Rocio Martinez-De Ryan v. Matthew Whitaker ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCIO AURORA MARTINEZ-DE No. 15-70759
RYAN,
Petitioner, Agency No.
A096-025-359
v.
MATTHEW WHITAKER, Acting ORDER AND
Attorney General, AMENDED
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 9, 2018*
San Francisco, California
Filed July 17, 2018
Amended November 16, 2018
Before: Susan P. Graber and Richard C. Tallman, Circuit
Judges, and Ivan L.R. Lemelle,** District Judge.
*
The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
**
The Honorable Ivan L.R. Lemelle, United States District Judge for
the Eastern District of Louisiana, sitting by designation.
2 MARTINEZ-DE RYAN V. WHITAKER
Order;
Opinion by Judge Graber
SUMMARY***
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of Martinez-de Ryan’s
application for cancellation of removal on the ground that she
was convicted of a crime involving moral turpitude.
The panel rejected the government’s contention that the
void-for-vagueness doctrine does not apply at all to any
grounds of inadmissibility, such as crimes involving
turpitude.
Applying Jordan v. De George, 341 U.S. 223 (1951)
(rejecting a void-for-vagueness challenge to the phrase
“crime of moral turpitude”) and Tseung Chu v. Cornell,
247 F.2d 929 (9th Cir. 1957) (following Jordan), the panel
held that the crime involving moral turpitude statute, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), is not unconstitutionally vague. The
panel concluded that Jordan and Tseung Chu remain good
law in light of the Supreme Court’s decisions in Johnson v.
United States, 135 S. Ct. 2551 (2015) (concluding that the
residual clause of the federal criminal code’s definition of
“crime of violence” is unconstitutionally vague), and Sessions
v. Dimaya, 138 S. Ct. 1204 (2018) (extending Johnson’s
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MARTINEZ-DE RYAN V. WHITAKER 3
holding to the immigration context). The panel explained that
it was obliged to follow on-point Supreme Court precedent—
here, Jordan—even if later Supreme Court cases cast some
doubt on its general reasoning. The panel also pointed out
that Johnson and Dimaya interpret statutory “residual”
clauses whose wording does not include the phrase “moral
turpitude” and which are not tethered to recognized common
law principles.
COUNSEL
K. Alexandra Monaco, The Monaco Law Group Ltd., Las
Vegas, Nevada; Kari E. Hong, Boston College Law School,
Newton, Massachusetts; for Petitioner.
Allison Frayer, Trial Attorney; Melissa Neiman-Keltin and
Aimee J. Carmichael, Senior Litigation Counsel; John W.
Blakeley, Assistant Director; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
Stephen Manning, Innovation Law Lab, Portland, Oregon, for
Amici Curiae Alameda County Public Defender’s Office, Los
Angeles County Public Defender’s Office, Santa Barbara
County Public Defender’s Office, Santa Clara County Public
Defender’s Office, San Francisco Public Defender, Jeff
Adachi, Santa Cruz County Public Defender’s Office,
Sonoma County Public Defender’s Office, Jose Varela, Marin
County Public Defender, and Dan deGriselles.
4 MARTINEZ-DE RYAN V. WHITAKER
Jennifer Lee Koh, Immigration Clinic, Western State College
of Law, Irvine, California; Evangeline G. Abriel, Santa Clara
University School of Law, Santa Clara, California; for Amici
Curiae American Immigration Lawyers Association, Florence
Immigrant and Refugee Rights Project, Immigrant Legal
Resource Center, National Immigration Project of the
National Lawyers Guild, and U.C. Davis Immigration Clinic.
ORDER
The opinion filed on July 17, 2018, and published at
895 F.3d 1191, is amended by the opinion filed concurrently
with this order.
With these amendments, the panel has voted to deny
Petitioner’s petition for panel rehearing. Judge Graber has
voted to deny Petitioner’s petition for rehearing en banc, and
Judges Tallman and Lemelle have so recommended.
The full court has been advised of the petition for
rehearing en banc, and no judge of the court has requested a
vote on it.
Petitioner’s petition for panel rehearing and rehearing en
banc is DENIED. No further petitions for panel rehearing or
rehearing en banc may be filed.
MARTINEZ-DE RYAN V. WHITAKER 5
OPINION
GRABER, Circuit Judge:
Petitioner Rocio Aurora Martinez-de Ryan is a native and
citizen of Mexico who entered the United States without
being inspected and admitted or paroled. She timely seeks
review of a decision issued by the Board of Immigration
Appeals (“BIA”), which affirmed an immigration judge’s
decision pretermitting her application for cancellation of
removal and ordering her removed from the United States.
She argues (A) that her federal bribery conviction does not
constitute a crime involving moral turpitude and (B) that the
statutory phrase “crime involving moral turpitude,” 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), is unconstitutionally vague. We
disagree.
Petitioner entered the United States some time before
1999. A few years later, she provided cash payments to an
employee at the Nevada Department of Motor Vehicles to
influence and reward the employee for issuing identification
documents to non-citizens illegally present in the United
States. As a result, in 2010, Petitioner pleaded guilty to one
count of bribery, in violation of 18 U.S.C. § 666(a)(2), for
which the maximum penalty is 10 years’ imprisonment.
Shortly thereafter, Petitioner received a Notice to Appear,
charging her with inadmissibility under § 1182(a)(2)(A)(i).
Through counsel, Petitioner conceded inadmissibility but
sought cancellation of removal. An immigration judge ruled
that Petitioner’s bribery conviction constituted a crime of
moral turpitude, rendering her ineligible for cancellation of
removal. The BIA agreed, and this petition for review
followed.
6 MARTINEZ-DE RYAN V. WHITAKER
A. Bribery under § 666(a)(2) is Categorically a Crime
Involving Moral Turpitude.
“To determine whether a crime is categorically one of
moral turpitude, we examine whether the full range of
conduct encompassed by the criminal statute constitutes a
crime of moral turpitude.” Latter-Singh v. Holder, 668 F.3d
1156, 1159 (9th Cir. 2012) (internal quotation marks
omitted). “[O]ne test ‘to determine if a crime involves moral
turpitude is whether the act is accompanied by a vicious
motive or a corrupt mind.’” Id. at 1161 (quoting In re Ajami,
22 I. & N. Dec. 949, 950 (B.I.A. 1999)).
Section 666(a)(2) provides that whoever
corruptly gives, offers, or agrees to give
anything of value to any person, with intent to
influence or reward an agent of an
organization or of a State, local or Indian
tribal government, or any agency thereof, in
connection with any business, transaction, or
series of transactions of such organization,
government, or agency involving anything of
value of $5,000 or more [has committed a
crime.]
(Emphasis added.) Along with other circuits, we have held
that “§ 666 contains . . . a corrupt intent requirement.” United
States v. Garrido, 713 F.3d 985, 1001 (9th Cir. 2013)
(internal quotation marks omitted). “An act is done
‘corruptly’ if it is performed voluntarily, deliberately, and
dishonestly, for the purpose of either accomplishing an
unlawful end or result or of accomplishing some otherwise
lawful end or lawful result by an unlawful method or means.”
MARTINEZ-DE RYAN V. WHITAKER 7
United States v. McNair, 605 F.3d 1152, 1193 (11th Cir.
2010); see Garrido, 713 F.3d at 1001–02 (citing McNair with
approval).
Because § 666(a)(2) requires proof of a “corrupt mind,”
Latter-Singh, 668 F.3d at 1161, we hold that a bribery
conviction under § 666(a)(2) categorically qualifies as a
crime involving moral turpitude. Our holding comports with
decades-old decisions by the BIA and by the Second, Fourth,
and Fifth Circuits that bribery involves moral turpitude.1 See
In re H-, 6 I. & N. Dec. 358, 361 (B.I.A. 1954) (“[T]he
offense of bribery is a base and vile act which involves moral
turpitude.”); Villegas-Sarabia v. Sessions, 874 F.3d 871, 878
n.25 (5th Cir. 2017) (noting that “bribery is a crime involving
moral turpitude” (citing Okabe v. INS, 671 F.2d 863, 865 (5th
Cir. 1982)), cert. denied, 2018 WL 2290257 (U.S. Oct. 9,
2018) (No. 17-1559); United States v. Zacher, 586 F.2d 912,
915 (2d Cir. 1978) (“There can be no question but that any
crime of bribery involves moral turpitude . . . .” (quoting
United States ex rel. Sollazzo v. Esperdy, 285 F.2d 341, 342
(2d Cir. 1961))); United States v. Pomponio, 511 F.2d 953,
956 (4th Cir. 1975) (same); see also In re Gruenangerl, 25 I.
& N. Dec. 351, 358 n.8 (B.I.A. 2010) (noting that bribery of
a public official involves moral turpitude).
B. The Statute is Not Unconstitutionally Vague.
In Jordan v. De George, 341 U.S. 223 (1951), the
Supreme Court considered a vagueness challenge to the
1
Perhaps because bribery is so commonly understood to involve
moral turpitude, petitioners in other cases have declined to challenge the
proposition. E.g., Mendez-Mendez v. Mukasey, 525 F.3d 828, 831–32 (9th
Cir. 2008); Carty v. Ashcroft, 395 F.3d 1081, 1083 n.3 (9th Cir. 2005).
8 MARTINEZ-DE RYAN V. WHITAKER
phrase “crime of moral turpitude.” The non-citizen in that
case had been convicted of conspiracy to defraud the United
States of taxes and was, for that reason, ordered deported on
the ground that he stood convicted of a “crime involving
moral turpitude.” Id. at 223–26. In view of the “grave nature
of deportation,” the Court considered the statute under the
usual criteria pertaining to the void-for-vagueness doctrine.
Id. at 231. The Court held on the merits that the phrase in
question was not so vague or meaningless as to be a
deprivation of due process. Id. at 229–32.
We followed suit in Tseung Chu v. Cornell, 247 F.2d 929
(9th Cir. 1957). Similarly, there, the non-citizen was
convicted of willful tax evasion. Id. at 931–32. His
conviction occurred before his latest entry into the United
States, and the relevant statute, 8 U.S.C. § 1182(a) (Section
212(a) of the Immigration and Nationality Act of 1952),
provided that an alien convicted of a “crime involving moral
turpitude” was inadmissible. Relying on the Supreme Court’s
then-recent decision in Jordan, we held that the phrase in
question was not unconstitutionally vague. Tseung Chu,
247 F.2d at 938–39.
The government first argues that the void-for-vagueness
doctrine does not apply at all to any ground of
inadmissibility, relying on Boutilier v. INS, 387 U.S. 118
(1967). As a three-judge panel, we are bound by Tseung
Chu’s consideration of the merits of this issue
notwithstanding the fact that the petitioner in that case was
inadmissible, rather than deportable. Because we do not read
Boutilier quite as broadly as the government does, we do not
think that it is “clearly irreconcilable” with Tseung Chu in
this regard. Miller v. Gammie, 335 F.3d 889, 899–900 (9th
Cir. 2003) (en banc).
MARTINEZ-DE RYAN V. WHITAKER 9
Although some of the Boutilier opinion’s wording is
broad, the crux of the decision is that the petitioner was “not
being deported for conduct engaged in after his entry into the
United States, but rather for characteristics he possessed at
the time of his entry.” 387 U.S. at 123. “A standard
applicable solely to time of entry could hardly be vague as to
post-entry conduct.” Id. at 124. Moreover, the petitioner was
excluded by reason of a status or condition (“psychopathic
personality”), rather than by reason of a discrete criminal act.
Id. at 118. And finally, although the Court asserted that the
“constitutional requirement of fair warning has no
applicability to standards . . . for admission of aliens to the
United States,” id. at 123, the Court went on to decide on the
merits that the pivotal phrase was, in fact, clear, id. at 123–24.
Here, by contrast, Petitioner engaged in the conduct at issue
after the time of entry, and the conduct in question was a
criminal act, rather than a status or condition. Accordingly,
we are not persuaded that Boutilier forecloses consideration
of whether a crime committed by a non-citizen constitutes a
“crime of moral turpitude” so as to render her inadmissible.
We also note that at least one other circuit has continued,
after Boutilier, to analyze on the merits a void-for-vagueness
challenge to the phrase “moral turpitude,” brought by a non-
citizen who was found to be inadmissible. Lagunas-Salgado
v. Holder, 584 F.3d 707, 710–11 (7th Cir. 2009); Ali v.
Mukasey, 521 F.3d 737, 739 (7th Cir. 2008).
The Supreme Court’s recent decision in Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), extending to the
immigration context its earlier opinion in Johnson v. United
States, 135 S. Ct. 2551 (2015), does not eviscerate our
holding in Tseung Chu, such that we should overrule it.
Miller, 335 F.3d at 899–900. First, we are obliged to follow
on-point Supreme Court precedent—here, Jordan—even if
10 MARTINEZ-DE RYAN V. WHITAKER
later Supreme Court cases cast some doubt on its general
reasoning. Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per
curiam). Second, Johnson and Dimaya interpret statutory
“residual” clauses whose wording does not include the phrase
“moral turpitude” and which are not tethered to recognized
common law principles. In the circumstances, we remain
bound by Jordan and Tseung Chu.2
Petition DENIED.
2
At least three of our sister circuits have held, in cases post-dating
Johnson, that the Supreme Court’s holding in Jordan remains good law:
the phrase “crime involving moral turpitude” is not unconstitutionally
vague. Moreno v. Att’y General, 887 F.3d 160, 165–66 (3d Cir. 2018);
Boggala v. Sessions, 866 F.3d 563, 569–70 (4th Cir. 2017), cert. denied,
138 S. Ct. 1296 (2018); Dominguez-Pulido v. Lynch, 821 F.3d 837,
842–43 (7th Cir. 2016).