Cerezo v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL CEREZO, 
Petitioner, No. 05-74688
v.
 Agency No.
A17-169-048
MICHAEL B. MUKASEY, Attorney
General,
Respondent.

ANGEL CEREZO, 
Petitioner, No. 05-75213
v.
 Agency No.
A17-169-048
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 4, 2007*
Pasadena, California
Filed January 14, 2008
Before: Marsha S. Berzon and Sandra S. Ikuta,
Circuit Judges, and James K. Singleton,**
Senior District Judge.
*The panel unanimously find this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
**The Honorable James K. Singleton, United States Senior District
Judge for the District of Alaska, sitting by designation.
413
414 CEREZO v. MUKASEY
Opinion by Judge Ikuta
CEREZO v. MUKASEY 415
COUNSEL
Lucas Guttentag, Monica M. Ramirez, ACLU Foundation
Immigrants’ Rights Project, Oakland, California, and Peter J.
Eliasberg, Ahilan T. Arulanantham, ACLU Foundation of
Southern California, Los Angeles, California, for the peti-
tioner.
Jennifer J. Keeney, Department of Justice, Washington, D.C.,
for the respondent.
416 CEREZO v. MUKASEY
OPINION
IKUTA, Circuit Judge:
In this case we consider whether a violation of California
Vehicle Code § 20001(a) (leaving the scene of an accident
resulting in bodily injury or death) is categorically a crime
involving moral turpitude for purposes of 8 U.S.C.
§ 1227(a)(2)(A)(ii). We hold it is not.
I
Angel Cerezo is a native and citizen of Spain who entered
the United States in 1966 and was granted immigrant status
in 1973. On January 16, 1998, Cerezo was convicted in Cali-
fornia state court of inflicting corporal injury on a spouse or
cohabitant, in violation of California Penal Code § 273.5. Fol-
lowing this conviction, removal proceedings were initiated
against Cerezo, but he was granted cancellation of removal.
According to his abstract of judgment, on November 5,
2001, Cerezo was convicted in California state court of driv-
ing under the influence, in violation of California Vehicle
Code § 23153, and leaving the scene of an accident resulting
in bodily injury or death, in violation of California Vehicle
Code § 20001(a).1 The government again initiated removal
proceedings against Cerezo under 8 U.S.C. § 1227(a)(2)
(A)(ii), which provides that aliens who have been convicted
of two crimes involving moral turpitude not arising out of a
single scheme of criminal conduct are deportable.2 On Febru-
1
Cerezo argues that the government did not prove by clear and convinc-
ing evidence that he had been convicted of violating § 20001(a). Because
we hold that the statute does not categorically describe a crime involving
moral turpitude, we need not reach this contention.
2
8 U.S.C. § 1227(a)(2)(A)(ii) states:
Any alien who at any time after admission is convicted of two or
more crimes involving moral turpitude, not arising out of a single
scheme of criminal misconduct, regardless of whether confined
therefor and regardless of whether the convictions were in a sin-
gle trial, is deportable.
CEREZO v. MUKASEY 417
ary 17, 2005, an Immigration Judge (IJ) held that Cerezo’s
1998 conviction for domestic abuse and his 2001 conviction
for leaving the scene of an accident were both crimes of moral
turpitude. The IJ then sustained the charge of removability
against Cerezo and ordered him removed to Spain.
On March 30, 2005, Cerezo filed a motion to reopen, con-
tending that his conviction under California Vehicle Code
§ 20001(a) was not a crime involving moral turpitude. The IJ
rejected this argument and denied the motion, noting that the
elements of a § 20001(a) violation include leaving the scene
of an accident knowing that the accident resulted in, or was
likely to result in, an injury.
Cerezo then filed two notices of appeal with the Board of
Immigration Appeals (BIA), both received by the BIA on
May 9, 2005. On July 7, 2005, the BIA dismissed as untimely
the appeal challenging the IJ’s removal order, because it was
filed more than thirty days after the IJ’s February 17, 2005
removal order. See 8 C.F.R. § 1003.38(b), (c).
The second notice of appeal sought review of the IJ’s
denial of Cerezo’s motion to reopen. In his brief, Cerezo
argued that leaving the scene of an accident resulting in bod-
ily injury or death was not a crime involving moral turpitude.3
The BIA disagreed, and dismissed Cerezo’s appeal on August
15, 2005.
Cerezo timely petitioned this court for review of both BIA
decisions. We consolidated Cerezo’s two petitions for review
on October 18, 2005. Cerezo has not further pursued his chal-
lenge to the BIA’s decision of July 7, 2005, and we deem the
argument abandoned. See Acosta-Huerta v. Estelle, 7 F.3d
139, 144 (9th Cir. 1993). Therefore, the only issue before us
3
Cerezo also argued that his domestic violence offense was not a crime
involving moral turpitude. The BIA rejected this argument and Cerezo
does not raise it on appeal to this court.
418 CEREZO v. MUKASEY
is whether the BIA erred in dismissing Cerezo’s appeal from
the denial of his motion to reopen.4 Cerezo raises two argu-
ments in his appeal from the denial of his motion to reopen.
First, he argues that his violation of § 20001(a) did not
involve moral turpitude. Second, Cerezo contends that the
government failed to prove that he pleaded guilty to a viola-
tion of § 20001(a) by clear and convincing evidence.5
We have “jurisdiction over the affirmance of a denial of a
motion to reopen under 8 U.S.C. § 1252(a)(1).” Lin v. Gon-
zales, 473 F.3d 979, 981 (9th Cir. 2007). We review the
BIA’s dismissal of such a motion for an abuse of discretion.
Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005). The
BIA abuses its discretion when it makes an error of law.
Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002). We
review questions of law de novo. United States v. Chu Kong
Yin, 935 F.2d 990, 1003 (9th Cir. 1991). Whether a “convic-
tion is a crime involving moral turpitude is a question of law.”
Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir.
2007) (en banc).
4
Under the applicable regulations, Cerezo was required to raise his legal
claim that violations of § 20001(a) are not crimes involving moral turpi-
tude in a motion to reconsider, not a motion to reopen. See 8 C.F.R.
§ 1003.23. However, the BIA reached Cerezo’s claim on the merits and
dismissed it only after concluding that violations of § 20001(a) involve
moral turpitude. The BIA did not reach the question whether a motion to
reopen was an inappropriate method for Cerezo to bring his legal claim.
Accordingly, we need not address it here. See Azanor v. Ashcroft, 364
F.3d 1013, 1021 (9th Cir. 2004) (“we must decide to grant or deny the
petition for review based on the Board’s reasoning rather than our own
independent analysis of the record.”).
5
In his supplemental brief, Cerezo argues that the generic definition of
crimes involving moral turpitude is unconstitutionally vague when applied
to California Vehicle Code § 20001(a). Cerezo’s opening brief does not
raise this issue, and it is therefore waived. Armentero v. INS, 412 F.3d
1088, 1095 (9th Cir. 2005).
CEREZO v. MUKASEY 419
II
[1] We first consider whether a violation of California
Vehicle Code § 20001(a) is categorically a crime involving
moral turpitude. “To determine whether a specific crime falls
within a particular category of grounds for removability, we
apply the categorical and modified categorical approaches set
forth in Taylor v. United States, 495 U.S. 575 (1990).”
Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.
2007) (quoting Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,
1017 (9th Cir. 2005)). Under the categorical approach, we
“compare the elements of the statute of conviction with a fed-
eral definition of the crime to determine whether conduct pro-
scribed by the statute is broader than the generic federal
definition.” Id.
[2] Looking first at the federal definition of the crime at
issue, we have held that crimes of moral turpitude are of basi-
cally two types, “those involving fraud and those involving
grave acts of baseness or depravity.” Carty v. Ashcroft, 395
F.3d 1081, 1083 (9th Cir. 2005). We have defined the second
type as involving “conduct that (1) is base, vile, or depraved
and (2) violates accepted moral standards.” Navarro-Lopez,
503 F.3d at 1068. Because a “crime involving moral turpi-
tude” is not a separate crime at common law but rather a clas-
sification of other crimes, see 1 WAYNE R. LAFAVE,
SUBSTANTIVE CRIMINAL LAW, § 1.6 (2d ed. 2003), we must also
compare the crime of conviction with “crimes we have previ-
ously determined to be base, vile, and depraved — crimes
such as murder, rape, and incest.” Navarro-Lopez, 503 F.3d
at 1075 (opinion of Reinhardt, J., writing for the majority).
We have held that such crimes necessarily include willfulness
or evil intent. Quintero-Salazar, 506 F.3d at 693.6
6
In determining the generic federal definition of a crime in the Immigra-
tion and Naturalization Act, we defer to the BIA if the statute is silent or
ambiguous and if the BIA’s interpretation is set forth in a precedential
decision or regulation and is based on a permissible construction of the
420 CEREZO v. MUKASEY
After defining the generic federal crime at issue, we turn to
the state statute of conviction. “[T]he issue is whether the full
range of conduct encompassed by the statute constitutes a
crime of moral turpitude.” Id. at 692. The state crime at issue
here is defined by California Vehicle Code § 20001(a). That
section, entitled “Duty to stop at scene of injury accident,”
provides:
The driver of any vehicle involved in an accident
resulting in injury to any person, other than himself
or herself, or in the death of any person shall imme-
diately stop the vehicle at the scene of the accident
and shall fulfill the requirements of Sections 20003
and 20004.
Section 20003, entitled “Duty upon injury or death,” provides:
(a) The driver of any vehicle involved in an acci-
dent resulting in injury to or death of any person
shall also give his or her name, current residence
address, the names and current residence addresses
of any occupant of the driver’s vehicle injured in the
accident, the registration number of the vehicle he or
she is driving, and the name and current residence
address of the owner to the person struck or the
driver or occupants of any vehicle collided with, and
shall give the information to any traffic or police
officer at the scene of the accident. The driver also
shall render to any person injured in the accident rea-
sonable assistance, including transporting, or making
arrangements for transporting, any injured person to
statute. Kharana v. Gonzales, 487 F.3d 1280, 1283 n.4 (9th Cir. 2007);
Parilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005) (quoting INS v.
Aguirre-Aguirre, 526 U.S. 415 (1999)). We have previously noted that the
BIA employs the same definition of “crimes of moral turpitude” as do the
federal courts. Navarro-Lopez, 503 F.3d at 1068.
CEREZO v. MUKASEY 421
a physician, surgeon, or hospital for medical or sur-
gical treatment if it is apparent that treatment is nec-
essary or if that transportation is requested by any
injured person.
(b) Any driver or injured occupant of a driver’s
vehicle subject to the provisions of subdivision (a)
shall also, upon being requested, exhibit his or her
driver’s license, if available, or, in the case of an
injured occupant, any other available identification,
to the person struck or to the driver or occupants of
any vehicle collided with, and to any traffic or police
officer at the scene of the accident.
Section 20004, entitled “Duty upon death,” provides:
“In the event of death of any person resulting from
an accident, the driver of any vehicle involved after
fulfilling the requirements of this division, and if
there be no traffic or police officer at the scene of the
accident to whom to give the information required
by Section 20003, shall, without delay, report the
accident to the nearest office of the Department of
the California Highway Patrol or office of a duly
authorized police authority and submit with the
report the information required by Section 20003.
[3] Reading § 20001(a) literally, a driver in an accident
resulting in injury who stops and provides identification, but
fails to provide a vehicle registration number, has violated the
statute. The failure to provide a vehicle registration number
under such circumstances is not base, vile and depraved; nor
does it necessarily evince any willfulness or evil intent, a req-
uisite element of crimes of moral turpitude. Quintero-Salazar,
506 F.3d at 693.
The government contends that such a literal application of
the statute is not realistic and argues that there must be “a
422 CEREZO v. MUKASEY
realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic
definition of a crime.” Gonzales v. Duenas-Alvarez, 127 S. Ct.
815, 822 (2007). We cannot, however, ignore the plain lan-
guage of § 20001(a). Duenas-Alvarez does caution us against
“conjur[ing] up some scenario, however improbable, whereby
a defendant might be convicted under the statute in question
even though he did not commit an act encompassed by the
federal provision.” United States v. Carson, 486 F.3d 618,
620 (9th Cir. 2007) (per curiam). But where, as here, the state
statute plainly and specifically criminalizes conduct outside
the contours of the federal definition, we do not engage in
judicial prestidigitation by concluding that the statute “creates
a crime outside the generic definition of a listed crime.”
Duenas-Alvarez, 127 S. Ct. at 822.
That said, we must still consider whether California courts
have interpreted the scope of § 20001(a) more narrowly so as
to make it applicable only to conduct which involves moral
turpitude. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
577 (1996) (“[O]nly state courts may authoritatively construe
state statutes.”) The government points to several long-
standing state court decisions indicating that § 20001(a) is to
be construed realistically, and that its affirmative reporting
requirements should be interpreted as a more general obliga-
tion for a driver to provide identification after an accident. See
People v. Rallo, 119 Cal. App. 393, 402 (Cal. Dist. Ct. App.
1931); People v. Scofield, 203 Cal. 703, 708 (1928) (“[I]t is
obvious that criminal liability should not attach in all cases
where a literal application of the language of the statute might
be made.”)
More recently, a California appellate court interpreted
§ 20001(a) as constituting a crime of moral turpitude for pur-
poses of California evidence law because it “more than like-
ly” involves an evil intent. People v. Bautista, 217 Cal. App.
3d 1, 7 (Cal. Ct. App. 1990). In Bautista, the court rejected
appellant’s argument that § 20001(a) was not a crime of moral
CEREZO v. MUKASEY 423
turpitude because failing to give one’s name “could simply be
the result of neglect without evil intent.” Id. at 6. Such a sce-
nario, the court held, was merely the appellant’s imagination
of “a set of circumstances under which a penal statute can be
violated without moral fault.” Id. The state court emphasized
the purpose of the statute, which was “to prevent the driver of
a car involved in an accident from leaving the scene without
furnishing information as to his identity and to prevent him
from escaping liability.” Id. at 7. Noting it was “more than
likely that one who is involved in an injury-accident and
leaves the scene before giving the required identifying infor-
mation is seeking to evade civil or criminal prosecution,” the
court concluded that “[o]ne can certainly infer that such a
mental state indicates a ‘general readiness to do evil’ or moral
turpitude.” Id. However, the court stopped short of providing
a binding interpretation of the statute that would preclude a
conviction under § 20001(a) for mere negligence in failing to
provide one type of identifying information required by the
statute.
By contrast, other California appellate courts have inter-
preted § 20001(a) as requiring drivers to complete each of the
incorporated reporting requirements of § 20003 and § 20004.
‘The various requirements of the statute are set forth
in the conjunctive and omission to perform any one
of the acts required constitutes an offense.’ . . . This
statement was made . . . to illustrate that, even
though the defendant there did stop at the scene of
the crime, he nevertheless was guilty of a violation
of the statute by failing to comply with the other
requirements.
People v. Newton, 155 Cal. App. 4th 1000, 1003-1004 (Cal.
Ct. App. 2007) (quoting Bailey v. Superior Court, 4 Cal. App.
3d 513, 519 (Cal. Ct. App. 1970)); see also People v. Limon,
252 Cal. App. 2d 575, 578 (Cal. Ct. App. 1967) (“Omission
to perform any one of the acts required by section 20001 . . .
424 CEREZO v. MUKASEY
constitutes the offense.”); People v. Jordan, 214 Cal. App. 2d
400, 403 (Cal. Dist. Ct. App. 1963) (“[The defendant’s] fail-
ure to perform any of the acts required by the statute consti-
tutes a violation thereof.”).
[4] Although the issue is close, because the plain language
of the statute criminalizes failure to provide all required forms
of identification, and because some California courts have
held that “[t]he various requirements of [§ 20001] are set forth
in the conjunctive and omission to perform any one of the acts
required constitutes an offense,” Newton, 155 Cal. App. 4th
at 1003 (internal quotation marks omitted), we cannot con-
clude that the elements of § 20001(a) “are of the type that
would justify its inclusion” within the federal definition of
crimes involving moral turpitude. James v. United States, 127
S. Ct. 1586, 1594 (2007). Our conclusion on this issue is con-
sistent with the Fifth Circuit’s decision in Garcia-Maldonado
v. Gonzales, 491 F.3d 284, 288-89 (5th Cir. 2007), holding
that a conviction under § 550.021 of the Texas Transportation
Code, which could be violated both by reprehensible conduct
(leaving the scene of an accident) and by conduct that was not
morally culpable (failing to affirmatively report identifying
information), was not categorically a crime involving moral
turpitude.
III
[5] Having concluded that § 20001(a) does not categori-
cally involve moral turpitude, and because the statute “is
divisible into several crimes, some of which may involve
moral turpitude and some of which may not,” Navarro-Lopez,
503 F.3d at 1073, we would ordinarily turn to the modified
categorical approach. Under that approach we examine certain
judicial records to determine whether a defendant was neces-
sarily convicted of the elements of the federal generic crime.
See Shepard v. United States, 544 U.S. 13, 20-21 (2005).
Here, however, the record contains only the abstract of judg-
ment, which simply states that Cerezo pleaded guilty to a vio-
CEREZO v. MUKASEY 425
lation of § 20001(a). Therefore, the modified categorical
approach does not alter our analysis.7 See Quintero-Salazar,
506 F.3d at 694.
IV
In sum, based on the plain language of the statute as cur-
rently interpreted by California courts, California Vehicle
Code § 20001(a) is not categorically a crime involving moral
turpitude. Because the modified categorical approach does not
alter our analysis, we must conclude on the basis of this
record that the government has not met its burden of proving
that Cerezo committed a crime involving moral turpitude. See
Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194-95 (9th Cir.
2006) (discussing the government’s burden).
PETITION GRANTED
7
We therefore neither consider nor decide whether any of the ways in
which § 20001(a) could be violated would be crimes involving moral tur-
pitude under the modified categorical approach.