’s
decision in this case was not entitled to deference under
either Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984), or Skidmore v. Swift & Co., 323 U.S.
134 (1944), because the BIA failed to properly apply its
decision in Matter of Cortes Medina, 26 I. & N. Dec. 79
(BIA 2013). In Cortes Medina, the BIA held that indecent
exposure statutes are categorically crimes involving moral
turpitude if they include sexual motivation or lewd intent as
an element. The BIA also embraced a definition of lewd
intent that was restricted to sexually motivated exposure.
Here, the panel concluded that Cortes Medina’s definition of
lewd intent could not be squared with the BIA’s decision in
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BARRERA-LIMA V. SESSIONS 3
Barrera-Lima’s case, in which the BIA concluded that lewd
intent encompassed any general intent to harass, humiliate,
outrage or frighten, and that lewd intent was not
commensurate with sexual motivation. Thus, the panel
determined that the BIA’s decision in this case was not
entitled to deference.
Next, the panel assumed, without deciding, that Cortes
Medina is entitled to Chevron deference, explaining that
Wash. Rev. Code § 9A.88.010(1) is overbroad regardless of
whether the panel applied Cortes Medina or this court’s
earlier decision Nunez v. Holder, 594 F.3d 1124 (9th Cir.
2010), which the BIA rejected in Cortes Medina. The panel
also noted that it did not address whether Cortes Medina was
entitled to deference under National Cable &
Telecommunications Association v. Brand X Internet
Services., 545 U.S. 967 (2005), because Barrera-Lima failed
to raise that argument in his opening brief.
Applying Cortes Medina, the panel held that Wash. Rev.
Code § 9A.88.010(1) is not categorically a crime involving
moral turpitude because it lacks the critical element of lewd
intent. The panel further concluded that the statute is
indivisible and, therefore, the modified categorical approach
is inapplicable.
With respect to Barrera-Lima’s indecent exposure
conviction under Wash. Rev. Code § 9A.88.010(2)(b), the
panel noted that the statute included the additional
requirement that a person under the age of fourteen be
involved, but that the BIA failed to address that element.
The panel concluded that this omission, combined with the
BIA’s erroneous application of Cortes Medina, rendered
Chevron and Skidmore deference inapplicable with respect
to this statute as well.
4 BARRERA-LIMA V. SESSIONS
Because Cortes Medina did not provide an interpretation
of morally turpitudinous conduct for indecent exposures that
involve a protected class of victims, the panel addressed for
the first time whether indecent exposure under Wash. Rev.
Code § 9A.88.010(2)(b) is categorically a crime involving
moral turpitude, and held it is not. The panel explained that,
while the court has often concluded that crimes directed
towards a protected class of victims are categorically crimes
of moral turpitude, this statute is too broad to capture only
conduct that shocks the public conscience. The panel also
concluded, for the reasons discussed earlier, that the statute
is indivisible and the modified categorical approach is
inapplicable.
Accordingly, the panel concluded that, in the absence of
a conviction for moral turpitude, Barrera-Lima is eligible to
apply for cancellation of removal and voluntary departure,
and remanded to the agency to consider those forms of relief.
In a concurrently filed order, the panel denied the
government’s motion to remand, noting that a majority voted
to deny the motion, but Judge Gould would grant it. In the
opinion, the panel explained that, while it would likely grant
an unopposed motion in a run-of-the-mill case, the panel
denied the motion because neither of the cases the
government relied on has any bearing on Barrera-Lima’s
case.
Dissenting, Judge Gould wrote that he would grant the
government’s unopposed motion to remand. Judge Gould
noted the general principle and practice that the court does
not decide legal issues absent a need to do so, and observed
that there is no way to predict whether the parties on remand
might hit upon some innovative solution to resolve the case.
BARRERA-LIMA V. SESSIONS 5
COUNSEL
Alexander Ying-Chi Chan (argued), Bellevue, Washington,
for Petitioner.
Victor Matthew Lawrence I (argued), Senior Litigation
Counsel; Jeffrey J. Bernstein, Trial Attorney; Carl McIntyre,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
PAEZ, Circuit Judge:
Juan Carlos Barrera-Lima petitions for review of a
decision by the Board of Immigration Appeals (“BIA”)
concluding that his prior convictions for indecent exposure
rendered him statutorily ineligible for cancellation of
removal under 8 U.S.C. § 1229b(b) as crimes involving
moral turpitude. Because the BIA misapplied its own
published precedent, we grant the petition for review and
remand to the BIA to consider anew Barrera-Lima’s request
for cancellation of removal and voluntary departure. 1
1
In an order filed concurrently with this opinion, we deny the
government’s unopposed motion to remand this case for further
proceedings. In the run-of-the-mill case, we would likely grant a motion
of this kind. Indeed, Judge Gould’s dissent is based on that view. Here,
however, the government’s motion makes no sense.
Neither case relied upon by the government for its motion to remand
has any bearing on Barrera-Lima’s case. United States v. Valdivia-
Flores, 876 F.3d 1201 (9th Cir. 2017), addressed whether a petitioner’s
6 BARRERA-LIMA V. SESSIONS
I.
Barrera-Lima, a 37-year-old citizen of Guatemala,
entered the United States without inspection in 1999 as a
teenager. On November 16, 2009, King County prosecutors
charged Barrera-Lima in municipal court with one
misdemeanor count of indecent exposure pursuant to Wash.
Rev. Code § 9A.88.010(1). A little over two weeks later, on
December 2, 2009, Barrera-Lima pled guilty to one count of
indecent exposure to a victim under the age of fourteen, see
Wash. Rev. Code § 9A.88.010(2)(b), a gross misdemeanor.
As part of his plea statement, Barrera-Lima admitted that he
conviction under Washington’s drug trafficking statute qualified as an
aggravated felony when “the Washington drug trafficking law on its face
appears to have a more inclusive mens rea requirement for accomplice
liability than its federal analogue.” Id. at 1207. We had no occasion in
Valdivia-Flores to opine on crimes involving moral turpitude, much less
indecent exposure statutes. The government’s reliance on Matter of
Jimenez-Cedillo, 27 I. & N. Dec. 1 (BIA 2017) for its motion to remand
is similarly without merit. Jimenez-Cedillo addressed whether “sexual
solicitation of a minor is a crime involving moral turpitude.” Id. at 2.
There, the BIA concluded that “a sexual offense in violation of a statute
enacted to protect children is a crime involving moral turpitude where
the victim is particularly young . . . , even though the statute requires no
culpable mental state as to the age of the child,” because “such offenses
contravene society’s interest in protecting children from sexual
exploitation.” Id. at 5 (emphases added). Wash. Rev. Code
§ 9A.88.010(2)(b), however, is not a sexual offense under Washington
law and sexual motivation is not required for conviction. See infra pp.
20 n.10, 23.
In short, there is no indication that either case relied upon by the
government for its motion to remand will change the BIA’s decision
here. We therefore adhere to our obligation to “say what the law is,”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and deny the
government’s motion for remand.
BARRERA-LIMA V. SESSIONS 7
“intentionally made an open and obscene exposure of [his]
person to a person under the age of fourteen years knowing
that such conduct was likely to cause reasonable affront or
alarm.” The court sentenced Barrera-Lima to 364 days in
jail with 301 days suspended and ordered him to pay a
$5,000 fine. The court further ordered Barrera-Lima to have
no contact with two underage individuals or Kimble
Elementary School and to “obtain [a] sexual deviancy
evaluation and comply with recommended treatment.”
On April 22, 2010, Barrera-Lima entered a second guilty
plea. 2 This time, he pled guilty to one misdemeanor count
of indecent exposure under Wash. Rev. Code
§ 9A.88.010(1). Unlike his first plea statement, Barrera-
Lima omitted any mention of minor involvement in his plea
statement and admitted only to “intentionally ma[king] an
open and obscene gesture of [his] person knowing that
conduct was likely to cause reasonable affront or alarm.”
The court sentenced Barrera-Lima to a fully-suspended
sentence of 365 days in jail and fined him $5,000, all but
$200 of which was suspended. As with the first plea, the
court ordered Barrera-Lima to remain in compliance with his
sexual deviancy treatment.
Pursuant to both pleas, Barrera-Lima entered into—and
successfully completed—a year-long sexual deviancy
program. The final treatment report opined that Barrera-
Lima was at “low risk” of reoffending and noted that there
had been no reports of inappropriate behavior with women
2
It appears that both of Barrera-Lima’s guilty pleas pertain to
exposure(s) that took place on October 20, 2009 in Seattle. It is unclear
from the record whether Barrera-Lima exposed himself twice on the
same day or was simply charged twice for a single event involving
multiple victims. It is similarly unclear why there was a delay of
approximately five months between the two guilty pleas.
8 BARRERA-LIMA V. SESSIONS
following Barrera-Lima’s admission into the program. The
report further highlighted Barrera-Lima’s commitment to
financially providing for his daughter and commented on
Barrera-Lima’s productive involvement with his family,
work, and church. Satisfied with Barrera-Lima’s progress,
the provider terminated Barrera-Lima’s treatment at the end
of his probation period on September 1, 2011.
The end of Barrera-Lima’s criminal proceedings did not,
however, mark the end of his troubles. The government
initiated removal proceedings against Barrera-Lima on
December 2, 2009 for staying in the United States without
being admitted or paroled. Seeking relief from removal,
Barrera-Lima applied for cancellation of removal and, in the
alternative, voluntary departure. The immigration judge
(“IJ”) denied his application, concluding that although
Barrera-Lima’s 2010 conviction for indecent exposure under
Wash. Rev. Code § 9A.88.010(1) did not constitute a crime
involving moral turpitude, his 2009 conviction for indecent
exposure to a minor under the age of fourteen pursuant to
Wash. Rev. Code § 9A.88.010(2) did. After determining
that Washington’s indecent exposure statute was
categorically overbroad under Nunez v. Holder, 594 F.3d
1124 (9th Cir. 2010), the IJ applied the modified categorical
approach and concluded that subsection (2) of Wash. Rev.
Code § 9A.88.010 was a crime involving moral turpitude
because it captured “crime[s] of a sexual nature committed
against a protected class of victim.” This, in turn, rendered
Barrera-Lima ineligible for both cancellation of removal and
voluntary departure. See 8 U.S.C. §§ 1229b(b)(1)(C),
1229c(b)(1)(B). The IJ then ordered Barrera-Lima removed
to Guatemala.
Barrera-Lima unsuccessfully appealed the IJ’s order to
the BIA. In a single-member, unpublished decision, the BIA
BARRERA-LIMA V. SESSIONS 9
disagreed with the IJ’s determination that Washington’s
indecent exposure statute was categorically overbroad and
divisible. The BIA rejected Barrera-Lima’s argument that
Washington’s indecent exposure statute was categorically
overbroad because sexual motivation is not required for
conviction. In the agency’s view, “for moral turpitude
purposes, what matters is ‘lewd intent,’ not sexual
motivation.” Citing Matter of Cortes Medina, 26 I. & N.
Dec. 79 (BIA 2013), 3 the BIA held that “[a] person who
intentionally exhibits his private parts in order to harass,
humiliate, outrage, or frighten a witness thereby engages in
‘lewd’ (i.e., obscene or indecent) conduct, whether or not the
exposure was . . . motivated by a desire for sexual
gratification.”
The BIA then concluded that “all violations of Rev.
Code. Wash. § 9A.88.010 necessarily involve both willful
exposure of the offender’s private parts and intentional
lewdness” and that the offense was therefore categorically a
crime involving moral turpitude. 4 The BIA thus affirmed
the IJ’s order of removal, concluding that Barrera-Lima’s
convictions for indecent exposure rendered him ineligible
for both cancellation of removal and voluntary departure.
3
Cortes Medina postdated the IJ’s decision in this case.
4
Barrera-Lima appealed only the IJ’s determination that his
conviction under Wash. Rev. Code § 9A.88.010(2)(b) for indecent
exposure to a minor under the age of fourteen was a crime involving
moral turpitude. On appeal, the BIA erroneously conflated Wash. Rev.
Code § 9A.88.010(1) (general indecent exposure) with Wash. Rev. Code
§ 9A.88.010(2)(b) (indecent exposure to a minor)—two separate
crimes—and concluded that Wash. Rev. Code § 9A.88.010 as a whole
is categorically a crime involving moral turpitude.
10 BARRERA-LIMA V. SESSIONS
Barrera-Lima timely petitioned for review.
II.
“Whether a crime involves moral turpitude is a question
of law that we have jurisdiction to review pursuant to
8 U.S.C. § 1252(a)(2)(D).” Nunez, 594 F.3d at 1129. We
review de novo the BIA’s interpretation of the statute of
conviction. Id. If the BIA’s “conclusion that a particular
crime does or does not involve moral turpitude” relies on—
or is itself—a precedential decision, we accord the decision
Chevron 5 deference. Id. Otherwise, we apply Skidmore v.
Swift & Co., 323 U.S. 134 (1944), and defer to the BIA’s
conclusion only to the extent that it has the power to
persuade. See Nunez, 594 F.3d at 1129. If the offense in
question is not categorically a crime involving moral
turpitude, we review de novo whether the statute of
conviction is divisible for purposes of the modified
categorical approach. See Almanza-Arenas v. Lynch,
815 F.3d 469, 477 (9th Cir. 2015) (en banc) (“Divisibility,
like element identification, is reviewed de novo, because it
‘is a purely legal question which does not require any
additional fact finding.’” (quoting Medina-Lara v. Holder,
771 F.3d 1106, 1117 (9th Cir. 2014))).
III.
We employ a “two-step framework for evaluating
whether a conviction is categorically a [crime involving
moral turpitude].” Rivera v. Lynch, 816 F.3d 1064, 1070
(9th Cir. 2015). The process itself is fairly straightforward:
first, we identify the requisite elements for conviction under
5
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984).
BARRERA-LIMA V. SESSIONS 11
the statute. See id. Next, we apply the categorical approach
to determine whether the elements of conviction match the
generic definition of a crime involving moral turpitude. See
id. If there is no realistic probability that “‘the State would
apply its statute to conduct that falls outside the generic
definition’ of moral turpitude,” then the statute is a match
and our inquiry comes to an end. Nunez, 594 F.3d at 1129
(quoting Nicanor-Romero v. Mukasey, 523 F.3d 992, 1004
(9th Cir. 2008), overruled on other grounds by Marmolejo-
Campos v. Holder, 558 F.3d 903, 908 (9th Cir. 2009) (en
banc)). If, however, there is a realistic probability that the
State would apply the statute in a manner that captures non-
morally turpitudinous conduct, the statute is not a categorical
match and we must next ascertain whether the statute is
divisible. See Rivera, 816 F.3d at 1078. Only when the
statute is divisible into multiple crimes—at least one of
which must categorically match the generic definition of a
crime involving moral turpitude—do we apply the modified
categorical approach to discern whether the petitioner’s
conviction can be narrowed to the qualifying crime. 6
Because Barrera-Lima was convicted under Wash. Rev.
Code § 9A.88.010(1) in 2010 and under Wash. Rev. Code
6
The term “modified categorical approach”—to the extent it
suggests that the modified and categorical approaches are two different
tests—is a misnomer. As the Supreme Court has repeatedly explained,
the modified categorical approach is simply a step in the categorical
approach. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187 (2007)
(citing Conteh v. Gonzales, 461 F.3d 45, 54 (1st Cir. 2006)); see also
Descamps v. United States, 570 U.S. 254, 263 (2013) (“[T]he modified
approach merely helps implement the categorical approach when a
defendant was convicted of violating a divisible statute . . . . [It] thus acts
not as an exception, but instead as a tool.”).
12 BARRERA-LIMA V. SESSIONS
§ 9A.88.010(2)(b) in 2009, we address each conviction in
turn.
IV.
A.
Wash. Rev. Code § 9A.88.010(1) provides, in relevant
part, that:
A person is guilty of indecent exposure if he
or she intentionally makes any open and
obscene exposure of his or her person or the
person of another knowing that such conduct
is likely to cause reasonable affront or alarm.
The act of breastfeeding or expressing breast
milk is not indecent exposure.
The statute therefore requires that the government prove
three elements in order to convict a defendant of indecent
exposure: (1) the defendant made an “open and obscene”
exposure of his or her genitalia or that of another person’s,
see State v. Vars, 237 P.3d 378, 382 (Wash. Ct. App. 2010)
(explaining that indecent exposure requires “an exposure of
genitalia in the presence of another”); (2) the defendant did
so intentionally; and (3) the defendant knew that such
conduct would likely cause “reasonable affront or alarm.”
See 11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 47.02
(4th ed. 2016) (listing elements).
Relying on Vars, the BIA added a fourth element to the
offense: that of lascivious intent, which it further defined to
mean “tending to excite lust; lewd; indecent, obscene.” In
so doing, it committed the first of several legal errors.
BARRERA-LIMA V. SESSIONS 13
In Vars, the question before the court was whether “the
State must prove that a witness observed the defendant’s
naked genitalia as an element of the crime of indecent
exposure.” 237 P.3d at 381. Because the statute does not
define “open and obscene exposure,” the court relied on
Washington common law to shed light on the legislature’s
intended meaning. See id. It was in this limited context that
the court defined “open and obscene exposure” to mean “‘a
lascivious exhibition of those private parts of the person
which instinctive modesty, human decency, or common
propriety require shall be customarily kept covered in the
presence of others.’” Id. (quoting State v. Galbreath,
419 P.2d 800, 803 (Wash. 1966)). Emphasizing that the
“gravamen of the crime is an intentional and ‘obscene
exposure’ in the presence of another,” the court concluded
that a witness’s observation of the defendant’s genitalia was
immaterial to guilt. Id. at 382.
There is no indication that the court intended in Vars to
add sexual or lewd intent as an element of indecent exposure.
See id. at 382–83 (“[T]he issue is whether sufficient
circumstantial evidence exists to prove that Vars
intentionally exposed himself in the presence of another and
in a manner likely to cause affront or alarm.”). Instead, Vars
seems to suggest that “obscene” or “lascivious” exposure
merely means the act of exposing one’s genitalia as opposed
to the defendant’s specific intent—lewd, lustful, or
otherwise—in exposing himself or herself. See id. at 382
n.16. Indeed, the Washington Supreme Court recently
affirmed that “[n]othing in the statute or these definitions [of
obscene and lascivious] inherently requires that an exposure
be committed with a sexual motive.” State v. Murray,
416 P.3d 1225, 1229 (Wash. 2018) (emphasis in original).
14 BARRERA-LIMA V. SESSIONS
Nor does it make sense to read lewd intent into the
statute. Wash. Rev. Code § 9A.88.010(1) was expressly
amended in 2001 to exclude breastfeeding. See 2001 Wash.
Legis. Serv. Ch. 88 (West). Such an amendment would have
been superfluous if conviction for indecent exposure truly
required lewd or lascivious intent. Rather, the amendment
appears to carve out an exception to what constitutes
“obscene” exposure. In other words, while exposing one’s
breast is generally an obscene act, breastfeeding is not. See
also S. 227, 57th Leg. First Reg. Sess. (Wash. 2001)
(proposing, unsuccessfully, to amend section 9A.88.010 to
exclude breastfeeding from the offense of indecent exposure
only if “the breast remains covered”).
Washington’s indecent exposure statute is therefore
notable for its unusual breadth. The exposure need not have
taken place in a public space, see State v. Dubois, 793 P.2d
439, 441 (Wash. Ct. App. 1990), been observed, see Vars,
237 P.3d at 381, or actually caused affront or alarm, see State
v. Eisenshank, 521 P.2d 239, 241 (Wash. Ct. App. 1974), in
order to sustain conviction. Moreover, unlike similar
indecent exposure statutes in other states, conviction does
not require the state to prove that the exposure was motivated
by “sexual arousal, gratification, or affront,” Nunez,
594 F.3d at 1130—it need only prove that the defendant
intentionally exposed his or her genitalia in the presence of
another person knowing that the exposure would cause
reasonable affront or alarm, see Wash. Rev. Code
§ 9A.88.010(1).
B.
With these elements in mind, we turn to the categorical
approach and address whether Wash. Rev. Code
§ 9A.88.010(1) maps cleanly onto the generic definition of
moral turpitude. We conclude that it does not.
BARRERA-LIMA V. SESSIONS 15
1.
As a threshold matter, we first hold that the BIA’s
decision is entitled to neither Chevron nor Skidmore
deference. Ordinarily, a decision by the BIA is entitled to
Chevron deference when it relies on a precedential BIA
decision to determine that certain conduct is morally
turpitudinous. See Rivera, 816 F.3d at 1070. Here, however,
the BIA’s failure to properly apply Cortes Medina to
Washington’s indecent exposure statute takes its
unpublished order well beyond the bounds of both Chevron
and Skidmore.
At issue in Cortes Medina was “whether indecent
exposure under California law is categorically a crime
involving moral turpitude.” 26 I. & N. Dec. at 81. Rejecting
our prior determination in Nunez that it was not, 7 the BIA
focused on the fact that conviction under California’s
indecent exposure statute requires “a finding of lewdness,”
specifically, “lewd intent.” Id. at 84. In the BIA’s view, the
critical distinction between indecent exposure statutes that
are categorically crimes involving moral turpitude and those
that are not is the inclusion of sexual motivation or lewd
intent as an element of the offense. Thus, a juvenile who
exposes himself to “annoy and affront others, but not for
purposes of sexual gratification,” has not engaged in morally
turpitudinous conduct because “he did not act with lewd
intent.” Id. On the other hand, someone who engages in
masturbation near women in a movie theater has committed
7
The BIA relied on National Cable & Telecommunications
Association v. Brand X Internet Services., 545 U.S. 967 (2005) to reject
our contrary determination in Nunez.
16 BARRERA-LIMA V. SESSIONS
a crime involving moral turpitude because he acted with
sexual motivation—i.e., lewd intent. See id. at 83.
The BIA emphasized that under its interpretation of
morally turpitudinous conduct, “only a conviction that
includes lewd behavior as defined by the California Supreme
Court would involve moral turpitude” for crimes involving
indecent exposure. Id. at 85. The BIA therefore focused on
a California Supreme Court opinion defining lewd purpose
or intent to mean “‘purposes of sexual arousal, gratification,
or affront.’” See, e.g., id. at 85 (quoting In re Smith,
497 P.2d 807, 810 (Cal. 1972)). Smith itself concluded that
“a person does not expose his private parts ‘lewdly’ within
the meaning of [the statute] unless his conduct is sexually
motivated.” 497 P.2d at 810. Cortes Medina thus embraced
a definition of lewd intent that was restricted to sexually
motivated exposure. See 26 I. & N. Dec. at 84 (“We
conclude that a person convicted of indecent exposure in
violation of section 314(1) has committed a crime involving
moral turpitude because a finding of lewdness is necessary
for conviction.”); see also id. n.4 (citing Polk v. State,
865 S.W.2d 627 (Tex. Ct. App. 1993) approvingly for
distinguishing between exposure and exposure with the
“intent to arouse or gratify sexual desire” (internal quotation
marks omitted)).
Cortes Medina’s definition of lewd intent cannot be
squared with the BIA’s decision in the instant case. Cortes
Medina explicitly recognized that exposure with the intent
to annoy or affront others—absent some sexual
motivation—does not satisfy the requirements for lewd
exposure. See id. at 84. Yet the BIA inexplicably concluded
here that “lewd intent” encompasses any general intent to
“harass, humiliate, outrage, or frighten.” Even more
baffling, the BIA concluded—despite clear language from
BARRERA-LIMA V. SESSIONS 17
Cortes Medina to the contrary—that lewd intent is not
commensurate with sexual motivation. The result is a
decision untethered to any published precedent.
An agency that misapplies its own precedent is not
entitled to Chevron deference, which is reserved for those
decisions that are precedential or are appropriately “based
on” a previously issued precedential decision. Saldivar v.
Sessions, 877 F.3d 812, 815 n.3 (9th Cir. 2017).
Accordingly, we conclude that where, as here, the BIA
erroneously applies its published precedent in an
unpublished decision, that decision is entitled only to
Skidmore deference. See, e.g., id. (concluding that because
the BIA misinterpreted its own precedent, its “interpretation
could not govern, regardless of which level of deference it is
due”); cf. Padilla-Padilla v. Gonzales, 463 F.3d 972, 980–
81 (9th Cir. 2006) (“We defer to an agency’s interpretation
of its own regulations. However, where that interpretation
is ‘plainly erroneous or inconsistent with the regulation’ we
will not so defer.” (citation and internal alteration omitted)
(quoting Salehpour v. INS, 761 F.2d 1442, 1445 (9th Cir.
1985))).
The BIA’s unpublished decision in this case fares little
better under Skidmore, which takes into consideration the
“thoroughness evident in [the agency’s] consideration, the
validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it the
power to persuade, if lacking power to control.” 323 U.S. at
140. As we have explained, the BIA’s analysis here is
plainly inconsistent with Cortes Medina, which gravely
undermines its persuasiveness. See Saldivar, 877 F.3d at
815 n.3 (“For the reasons given in this opinion, including the
BIA’s misinterpretation of Blancas-Lara itself, . . . we do
18 BARRERA-LIMA V. SESSIONS
not find the BIA’s interpretation of § 1229b(a)(2) to be
persuasive or based on valid reasoning.”).
To the extent the BIA sought to expand upon Cortes
Medina’s definition of lewd intent in a single-member,
unpublished decision, its lack of explanation or reason for
doing so renders its new interpretation of morally
turpitudinous conduct exceedingly unpersuasive. See
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1211 (9th Cir.
2013) (declining to defer to the BIA’s decision under
Skidmore where the decision contained “no analysis at all”
and “little reasoning”). This is particularly true given that
the BIA’s new and expansive definition of lewd intent to
include non-sexually motivated exposures would render
many, if not most, state convictions for indecent exposure
crimes involving moral turpitude—an outcome Cortes
Medina expressly disavowed. See Cortes Medina, 26 I. &
N. Dec. at 82 (“We have long held that indecent exposure is
not inherently turpitudinous in the absence of lewd or
lascivious intent.”).
2.
Having concluded that the BIA’s decision here is not
entitled to deference, we next address whether all conduct
captured by Wash. Rev. Code § 9A.88.010(1) falls within
the generic definition of morally turpitudinous conduct. 8
8
We do not remand for the agency to reapply the categorical
approach because all three Fregozo v. Holder, 576 F.3d 1030 (9th Cir.
2009) requirements have been met: (1) only legal questions remain, none
of which implicate the BIA’s expertise; (2) all relevant evidence
regarding Barrera-Lima’s convictions has already been presented to the
BIA; and (3) the BIA has already determined that the offense falls within
the generic definition of the crime. See id. at 1036; see also Flores-Lopez
BARRERA-LIMA V. SESSIONS 19
We assume, without deciding, that Cortes Medina is entitled
to Chevron deference and that the BIA’s interpretation of
morally turpitudinous indecent exposure in Cortes Medina
controls in this instance, because Washington’s indecent
exposure statute is overbroad regardless of whether we apply
Nunez or Cortes Medina. 9
Cortes Medina held that “for the offense of indecent
exposure to be considered a crime involving moral turpitude
under the immigration laws, the statute prohibiting the
conduct must require not only the willful exposure of private
parts but also a lewd intent.” 26 I. & N. Dec. at 83. Lewd
v. Holder, 685 F.3d 857, 865–66 (9th Cir. 2012) (summarizing the
Fregozo factors).
9
We do not address whether Cortes Medina is entitled to Chevron
deference under Brand X, because Barrera-Lima failed to raise this
argument in his opening brief. See Koerner v. Grigas, 328 F.3d 1039,
1048 (9th Cir. 2003) (“In general, ‘we will not ordinarily consider
matters on appeal that are not specifically and distinctly argued in
appellant’s opening brief.’” (internal alteration omitted) (quoting United
States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992))). We note, however,
that while Brand X permits agencies to reject a court’s interpretation of
an ambiguous statutory provision so long as the new interpretation is
reasonable, it is not clear that an agency can advance an interpretation
that the courts have previously deemed unambiguously foreclosed by
law. See Brand X, 545 U.S. at 982–83 (“Only a judicial precedent
holding that the statute unambiguously forecloses the agency’s
interpretation, and therefore contains no gap for the agency to fill,
displaces a conflicting agency construction.”); cf. Mercado-Zazueta v.
Holder, 580 F.3d 1102, 1114 (9th Cir. 2009) (“In sum, neither Brand X
nor Duran Gonzales suggests that an agency may resurrect a statutory
interpretation that a circuit court has foreclosed by rejecting it as
unreasonable at Chevron’s second step.”), abrogated on other grounds
by Holder v. Martinez Gutierrez, 566 U.S. 583 (2012) (concluding the
BIA’s interpretation both times was reasonable).
20 BARRERA-LIMA V. SESSIONS
intent, in turn, refers to sexually motivated conduct—
whether it be for sexual gratification, sexual affront, or some
other sexual purpose entirely. See id. at 83–85. Unlike
California’s indecent exposure statute, however, Wash. Rev.
Code § 9A.88.010(1) contains no such element of lewd
intent. See Murray, 416 P.3d at 1229 (rejecting the argument
that indecent exposure is “inherently sexual in nature” and
concluding that “[n]othing in the statute or these definitions
inherently requires that an exposure be committed with a
sexual motive” (emphasis in original)). As the Washington
Court of Appeals explained in Vars, “sexual motivation is an
aggravating circumstance that can support an exceptional
sentence” for indecent exposure offenses—it is not required
to convict a defendant of indecent exposure. 237 P.3d at
383. A prosecutor may therefore separately file a “special
allegation of sexual motivation” to try to enhance the
defendant’s sentence, but such allegations are not required
for run-of-the-mill indecent exposure cases. 10 Id.
Put simply, Washington’s indecent exposure statute
lacks the morally turpitudinous element critical to the BIA’s
determination in Cortes Medina: lewd intent. As we have
recognized before, “if ‘a state statute explicitly defines a
crime more broadly than the generic definition, no ‘legal
imagination’ is required to hold that a realistic probability
exists that the state will apply its statute to conduct that falls
outside the generic definition of the crime.’” Chavez-Solis
10
This may explain why Washington does not consider indecent
exposure a sex offense. See Wash. Rev. Code § 9.94A.030(47)
(excluding indecent exposure from its definition of “sex offense”); see
also State v. Murray, 416 P.3d 1225, 1228 (Wash. 2018) (“Indecent
exposure is not one of the crimes defined as a sex offense.” (emphasis in
original)).
BARRERA-LIMA V. SESSIONS 21
v. Lynch, 803 F.3d 1004, 1009–10 (9th Cir. 2015) (quoting
United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)
(en banc)). Accordingly, the absence of any lewd intent
element from Washington’s indecent exposure statute means
that there is a “realistic probability, not a theoretical
possibility, that the State [will] apply its statute to conduct
that falls outside the generic definition of a crime.” 11
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). We
therefore conclude that indecent exposure under Wash. Rev.
Code § 9A.88.010(1) is not categorically a crime involving
moral turpitude.
C.
We turn to the next step of the categorical approach—the
modified categorical approach—to determine whether
Washington’s indecent exposure statute is divisible, and if
so, whether any of the divisible crimes are categorically
crimes involving moral turpitude. We conclude that Wash.
Rev. Code § 9A.88.010(1) is indivisible and that the
modified categorical approach is therefore inapplicable.
A statute is divisible only if it has “multiple, alternative
elements, and so effectively creates ‘several different
crimes.’” Almanza-Arenas, 815 F.3d at 476 (quoting
11
Indeed, the Washington Supreme Court recently affirmed “several
conceivable examples where an individual could be convicted of
indecent exposure but lack sexual motivation: (1) flashing a passerby for
shock value, (2) streaking naked across a school campus, or (3) mooning
someone out a window.” Murray, 416 P.3d at 1229. Wash. Rev. Code
§ 9A.88.010(1) is therefore clearly categorically overbroad under Cortes
Medina. See 26 I. & N. Dec. at 85 (explicitly distinguishing between
non-morally turpitudinous “simple public nudity,” such as mooning
oncoming traffic without lewd intent, and “indecent exposure with a
lewd intent,” which is morally turpitudinous).
22 BARRERA-LIMA V. SESSIONS
Descamps v. United States, 570 U.S. 254, 264 (2013)). If,
however, the statute consists of a “‘single, indivisible set of
elements’ with different means of committing one crime,
then it is indivisible” and our inquiry comes to an end. Id. at
476–77 (quoting Descamps, 570 U.S. at 265). Wash. Rev.
Code § 9A.88.010(1) clearly falls within the latter scenario.
There is only one crime, and it consists of an indivisible set
of three elements: (1) intentional and (2) open exposure of
the defendant’s or someone else’s genitalia (3) knowing that
the exposure was likely to cause reasonable affront or alarm.
See Vars, 237 P.3d at 382–83; see also 11 Wash. Prac.,
Pattern Jury Instr. Crim. WPIC 47.02 (4th ed. 2016). This
conclusion ends our inquiry as to Wash. Rev. Code
§ 9A.88.010(1). Presuming, as we must, that Barrera-
Lima’s 2010 conviction under Wash. Rev. Code
§ 9A.88.010(1) “rested upon nothing more than the least of
the acts criminalized,” Moncrieffe v. Holder, 569 U.S. 184,
191 (2013) (internal alterations and quotation marks
omitted), we conclude that Barrera-Lima was not convicted
of a crime involving moral turpitude.
V.
Although the analysis is substantially similar, there are a
few points of law regarding Barrera-Lima’s 2009 conviction
for indecent exposure to a person under the age of fourteen
that require separate consideration. Again, we apply our
two-step framework to assess whether Wash. Rev. Code
§ 9A.88.010(2)(b) is categorically a crime involving moral
turpitude. We conclude it is not.
A.
Wash. Rev. Code § 9A.88.010(2)(b)’s objective is clear
and direct: “Indecent exposure is a gross misdemeanor on
the first offense if the person exposes himself or herself to a
BARRERA-LIMA V. SESSIONS 23
person under the age of fourteen years.” To obtain a
conviction under this statute, the state must prove beyond a
reasonable doubt each of the following four elements: the
defendant (1) intentionally (2) made an open exposure of
their genitalia (3) to a child under the age of fourteen
(4) knowing that such conduct was likely to cause
reasonable affront or alarm. See 11 Wash. Prac., Pattern Jury
Instr. Crim. WPIC 47.04 (collapsing the first and second
elements). As with Wash. Rev. Code § 9A.88.010(1),
conviction under Wash. Rev. Code § 9A.88.010(2)(b) does
not require proof that the exposure have been sexually
motivated, taken place in public, or caused affront or alarm.
See supra p. 14. And although not a clearly settled question
under Washington law, § 9A.88.010(2)(b)—like
§ 9A.88.010(1)—does not appear to require that the
exposure have been actually observed by a person under the
age of fourteen. See State v. C.C., 2007 WL 2999104, at *7
(Wash. Ct. App. 2007); cf. Vars, 237 P.3d at 382. The only
additional requirement is that a person under the age of
fourteen have been involved.
B.
The BIA erroneously conflated Wash. Rev. Code
§ 9A.88.010(1) and Wash. Rev. Code § 9A.88.010(2)(b) in
its analysis of Barrera-Lima’s convictions. As a result, its
decision fails to address Wash. Rev. Code
§ 9A.88.010(2)(b)’s additional element. That omission,
combined with the BIA’s erroneous application of Cortes
Medina, see supra pp. 15–18, renders Chevron and Skidmore
deference particularly inapplicable in this instance.
Furthermore, Cortes Medina itself does not squarely govern
the question at hand because it did not address indecent
exposure statutes that involve a protected class of victims.
Accordingly, even if the BIA had correctly applied Cortes
24 BARRERA-LIMA V. SESSIONS
Medina in this case—which it did not—its decision would
not be entitled to Chevron deference. See Castrijon-Garcia,
704 F.3d at 1210 (“Chevron deference is afforded to an
unpublished decision only when it is ‘directly controlled by
a published decision interpreting the same statute.’” (quoting
Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010))).
Because Cortes Medina did not provide an interpretation
of morally turpitudinous conduct for indecent exposures that
involve a protected class of victims, we address for the first
time whether all acts forbidden by Wash. Rev. Code
§ 9A.88.010(2)(b) can be characterized as morally
turpitudinous. We conclude that they cannot.
We have long lamented the ambiguity inherent in the
phrase “moral turpitude,” an amorphous term that has
consistently escaped precise definition. See, e.g., Nunez,
594 F.3d at 1130 (“We have previously discussed at some
length the inherent ambiguity of the phrase ‘moral turpitude’
and the consistent failure of either the BIA or our own court
to establish any coherent criteria for determining which
crimes fall within that classification and which crimes do
not.”); see also Rohit v. Holder, 670 F.3d 1085, 1088 (9th
Cir. 2012) (acknowledging that the term “moral turpitude”
is “the quintessential example of an ambiguous phrase”
(quoting Marmolejo-Campos, 558 F.3d 903, 909 (9th Cir.
2009) (en banc))). Nonetheless, we have defined morally
turpitudinous conduct to mean either fraudulent conduct or
“vile, base, or depraved” behavior that “violates accepted
moral standards.” Almanza-Arenas, 815 F.3d at 476. We
have repeatedly cautioned that under our definition, crimes
other than fraud “must be more than serious; [they] must
offend the most fundamental moral values of society, or as
some would say, shock the public conscience.” Hernandez-
BARRERA-LIMA V. SESSIONS 25
Gonzales v. Holder, 778 F.3d 793, 801 (9th Cir. 2015)
(quoting Castrijon-Garcia, 704 F.3d at 1212).
Applying that definition, we have often—although not
always—concluded that crimes directed towards a protected
class of victims, such as children, are categorically crimes of
moral turpitude. See Nunez, 594 F.3d at 1132. At times,
however, we will encounter a statute that is simply written
too broadly to capture only depraved conduct that shocks the
public conscience. See Nicanor-Romero v. Mukasey,
523 F.3d 992, 1000 (9th Cir. 2008) (concluding California’s
crime of annoying or molesting a child under the age of
eighteen was not categorically a crime involving moral
turpitude), overruled on other grounds by Marmolejo-
Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en
banc). This is one such statute.
Wash. Rev. Code § 9A.88.010(2)(b) is unusually broad:
it appears that a defendant can be convicted of indecent
exposure to a person under the age of fourteen even if no one
witnessed the exposure, so long as the exposure took place
in the presence of a child. See C.C., 2007 WL 2999104, at
*7; cf. Vars, 237 P.3d at 381. Nor, for that matter, need the
exposure have been sexually motivated. See Murray,
416 P.3d at 1228–29; Vars, 237 P.3d at 383. Thus, in C.C.,
the Washington Court of Appeals upheld the conviction of a
boy who exposed his genitalia to his cousin, who was two
years younger than him, in the back of a car. 12 Id. at *6–7.
There is no indication—at least from the court’s
description—that the victim actually saw C.C.’s genitalia or
12
C.C. was either eleven or twelve years of age at the time of the
incident. See C.C., 2007 WL 2999104, at *10.
26 BARRERA-LIMA V. SESSIONS
that C.C. exposed himself for sexual gratification. 13 Instead,
the court focused on whether there was sufficient evidence
to show that C.C. knew exposing himself “would cause
reasonable affront or alarm.” Id. at *7. Concluding that
there was, the court affirmed his conviction. See id.
C.C.’s behavior in the car, while inappropriate, cannot
fairly be characterized as so vile and depraved as to shock
the public conscience. In Nunez, we recognized that a “12-
year-old boy who pulled down his pants during class and
showed his penis to two female classmates” had acted
inappropriately, but concluded that the act itself could not
“rationally be characterized as inherently base, vile and
depraved.” 594 F.3d at 1137–38. This was despite
California’s requirement that the indecent exposure have
been sexually motivated. The lack of a corresponding
requirement in C.C. further evidences Wash. Rev. Code
§ 9A.88.010(2)(b)’s disconnect from morally turpitudinous
conduct.
Indeed, there are aspects of Wash. Rev. Code
§ 9A.88.010(2)(b) that trouble us more than the statute at
issue in Nicanor-Romero, where we concluded that
California’s crime of annoying or molesting a child under
the age of 18 was not a categorical crime involving moral
turpitude. For one, the statute in Nicanor-Romero required
the State to prove that the defendant’s conduct was
13
C.C. was separately convicted of child molestation, second degree
rape, and indecent liberties arising out of different incidents. See C.C.,
2007 WL 2999104, at *1 n.2. Nonetheless, the court’s decision
addressing C.C.’s conviction for indecent exposure to a person under the
age of fourteen made no mention of his motives for doing so. See id. at
*6–7. Furthermore, the decision does not indicate that C.C. was charged
with sexually motivated indecent exposure as a sentence enhancement.
See id.
BARRERA-LIMA V. SESSIONS 27
“motivated by an unnatural or abnormal sexual interest in the
victim.” 523 F.3d at 1000 (quoting People v. Lopez,
965 P.2d 713, 717 (Cal. 1998)). Wash. Rev. Code
§ 9A.88.010(2)(b) contains no such requirement—our
calculation might well be different if it did. For another, it
may not even be the case that a defendant must have
specifically intended to expose himself in the presence of a
child—as opposed to simply exposing himself—in order to
be convicted. Cf. Vars, 237 P.3d at 382 (“So long as an
obscene exposure takes place when another is present and
the offender knew the exposure likely would cause
reasonable alarm, the crime has been committed.”). But see
State v. Legg, 2004 WL 234049, at *1–2 (Wash. Ct. App.
2004) (suggesting that there was sufficient evidence to
support Legg’s conviction for indecent exposure to a person
under the age of fourteen because a witness overheard him
saying that he “just wanted the boy to see what he would
look like when he grew up”). Moreover, because it’s unclear
whether the exposure need even be witnessed by the child in
question, Wash. Rev. Code § 9A.88.010(2)(b) “does ‘not
necessarily require harm or injury, whether psychological or
physical.’” Nicanor-Romero, 523 F.3d at 1000 (quoting
United States v. Baza-Martinez, 464 F.3d 1010, 1015 (9th
Cir. 2006)).
Taken together, the expansive reach of Wash. Rev. Code
§ 9A.88.010(2)(b) leads us to conclude that the statute
cannot categorically be a crime involving moral turpitude.
Other indecent exposure statutes aimed at protecting a class
of victims, such as children, may categorically qualify as
crimes involving moral turpitude because they include any
number of the elements missing from Wash. Rev. Code
§ 9A.88.010(2)(b)—sexual motivation, actual observation,
or specific intent—but we are not called upon to assess those
statutes. Furthermore, as C.C. demonstrates, there is a
28 BARRERA-LIMA V. SESSIONS
realistic probability and not just a theoretical possibility that
the State will apply Wash. Rev. Code § 9A.88.010(2)(b) to
non-morally turpitudinous conduct. We therefore conclude
that indecent exposure to a person under the age of fourteen
pursuant to Wash. Rev. Code § 9A.88.010(2)(b) is not
categorically a crime involving moral turpitude. We also
conclude, for the reasons discussed earlier, that Wash. Rev.
Code § 9A.88.010(2)(b) is indivisible and that the modified
categorical approach is inapplicable. See supra pp. 21–22.
Because we must presume that Barrera-Lima’s conviction
for indecent exposure to a person under fourteen years of age
rested upon the least of the acts criminalized, see Moncrieffe,
569 U.S. at 191, we conclude that he was not convicted of a
crime involving moral turpitude.
VI.
In the absence of a conviction for a crime involving
moral turpitude, Barrera-Lima is eligible to apply for
cancellation of removal and voluntary departure.
Accordingly, we grant his petition for review, vacate the
order of removal, and remand to the agency to consider
whether Barrera-Lima is otherwise eligible for cancellation
of removal or voluntary departure.
PETITION GRANTED AND REMANDED.
BARRERA-LIMA V. SESSIONS 29
GOULD, Circuit Judge, dissenting:
I respectfully dissent because I would grant the
Respondent’s Unopposed Motion to Remand. Our general
principle and practice is that we do not decide legal issues
absent a need to do so. Where the Government respondent
seeks to gain remand so the Board of Immigration Appeals
can consider the impact of how particular decided cases bear
on the question whether a petitioner’s prior conviction for
particular state-law crime qualifies as a crime involving
moral turpitude, disqualifying the petitioner from eligibility
for cancellation of removal, and the petitioner himself does
not oppose the motion indicating that he is agreeable to the
proposed remand, we need not decide the case at this time.
We cannot predict now with certainty how the BIA will
resolve the issue on the proposed remand. We cannot predict
with certainty whether there would be a new appeal on that
decision. We cannot predict at all whether the petitioner or
the Government on remand might hit upon some innovative
solution to resolve the case. So why should we decide this
case now? 1
1
The majority opinion in its footnote 1 contends that the unopposed
motion to remand should be denied because the government's motion
"does not make any sense," and the cases cited in the unopposed motion
are not relevant. But we should not be deciding case issues when the
parties are in agreement that it makes sense to remand to the BIA. We
could take up the case again after the BIA decision if either party
appealed it, but otherwise there is no need.
The BIA should be permitted to reassess in light of Valdivia-Flores.
Instead, the majority gratuitously decides that all crimes of moral
turpitude require a heightened mens rea. Where the parties agree to
remand, it is unwise for us to render a decision on issues that need not
now be decided by us.