Manuel Olivas-Motta v. Eric Holder, Jr. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL OLIVAS-MOTTA, No. 10-72459
Petitioner,
Agency No.
v. A021-179-705
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 13, 2011—San Francisco, California
Filed May 17, 2013
Before: Proctor Hug, Jr., Andrew J. Kleinfeld,
and William A. Fletcher, Circuit Judges.
Opinion by Judge Fletcher
Concurrence by Judge Kleinfeld
2 OLIVAS-MOTTA V. HOLDER
SUMMARY*
Immigration
The panel granted Manuel Olivas-Motta’s petition for
review of the Board of Immigration Appeals’ decision
concluding, on the basis of police reports, that his conviction
for endangerment under Arizona law constituted a crime
involving moral turpitude.
The panel held that a “crime involving moral turpitude”
(CIMT) is a generic crime whose description is complete unto
itself, such that “involving moral turpitude” is an element of
the crime and an Immigration Judge is limited to the record
of conviction to determine whether an alien was “convicted
of” a CIMT. The panel held that the Attorney General
wrongly decided, in his published precedential opinion
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008),
that an IJ may rely on evidence outside the record of
conviction to determine whether a petitioner has been
convicted of a CIMT.
Judge Kleinfeld, concurring in the result, disagreed with
the majority’s wholesale rejection of deference to the Matter
of Silva-Trevino opinion, but would not address whether it
merits Chevron deference because the BIA’s reliance on the
police report in this case was mistaken. Judge Kleinfeld
would also find that Matter of Silva-Trevino, reasonably
construed, is not arbitrary or capricious, but that it was
misapplied in this case.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OLIVAS-MOTTA V. HOLDER 3
COUNSEL
Kara L. Hartzler (argued), Florence, Arizona, for Petitioner.
Gregory Darrell Mack (argued), Senior Litigation Counsel,
United States Department of Justice, Washington, D.C., for
Respondent.
Peter L. Markowitz, Benjamin N. Cardozo School of Law
Immigration Justice Clinic, New York, New York, for Amici
Curiae Immigrant Defense Project, National Immigration
Project of the National Lawyers Guild, Immigrant Legal
Resource Center, U.C. Davis Immigration Law Clinic, and
Immigration Justice Clinic of the Benjamin N. Cardozo
School of Law.
OPINION
W. FLETCHER, Circuit Judge:
Petitioner Manuel Olivas-Motta is a lawful permanent
resident charged with removal under 8 U.S.C.
§ 1227(a)(2)(A)(ii) based on his alleged “conviction of” two
crimes involving moral turpitude (“CIMTs”). Petitioner
concedes that the first conviction was for a CIMT. He
contends that the second was not.
The Immigration Judge (“IJ”) and Board of Immigration
Appeals (“BIA”) concluded that the second conviction was
for a CIMT, relying on police reports to determine the nature
of the conviction. The Attorney General held in Matter of
Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), that an IJ
may rely on evidence outside the record of conviction to
4 OLIVAS-MOTTA V. HOLDER
determine whether a petitioner has been “convicted of” a
CIMT. We join the Third, Fourth, and Eleventh Circuits in
holding that Silva-Trevino was wrongly decided. We hold
that an IJ and the BIA are confined to the record of conviction
in determining whether an alien has been convicted of a
CIMT.
I. Background
Olivas-Motta was brought to the United States by his
parents when he was ten days old. At the time of his hearing
before the IJ he was thirty-three years old, married, and a
lawful permanent resident. He was charged with removal
under 8 U.S.C. § 1227(a)(2)(A)(ii), which provides that an
alien who has been “convicted of two or more crimes
involving moral turpitude . . . is deportable.”
In 2003, Olivas-Motta was convicted of facilitation of
unlawful possession of marijuana under Arizona law. Ariz.
Rev. Stat. §§ 13-1004, 13-3405. He concedes that this was a
conviction of a CIMT. In 2007, he pled guilty to
“endangerment” under Arizona law. Arizona’s endangerment
statute provides:
A. A person commits endangerment by
recklessly endangering another person
with a substantial risk of imminent death
or physical injury.
B. Endangerment involving a substantial risk
of imminent death is a class 6 felony. In
all other cases, it is a class 1
misdemeanor.
OLIVAS-MOTTA V. HOLDER 5
Ariz. Rev. Stat. § 13-1201. Olivas-Motta contends that his
conviction of endangerment was not a conviction of a CIMT.
At Olivas-Motta’s removal hearing before the IJ, the
government put into evidence the charging document and the
written plea agreement for his endangerment conviction.
Neither the charging document nor the plea agreement
provides information about Olivas-Motta’s underlying
conduct. The plea agreement states only that Olivas-Motta
“committed endangerment by recklessly endangering another
person with a substantial risk of imminent death,” and that he
was pleading guilty to a class 6 felony. The government also
put into evidence before the IJ three police reports containing
information about Olivas-Motta’s conduct. Relying on the
police reports pursuant to Matter of Silva-Trevino, 24 I. & N.
Dec. 687 (A.G. 2008), the IJ concluded that Olivas-Motta had
been “convicted of” a CIMT and was therefore removable.
She denied cancellation of removal.
The BIA dismissed Olivas-Motta’s appeal. It relied on
the police reports pursuant to Silva-Trevino to conclude that
Olivas-Mota had been convicted of a CIMT. Olivas-Motta
petitioned for review.
II. Jurisdiction and Standard of Review
We have jurisdiction to review questions of law in a
petition for review of a removal order. 8 U.S.C.
§ 1252(a)(2)(D). Latter-Singh v. Holder, 668 F.3d 1156,
1159 (9th Cir. 2012). Whether a conviction is for a CIMT is
a question of law. Id. We review questions of law de novo.
Romero-Mendoza v. Holder, 665 F.3d 1105, 1107 (9th Cir.
2011).
6 OLIVAS-MOTTA V. HOLDER
III. Discussion
We evaluate the Attorney General’s decision in Silva-
Trevino under the familiar framework of Chevron U.S.A. Inc.
v. Natural Res. Def. Council, 467 U.S. 837 (1984). When we
review an agency’s construction of a statute that it
administers, the first step under Chevron is to determine
“whether Congress has directly spoken to the precise question
at issue.” Id. at 842. “If the intent of Congress is clear, that
is the end of the matter . . . .” Id. In that event, courts and
agencies alike “must give effect to the unambiguously
expressed intent of Congress.” Id. at 842–43. If the intent of
Congress is unclear, we move to the next step, which is to
determine whether the agency’s interpretation of the text “is
based on a permissible construction of the statute.” Id. at
843. If the agency’s interpretation is based on a permissible
construction, a court must give deference to that
interpretation.
In Silva-Trevino, the Attorney General interpreted two
provisions of the Immigration and Naturalization Act
(“INA”), one dealing with inadmissibility and the other
dealing with removability. In both provisions, a criterion for
inadmissibility or removability is “conviction of” one or more
CIMTs. The admissibility provision states:
[A]ny alien convicted of, or who admits
having committed, or who admits committing
acts which constitute the essential elements of
. . . a crime involving moral turpitude . . . is
inadmissible.
8 U.S.C. § 1182(a)(2)(A)(i)(I) (emphasis added). The
removability provision states:
OLIVAS-MOTTA V. HOLDER 7
(i) Any alien who . . . 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
. . . ) after the date of admission, and is
convicted of a crime for which a sentence of
one year or longer may be imposed, is
deportable.
(ii) . . . Any alien who at any time after
admission is convicted of two or more crimes
involving moral turpitude . . . is deportable.
8 U.S.C. § 1227(a)(2)(A)(i–ii) (emphasis added).
The Attorney General concluded that the statutory
language is ambiguous. He wrote:
This opinion begins, as it must, with the
statutory text. The Act refers to “moral
turpitude” in two separate provisions [quoting
8 U.S.C. §§ 1182(a)(2)(A)(ii)(I) and
1127(a)(2)(A)(i)].
The statute does not define the term
“crime involving moral turpitude.” It is also
silent on the precise method that immigration
judges and courts should use to determine if a
prior conviction is for a crime involving
moral turpitude. To the extent it suggests a
method, the text actually cuts in different
directions. Some statutory language — for
example, use of the phrase “convicted of”
rather than “committed” — suggests that the
8 OLIVAS-MOTTA V. HOLDER
relevant inquiry should be categorical and
focus on whether moral turpitude inheres in
the statutory elements required for conviction
rather than in the particularized facts of the
alien’s crime. Section [1182](a)(2)(A)(i)(I).
Other language — for example, the use of the
word “involving” and the reference in section
[1182](a)(2)(A)(i)(I) to aliens who admit
“committing” certain “acts” — seems to call
for, or at least allow, inquiry into the
particularized facts of the crime.
Faced with this ambiguity, the Board and
the Federal courts have long taken the view
that judges should begin by engaging in some
sort of “categorical” inquiry to determine
whether moral turpitude “necessarily inheres”
in a conviction under a particular State or
Federal criminal statute. To date, however,
the Department has not adopted a preferred
methodology for conducting that categorical
inquiry, and the Board has chosen instead to
make such determinations in accordance with
the law of the circuit in which an alien’s case
arises.
Silva-Trevino, 24 I. & N. at 692–93 (emphasis added) (some
citations omitted).
Later in his opinion, the Attorney General wrote:
[T]he documents generally considered part
of the formal record of conviction typically
focus only on the charging elements of a
OLIVAS-MOTTA V. HOLDER 9
specific criminal offense. But moral turpitude
is not an element of an offense. And although
in many, if not most, cases (for example,
cases in which proof of fraudulent intent is
required for conviction), examination of the
alien’s record of conviction may establish that
the alien was in fact convicted of a crime
involving moral turpitude, there are other
cases (such as the instant one) in which an
examination of the formal record by itself
does not yield an answer to the question. To
limit the information available to immigration
judges in such cases means that they will be
unable to determine whether an alien’s crime
actually “involv[ed]” moral turpitude.
This restriction is hard to square with the
text of the Act. The relevant provisions
contemplate a finding that the particular alien
did or did not commit a crime involving moral
turpitude before immigration penalties are or
are not applied. Section [1182](a)(2)(A)(i)(I),
the inadmissibility provision at issue in this
case, refers to “any alien convicted of, or who
admits having committed, or who admits
committing acts which constitute the essential
elements of a crime involving moral
turpitude.” Section [1227’s] removability
provisions similarly pertain only to “[a]ny
alien who is convicted of a crime involving
moral turpitude” under certain enumerated
circumstances, one of which relates to the
alien’s date of admission — a fact that would
not typically be reflected in a criminal record
10 OLIVAS-MOTTA V. HOLDER
of conviction. To impose evidentiary
limitations with the result that immigration
penalties under section [1182](a) or section
[1227] apply to aliens whose crimes did not
involve moral turpitude, or with the result that
aliens whose crimes did involve moral
turpitude escape those penalties, is in tension
with the text of those sections.
Id. at 699–700 (first emphases added) (some citations
omitted).
Based on this analysis, the Attorney General concluded
that an IJ may consult evidence outside the record of
conviction in determining whether an alien has been
“convicted of” a CIMT. Silva-Trevino establishes a three-
step analysis. At the first step, applying Taylor v. United
States, 495 U.S. 575, 602 (1990), the IJ determines whether
the crime of conviction is categorically a CIMT. Silva-
Trevino, 24 I. & N. at 690. If the crime is not categorically a
CIMT, the IJ moves to the next step. At the second step,
applying both Taylor, 495 U.S. at 602, and Shepard v. United
States, 544 U.S. 13 (2005), the IJ determines under the
modified categorical approach whether the crime is a CIMT.
The IJ may consider the “record of conviction” including
“documents such as the indictment, the judgment of
conviction, jury instructions, a signed guilty plea and the plea
transcript.” Silva-Trevino, 24 I. & N. at 690. If the crime is
not a CIMT under the modified categorical approach, the IJ
moves to the final step. At this third step, the IJ may consider
evidence outside the record of conviction. In the words of
Silva-Trevino, “[w]hen the record of conviction is
inconclusive, judges may, to the extent they deem it
OLIVAS-MOTTA V. HOLDER 11
necessary and appropriate, consider evidence beyond the
formal record of conviction.” Id.We disagree with the Attorney General. There are three
critical points in his analysis. The first and second are his
definitions of “crime involving moral turpitude” and
“convicted of.” The third is his conclusion that “moral
turpitude” is not an element of “an offense.” We take these
points in turn.
First, the Attorney General clarified the substantive
definition of the term “crime involving moral turpitude.” But
the Attorney General’s clarification is irrelevant to the
question whether evidence outside the record of conviction
can be used to determine whether an alien has been
“convicted of” a CIMT. The term CIMT is famously
ambiguous. See, e.g., Matter of Short, 20 I. & N. Dec. 136,
139 (BIA 1989) (referring to the term as a “nebulous
concept”). The Attorney General provided a distillation of
earlier decisions defining a CIMT:
[T]his opinion rearticulates the Department’s
definition of the term [CIMT] in a manner
that responds specifically to the judicial
criticism. . . . [T]his opinion makes clear that,
to qualify as a crime involving moral
turpitude for purposes of the Act, a crime
must involve both reprehensible conduct and
some degree of scienter, whether specific
intent, deliberateness, willfulness, or
12 OLIVAS-MOTTA V. HOLDER
recklessness. This definition rearticulates
with greater clarity the definition that the
Board (and many courts) have in fact long
applied.
Silva-Trevino, 24 I. & N. Dec. at 689 n.1. This distillation
clarified to some degree the substantive definition of a CIMT.
But the clarification of the substantive definition did nothing
to clarify the procedures that an IJ may use, or, in the
Attorney General’s words, to clarify “the precise method that
immigration judges and courts should use to determine if a
prior conviction is for a crime involving moral turpitude.” Id.
at 693.
To state the obvious, substance and procedure are not the
same thing. There is nothing in the substantive definition of
a CIMT, in either the BIA’s definitions or the Attorney
General’s distillation, that permits an IJ to use a different
procedure than it uses for other crimes in determining
whether an alien has been convicted of such a crime. We
agree with the Fourth Circuit, which addressed precisely this
point:
At issue . . . is not what conduct or
statutory offense qualifies as a crime
involving moral turpitude, but rather what
language in the moral turpitude statute
informs an adjudicator of the procedure for
determining whether a particular conviction
qualifies as a crime involving moral turpitude.
[The government] conflates these concepts
and relies on the asserted ambiguity inherent
in the phrase “crime involving moral
OLIVAS-MOTTA V. HOLDER 13
turpitude” to justify deference to the Attorney
General's three-step procedural framework.
These two concepts, however, require
distinct inquiries.
Prudencio v. Holder, 669 F.3d 472, 480 (4th Cir. 2012)
(emphasis added).
Second, the Attorney General provided a new, and
erroneous, definition of “convicted of” that allows an IJ not
only to consider the crimes of which an alien has been
convicted, but also to consider crimes he may have
committed but of which he was not convicted. In the second
long passage quoted above, the Attorney General allowed the
IJ to look outside the record of conviction for evidence of
CIMTs an alien may have committed as part of his
determination whether an alien has been “convicted of” a
CIMT. The Attorney General wrote, “The relevant
provisions contemplate a finding that the particular alien did
or did not commit a crime involving moral turpitude before
immigration penalties are or are not applied.” Silva-Trevino,
24 I. & N. Dec. at 699 (emphasis added). The Attorney
General cited § 1182(a)(2)(A)(i)(I) and § 1227, even though
§ 1227 does not refer to “commission” of crimes that
constitute CIMTs. Rather, § 1227 refers only to “conviction
of” CIMTs.
The Attorney General’s new definition conflicts with a
clear and long-established definition of “conviction.” The
INA provides, except in cases where an adjudication of guilt
has been withheld, that “‘conviction’ means, with respect to
an alien, a formal judgment of guilt of the alien . . . .”
8 U.S.C. § 1101(a)(48)(A). The INA specifies what
14 OLIVAS-MOTTA V. HOLDER
documents an adjudicator may consult as proof of a
conviction. See id. at § 1229a(c)(3)(B) (“[A]ny of the
following documents or records . . . shall constitute proof of
a criminal conviction: [specifying documents constituting the
record of conviction].”). Under this definition, an alien has
been “convicted of” only those acts that form the basis for the
conviction, as shown by the record of his conviction. An
alien has not been “convicted of” acts that he may have
committed but that do not form the basis for the conviction.
The Attorney General’s analysis in Silva-Trevino does
nothing to cast doubt on the validity of this well-established
definition. He wrote that the “use of the word ‘involving’ and
the reference in section [1182](a)(2)(A)(i)(I) to aliens who
admit ‘committing’ certain ‘acts’ . . . allow[s] inquiry into the
particularized facts of the crime.” Silva-Trevino, 24 I. & N.
Dec. at 693 (emphasis added). But he misunderstood the
plain meaning and context of the words he invoked. The
word “involving” is embedded in the substantive term “crime
involving moral turpitude,” and it gives meaning to that term.
It provides no help in defining the phrase “convicted of.” Nor
does the phrase “admits committing” provide help. The INA
provides that an alien who has been “convicted of, or who
admits having committed, or who admits committing acts
which constitute the essential elements of . . . a crime
involving moral turpitude” is inadmissible. 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (emphasis added). “Convicted of” and
“admits committing” are separate phrases with separate
meanings. Under 8 U.S.C. § 1182(a)(2)(A)(i)(I), an alien is
inadmissible if he has been convicted of a CIMT, or if he
admits to having committed acts that constitute a CIMT.
Under § 1227(a)(2)(A)(i–ii), an alien is deportable only if he
has been “convicted of” CIMTs.
OLIVAS-MOTTA V. HOLDER 15
In Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004), we
explicitly rejected the argument that we may look to conduct
that an alien “committed” to determine the acts he has been
“convicted of.” We wrote:
Like all of the other removal provisions
we have analyzed in accordance with the
categorical and modified categorical
approach, the plain language of the “crime of
domestic violence” provision clearly bases
deportability on the nature of the alien’s
conviction, rather than on the alien’s actual
conduct. We are required to determine
whether Tokatly has been “convicted of a
crime of domestic violence” — not whether
he in fact committed such a crime. . . .
To adopt the government’s approach
would require us to look to “conduct” rather
than “conviction.” . . . [W]hen Congress
wants to make conduct the basis for removal
it does so specifically.
Id. at 622.
Third, the Attorney General concluded that “moral
turpitude” is not “an element of an offense.” Because in his
view moral turpitude is not an element of “an offense,” it is
not an element of the federal generic CIMT. Therefore, in the
Attorney General’s view, an IJ is not confined to the record
of conviction in determining whether an alien has been
convicted of a crime involving moral turpitude. Silva-
Trevino, 24 I. & N. Dec. at 699–700. The Attorney General
is mistaken in his conclusion that “moral turpitude” is not “an
16 OLIVAS-MOTTA V. HOLDER
element” of a CIMT. This may be seen from an analysis of
the Supreme Court’s decision in Nijhawan v. Holder,
129 S. Ct. 2294 (2009).
In determining the removability of Nijhawan under
8 U.S.C. § 1227(a)(2)(A)(iii), the IJ was required to
determine whether he had been convicted of an “aggravated
felony” under 8 U.S.C. § 1101(a)(43). Nijhawan, 129 S. Ct.
at 2297. The Court in Nijhawan divided generic felony
descriptions into two categories.
In the first category are descriptions of generic crimes that
are complete unto themselves. Id. at 2298. In the second
category are descriptions of generic crimes with an added
description of circumstances of the crimes. Id. Nijhawan had
been convicted of an aggravated felony consisting of an
offense involving fraud or deceit, with a specified loss
amount. The question before the Court was whether the
amount of loss was an element of the generic aggravated
felony, in which case the IJ could consider only evidence in
the record of conviction, or whether the amount of loss was
merely a circumstance of some generic felonies involving
“fraud or deceit,” in which case the IJ could consider
evidence outside the record of conviction to determine
whether that circumstance existed. Id. at 2298–99. The
Court gave examples in each group.
An example in the first category, taken from the Armed
Career Criminal Act, is a crime that “involves conduct that
presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added); Nijhawan,
129 S. Ct. at 2300. The Court wrote that this statutory
description “refers to crimes as generically defined.”
129 S. Ct. at 2300 (citing James v. United States, 550 U.S.
OLIVAS-MOTTA V. HOLDER 17
192, 202 (2007)). Other examples in the first group are some
of the aggravated felonies described in 8 U.S.C.
§ 1101(a)(43), including “murder, rape, or sexual abuse of a
minor,” § 1101(a)(43)(A), “illicit trafficking in a controlled
substance,” § 1101(a)(43)(B), and “illicit trafficking in
firearms or destructive devices,” § 1101(a)(43)(C). See
Nijhawan, 129 S. Ct. at 2300.
Examples in the second category include some of the
other aggravated felonies described in § 1101(a)(43). One
example is “‘falsely making, forging, counterfeiting,
mutilating, or altering a passport,’ . . . ‘except in the case of
a first offense for which the alien . . . committed the offense
for the purpose of assisting . . . the alien’s spouse, child or
parent . . . to violate a provision of this chapter.’” Id.
(quoting 8 U.S.C. § 1101(a)(43)(P)) (emphasis by the Court)
(first omission added). Another example is “‘offense[s] . . .
described in section 2421, 2422, or 2423 of title 18 (relating
to transportation for the purpose of prostitution) if committed
for commercial advantage.’” Id. at 2301 (quoting 8 U.S.C.
§ 1101(a)(43)(K)(ii)) (emphasis and omission by the Court).
A third example is “an offense ‘described in section 7201 of
title 26 (related to tax evasion) in which the revenue loss to
the Government exceeds $10,000.’” Id. at 2301 (quoting
8 U.S.C. § 1101(a)(43)(M)(ii)) (emphasis by the Court).
According to the Court, the non-italicized language in these
three examples describes generic crimes, and the italicized
language describes circumstances rather than elements of the
crimes. Id. at 2301–02.
The crime at issue in Nijhawan was “an offense that . . .
involves fraud or deceit in which the loss to the victim or
victims exceeds $10,000.” Id. (quoting 8 U.S.C.
§ 1101(a)(43)(M)(i)) (emphasis added) (omission by the
18 OLIVAS-MOTTA V. HOLDER
Court). The Court concluded that the generic felony was an
offense that involves fraud or deceit, and that the elements of
the generic crime were contained in that description. Id. The
amount of loss was a circumstance rather than an element of
the crime. Because the loss amount was a circumstance
rather than an element, the IJ could consider evidence outside
the record of conviction to determine whether that
circumstance existed. Id. at 2301–03.
This understanding of Nijhawan was confirmed in
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). In
considering whether Carachuri-Rosendo was eligible for
cancellation of removal, the IJ had to decide whether the
state-law crime of which he had been convicted was the
aggravated felony of “illicit trafficking” under
§ 1101(a)(43)(B). Id. at 2580–81. The Court held that
uncharged conduct could not be considered in determining
whether Carachuri-Rosendo had been convicted of “illicit
trafficking.” Id. at 2589. In rejecting the government’s
argument that the IJ could look at uncharged conduct, the
Court wrote:
[M]ost fundamentally, the Government’s
position ignores the text of the INA, which
limits the Attorney General’s cancellation
power only when, inter alia, a noncitizen “has
. . . been convicted of a[n] aggravated felony.”
The text thus indicates that we are to look to
the conviction itself as our starting place, not
to what might have been or could have been
charged.
Id. at 2586 (alteration and emphasis in original). The Court
distinguished the crime in Nijhawan, noting that Nijhawan
OLIVAS-MOTTA V. HOLDER 19
had been convicted of a generic felony “involv[ing] fraud or
deceit,” and that the loss amount was not an element of the
crime. It wrote:
[U]nlike the instant case, there was no debate
in Nijhawan over whether the petitioner
actually had been “convicted” of fraud; we
only considered how to calculate the amount
of loss once a conviction for a particular
category of aggravated felony has occurred.
Id. at 2586–87 n.11.
Applying the analysis of Nijhawan to the question before
us, the question is whether the term “crime involving moral
turpitude” contains only a description of the elements of the
generic crime, or whether the words “involving moral
turpitude” in that term describe a circumstance of the crime.
If the former, an IJ is confined to the record of conviction to
determine whether an alien has been convicted of the crime.
If the latter, an IJ may go beyond the record of conviction to
determine if that circumstance existed.
An application of Nijhawan to CIMTs begins with a
recognition that a CIMT is a generic crime rather than a
particular crime that has been charged in an individual case.
So far as we are aware, no state has a particular crime called
“crime involving moral turpitude.” The Attorney General is
therefore correct in observing that moral turpitude is not “an
element of an offense” if, by “offense” the Attorney General
means a particular crime rather than the categorical offense
of CIMT. Silva-Trevino, 24 I. & N. Dec. at 699 (emphasis
added). However, the Attorney General’s observation is
irrelevant to an analysis of a generic crime such as a CIMT.
20 OLIVAS-MOTTA V. HOLDER
With respect to the generic crime of “crime involving moral
turpitude,” moral turpitude is an element of that crime. For
two reasons, Nijhawan compels that conclusion.
First, contrary to the suggestion of the Attorney General,
use of the word “involving” in the description of a CIMT is
entirely consistent with “moral turpitude” being an element
of the generic crime of CIMT. See Silva-Trevino, 24 I. & N.
Dec. at 693 (“Other language — for example, use of the word
‘involving’ . . . — seems to call for, or at least allow, inquiry
into the particularized facts of the crime.”). The Court in
Nijhawan gave, as one example of a generic crime whose
description contained an element of that crime, a crime
punishable by imprisonment of more than a year that
“involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)
(emphasis added); see also Nijhawan, 129 S. Ct. at 2300
(citing James v. United States, 550 U.S. 192, 202 (2007)).
Further, as to the crime actually at issue in Nijhawan, the
Court held that the underlying generic crime was “an offense
that . . . involves fraud or deceit,” and that “fraud or deceit”
were elements of the offense. Nijhawan, 129 S. Ct. at 2301(quoting 8 U.S.C. § 1101(a)(43)(M)(ii)) (emphasis added).
Second, there is no separately described generic crime for
which “involving moral turpitude” is a circumstance. In each
of the examples in Nijhawan in which there was a
circumstance that could be proved by evidence outside the
record of conviction, there was a separately defined crime to
which a description of the circumstance had been added.
Those crimes were “falsely making, forging, counterfeiting,
mutilating, or altering a passport”; “offense[s] . . . described
in section 2421, 2422, or 2423 of title 18 (relating to
transportation for the purpose of prostitution)”; and an
OLIVAS-MOTTA V. HOLDER 21
“offense ‘described in section 7201 of title 26 (related to tax
evasion).’” Id. at 2301–02. In striking contrast, there is no
separately described crime to which “involving moral
turpitude” is added as a circumstance. If one eliminates the
phrase “involving moral turpitude” from the phrase “crime
involving moral turpitude,” there is no separately defined
crime. There is only the single word “crime,” covering the
entire universe of crime. The words “involving moral
turpitude” are thus integral to the description of the generic
crime of CIMT and constitute an element of that generic
crime.
Three of our sister circuits agree that Silva-Trevino was
wrongly decided. In Jean-Louis v. Attorney Gen., 582 F.3d
462 (3d Cir. 2009), the Third Circuit rejected the argument
that the word “involving” in the phrase “crime involving
moral turpitude” permits consideration of evidence beyond
the record of conviction. The court concluded that the entire
phrase “crime involving moral turpitude” is a “term of art”
describing a generic crime. 582 F.3d at 477. Relying in part
on our decision in Tokatly, the Third Circuit also rejected the
Attorney General’s argument that the use of “convicted of”
and “committed” in § 1182(a)(2)(A)(i)(I), the inadmissibility
provision, makes the statute ambiguous. It wrote:
It could not be clearer from the text of the
statute — which defines “conviction” as a
“formal judgment of guilt,” and which
explicitly limits the inquiry to the record of
conviction or comparable judicial record
evidence — that the CIMT determination
focuses on the crime of which the alien was
convicted — not the specific acts that the
alien may have committed.
22 OLIVAS-MOTTA V. HOLDER
Id. at 474 (footnote omitted). The court concluded:
The ambiguity that the Attorney General
perceives in the INA is an ambiguity of his
own making, not grounded in the text of the
statute, and certainly not grounded in the
BIA’s own rulings or the jurisprudence of
courts of appeals going back for over a
century.
Id. at 473.
Two other circuits have agreed with the Third Circuit’s
decision in Jean-Louis. In Prudencio v. Holder, 669 F.3d at
482, the Fourth Circuit wrote:
[W]e conclude that the plain language of the
moral turpitude statute is not ambiguous.
Because the relevant statutory language refers
only to convictions, not to conduct or to
“committing” acts, there is no uncertainty in
the statutory language created by the use of
the phrase “convicted of” in the same statute
as the words “committing” and “involving.”
Thus, in a case such as the present one in
which the only issue is the alien’s prior
conviction, the statute unambiguously directs
that an adjudicator consider only the
conviction itself, and not any underlying
conduct.
In Fajardo v. U.S. Atty. Gen., 659 F.3d 1303, 1309 (11th Cir.
2011), the Eleventh Circuit agreed that the phrase “convicted
of” is unambiguous and explicitly agreed with the Third
OLIVAS-MOTTA V. HOLDER 23
Circuit that the phrase “crime involving moral turpitude” is
a “term of art” describing a generic crime. Id. at 1309–10.
We are aware that two circuits disagree. The Seventh and
Eighth Circuits both permit the IJ to consider evidence
outside the record of conviction to determine whether an alien
has been convicted of a CIMT. In Ali v. Mukasey, 521 F.3d
737, 741 (7th Cir. 2008), the Seventh Circuit wrote that, with
respect to “crimes involving moral turpitude,” there are two
questions a court must answer: first, “the fact of the prior
conviction,” for which the IJ cannot go outside the record of
conviction, and second, “the appropriate classification of that
conviction, which may require additional information.” Id.Though it did not state the matter in precisely these terms, we
understand the court in Ali to have concluded that moral
turpitude is not an element of the generic offense of a CIMT
that can be proved only by evidence in the record of
conviction, but rather a descriptive circumstance added to the
separately defined particular crime of which the petitioner has
actually been convicted. In Bobadilla v. Holder, 679 F.3d
1052, 1055 (8th Cir. 2012), the Eighth Circuit wrote that
“[b]ecause ‘moral turpitude’ is not an element of any criminal
offense,” the IJ can look beyond the fact of conviction to the
circumstances of the crime to determine whether moral
turpitude was involved. For the reasons given above, we
disagree with these courts’ conclusion that “moral turpitude”
is not an element of a CIMT.
We agree with the Third, Fourth, and Eleventh Circuits
that the relevant provisions of the INA are not ambiguous and
that we do not owe Chevron deference to the Attorney
General’s opinion in Silva-Trevino. A “crime involving
moral turpitude” is a generic crime whose description is
complete unto itself, such that “involving moral turpitude” is
24 OLIVAS-MOTTA V. HOLDER
an element of the crime. Because it is an element of the
generic crime, an IJ is limited to the record of conviction in
determining whether an alien has been “convicted of” a
CIMT. We conclude that Silva-Trevino was wrongly
decided, and that the IJ and the BIA improperly considered
evidence beyond the record of conviction in holding that
Olivas-Motta was “convicted of” a “crime involving moral
turpitude.”
IV. Postscript
Two years after it decided Olivas-Motta’s appeal, the BIA
concluded that reckless endangerment “with a substantial risk
of imminent death” in violation of Arizona law is
categorically a CIMT. See In re Leal, 26 I. & N. Dec. 20, 27
(BIA 2012). The government has filed a post-argument brief
in this court based on In re Leal. It does not request a remand
to the BIA to allow it to apply In re Leal. Rather, it requests
only that we deny Olivas-Motta’s petition on the current
record.
We decide a petition for review based on the grounds
relied upon by the BIA. Ali v. Holder, 637 F.3d 1025, 1029
(9th Cir. 2011). The BIA did not decide Olivas-Motta’s
appeal based on a conclusion that the Arizona endangerment
statute is categorically a CIMT. Indeed, the BIA held
specifically in Olivas-Motta’s appeal that the Arizona
endangerment statute is not categorically a CIMT. We
therefore cannot deny Olivas-Motta’s petition on the ground
that it is. We intimate no view as to correctness of In re Leal.
We hold only that we cannot deny Olivas-Motta’s petition
based on a conclusion reached by the BIA in a separate case
decided two years after it decided the appeal now before us.
OLIVAS-MOTTA V. HOLDER 25
Conclusion
For the foregoing reasons, we grant the petition and
remand for proceedings consistent with this opinion.
Petition GRANTED and REMANDED.
KLEINFELD, Senior Circuit Judge, concurring:
I concur in the result. I respectfully disagree, though,
with the majority’s wholesale rejection of deference to the
Attorney General’s opinion. We owe deference to the agency
charged with construing the statute. The Attorney General’s
opinion, reasonably construed, is not arbitrary or capricious.
We need not decide in this case whether to accept or reject
the opinion, because it was misapplied.
The statute at issue in this case says that an admitted
alien shall be removed if the alien has been “convicted of two
or more crimes involving moral turpitude.”1 We held in
Marmolejo-Campos v. Holder2 that “moral turpitude” was
“perhaps the quintessential example of an ambiguous
phrase,”3 and that Chevron and Skidmore deference applied
to BIA determinations “once the elements of the petitioner’s
offense are established” to determine whether the particular
1
8 U.S.C. § 1227(a)(2)(A)(ii).
2
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc).
3
Id. at 909.
26 OLIVAS-MOTTA V. HOLDER
crime was one of moral turpitude.4 We withheld judgment on
the third step in the Attorney General’s Silva-Trevino5
opinion, that Immigration Judges may look beyond the
evidence cognizable under Shepard v. United States,6 because
the question was not squarely before us.7
The briefing in this case focuses on what we left
unanswered in Marmolejo-Campos, the permissibility of
going beyond Shepard-cognizable evidence. The petitioner
argues that reliance on the police report was mistaken
because Silva-Trevino is an impermissible interpretation of
the statute, while the government argues that it was
appropriate because Silva-Trevino was within the interpretive
authority of the Attorney General for a statute that the
Department of Justice administers.
We should decline both parties’ invitations to rule so
much more broadly than this case requires. Silva-Trevino
tells Immigration Judges to look beyond Shepard-cognizable
documents, but says nothing about police reports. It tells
Immigration Judges that they may look at other evidence “to
the extent they deem it necessary and appropriate,” without
saying when that might or might not be so.8 This “necessary
and [or] appropriate” phrase is considerably narrower than the
4
Id. at 911.
5
In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).
6
Shepard v. United States, 544 U.S. 13 (2005).
7
Marmolejo-Campos, 558 F.3d at 907 n.6.
8
In re Silva-Trevino, 24 I. & N. Dec. at 690.
OLIVAS-MOTTA V. HOLDER 27
word “any” might be, because it requires necessity and
appropriateness.
Congress commands that in removal proceedings,
deportability must be proved “by clear and convincing
evidence,” and the deportability decision must be based on
“reasonable, substantial, and probative evidence.”9 If we
were to read Silva-Trevino to authorize Immigration Judges
to rely upon evidence that was not “reasonable, substantial,
and probative,” then Silva-Trevino would have to be rejected
as arbitrary and capricious.10 To be admissible under the
statute, “necessary” and “appropriate” evidence in the Silva-
Trevino phrasing also has to be “reasonable, substantial, and
probative.” The Attorney General’s opinion in Silva-Trevino
must be, and doubtless was intended to be, limited by the
statutory “reasonable, substantial, and probative”
requirement.
We need decide only whether police reports are
“reasonable, substantial, and probative evidence” that can
prove by “clear and convincing evidence” that Olivas-Motta
committed a crime involving moral turpitude.11 We need not
decide more generally whether Silva-Trevino merits Chevron
deference.
It has long been clear that police reports are not generally
“reasonable, substantial, and probative evidence” of what
9
8 U.S.C. § 1229a(c)(3)(A).
10
5 U.S.C. § 706(2)(A); see Motor Vehicle Mfrs. Ass’n of the U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
11
8 U.S.C. § 1229a(c)(3)(A).
28 OLIVAS-MOTTA V. HOLDER
someone did. Despite their liberality toward public and
business records, the Federal Rules of Evidence expressly
make an exception, excluding police reports as evidence in
criminal cases.12 In Shepard v. United States,13 the
government had argued that when applying the modified
categorical approach, police reports ought to be considered in
the limited context where they had been submitted to a local
court to obtain a criminal complaint.14 The Supreme Court
characterized the government’s argument as a “menace to
Taylor,”15 far too expansive.16 And that would not be as
expansive as what the government seeks here, use of police
reports where the record does not show that any court ever
relied on them to issue a complaint.
A police report is a device useful for many purposes, such
as recording a contemporaneous recollection of what the
officers observed and what they understood people to have
told them. A police report usefully guides further
investigation. The report helps prosecutors and defense
lawyers locate useful witnesses. But police reports are not
especially useful instruments for finding out what persons
charged actually did. All the defects of hearsay, double
hearsay, and triple hearsay apply, since people may speak to
12
Fed. R. Evid. 803(8)(A)(ii).
13
Shepard v. United States, 544 U.S. 13 (2005).
14
Id. at 21.
15
Taylor v. United States, 495 U.S. 575 (1995).
16
Shepard, 544 U.S. at 22; see also In re Milian-Dubon, 25 I. & N. Dec.
197, 197 (2010) (explaining that “a police report, standing alone, is not
part of the record of conviction”).
OLIVAS-MOTTA V. HOLDER 29
the police despite lack of personal knowledge and lack of
adequate observation, may be misunderstood, and what they
say may be misreported.17 People sometimes lie or
exaggerate when they talk to the police.
If Silva-Trevino said (which it does not) that Immigration
Judges should rest their decisions on what police reports say,
we would properly hold that Silva-Trevino was a mistaken
interpretation of the statute requiring “reasonable, substantial,
and probative” evidence.18 Since police reports are not
“reasonable, substantial, and probative” they are not
“appropriate” under Silva-Trevino. Even if the statutory
standard were more liberal, the BIA needs “clear and
convincing” evidence for removal, and something as
potentially inaccurate as a police report cannot be “clear and
convincing” evidence.19 We need not reach whether Silva-
Trevino merits Chevron deference, because Silva-Trevino
does not say or imply that the Immigration Judge and the BIA
may rely on police reports to determine whether a crime was
one of moral turpitude. The BIA’s reliance on the police
report in this case was mistaken. I would remand for that
reason, and would not address whether Silva-Trevino merits
Chevron deference.
17
See Prudencio v. Holder, 669 F.3d 472, 483–84 (4th Cir. 2012)
(“[P]olice reports . . . often contain little more than unsworn witness
statements and initial impressions . . . . Further, because the[y] are
generated early in an investigation, they do not account for later events,
such as witness recantations, amendments, or corrections.”).
18
8 U.S.C. § 1229a(c)(3)(A).
19
Id.
30 OLIVAS-MOTTA V. HOLDER
Nothing since Marmolejo-Campos came down in 2009
has changed the fact that “moral turpitude” is “perhaps the
quintessential example of an ambiguous phrase.”20 The
majority concedes that the term is “famously ambiguous.” At
one time, the phrase was more understandable, and seemed to
refer to crimes involving sex or fraud, but no longer. Given
the inherent ambiguity in the statute, the Attorney General
was justified in laying out a uniform standard for Immigration
Judges to apply when determining whether an alien was
convicted of a crime involving moral turpitude.
The majority places more weight on the phrase “convicted
of” than it can bear. The phrase could mean, as the majority
asserts, that we may not look to conduct that an alien
committed. Though we so held in Tokatly v. Ashcroft,21 the
ambiguity of the phrase supports a need for deference to the
subsequent interpretation by the administrative agency.
Tokatly did not deal with a situation where the Attorney
General has issued a decision directly on point. There was no
such contrary agency view to which we could defer. When
Tokatly was decided, we were in agreement with the BIA’s
position when we expressed our fear of “mini-trials.”22 The
agency’s position has changed. The Attorney General has
determined that looking beyond the record of conviction is
not an unmanageable burden. We emphasized in Tokatly that
20
Marmolejo-Campos, 558 F.3d at 909.
21
Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).
22
Id. at 621.
OLIVAS-MOTTA V. HOLDER 31
our position was the same as the BIA’s.23 And Nijhawan v.
Holder24 forecloses any argument that the phrase “convicted
of” in a removal statute always limits the inquiry to the
modified categorical approach. The Supreme Court held in
Nijhawan that when determining whether an alien has been
“convicted of an aggravated felony” for purposes of 8 U.S.C.
§ 1227(a)(2)(A)(iii), “the ‘fraud and deceit’ provision before
us calls for a ‘circumstance-specific,’ not a ‘categorical,’
interpretation.”25 The Court rejected the petitioner’s call for
a modified categorical approach, because it did “not agree
that fairness requires the evidentiary limitations he
propose[d].”26 The Court feared that the modified categorical
approach might “prove impractical insofar as it requires
obtaining from a jury a special verdict on a fact that . . . is not
an element of the offense.”27
No statutory list of “crimes involving moral turpitude”
exists. The Attorney General has propounded a workable
definition. The Attorney General has apparently concluded
that, just as some felonies are “aggravated” because of the
circumstances under which they are committed, some crimes
23
Id. at 623 (“Indeed the IJ’s examination of the victim provides an
example of the very fact-finding process that both the courts and the
Board have deemed inappropriate and sought to avoid by strict adherence
to the categorical and modified categorical methodology.”); id. (“We
decline to modify this court’s – and the Board’s – strict rules against
extra-record of conviction evidence . . . .”).
24
Nijhawan v. Holder, 557 U.S. 29 (2009).
25
Id. at 32, 36.
26
Id. at 41.
27
Id. at 42.
32 OLIVAS-MOTTA V. HOLDER
“involve moral turpitude” because of the circumstances under
which they are committed. This conclusion does not conflict
with Nijhawan.
Because the statute is ambiguous and the Attorney
General’s construction is reasonable, I would join the Seventh
and Eighth Circuits in holding that we should defer to Silva-
Trevino.28 This would not give Immigration Judges
unfettered discretion. They are still limited by statute to
“reasonable, substantial, and probative” evidence,29 and the
BIA still needs “clear and convincing” evidence for
removal.30
28
See Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. 2012); Mata-
Guerrero v. Holder, 627 F.3d 256 (7th Cir. 2010).
29
8 U.S.C. § 1229a(c)(3)(A).
30
Id.