Natavidad Duran Escobar v. Loretta E. Lynch ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVIDAD DE JESUS DURAN No. 12-70930
ESCOBAR,
Petitioner, Agency No.
A075-707-335
v.
LORETTA E. LYNCH, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 8, 2016
Pasadena, California
Filed January 20, 2017
Before: Marsha S. Berzon, Morgan B. Christen,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Christen
2 DURAN V. LYNCH
SUMMARY*
Immigration
The panel granted Natividad De Jesus Duran Escobar’s
petition for review of the Board of Immigration Appeals’
decision finding her ineligible for cancellation of removal
because her conviction for witness tampering under
California Penal Code § 136.1(a) was a categorical crime
involving moral turpitude, and remanded.
The panel held that the Immigration Judge and BIA erred
by finding CPC § 136.1(a) a categorical CIMT, because the
offense is overly broad and not a categorical match to the
generic definition of a CIMT.
The panel granted Duran’s petition with respect to her
application for cancellation, and remanded for the Agency to
consider whether CPC § 136.1(a) is divisible and, if so, to
conduct the modified categorical analysis. The panel noted
that on appeal the parties did not brief the divisibility issue,
and that the BIA had not reached the modified categorical
approach. The panel wrote that although it could reach the
question of divisibility sua sponte because the BIA is not
entitled to deference when interpreting criminal statutes, it
was declining to do so.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DURAN V. LYNCH 3
COUNSEL
Susan Elizabeth Hill (argued), Hill and Piibe, Los Angeles,
California, for Petitioner.
Yanal H. Yousef (argued), Trial Attorney; M. Jocelyn Lopez
Wright, Senior Litigation Counsel; Leslie McKay, Assistant
Director; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
CHRISTEN, Circuit Judge:
This immigration case turns on whether California Penal
Code section 136.1(a), California’s witness tampering statute,
is a categorical crime involving moral turpitude. Petitioner
Natividad De Jesus Duran Escobar (Duran) is a native and
citizen of El Salvador, who fled to the United States after
several encounters with guerrillas in the 1980s. An
Immigration Judge (IJ) denied Duran’s application for
cancellation of removal, concluding that she was ineligible
because her conviction for witness tampering under section
136.1(a) was a categorical crime involving moral turpitude.
Duran appealed, the Board of Immigration Appeals (BIA)
affirmed, and Duran timely filed a petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
We grant the petition with respect to Duran’s application for
cancellation of removal because the IJ and BIA failed to
consider the broad definition of “malice” in California Penal
Code section 136, which indicates that the offense is not a
4 DURAN V. LYNCH
categorical match to the generic definition of a crime
involving moral turpitude.
BACKGROUND
Duran is a native and citizen of El Salvador. She entered
the United States without inspection on October 4, 1989.
Duran applied for asylum, withholding of removal, and
protection under the United Nations Convention Against
Torture (CAT) on July 19, 2000, alleging that she and her
family “were mistreated and threatened by the guerrillas” in
El Salvador in the 1980s. An asylum officer declined to grant
the application, and on September 11, 2000, the Department
of Homeland Security served her with a Notice to Appear
(NTA). The NTA charged Duran with being removable
because she was present in the United States without being
admitted or paroled under section 212 (a)(6)(A)(i) of the
Immigration and Nationality Act (INA), 8 U.S.C.
§ 1182(a)(6)(A)(i). Duran admitted removability, but applied
for cancellation of removal based on hardship to her minor
U.S. citizen son, Carlos.1
The IJ ruled that Duran is statutorily ineligible for
cancellation of removal because she was previously convicted
of a crime involving moral turpitude (CIMT). On April 19,
2001, Duran pleaded no contest to violating California Penal
Code section 136.1(a), California’s witness tampering statute.
1
Carlos was eight years old when Duran initially applied for
cancellation of removal, but he was seventeen by the time of the hearing
before the IJ in 2010. When Duran applied for cancellation of removal,
she also renewed her requests for asylum, withholding of removal, and
CAT protection. The IJ denied these applications, and the BIA affirmed.
We address Duran’s petitions for review of these issues in a memorandum
disposition filed concurrently with this opinion.
DURAN V. LYNCH 5
She was sentenced to sixty days in county jail and two years
supervised release. The IJ concluded that section 136.1(a) is
categorically a CIMT because malice is an element of the
offense. The IJ did not hear the full testimony regarding
Duran’s application for cancellation of removal because the
IJ deemed her statutorily ineligible.2 Duran timely appealed
to the BIA. The BIA, in an unpublished opinion, affirmed the
IJ’s conclusion that Duran was ineligible for cancellation of
removal due to her previous conviction.
DISCUSSION
“The determination whether a conviction under a criminal
statute is categorically a crime of moral turpitude involves
two steps, to which different standards of review apply.”
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.
2013) (alterations omitted) (quoting Uppal v. Holder,
605 F.3d 712, 714 (9th Cir. 2010)). “The first step is to
identify the elements of the statute of conviction,” and,
because the BIA “has no special expertise by virtue of its
statutory responsibilities in construing state or federal
criminal statutes,” we review the first step de novo. Id.
(quoting Uppal, 605 F.3d at 714).
“The second step is to compare the elements of the statute
of conviction to the generic definition of a crime of moral
turpitude and decide whether the conviction meets that
definition.” Id. “Because the BIA does have expertise in
making this determination, we defer to its conclusion if
warranted” under either Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984) or
2
Carlos was present and willing to testify, but because the IJ did not
reach the merits of Duran’s cancellation claim, Carlos did not testify.
6 DURAN V. LYNCH
Skidmore v. Swift & Co., 323 U.S. 134 (1944). Id. (quoting
Uppal, 605 F.3d at 714). Chevron applies “if the decision is
a published decision (or an unpublished decision directly
controlled by a published decision interpreting the same
statute),” while Skidmore governs “if the decision is
unpublished (and not directly controlled by any published
decision interpreting the same statute).” Id. (quoting Uppal,
605 F.3d at 714).
I. Generic Definition of a Crime Involving Moral
Turpitude
Under 8 U.S.C. § 1229b(b)(1), the Attorney General “may
cancel removal of . . . an alien who is inadmissible or
deportable from the United States if the alien—
(A) has been physically present in the United
States for a continuous period of not less than
10 years immediately preceding the date of
such application;
(B) has been a person of good moral character
during such period;
(C) has not been convicted of an offense
under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title, subject to paragraph
(5); and
(D) establishes that removal would result in
exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a
DURAN V. LYNCH 7
citizen of the United States or an alien
lawfully admitted for permanent residence.”3
Section 1182(a)(2) specifies that any alien convicted of “a
crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime”
is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i). “Although the
immigration statutes do not specifically define offenses
constituting crimes involving moral turpitude, a crime
involving moral turpitude is generally a crime that ‘(1) is vile,
base, or depraved and (2) violates accepted moral standards.’”
Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012)
(quoting Saavedra-Figueroa v. Holder, 625 F.3d 621, 626
(9th Cir. 2010)).
“Crimes of moral turpitude are generally ‘of two types:
those involving fraud and those involving grave acts of
baseness or depravity.’” Rivera v. Lynch, 816 F.3d 1064,
1074 (9th Cir. 2016) (quoting Castrijon-Garcia, 704 F.3d at
1212). “[F]raud crimes are categorically crimes involving
moral turpitude, simply by virtue of their fraudulent nature.”
Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016)
(alteration in original) (quoting Planes v. Holder, 652 F.3d
991, 997 (9th Cir. 2011)). “Non-fraudulent CIMTs will
almost always involve an intent to injure someone, an actual
injury, or a protected class of victims.” Turijan v. Holder,
744 F.3d 617, 621 (9th Cir. 2014).
3
The IJ did not address whether Duran established “unusual
hardship” under 8 U.S.C. § 1229b(b)(1)(D) because the IJ found she was
convicted of a CIMT under subsection (C). We likewise to do not address
the issue.
8 DURAN V. LYNCH
“In determining whether an offense is a CIMT, the BIA
has examined ‘whether the act is accompanied by a vicious
motive or a corrupt mind’ because ‘evil or malicious intent is
. . . the essence of moral turpitude.’” Linares-Gonzalez,
823 F.3d at 514 (alteration in original) (quoting Latter-Singh,
668 F.3d at 1161). But “where a protected class of victim is
involved, such as children or individuals who stand in a close
relationship to the perpetrator, both the BIA and this court
have been flexible about the intent ‘requirement,’ extending
the category of crimes of moral turpitude to encompass even
unintentional acts that only threaten harm.” Nunez v. Holder,
594 F.3d 1124, 1131 n.4 (9th Cir. 2010).
II. The Categorical Approach
To determine “whether the conduct proscribed by the
statute involves moral turpitude,” this court and the BIA
apply the “categorical approach” of Taylor v. United States,
495 U.S. 575, 598–602 (1990), “comparing the elements of
the state offense to those of the generic CIMT to determine if
there is a categorical match.” Linares-Gonzalez, 823 F.3d at
514 (citing Descamps v. United States, 133 S. Ct. 2276,
2283–86 (2013)). To show that the state offense is broader
than the generic definition of a CIMT, and thus not a
categorical match, the applicant must demonstrate that there
is “a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic definition of moral turpitude.” Turijan, 744 F.3d at
620 (quoting Nunez, 594 F.3d at 1129). “If the statute has
been applied in at least one previous case to conduct that does
not satisfy the generic definition, then the offense is not a
categorical CIMT.” Id. at 620–21 (citing Castrijon-Garcia,
704 F.3d at 1214–15).
DURAN V. LYNCH 9
A. Elements of the State Offense
California Penal Code section 136.1(a) states:
(a) Except as provided in subdivision (c), any
person who does any of the following is guilty
of a public offense and shall be punished by
imprisonment in a county jail for not more
than one year or in the state prison:
(1) Knowingly and maliciously prevents or
dissuades any witness or victim from
attending or giving testimony at any trial,
proceeding, or inquiry authorized by law.
(2) Knowingly and maliciously attempts to
prevent or dissuade any witness or victim
from attending or giving testimony at any
trial, proceeding, or inquiry authorized by
law.
(3) For purposes of this section, evidence that
the defendant was a family member who
interceded in an effort to protect the witness
or victim shall create a presumption that the
act was without malice.
Cal. Penal Code § 136.1(a). The elements of witness
intimidation in California are: (1) knowingly and maliciously
(2) preventing or dissuading or attempting to prevent or
dissuade (3) a victim or a witness (4) from attending or giving
testimony at any trial, proceeding, or inquiry authorized by
law. Judicial Counsel of California Criminal Jury
Instructions (CALCRIM) No. 2622; see also People v.
10 DURAN V. LYNCH
Wahidi, 166 Cal. Rptr. 3d 416, 418–19 (Ct. App. 2013).
Section 136 borrowed the American Bar Association (ABA)
model statute for witness intimidation’s definition of
“malice” as “an intent to vex, annoy, harm, or injure in any
way another person, or to thwart or interfere in any manner
with the orderly administration of justice.” Cal. Penal Code
§ 136(1); Wahidi, 166 Cal. Rptr. 3d at 420.
The IJ concluded that a violation of section 136.1(a) is a
categorical CIMT because it uses the word “maliciously.”
The IJ reasoned: “Each of the elements of the California
Section used the term malicious and thus, I see no legal room
to define the crime other than one involving elements of
moral turpitude.” The BIA agreed with the IJ and
emphasized that section 136.1(a) requires the “specific intent
to knowingly and maliciously intimidate a witness.” Neither
the BIA nor the IJ cited or discussed the California statute’s
definition of “malice” in reaching this conclusion. On appeal,
Duran argues that the BIA and IJ erred by failing to consider
the statute’s definition, which demonstrates the statute would
apply to conduct that falls outside the generic definition of
moral turpitude. We agree.
B. Level of Deference
First, we conclude that the BIA’s decision is not entitled
to Chevron deference with regard to its interpretation of the
CIMT provision. “Chevron deference is afforded to an
unpublished decision only when it is ‘directly controlled by
a published decision interpreting the same statute.’”
Castrijon-Garcia, 704 F.3d at 1210 (quoting Uppal, 605 F.3d
at 714). Although the BIA’s unpublished decision cites to
published decisions, none interprets 8 U.S.C. § 1182(a)(2) as
applied to California Penal Code section 136.1, and thus none
DURAN V. LYNCH 11
directly controls. See id. Where, as here, Chevron deference
is inapplicable, Skidmore deference may nonetheless apply.
“Under Skidmore, the weight afforded to the agency decision
‘will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to
control.’” Id. at 1211 (quoting Skidmore, 323 U.S. at 140).
The BIA’s decision insofar as it interprets the federal statute
within its purview is unpersuasive because it provided little
reasoning and the analysis it did provide is troubling.
The BIA observed “that the statute under which [Duran]
was convicted . . . falls within the federal definition of
obstruction of justice under 18 U.S.C. § 1512(b)(l).” But
neither the IJ nor the BIA explained why 18 U.S.C.
§ 1512(b)(l), the federal crime of witness tampering, is
relevant to the categorical analysis for California’s witness
tampering statute. The IJ cited to a Fifth Circuit case
addressing whether a conviction for criminal contempt
constitutes an “aggravated felony” under 8 U.S.C.
§ 1227(a)(2)(A)(iii). See Alwan v. Ashcroft, 388 F.3d 507,
514 (5th Cir. 2004). This citation suggests that the IJ and
BIA confused the analysis for whether the statute of
conviction is a categorical CIMT under 8 U.S.C. § 1182(a)(2)
with the analysis for whether a conviction is an aggravated
felony under § 1227(a)(2), a separate bar to cancellation of
removal. See 8 U.S.C. § 1229b(b).4
A separate problem is presented by the BIA’s use of a
more general description of a CIMT as “contrary to justice,
4
The government does not contend that Duran’s conviction under
California Penal Code section 136.1(a) constitutes an aggravated felony.
12 DURAN V. LYNCH
honesty, principle, or good morals,” Matter of Serna, 20 I. &
N. Dec. 579, 582 (BIA 1992), instead of the two-part generic
definition employed by this court and the BIA in its published
opinions. See, e.g., Matter of Ruiz-Lopez, 25 I. & N. Dec.
551, 551 (BIA 2011) (“We have long held that moral
turpitude refers generally 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.”).5 The BIA also stated, “the fact that a crime does
not involve a threat of harm or actual harm does not prohibit
a finding that it involves moral turpitude.” The BIA cited to
Matter of Serna to support this proposition, but Matter of
Serna involved the fraudulent type of CIMT. See 20 I. & N.
Dec. at 585–86.
Finally, the BIA distinguished Blanco v. Mukasey,
518 F.3d 714, 720 (9th Cir. 2008), which held that falsely
identifying oneself to an officer under California Penal Code
section 148.9(a) is not a categorical CIMT, because the
California statute at issue in Blanco required general as
opposed to specific intent. The BIA emphasized that section
136.1(a) requires the prosecution to prove that “the
defendant’s acts or statements are intended to affect or
influence a potential witness’[s] or victim’s testimony or
acts.” People v. McDaniel, 27 Cal. Rptr. 2d 306, 309 (Ct.
App. 1994). But the BIA did not analyze whether this
specific intent is sufficiently indicative of a “vicious motive
or a corrupt mind” to render section 136.1(a) a categorical
CIMT under Ninth Circuit case law or BIA precedent.
Linares-Gonzalez, 823 F.3d at 514 (quoting Latter-Singh,
668 F.3d at 1161). Nor did the BIA address the reasoning in
5
The IJ, unlike the BIA, did use this standard, generic definition of
a CIMT.
DURAN V. LYNCH 13
Blanco, which emphasized that impeding a criminal
investigation is not enough to render a crime a categorical
CIMT. See 518 F.3d at 720.
Because we find the BIA decision unpersuasive in its
delineation of the generic definition of a CIMT as applied to
obstruction of justice, and because we generally do not defer
to the BIA in interpreting state or federal criminal statutes,
see Castrijon-Garcia, 704 F.3d at 1208, we review de novo
whether California Penal Code section 136.1(a) is a
categorical CIMT.
C. De Novo Review
California Penal Code section 136.1(a) is overly broad
and not a categorical CIMT because the statute criminalizes
conduct that is not intentionally fraudulent and that does not
require “an intent to injure someone, an actual injury, or a
protected class of victims.” Turijan, 744 F.3d at 621. In
Wahidi, the California Court of Appeal examined the
definition of “malice” in section 136, and noted that the
definition is written so broadly that it applies to conduct not
traditionally considered malicious. 166 Cal. Rptr. 3d at
420–21. The court explained that the California Legislature
based sections 136 and 136.1 of the California Penal Code on
an ABA model statute for witness intimidation and
incorporated the model statute’s broad definition of the term
“malice” with “virtually no changes.” Id. at 420.6
6
The parties dispute the importance of Rodriguez-Herrera v. INS,
52 F.3d 238 (9th Cir. 1995), which involved Washington’s malicious
mischief statute. Rodriguez-Herrera held that the Washington statute was
not a categorical CIMT due to the statute’s broad definition of “malice.”
52 F.3d at 240. But the Washington statute’s definition of “malice”
14 DURAN V. LYNCH
The model statute “provided that the prosecution could
show malice in either of two ways: proving the traditional
meaning of malice (to vex, annoy, harm, or injure) or proving
the meaning of malice that is unique to the statute (to thwart
or interfere in any manner with the orderly administration of
justice).” Id. at 420–21. The court concluded that “[b]y
including the latter definition of malice, the Legislature
envisioned a relatively broad application of the term.” Id. at
421. The California Assembly Committee on Criminal
Justice bill analysis stated that the statute “may make criminal
attempts to settle misdemeanor violations, certain traffic
accidents, etc., among the parties without reporting them to
the police. Likewise, a person arrested by a civilian (i.e., a
shopkeeper) may face criminal charges by trying to talk the
shopkeeper into not calling the police.” Id. (quoting Assemb.
Comm. on Criminal Justice, Analysis of Assemb. Bill No.
2909, Reg. Sess., at 2 (1979–1980)).
In Wahidi, the defendant “was involved in a physical
altercation with Farahan Khan and three other individuals in
a parking lot, during which Wahidi punched one of Khan’s
friends in the face and then broke the windows of Khan’s car
with a baseball bat while at least one of Khan’s friends was
sitting in the vehicle.” Id. at 417. The day before the
preliminary hearing “Wahidi approached Khan following
prayer services at Khan’s mosque,” apologized, and asked
Khan if they could settle the matter “outside the court in a
more Muslim manner family to family” because they were
both Muslim. Id. “Khan responded sympathetically to
Wahidi,” “accepted his apology,” told the prosecutor about
the conversation, and “asked if the case could be handled in
differs from that in California Penal Code section 136. Rodriguez-
Herrera is thus not determinative of the categorical analysis here.
DURAN V. LYNCH 15
another way.” Id. “Wahidi never demanded that Khan
refrain from testifying or threatened Khan with harm if he
were to [go] to court.” Id.
The California Court of Appeal found that the evidence
demonstrated “Wahidi intended to ‘thwart or interfere in any
manner with the orderly administration of justice’” under the
second prong of the “malice” definition in section 136. Id. at
419. Because of the statute’s “broad” definition, the court
held that there “was sufficient evidence to support the finding
that Wahidi acted maliciously as well as knowingly under
section 136.1 in attempting to persuade Khan from testifying
at the preliminary hearing the next day,” even though Wahidi
did not intend to “vex, annoy, harm, or injure” Khan. Id. at
421.
Wahidi demonstrates that California would apply
California Penal Code section 136.1(a) “to conduct that falls
outside the generic definition of moral turpitude.” Turijan,
744 F.3d at 620 (quoting Nunez, 594 F.3d at 1129). Wahidi’s
actions were not “ vile, base, or depraved,” and did not
violate “accepted moral standards.” Latter-Singh, 668 F.3d
at 1161 (quoting Saavedra-Figueroa, 625 F.3d at 626).
Likewise, Wahidi did not possess an intent to defraud when
he asked Khan if they could settle the matter in accordance
with their religious customs. See Wahidi, 166 Cal. Rptr. 3d
at 417–21. Yet the court still found Wahidi had violated
section 136.1(a).
The BIA correctly determined that section 136.1(a)
requires a specific intent “to affect or influence a potential
witness’[s] or victim’s testimony or acts.” McDaniel, 27 Cal.
Rptr. 2d at 309. But the statute does not require the intent to
“injure someone, an actual injury, or a protected class of
16 DURAN V. LYNCH
victims,” such as children. Turijan, 744 F.3d at 621.
Similarly, it does not necessarily “involve base, vile, and
depraved conduct that shocks the public conscience.” Id.
(internal quotation marks and alterations omitted) (quoting
Nunez, 594 F.3d at 1131); cf. Latter-Singh, 668 F.3d at 1163
(“The intent to instill great fear of serious bodily injury or
death in another constitutes the ‘vicious motive or corrupt
mind’ demonstrative of a crime involving moral turpitude.”).
Therefore, we conclude, California Penal Code section
136.1(a) is not a categorical match to the generic definition of
the non-fraudulent type of CIMT.
Although the government does not argue that section
136.1(a) falls within the generic definition of the fraudulent
type of CIMT, we address the issue here to determine if we
can uphold the BIA’s decision on that ground. Where, as
here, the statute of conviction does not explicitly require an
intent to defraud, we consider “whether intent to defraud is
‘implicit in the nature’” of the crime. Rivera, 816 F.3d at
1076 (quoting Blanco, 518 F.3d at 719) (holding California
perjury statute is overbroad compared to generic definition of
a CIMT). “[I]ntent to defraud is implicit in the nature of the
crime when the individual makes false statements in order to
procure something of value, either monetary or non-
monetary.” Blanco, 518 F.3d at 719; see also Rivera,
816 F.3d at 1076–77. “When the only ‘benefit’ the individual
obtains is to impede the enforcement of the law, the crime
does not involve moral turpitude.” Blanco, 518 F.3d at 719.
California Penal Code section 136.1(a) does not require
that an individual make false statements nor procure anything
of value. The only outcome an individual need obtain is to
“thwart or interfere . . . with the orderly administration of
justice,” Cal. Penal Code § 136, which is insufficient under
DURAN V. LYNCH 17
Blanco, 518 F.3d at 719. Thus, California Penal Code
section 136.1(a) does not fall within the fraudulent type of
CIMT either. The BIA and IJ thus erred by finding California
Penal Code section 136.1(a) a categorical CIMT.
However, Duran’s prior conviction for violating section
136.1(a) may still qualify as a CIMT if the statute is divisible
and Shepard-compliant documents demonstrate that Duran’s
conviction is a match under the modified categorical
approach. See Rivera, 816 F.3d at 1077–78 (citing
Descamps, 133 S. Ct. at 2281); see also Shepard v. United
States, 544 U.S. 13, 16 (2005). The BIA did not reach the
modified categorical approach, and the parties did not brief
the divisibility issue on appeal. Although we could reach the
question of divisibility sua sponte because the BIA is not
entitled to deference when interpreting criminal statutes, we
decline to do so.
CONCLUSION
We remand to the Agency to consider whether California
Penal Code section 136.1(a) is divisible and, if so, to conduct
the modified categorical analysis.
PETITION GRANTED and REMANDED.