Juan Hernandez-Gonzalez v. Eric Holder, Jr. ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS HERNANDEZ- No. 11-70359
GONZALEZ,
Petitioner, Agency No.
A078-051-071
v.
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 3, 2014—Pasadena, California
Filed February 13, 2015
Before: Stephen Reinhardt, Raymond C. Fisher,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Reinhardt
2 HERNANDEZ-GONZALEZ V. HOLDER
SUMMARY*
Immigration
The panel granted Juan Carlos Hernandez-Gonzalez’s
petition for review from the Board of Immigration Appeals’
decision finding that his conviction for weapons possession,
when enhanced for sentencing purposes by a gang activity
conviction, constituted a categorical crime involving moral
turpitude.
The panel held that the BIA erred in finding that
Hernandez-Gonzalez’s felony conviction for possession of a
billy club, when enhanced under California Penal Code
§ 186.22(b)(1) “for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct by
gang members,” constituted a crime involving moral
turpitude. The panel did not defer to the BIA’s conclusion in
its subsequently published decision, Matter of E. E.
Hernandez, 26 I. & N. Dec. 397 (BIA 2014), that a gang
enhancement can render a non-turpitudinous crime a CIMT.
The panel rather held that the determination must be based on
the underlying crime of conviction to which the enhancement
is attached at sentencing.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HERNANDEZ-GONZALEZ V. HOLDER 3
COUNSEL
Deanna L. Kwong (argued), Covington & Burling LLP,
Redwood Shores, California, for Petitioner.
Lynda Anh Do (argued), Attorney; Tony West, Assistant
Attorney General; Emily Anne Radford, Assistant Director;
Sarah L. Vuong and Stephen Elliott, Attorneys; Joyce R.
Branda, Acting Assistant Attorney General; Stephen J. Flynn,
Assistant Director, United States Department of Justice,
Washington, D.C. for Respondent.
OPINION
REINHARDT, Circuit Judge:
Does a conviction for a felony “for the benefit of, at the
direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members” constitute a crime
involving moral turpitude? We hold that the answer is no.
I
Juan Carlos Hernandez-Gonzalez is a native and citizen
of Mexico who entered the United States without inspection
in 1989 around the age of three. On November 5, 2003, he
adjusted his status to lawful permanent resident. He is
married to a United States citizen and has one United States
citizen daughter. He has two separate state criminal
convictions. First, on June 25, 2007, he was convicted of a
violation of California Penal Code § 1320(b) for failing to
appear to answer a charge for the transportation of a
4 HERNANDEZ-GONZALEZ V. HOLDER
controlled substance.1 Second, on January 24, 2008, he
pleaded nolo contendere to a violation of California Penal
Code § 12020(a)(1) for possession of a billy club. He also
admitted to an enhancement for that crime under California
Penal Code § 186.22(b)(1), which provides an additional
penalty, here, an additional two-year sentence, for “any
person who is convicted of a felony committed for the benefit
of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members.” Cal. Penal
Code § 186.22(b)(1).
Hernandez-Gonzalez was served a Notice to Appear in
March 2010, and ultimately charged2 as removable on four
grounds: for having been convicted of (1) a crime involving
moral turpitude within five years after the date of admission
for which a sentence of one year or longer may be imposed,
8 U.S.C. § 1227(a)(2)(A)(i); (2) two crimes of moral
turpitude any time after admission, 8 U.S.C.
§ 1227(a)(2)(A)(ii); (3) an aggravated felony, under 8 U.S.C.
§ 1227(a)(2)(A)(iii), namely, a crime of violence as specified
in 8 U.S.C. § 1101(a)(43)(F); and (4) an aggravated felony
under 8 U.S.C. § 1227(a)(2)(A)(iii), namely, as defined in
8 U.S.C. § 1101(a)(43)(T), “an offense relating to a failure to
appear before a court pursuant to a court order to answer to or
dispose of a charge of a felony for which a sentence of 2
years’ imprisonment or more may be imposed[.]”
1
The underlying controlled substances charge appears to have been
dismissed, but there are no documents in the record to that effect, nor was
it considered by the Immigration Judge (“IJ”).
2
The Notice to Appear was amended twice during the proceedings to
allow the government to add additional grounds of removability.
HERNANDEZ-GONZALEZ V. HOLDER 5
The IJ found Hernandez-Gonzalez to be removable as
charged on all of the grounds of removability except charge
(2), which alleged that he had been convicted of two or more
crimes involving moral turpitude. The IJ found that the
weapons possession conviction coupled with the “specific
intent to further gang activity of a criminal nature” was a
conviction both for a crime involving moral turpitude and a
crime of violence, and found that the conviction for failure to
appear was an aggravated felony.
The BIA affirmed the IJ’s determination as to charge (1)
that Hernandez-Gonzalez’s “conviction for weapons
possession, enhanced for sentencing purposes for gang
activity,” constituted a crime of moral turpitude. It held that
“engaging in any of the conduct criminalized under California
Penal Code § 12020(a)(1) for the benefit of, at the direction
of, or in association with a criminal street gang with the
specific intent to promote, further, or assist in criminal
conduct by gang members in violation of § 186.22(b)(1), is
categorically a crime involving moral turpitude.” The BIA
reasoned that “[a]cting with the specific intent to promote,
further, or assist in criminal gang activity is inherently base,
vile, and depraved, and such activity is contrary to accepted
rules of morality and duties owed to society in general.” It
asserted, further: “We are unaware of any application of
§ 186.22(b)(1) to conduct that does not involve moral
turpitude, and have no reason to believe there exists a realistic
probability that the statute would be so applied.”
Because Hernandez-Gonzalez entered the United States
without inspection or admission, the date of his adjustment of
status serves as a date of admission that triggers the five-year
6 HERNANDEZ-GONZALEZ V. HOLDER
clock under 8 U.S.C. § 1227(a)(2)(A)(i).3 United States v.
Hernandez-Arias, 757 F.3d 874, 880 (9th Cir. 2014) (“Certain
events, such as adjustment to [legal permanent resident]
status . . . , qualify as ‘admission’ for immigration
purposes.”); see also Ocampo-Duran v. Ashcroft, 254 F.3d
1133, 1134–35 (9th Cir. 2001) (deeming alien who entered
without inspection admitted upon adjustment to lawful
permanent resident status). Here, Hernandez-Gonzalez
adjusted his status to lawful permanent resident on November
5, 2003, and was convicted of this crime on January 24, 2008.
Consequently, the crime falls within the five-year period for
deportable offenses under § 1227(a)(2)(A)(i), and thus within
the period specified in the first ground of removal.
The BIA made no determination with respect to grounds
(3) and (4), but rejected Hernandez-Gonzalez’s argument that
the removal order was invalid because he did not receive a
copy. Hernandez-Gonzalez did not appeal the BIA’s ruling
on the latter issue to this court, and so we do not address that
part of its decision.
II
Determining whether a conviction under a state statute is
categorically a conviction for a “crime involving moral
turpitude” under 8 U.S.C. § 1227(a)(2)(A)(i) is a two-step
3
Section 1227(a)(2)(A)(i) provides: “Any alien who--(I) is convicted of
a crime involving moral turpitude committed within five years (or 10
years in the case of an alien provided lawful permanent resident status
under section 1255(j) of this title) after the date of admission, and (II) is
convicted of a crime for which a sentence of one year or longer may be
imposed, is deportable.”
HERNANDEZ-GONZALEZ V. HOLDER 7
process. Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014)
(en banc).
The first step is to identify the elements of the
statute of conviction. Because the BIA lacks
expertise in identifying the elements of state
statutes, we review the first step de novo. 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.
Because the BIA has expertise in that task, we
defer to its conclusion if warranted, following
the Chevron framework if the decision is
published or directly controlled by a published
decision, and otherwise following the
Skidmore framework.
Id. (internal citations and quotation marks omitted); see also
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 134
(1944).
A
The first step of the analysis is to identify the elements of
the statute of conviction.4 Ceron, 747 F.3d at 778.
Hernandez-Gonzalez was convicted of violating California
Penal Code § 12020(a)(1), which prohibits, inter alia, the
4
The BIA quoted the statutes in full but did not attempt to identify their
elements.
8 HERNANDEZ-GONZALEZ V. HOLDER
possession of a billy club.5 The BIA did not find that the
5
Specifically, § 12020(a)(1) punishes with a maximum of one year
imprisonment any person who
[m]anufactures or causes to be manufactured, imports
into the state, keeps for sale, or offers or exposes for
sale, or who gives, lends, or possesses any cane gun or
wallet gun, any undetectable firearm, any firearm which
is not immediately recognizable as a firearm, any
camouflaging firearm container, any ammunition which
contains or consists of any flechette dart, any bullet
containing or carrying an explosive agent, any ballistic
knife, any multiburst trigger activator, any nunchaku,
any short-barreled shotgun, any short-barreled rifle, any
metal knuckles, any belt buckle knife, any leaded cane,
any zip gun, any shuriken, any unconventional pistol,
any lipstick case knife, any cane sword, any shobi-zue,
any air gauge knife, any writing pen knife, any metal
military practice handgrenade or metal replica
handgrenade, or any instrument or weapon of the kind
commonly known as a blackjack, slungshot, billy,
sandclub, sap, or sandbag.
Cal. Penal Code § 12020(a)(1) (2010). This statute has since been
repealed, and each of the unusual weapons is listed under a separate
statutory section. See Cal. Penal Code § 16590. To convict a person of
this crime, “the prosecution must prove that the item had the necessary
characteristic to fall within the statutory description.” People v. King,
38 Cal. 4th 617, 627 (2006). In addition, “[a]lthough the language of
section 12020(a)(1) does not specifically mention a culpable mental state,”
the California Supreme Court has held that the prosecution must show that
the defendant had actual knowledge of the weapon’s illegal
characteristics. Id. at 622, 627. No specific intent to use the weapon is
required. Id. at 624; People v. Rubalcava, 23 Cal. 4th 322, 331 (2000)
(“[T]he intent to use the concealed instrument as a stabbing instrument is
not an element of the crime of carrying a concealed dirk or dagger” under
California Penal Code § 12020(a)(1)); People v. Fannin, 91 Cal. App. 4th
1399, 1404 (2001) (“Intent to use a weapon is not an element of the crime
HERNANDEZ-GONZALEZ V. HOLDER 9
violation of § 12020(a)(1) alone constituted a crime involving
moral turpitude. See Navarro-Lopez v. Gonzales, 503 F.3d
1063, 1072 (9th Cir. 2007) (en banc) (“No court has ever
found possession of a weapon to be a crime involving moral
turpitude.”), overruled on other grounds by United States v.
Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en
banc), abrogated by Descamps v. United States, 133 S. Ct.
2276 (2013); Matter of Serna, 20 I. & N. Dec. 579, 584 (BIA
1992) (“[C]arrying or possessing a concealed weapon has
been held to involve moral turpitude only when the intent to
use it against another person has been established”), modified
on other grounds by Matter of Franklin, 20 I. & N. Dec. 867
(1994); Matter of Granados, 16 I. & N. Dec. 726, 728–29
(BIA 1979) (holding that possession of sawed-off shotgun is
not a crime involving moral turpitude), abrogated by Matter
of Wadud, 19 I. & N. Dec. 182, 185 (BIA 1984). See also
United States v. Aguilera-Rios, 754 F.3d 1105, 1116 (9th Cir.
2014) (in which the government conceded that a conviction
under California Penal Code § 12021(c)(1), for anyone who
“owns, purchases, receives, or has in possession or under
custody or control, any firearm” within ten years of a prior
conviction for certain misdemeanors, is not a crime of moral
turpitude.).
Hernandez-Gonzalez also admitted, however, to an
enhancement under California Penal Code § 186.22(b)(1).
That provision states that an additional term of punishment
of weapon possession. Proof of possession alone is sufficient.” (internal
citation and quotation marks omitted)).
10 HERNANDEZ-GONZALEZ V. HOLDER
may be imposed6 if (1) an individual is convicted of a felony
“committed for the benefit of, at the direction of, or in
association with any criminal street gang,” and (2) if that
felony was committed “with the specific intent to promote,
further, or assist in any criminal conduct by gang members.”
Cal. Penal Code § 186.22(b)(1). The requisite intent “applies
to any criminal conduct, without a further requirement that
the conduct be ‘apart from’ the criminal conduct underlying
the offense of conviction sought to be enhanced.” Emery v.
Clark, 643 F.3d 1210, 1215 (9th Cir. 2011) (quoting People
v. Albillar, 51 Cal. 4th 47, 66 (2010)) (internal citations and
quotation marks omitted). Additionally, the specific intent
need not be to “promote, further, or assist a gang-related
crime” but only to “promote, further, or assist criminal
conduct by gang members.” Id. at 1215 n.3 (quoting Albillar,
51 Cal. 4th at 67 (internal quotation marks omitted)). The
gang enhancement adds five years for a “serious felony,” as
defined in California Penal Code § 1192.7, ten years for a
“violent felony,” as defined in California Penal Code § 667.5,
and two, three, or four years for all other felonies. Cal. Penal
Code § 186.22(b)(1).
B
1
With these elements of the weapons offense and the
enhancement in mind, we turn to the second step of the
analysis to determine whether Hernandez-Gonzalez’s crime
of conviction is categorically a crime of moral turpitude.
6
The elements of the gang enhancement must be proved to the fact-
finder beyond a reasonable doubt. People v. Sengpadychith, 26 Cal. 4th
316, 326 (2001).
HERNANDEZ-GONZALEZ V. HOLDER 11
Because the BIA’s decision in this case is unpublished,
and because the published BIA decisions it cites are not
controlling, we give the BIA’s decision in this case Skidmore
deference. Castrijon-Garcia v. Holder, 704 F.3d 1205, 1210
(9th Cir. 2013). Under the Skidmore framework, we defer to
an unpublished BIA decision “to the extent it has persuasive
effect.” Id. at 1211. The weight afforded to the 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.”
Skidmore, 323 U.S. at 140; see also Castrijon-Garcia,
704 F.3d at 1211.
The BIA decided here, in an unpublished decision, that
“engaging in any of the conduct criminalized under California
Penal Code § 12020(a)(1) for the benefit of, at the direction
of, or in association with a criminal street gang with the
specific intent to promote, further, or assist in criminal
conduct by gang members in violation of 186.22(b)(1), is
categorically a crime involving moral turpitude.” The BIA
explained its reasoning as follows:
Acting with the specific intent to promote,
further, or assist in criminal gang activity is
inherently base, vile, and depraved, and such
activity is contrary to accepted rules of
morality and duties owed to society in
general. We are unaware of any application
of § 186.22(b)(1) to conduct that does not
involve moral turpitude, and have no reason to
believe there exists a realistic probability that
the statute would be so applied.
12 HERNANDEZ-GONZALEZ V. HOLDER
The BIA’s reasoning is conclusory and simply echoes the
agency’s definition of moral turpitude. See, e.g., In re
Torres-Varela, 23 I. & N. Dec. 78, 83 (BIA 2001) (“We have
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.”). “This is no analysis at
all.” Castrijon-Garcia, 704 F.3d at 1211. It is also contrary
to fact as in this very case § 186.22(b)(1) is being applied to
conduct – unlawful possession of a weapon – that is widely
held to be non-turpitudinous.7 Navarro-Lopez, 503 F.3d at
1072; Matter of Serna, 20 I. & N. Dec. at 584; Matter of
Granados, 16 I. & N. Dec. at 728–29. Thus, the BIA
decision has little or no persuasive effect. “We therefore
decline to grant deference to the unpublished BIA decision
and determine de novo whether the elements of [the crimes of
conviction] meet the generic definition of moral turpitude
under immigration law.” Castrijon-Garcia, 704 F.3d at 1211.
2
It is well settled in this Circuit that in determining
whether a state crime of conviction constitutes a crime
involving moral turpitude (CIMT), we apply the categorical
approach set forth in Taylor v. United States, 495 U.S. 575
(1990). Ceron, 747 F.3d at 780. “Under the categorical
approach, we ‘compare the elements of the crime to the
generic definition of moral turpitude and decide whether the
7
As noted, the gang enhancement statute may be triggered by criminal
conduct consisting only of the predicate offense. Emery, 643 F.3d at
1215. The record of conviction in this case identifies no criminal conduct
supporting application of the gang enhancement apart from the
§ 12020(a)(1) violation.
HERNANDEZ-GONZALEZ V. HOLDER 13
conduct proscribed in the statute is broader than, and so does
not categorically fall within, this generic definition.’”
Castrijon-Garcia, 704 F.3d at 1212 (quoting Nunez v. Holder,
594 F.3d 1124, 1129 (9th Cir. 2010)). “In order to hold that
the statute of conviction is overbroad, we must determine that
there is a ‘realistic probability’ of its application to conduct
that falls beyond the scope of the generic federal offense.”
Id. (quoting Nunez, 594 F.3d at 1129).
“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.” Ceron, 747 F.3d at 779–80 (internal quotation
marks omitted). “Not all serious crimes meet this standard
. . . . To be considered a crime of moral turpitude, a crime
other than fraud must be more than serious; it must offend the
most fundamental moral values of society, or as some would
say, shock the public conscience.” Castrijon-Garcia,
704 F.3d at 1212 (quoting Navarro-Lopez, 503 F.3d at
1074–75 (en banc) (Reinhardt, J., concurring for the majority)
(internal citations, quotation marks, and alterations omitted)).
This high standard is necessary to preserve the distinction
between crime in general and crimes involving moral
turpitude. As we explained in Navarro-Lopez,
at some level all illegal acts violate societal
norms and values—that is why the acts are
illegal. However, “crimes involving moral
turpitude” is a limited category of crimes and
does not extend to cover all conduct that
violates the law.
14 HERNANDEZ-GONZALEZ V. HOLDER
503 F.3d at 1073 n.9. Thus, “[o]nly truly unconscionable
conduct surpasses the threshold of moral turpitude.” Robles-
Urrea v. Holder, 678 F.3d 702, 708 (9th Cir. 2012).
“Crimes of moral turpitude generally involve some ‘evil
intent.’” Castrijon-Garcia, 704 F.3d at 1213 (quoting
Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir. 2010)).
We recently reviewed our past cases analyzing whether
particular offenses are crimes involving moral turpitude and
found that “non-fraudulent crimes of moral turpitude
generally involve an intent to injure, actual injury, or a
protected class of victims.” Id. We noted that neither
aggravated assault, Uppal v. Holder, 605 F.3d 712, 719 (9th
Cir. 2012), nor false imprisonment, Saavedra-Figueroa v.
Holder, 625 F.3d 621, 626 (9th Cir. 2010), is a crime of
moral turpitude where the statute at issue lacks an intent to
injure or harm or a special trust relationship. Castrijon-
Garcia, 704 F.3d at 1213. Thus, in Castrijon-Garcia, we
held that simple kidnaping under California Penal Code
§ 207(a) is not a crime of moral turpitude because it “does not
require an intent to injure, actual injury, or a special class of
victims.” Id. Similarly, in Turijan v. Holder, 744 F.3d 617,
619 (9th Cir. 2014), we held that felony false imprisonment
under California Penal Code § 237(a) is not categorically a
crime of moral turpitude for the same reason.
The BIA did not conclude that § 12020(a)(1) alone
constitutes a crime of moral turpitude.8 It said instead that
when accompanied by a gang enhancement conviction, the
weapons offense becomes a crime of moral turpitude. The
8
See, however, page 9 supra (collecting cases supporting the proposition
that possession of a weapon without the intent to use it is not a crime
involving moral turpitude).
HERNANDEZ-GONZALEZ V. HOLDER 15
gang enhancement statute, however, does not require an
intent to injure, actual injury, or a protected class of victims.
Nor does it require the use of any violence. Rather, the two
elements of the gang enhancement are that the underlying
felony at issue has been “committed for the benefit of, at the
direction of, or in association with any criminal street gang,”
and that the felony has been committed “with the specific
intent to promote, further, or assist in any criminal conduct by
gang members.” Cal. Penal Code § 186.22(b)(1).
The BIA nonetheless concluded that possessing one of a
lengthy list of weapons “for the benefit of, at the direction of,
or in association with any criminal street gang” and “with the
specific intent to promote, further, or assist in any criminal
conduct by gang members” is categorically base, vile, or
depraved. This was unquestionably an error. Weapons
possession with a gang enhancement “need not involve grave
acts of baseness or depravity” as defined in our case law.
Navarro-Lopez, 503 F.3d at 1071. Although the gang
enhancement statute has a specific intent element, it does not
specify what type of “criminal conduct by gang members” a
defendant must be intending to promote. Cal. Penal Code
§ 186.22(b)(1). The prosecution need not “establish specific
crimes the defendant intended to assist his fellow gang
members in committing,” and, in fact, the criminal conduct
the defendant intends to promote need not be “distinct from
the charged offense.” Albillar, 51 Cal. 4th at 66. There is
nothing in the statute that would prevent it from applying to
run-of-the-mill criminal conduct. Of course, all gang-related
criminal conduct is, at some level, both serious and morally
questionable, but not all gang-related criminal conduct
necessarily involves grave acts of baseness or depravity.
16 HERNANDEZ-GONZALEZ V. HOLDER
Our review of California case law demonstrates that, quite
to the contrary of the BIA’s unsubstantiated assertion, there
is much more than a “realistic probability” that the gang
enhancement would be applied to conduct that does not
involve moral turpitude. Section § 186.22(b)(1) is regularly
applied to weapons possession convictions involving non-
turpitudinous conduct. Frequently, the gang enhancement is
imposed on weapons possession convictions in which the
weapon was discovered in the context of probation or other
searches arising from circumstances that involve no actual or
intended injury. For instance, in In re L.R., No. F059944,
2010 WL 3993715, at *1 (Cal. Ct. App. Oct. 13, 2010), an
officer stopped a vehicle “after observing the front license
plate hanging vertically from the vehicle.” There were five
people in the vehicle, and the officer observed “open alcohol
beverage containers” and “gang paraphernalia” in the vehicle.
Id. The appellant gave his consent to be searched, and the
officer found a “large knife” in his right pocket. Id. The
appellant admitted the weapon charge and pleaded no contest
to the gang enhancement charge. Id.
Similarly, in In re Michael M., No. G037302, 2007 WL
1169375, at *1 (Cal. Ct. App. Apr. 20, 2007), two police
officers “spoke to four or five young men,” including the
minor defendant, who were known to be members of the
Varrio Little Town street gang. An officer “asked [the] minor
if he was carrying any weapons. Minor stated he had a bat,
pointed to his pocket, and consented to a search. [The
officer] found an aluminum bat with one end in minor’s
pocket and the other under his shirt.” Id. The bat had gang-
related etchings. Id. The minor agreed that “he had the bat
because of other gangs,” and stated that it was for protection.
Id. He admitted that he had received the bat “from a friend
that associated with Varrio Little Town.” Id. The juvenile
 HERNANDEZ-GONZALEZ V. HOLDER 17
court sustained allegations that he unlawfully possessed a
deadly weapon under California Penal Code § 12020, and that
he committed the offense for the benefit of a criminal street
gang under § 186.22(b). Id.
In People v. Nugent, No. E051982, 2012 WL 1231065, at
*1 (Cal. Ct. App. Apr. 12, 2012), the defendant’s property
was searched for an unspecified reason, and investigators
discovered a nunchaku made from golf club handles, a billy
club etched with the name of a gang, and a cane sword. The
defendant was convicted of a violation of California Penal
Code § 12020, with a gang enhancement, along with a charge
of being an active gang participant under another subsection
of § 186.22. Id. There were no allegations of other conduct
beyond merely possessing the weapon for the benefit of the
gang. The court of appeals held that there was sufficient
evidence to support the gang enhancement because:
Defendant had a tattoo only seen on full
members of the gang, possessed gang
paraphernalia, displayed affiliation with the
gang while in jail, and was convicted of
possessing illegal weapons of the kind used
by the gang in its assaults. One of the three
convictions was for a weapon inscribed with
the name of the gang. Thus, the jury could
reasonably infer that defendant was a full
member of the gang and, as such, he
possessed the weapons to benefit the gang by
having them available for his or other
members[’] use in the gang’s assaults or other
criminal activity.
Id. at *3.
18 HERNANDEZ-GONZALEZ V. HOLDER
The sweeping scope of the California courts’ conception
of the intent to promote, further, or assist in criminal conduct
by gang members is evident in In re Jose G., No. F049539,
2006 WL 2424738, at *1 (Cal. Ct. App. Aug. 23, 2006).
There, a California Court of Appeal affirmed the application
of a gang enhancement to a minor’s conviction for
disturbance of the peace where, while filming a scene for his
upcoming commercial DVD, he and other known gang
members “shouted, barked and proudly expressed their
allegiance to the Bulldog gang,” “threw gang signs and yelled
slogans associated with Bulldogs, as well as numerous
expletives to rival gangs.” Id. During the video, the minor
wore numerous pieces of Bulldog clothing and carried a two-
foot long axe. Because “this behavior clearly promoted the
gang” through “enhanced recognition and status,” and
because the defendant assisted gang members in criminal
conduct through his “orchestration of the scene and the
resulting disturbance,” the California Court of Appeal
affirmed the gang enhancement conviction. Id. at *5.9
Notably, the defendant was originally charged under
§ 12020(a)(1) with weapons possession, but he was not
convicted on that count. Id. at *1–2.
In all of these cases, the defendant was found to have
satisfied the gang enhancement statute’s specific intent
requirement based only on the underlying offense itself and
the association with other gang members or the possession of
gang paraphernalia. As the California Supreme Court has
9
The minor was convicted under § 186.22(d), which unlike § 186.22(b)
applies to convictions for a “public offense punishable as a felony or a
misdemeanor” (emphasis added). Robert L. v. Superior Court, 30 Cal. 4th
894, 903 (2003) (“[S]ection 186.22(d) applies to all misdemeanors and all
felonies.”).
HERNANDEZ-GONZALEZ V. HOLDER 19
held, because the statute requires neither criminal conduct
distinct from the charged offense nor that the defendant act
with the specific intent to promote, further, or assist the gang
itself rather than gang members, the simple act of
“commit[ting] the charged felony with known members of a
gang” is sufficient to satisfy the specific intent requirement
under the statute. Albillar, 51 Cal. 4th at 67–68. In any
event, “the bare presence of some degree of evil intent is not
enough to convert a crime that is not serious into one of moral
turpitude leading to deportation under [the INA].”
Rodriguez-Herrera v. INS, 52 F.3d 238, 241 (9th Cir. 1995).
The gang enhancement does not provide a sufficient “evil
intent” to transform an otherwise non-turpitudinous crime
into one involving moral turpitude. Stated differently, the
specific intent required under the statute to further criminal
conduct by gang members does not necessarily establish the
evil intent required to make the offense turpitudinous.
The government argues that any crime becomes morally
turpitudinous when a gang enhancement is applied, because
“[t]he California Legislature believed that it needed to take
steps to prevent this type of crime, and thus, as ‘measured
against contemporary moral standards,’ the Board correctly
held that a person convicted of a gang enhanced crime has
committed a CIMT.” In support of this argument, the
government points to the legislative intent behind the
California Street Terrorism and Prevention (STEP) Act,
asserting that it shows that any act assisting gang members in
their criminal conduct is morally turpitudinous. See People
v. Hernandez, 33 Cal. 4th 1040, 1047 (2004) (“California is
in a state of crisis which has been caused by violent street
gangs whose members threaten, terrorize, and commit a
multitude of crimes against the peaceful citizens of their
neighborhoods. These activities, both individually and
20 HERNANDEZ-GONZALEZ V. HOLDER
collectively, present a clear and present danger to the public
order and safety and are not constitutionally protected.”
(quoting Cal. Penal Code § 186.21)).
This argument, however, mistakes criminality for moral
turpitude, and lumps together all members of street gangs as
equally culpable. The California Legislature’s intent in
enacting the law “only explains . . . why [the state would]
choose to criminalize [conduct benefitting a gang] in the first
place. It says nothing about whether [such conduct] is worse
than any other crime—whether it is ‘more than serious,’ or
whether it ‘offends the most fundamental values of society.’”
Robles-Urrea, 678 F.3d at 710 (alteration omitted) (emphasis
in original) (quoting Navarro-Lopez, 503 F.3d at 1074–75
(Reinhardt, J. concurring for the majority)). The Legislature
may choose to punish crimes it deems to be part of a pattern
of gang criminality under its particular standards of proof, but
this legislative determination does not suffice to transform a
non-turpitudinous crime into a crime of moral turpitude by
means of an enhanced sentence.
Because the intent element of the gang enhancement can
be satisfied by an intent to assist gang members in any
criminal conduct, whether turpitudinous or not, and even
simply to assist them in the non-turpitudinous conduct that is
the predicate offense, the gang enhancement statute is not
directed solely at turpitudinous conduct. We do not minimize
the often serious, antisocial and morally depraved aspects of
gang-related crime committed with the specific intent of
furthering criminal conduct by gang members. But we cannot
say that such crimes categorically “involve grave acts of
baseness or depravity.” Navarro-Lopez, 503 F.3d at 1071.
As we held with respect to Washington’s burglary statute,
“[b]ecause . . . an intent to commit any crime satisfies the
HERNANDEZ-GONZALEZ V. HOLDER 21
accompanying crime element of burglary, the offense
encompasses conduct that falls outside the definition of a
crime of moral turpitude.” Cuevas-Gaspar v. Gonzales,
430 F.3d 1013, 1019 (9th Cir. 2005), abrogated on other
grounds by Holder v. Martinez Gutierez, 132 S. Ct. 2011
(2012).
Moreover, there is reason to believe that committing a
felony with the intent to assist in non-specific criminal
conduct by gang members may well be judged differently by
society when considered from a moral rather than a criminal
perspective, unlike crimes such as rape, murder, and incest.
The vast body of social science literature on gangs shows that
youths often join gangs for protection, or out of “fear of
victimization at the hands of other gang members, community
residents, or family members.” Chris Melde & Terrence J.
Taylor, I Got Your Back: An Examination of the Protective
Function of Gang Membership in Adolescence,
47 Criminology 565, 566 (2009). In addition, gangs offer
social structures lacking in certain disadvantaged
communities. Getting Out of Gangs, Staying Out of Gangs:
Gang Intervention and Desistence Strategies, Nat’l Gang Ctr.
Bull., No. 8, Jan. 2013, at 1.
Such sociological facts in no way excuse the crimes
committed by gang members, frequently against members of
other gangs or even against their own members, but they do
to some extent affect our moral judgment as to the nature and
uniformity of their intent. Our task is to judge whether an
intent to assist gang members in criminal activity in itself
“offend[s] the most fundamental moral values of society.”
Castrijon-Garcia, 704 F.3d at 1212. We conclude that it does
not. To conclude otherwise would require judging members
of a social group as a whole rather than as individuals, an
22 HERNANDEZ-GONZALEZ V. HOLDER
approach that is particularly troubling here given the range of
reasons motivating young people to associate with gangs.10
In Navarro-Lopez, we recognized that “[t]he motivation
underlying accessory crimes is often protection of a friend or
of a family member during a time of trouble, and such
actions, while criminal, do not necessarily evidence moral
depravity.” 503 F.3d at 1071. There is a similar gap between
the criminal and moral judgment upon an intent to promote
criminal activity by gang members. Under the statutory
regime before us, whether a gang-enhanced crime is a crime
of moral turpitude must be determined based on the
underlying crime of conviction to which the enhancement is
attached at sentencing, not on a classification of all gang-
related crimes, no matter how minor, as morally
turpitudinous. A crime that in itself involves no moral
turpitude does not become turpitudinous merely by having
been committed to promote, further, or assist criminal activity
by gang members.
Allowing a gang enhancement to transform non-
turpitudinous gang-related crimes into crimes of moral
turpitude would amount to making California’s penological
judgment that sentences should be increased when felonies
are gang-related into a nearly automatic sentence of
deportation for a gang member who commits an ordinary
felony. Such determinations are for the federal government,
not the state, to make. Arizona v. United States, 132 S. Ct.
10
In fact, the gang statute may be applied to individuals who are not
even members of a gang. Albillar, 51 Cal. 4th at 67–68 (“Indeed,
[application of § 186.22(b)(1)] does not depend on membership in a gang
at all. Rather, it applies when a defendant has personally committed a
gang-related felony with the specific intent to aid members of that gang.”).
HERNANDEZ-GONZALEZ V. HOLDER 23
2492, 2498 (2012); Graham v. Richardson, 403 U.S. 365,
377–78 (1971).
Following completion of briefing and argument in this
case, the BIA decided Matter of E. E. Hernandez, 26 I. & N.
Dec. 397 (BIA 2014), in a published opinion. In Hernandez,
the respondent was convicted of maliciously defacing the
property of another with graffiti or other inscribed material
under California Penal Code § 594(a),11 and admitted to a
gang enhancement under Penal Code § 186.22(d). Id. at 399.
Section 186.22(d) is nearly identical to § 186.22(b), except
that, as previously noted, the former applies to both felonies
and misdemeanors.12 Penal Code § 186.22(d); Robert L.,
11
Section 594(a) provides, in pertinent part:
“(a) Every person who maliciously commits any of the
following acts with respect to any real or personal
property not his or her own, in cases other than those
specified by state law, is guilty of vandalism:
(1) Defaces with graffiti or other inscribed material.
(2) Damages.
(3) Destroys.”
12
Section 186.22(d) provides:
“Any person who is convicted of a public offense
punishable as a felony or a misdemeanor, which is
committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the
specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished
by imprisonment in a county jail not to exceed one
24 HERNANDEZ-GONZALEZ V. HOLDER
30 Cal. 4th at 903. In Hernandez, the BIA held that
“malicious vandalism . . . committed for the benefit of a
criminal street gang with the specific intent to promote
criminal conduct by gang members” is categorically a crime
involving moral turpitude. Matter of E. E. Hernandez, 26 I.
& N. Dec. at 399–400.
The government seeks to rebut the conclusions we reach
above by relying on Hernandez. Because Hernandez is a
published decision, Chevron deference applies to the BIA’s
determination that the petitioner’s conviction was for a
CIMT. Ceron, 747 F.3d at 778; Marmolejo-Campos v.
Holder, 558 F.3d 903, 910–11 (9th Cir. 2009) (en banc).
Under Chevron, we defer to an agency’s interpretation of
ambiguous statutory language “so long as it is reasonable.”
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012 (9th Cir.
2006) (citing Chevron, 467 U.S. at 843).
Here, however, we do not defer to the BIA’s conclusion
in Hernandez that a gang enhancement can render a non-
turpitudinous crime a CIMT.13 In addition to the compelling
reasons we have set forth above for rejecting such a
year, or by imprisonment in a state prison for one, two,
or three years . . . .”
13
Hernandez states that the predicate offense plus the enhancement
constitute a CIMT but that it need not determine whether the predicate
offense alone would constitute such a crime. Thus, it holds that whether
or not the predicate offense constitutes a CIMT – in other words, even if
the predicate offense is not a CIMT – the inclusion of the enhancement
renders it one. See 26 I. & N. Dec. at 400 n.2.
HERNANDEZ-GONZALEZ V. HOLDER 25
conclusion as unreasonable,14 we do not give deference to the
BIA’s statutory interpretation because the BIA failed to
explain why the offense with the gang enhancement
constituted conduct that is inherently base, vile or depraved
as opposed to simply criminal conduct that society rejects, or
conduct that the BIA concluded in Hernandez was
“inherently reprehensible,” 26 I. & N. Dec. at 402.15 In
Robles-Urrea, we held that the BIA’s conclusion in a
precedential decision that misprision of a felony was a crime
involving moral turpitude did not warrant deference under
Chevron. 678 F.3d at 708–10. We determined that although
the BIA properly recited the definition of a crime involving
moral turpitude as one that is “inherently base, vile, or
14
Although in the earlier part of our opinion we applied Skidmore rather
than Chevron deference, we explained in no uncertain terms why it would
be unreasonable to conclude that a gang enhancement could transform a
non-turpitudinous offense into a CIMT.
15
Although not the basis of our holding, we note that the BIA misstates
the elements of the statute. “[I]f the BIA errs at step one in determining
the elements of the underlying crime, ‘we owe its CIMT analysis at step
two no deference.” Leal v. Holder, 771 F.3d 1140, 1144 (9th Cir. 2014)
(quoting Hernandez-Cruz v. Holder, 651 F.3d 1094, 1106 (9th Cir. 2011)).
In its analysis of the statutory provisions, the BIA states that § 186.22(d)
“require[s] that the underlying crime be committed with the specific intent
to promote, further, or assist the criminal conduct of a street gang.”
Matter of E. E. Hernandez, 26 I. & N. Dec. at 401 (emphasis added).
Elsewhere, it asserts that the statute “require[s] that the offender have
committed a specific offense with the specific intent to advance criminal
gang conduct.” Id. (emphasis added). The specific intent element,
however, requires only that the defendant act “with the specific intent to
promote, further, or assist in any criminal conduct by gang members.”
Cal. Penal Code § 186.22(b)(1), (d) (emphasis added). Thus, the BIA’s
analysis did not properly consider the full scope of the statutory
provisions, which would accordingly obviate any need to afford deference
to the BIA’s interpretation of the statute.
26 HERNANDEZ-GONZALEZ V. HOLDER
depraved’ as well as contrary to the accepted rules of morality
and the duties owed between persons or to society in
general,’” it failed to explain why misprision of a felony
satisfied this definition. Id. at 708. Specifically, we held that
the BIA’s reasoning that misprision of a felony must be
morally turpitudinous because it involves “both knowledge of
a crime and some affirmative act of concealment or
participation,’ and such ‘behavior . . . runs contrary to
accepted social duties,’” id. at 709 (alteration in original)
(quoting Branzburg v. Hayes, 408 U.S. 665, 696 n.36 (1972)),
failed to explain why the crime fit this definition such that it
“‘involve[d] some level of depravity or baseness ‘so far
contrary to the moral law’ that it gives rise to moral
outrage,’” id. at 709 (quoting Navarro-Lopez, 503 F.3d at
1071). Stated differently, the BIA explained that misprision
of felony is wrong, but not why it is morally turpitudinous.
See id. (“[T]he ‘commission of any crime, by definition, runs
contrary to some duty owed to society. If this were the sole
benchmark for a crime involving moral turpitude, every crime
would involve moral turpitude.’” (quoting Navarro-Lopez,
503 F.3d at 1070–71)).
The identical lack of reasoning by the BIA exists in
Hernandez. The BIA notes that “[c]riminal gangs pose a
serious danger to public safety and have a taxing burden on
society and our moral culture,” and that the California
Legislature enacted the STEP Act for the purpose of
eradicating criminal activity by street gangs. Matter of E. E.
Hernandez, 26 I. & N. Dec. at 400. Like the reasons offered
in Robles-Urrea, however, these reasons do not warrant
deference because they mistake mere criminality for moral
turpitude and fail to explain why this crime in particular
constitutes a CIMT. See 678 F.3d at 709. Where, as in
Hernandez, the BIA simply states that criminal conduct is
HERNANDEZ-GONZALEZ V. HOLDER 27
morally turpitudinous but fails to provide a reasoned
foundation for its conclusion, its “analysis is an
impermissible construction of the INA, and we decline to
defer to it.” Id. at 709–10. Accordingly, we conclude that to
the extent the BIA’s holding in Hernandez – that the
respondent’s conviction is categorically one involving moral
turpitude – is based on the application of the gang
enhancement statute, it is unreasonable, and we need not
defer to it. See Chevron, 467 U.S. at 842–45.
Hernandez fares no better on de novo review. Contrary
to the BIA’s assertion, Matter of E. E. Hernandez, 26 I. & N.
Dec. at 402, there is a “realistic probability, not just a
theoretical possibility,” Castrijon-Garcia, 704 F.3d at 1215
(alteration omitted), that California applies § 186.22(d) to
conduct that does not involve moral turpitude. See, e.g., In re
Jose G., 2006 WL 2424738 (disturbance of the peace);
People v. Rodriguez, No. B247514, 2014 WL 2610612 (Cal.
Ct. App. June 12, 2014) (same); In re Juan L., No. F067588,
2014 WL 1394623 (Cal. Ct. App. Apr. 10, 2014) (possession
of a box cutter on school grounds); People v. Davis, No.
E061071, 2014 WL 4731500 (Cal. Ct. App. Sept. 23, 2014)
(simple battery);16 People v. Hernandez, No. G049024, 2014
WL 4373198 (Cal. Ct. App. Sept. 4, 2014) (vandalism
causing less than $400 in damages).
We reiterate: a crime that in itself does not involve moral
turpitude does not become turpitudinous merely because it
16
This Court and the BIA have both held that simple battery is not
categorically a crime involving moral turpitude. Nunez v. Holder,
594 F.3d 1124, 1137 (9th Cir. 2010) (“Both our court and the BIA have
repeatedly held that simple assault and battery are not categorically crimes
of moral turpitude.”).
28 HERNANDEZ-GONZALEZ V. HOLDER
was committed to promote, further, or assist criminal activity
by gang members. Thus, Hernandez does not affect our
holding that the BIA’s conclusion in the instant case was in
error.
Because the offense of weapons possession with a gang
enhancement has none of the characteristics of moral
turpitude we have identified, and because California cases
“demonstrate that there is a realistic probability, not just a
theoretical possibility” that California does in fact apply the
gang enhancement to conduct that does not involve moral
turpitude, Castrijon-Garcia, 704 F.3d at 1215 (alteration and
internal quotation marks omitted), we hold that Hernandez-
Gonzalez’s sentence enhancement under California Penal
Code § 186.22(b)(1) does not categorically elevate a crime to
a crime involving moral turpitude.17 In short, a conviction
under California’s gang enhancement statute does not change
the CIMT status of the predicate offense.
17
Because we conclude that a gang enhancement cannot transform a
non-turpitudinous crime into a turpitudinous crime, the modified
categorical approach plays no role in this case. Even if § 186.22(b)(1)
were divisible, thereby making the modified categorical approach
applicable to the multiple crimes contained in the statute, see Descamps,
133 S. Ct. at 2285, a question we do not decide, it would not matter
because none of those crimes would qualify as a turpitudinous offense.
See Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013)
(“[W]e may use the modified categorical approach so long as one of the
crimes included in the statute is a categorical match for the federal generic
offense.”). We conclude, therefore, that, contrary to the suggestion made
by the government, remand to the BIA on this question is unnecessary.
HERNANDEZ-GONZALEZ V. HOLDER 29
III
We hold that application of the gang enhancement
provision under § 186.22(b)(1) does not render Hernandez-
Gonzalez’s conviction for weapons possession under
California Penal Code § 12020 a crime of moral turpitude.
The petition is GRANTED. Because the BIA did not rule on
the other two grounds of removability – that the gang-
enhanced weapons possession charge is a crime of violence
under 8 U.S.C. § 1101(a)(43)(F), and that the failure to
appear for a controlled substances charge constitutes an
aggravated felony under 8 U.S.C. § 1101(a)(43)(T) – we
REMAND for the agency to make the first determination on
those charges.
GRANTED AND REMANDED.