Leonardo Conejo-Bravo v. Jefferson Sessions ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARDO CONEJO-BRAVO, No. 13-72280
Petitioner,
Agency No.
v. A095-685-819
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 9, 2017 *
Pasadena, California
Filed November 17, 2017
Before: Harry Pregerson, Jacqueline H. Nguyen,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). This case is
resubmitted as of November 9, 2017.
2 CONEJO-BRAVO V. SESSIONS
SUMMARY **
Immigration
The panel denied Leonardo Conejo-Bravo’s petition for
review of the Board of Immigration Appeals’ decision that
his felony hit and run conviction under California Vehicle
Code § 20001(a) was a crime involving moral turpitude that
rendered him ineligible for cancellation of removal.
The panel reaffirmed that California Vehicle Code
§ 20001(a) is divisible into several crimes some of which
may involve moral turpitude and some of which may not.
Applying the modified categorical approach, the panel noted
that Conejo-Bravo admitted in his plea agreement that he
was involved in a car accident that led to injury. The panel
therefore concluded that the elements of his conviction made
out a felony conviction for traditional hit and run causing
injuries that qualifies as a crime involving moral turpitude
under current controlling precedent.
COUNSEL
David W. Williams, Santa Ana, California, for Petitioner.
Tim Ramnitz, Attorney; Jennifer P. Levings, Senior
Litigation Counsel; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CONEJO-BRAVO V. SESSIONS 3
OPINION
OWENS, Circuit Judge:
Petitioner Leonardo Conejo-Bravo (“Petitioner”) seeks
review of the Board of Immigration Appeals’ (“BIA”)
decision that his felony hit and run conviction under
California Vehicle Code section 20001(a) was a crime
involving moral turpitude (“CIMT”) that rendered him
ineligible for cancellation of removal under § 240A(b)(1) of
the Immigration and Nationality Act (“INA”). We have
jurisdiction under 8 U.S.C. § 1252(a)(1). Applying current
“modified categorical approach” precedent, we conclude
that the conviction at issue qualifies as a CIMT, and deny the
petition.
I. FACTUAL BACKGROUND AND
PROCEDURAL HISTORY
Petitioner, a Mexican national, entered the United States
without inspection in 1995. He is married with three United
States citizen children.
A. The Crime
On November 20, 2005, Petitioner was involved in a car
accident that injured another person. He fled the scene
without assisting the injured person or providing his contact
or insurance information. About a week later, he was
charged in a three-count criminal complaint for violating
California Vehicle Code section 20001(a) – felony hit and
run – and two less serious offenses – driving without a valid
license and failure to provide proof of insurance after an
accident.
4 CONEJO-BRAVO V. SESSIONS
On December 13, 2005, Petitioner pled guilty to all
counts. In his plea agreement, he admitted:
I was the driver of a vehicle and I became
involved in a traffic accident resulting in
injury to another person. I then knowingly,
willfully, and unlawfully failed to stop my
vehicle and give the injured person and
police officers my name, address and other
contact information[.] I further failed to
render assistance to the injured person. On
that date I drove a vehicle without a valid
license and I had no insurance.
He was sentenced to 180 days in county jail and three years’
probation.
B. The Immigration Proceedings
Immigration and Customs Enforcement initiated
removal proceedings against Petitioner, and – because
Petitioner conceded his removability – the sole issue was
whether he was eligible for cancellation of removal under
INA § 240A(b)(1) (8 U.S.C. § 1229b(b)(1)). The
Immigration Judge (“IJ”) concluded that Petitioner’s section
20001(a) conviction was a CIMT. Applying our decision in
Cerezo v. Mukasey, 512 F.3d 1163, 1168–69 (9th Cir. 2008),
the IJ recognized that the elements of section 20001(a) do
not always encompass qualifying conduct, as the failure to
present identification or proof of insurance following an
accident falls outside the normal definition of “hit and run.”
However, the IJ also recognized that Cerezo left open the
possibility that a conviction under section 20001(a) could
qualify as a CIMT under the so-called “modified categorical
approach,” as the statute was “divisible into several crimes,
some of which may involve moral turpitude and some of
CONEJO-BRAVO V. SESSIONS 5
which may not.” Id. at 1169 (citation omitted). Because
Petitioner had admitted in his plea agreement to “knowingly,
willfully and unlawfully” failing to stop his vehicle after he
was involved in a traffic accident that injured another person,
the IJ concluded that Petitioner’s conviction was for
traditional hit and run, and therefore qualified as a CIMT.
The BIA affirmed the IJ’s reasoning.
II. STANDARD OF REVIEW
The BIA’s determinations of purely legal questions are
reviewed “de novo, subject to established principles of
deference.” Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th
Cir. 2001). Deference under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council Inc., 467 U.S. 837(1984), applies to the “BIA’s precedential determination that
the specified conduct constitutes a CIMT.” Mendoza v.
Holder, 623 F.3d 1299, 1302 (9th Cir. 2010).
“Where . . . the BIA has reviewed the IJ’s decision and
incorporated portions of it as its own, we treat the
incorporated parts of the IJ’s decision as the BIA’s.”
Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).
III. DISCUSSION
“Almost every Term, the Supreme Court issues a ‘new’
decision with slightly different language that forces federal
judges, litigants, lawyers and probation officers to hit the
reset button once again” in determining whether a crime is a
CIMT. Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th
Cir. 2015) (en banc) (Owens, J., concurring). So we analyze
this question fully aware that the current Choose Your Own
Adventure approach to CIMTs and crimes of violence can
lead to unpredictable results. See, e.g., Edward Packard, The
Forbidden Castle (1982) (promising 27 possible resolutions
6 CONEJO-BRAVO V. SESSIONS
to one quest and a world where “you’ll find what isn’t what
it is”).
The IJ and BIA correctly applied Cerezo – section
20001(a) is not categorically a CIMT. We next “ask whether
[section 20001(a)] is a divisible statute which ‘sets out one
or more elements of the offense in the alternative.’” United
States v. Martinez-Lopez, 864 F.3d 1034, 1038 (9th Cir.
2017) (en banc) (quoting Descamps v. United States, 133 S.
Ct. 2276, 2281 (2013)). We have previously held that
section 20001(a) “is divisible into several crimes, some of
which may involve moral turpitude and some of which may
not.” Cerezo, 512 F.3d at 1169 (citation omitted). As
section 20001(a) is divisible, we “apply the modified
categorical approach.” Martinez-Lopez, 864 F.3d at 1039.
Consistent with Supreme Court precedent, the IJ and
BIA looked to Petitioner’s plea agreement to conclude that
Petitioner was convicted of traditional hit and run under
section 20001(a). See Mathis v. United States, 136 S. Ct.
2243, 2249 (2016). In his plea agreement, Petitioner
admitted that he was involved in a car accident that led to
injury and that he fled the scene. And we agree with the IJ
and BIA that a felony conviction for traditional hit and run
causing injury qualifies as a CIMT under current controlling
precedent, as “non-fraudulent crimes of moral turpitude
generally involve an intent to injure, actual injury, or a
protected class of victims.” Castrijon-Garcia v. Holder,
704 F.3d 1205, 1213 (9th Cir. 2013). Here, the actual injury
quotient is satisfied, and other courts agree that traditional
hit and run with injury is a CIMT. See, e.g., Garcia-
Maldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007)
(holding that Texas hit and run law qualifies as a CIMT, as
“the failure to stop and render aid after being involved in an
automobile accident is the type of base behavior that reflects
CONEJO-BRAVO V. SESSIONS 7
moral turpitude”). Further, a conviction for traditional hit
and run under section 20001(a) requires the driver to know
that he hit another person. See People v. Harbert, 87 Cal.
Rptr. 3d 751, 759 (Ct. App. 2009) (“Courts have accepted
that the driver charged with violating section 20001 must be
shown to have had knowledge of a collision with a person.”);
People v. Bautista, 265 Cal. Rptr. 661, 664 (Ct. App. 1990);
People v. Holford, 403 P.2d 423, 426–27 (Cal. 1965). 1
While the sentence imposed – 180 days – suggests that
the trial court did not view this offense as particularly
serious, the length of the sentence in this context is irrelevant
– only the elements of the conviction matter. And because
those elements make out traditional hit and run, Petitioner’s
section 20001(a) conviction qualifies as a CIMT.
PETITION DENIED.
1
Moreover, this court’s opinion in Latu v. Mukasey, 547 F.3d 1070,
1074–75 (9th Cir. 2008), is not applicable because the government did
not argue the modified categorical approach to the IJ or the BIA in Latu.
Here, the government did.