Francisco Maya Alvarado v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER MAYA No. 18-71348
ALVARADO, AKA Francisco Javier Maya,
Agency No. A206-411-107
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2021**
San Francisco, California
Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.
Francisco Maya Alvarado, a native citizen of Mexico, petitions for review of
a Board of Immigration Appeals’ (Board) decision affirming an Immigration Judge’s
(IJ) (collectively, the Agency) denial of his application for cancellation of removal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The Agency held that Maya Alvarado was ineligible for cancellation of removal
because of his felony conviction for possession of child pornography, in violation of
California Penal Code § 311.11(a), which it held qualifies as a crime involving moral
turpitude (CIMT). We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny the
petition.
When the Board conducts its own review of the evidence and the law, we
review the Board’s decision and look to the IJ’s decision for fact-
finding. See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We review
the factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182,
1184–85 (9th Cir. 2006). We review questions of law de novo, such as whether a
crime involves moral turpitude. Barrera-Lima v. Sessions, 901 F.3d 1108, 1114 (9th
Cir. 2018); see also 8 U.S.C. § 1182 (a)(2)(A)(i)(I). We apply Skidmore deference
to the Board’s case-by-case determination that a particular crime involves moral
turpitude where, as here, the Board’s decision is unpublished and not directly
controlled by a published Board decision. Ceron v. Holder, 747 F.3d 773, 778 (9th
Cir. 2014).
Maya Alvarado arrived in the United States in 1998. In 2014, he produced a
cellphone video depicting child pornography, specifically, by filming his girlfriend’s
granddaughter, who was eleven or twelve years old, using the toilet so he could
capture video of her buttocks and pubic areas. Maya Alvarado was captured on the
2
same video shortly thereafter removing his shorts as he ended the recording, even
though he had previously used the restroom before recording his victim. Maya
Alvarado admitted during his police interview that he produced the video and
recorded it because he was curious and wanted to see the girl’s body. Maya
Alvarado pled nolo contendere to felony possession of child pornography pursuant
to a plea agreement. See Cal. Penal Code § 311.11(a). Maya Alvarado was
sentenced to one year of jail and was required to register as a sex offender, but he
was released after one month.
The Department of Homeland Security issued a Notice to Appear in
November 2014. Maya Alvarado conceded removability and applied for
cancellation of removal, asylum, withholding of removal, and relief pursuant to the
Convention Against Torture (CAT). The IJ denied Maya Alvarado’s applications.
The IJ held that Maya Alvarado’s conviction categorically qualified as a CIMT
based on analogous Board precedent. The IJ also held that the petty offense
exception did not apply even though Maya Alvarado was only imprisoned for a
month because he had been sentenced to a year. The Board agreed. The Board
reviewed the statutory language, employed the categorical approach, and considered
related precedent.
The Board reasoned that its precedents supported the conclusion that Maya
Alvarado “engaged in sufficiently base and vile conduct under the statute of
3
conviction to conclude that his crime was one involving moral turpitude.” See, e.g.,
Matter of Olquin-Rufino, 23 I. & N. 896, 898 (B.I.A. 2006) (analyzing a Florida
statute with a similar definition of sexual conduct in relation to child pornography,
in which the Board held that “the offense of possession of child pornography is
morally reprehensible and intrinsically wrong”). The Board held that the “knowing”
requirement in Section 311.11(a) satisfied the culpable mental state requirement and
that the statute’s minimum required conduct is sufficiently reprehensible to warrant
designation as a CIMT. Maya Alvarado appeals from the Board’s CIMT decision,
but he does not appeal from the denial of his applications for asylum, withholding
of removal, or CAT status.
There is a two-step process to determine whether a petitioner’s conviction is
categorically a CIMT. Betansos v. Barr, 928 F.3d 1133, 1137 (9th Cir. 2019); see
also Ortega-Lopez v. Barr, 978 F.3d 680, 684 (9th Cir. 2020). First, we identify the
statutory elements of the conviction. Betansos, 928 F.3d at 1137. Second, we
engage in the categorical approach and compare the state statute’s elements to a
generic definition of the crime to decide whether the conviction meets that
definition. Id. In so doing, “[w]e rely on our own generalized definition of moral
turpitude, which divides almost all CIMTs into two basic types: those involving
fraud and those involving grave acts of baseness or depravity.” Id. (citation
omitted).
4
The meaning of “moral turpitude” is ambiguous, but the Board has defined a
CIMT as having “two essential elements: [1] reprehensible conduct and [2] a
culpable mental state.” Matter of Silva-Trevino, 26 I. & N. Dec. 826, 834 (B.I.A.
2016). Conduct is reprehensible if it 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.” Matter of Jimenez-Cedillo, 27 I. & N. Dec. 1, 3 (B.I.A. 2017)
(citation omitted). Maya Alvarado carries the burden to prove that he is eligible for
cancellation of removal. See Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008)
Section 311.11(a) of the California Penal Code criminalizes knowing
possession or control of “any matter . . . which involves the use of a person under 18
years of age, knowing that the matter depicts a person under 18 years of age
personally engaging in or simulating sexual conduct.” Cal. Penal Code § 311.11(a).
Sexual conduct is broadly defined in Section 311.4, and it includes “exhibition of
the genitals or pubic or rectal area for the purpose of sexual stimulation of the
viewer.” Cal. Penal Code § 311.4(d)(1). Section 311.11(a) sets punishment for a
violation of imprisonment for up to one year, a fine of $2,500, or both.
First, Section 311.11(a)’s knowledge element applies to both possession and
that the matter depicts someone under eighteen; this satisfies the scienter
requirement for a CIMT. Cf. United States v. Santacruz, 563 F.3d 894, 897 (9th Cir.
2009) (holding that the federal child pornography statute, which has either the same
5
or a lesser mens rea requirement than Section 311.11(a), is a CIMT). Second, the
least culpable conduct for which one can be convicted under Section 311.11(a) is
likely still “base or vile” conduct that is “contrary to the accepted rules of morality”
such that it qualifies as a CIMT. Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th
Cir. 2012) (citation omitted).
We have previously held that not all sex-based crimes involving minors are
CIMTs. See, e.g., Barrera-Lima v. Sessions, 901 F.3d 1108, 1123 (9th Cir. 2018)
(holding that indecent exposure to a person under fourteen is not a CIMT because
the law did not require anyone to witness the exposure or lewd intent); Menendez v.
Whitaker, 908 F.3d 467, 472–74 (9th Cir. 2018) (holding that lewd or lascivious
conduct involving a minor is not categorically a CIMT because the law did not
require intent to injure or actual injury, only sexual intent). However, these cases
involved criminal laws that could reach a broad array of conduct that might not
actually harm a minor.
In contrast, even the least culpable conduct under Section 311.11(a) involves
(1) the actual infliction of harm to (2) a protected class of victim—two factors that
are relevant to whether a putative CIMT involves base or vile conduct. See, e.g.,
Vasquez-Valle v. Sessions, 899 F.3d 834, 840 (9th Cir. 2018) (identifying infliction
of harm and class of victim as factors in the CIMT inquiry); Santacruz, 563 F.3d at
897 (explaining that child pornography “causes continuing injury to the child’s
6
reputation and well-being” (quotation marks omitted)).
To be sure, the definition of “sexual conduct” in Section 311.11(a)
encompasses a broader range of conduct than the federal child pornography statute’s
definition of “sexually explicit conduct.” Chavez-Solis v. Lynch, 803 F.3d 1004,
1012 (9th Cir. 2015) (analyzing the analogous federal statute, 18 U.S.C. §
2252(a)(4)(B)). However, we hold that possessing depictions of the broader range
of sexual conduct that Section 311.11(a) captures still harms a child’s reputation and
well-being. See id. at 1008–11 (offering a comprehensive discussion of the full
range of conduct prohibited by Section 311.11(a)). We have long recognized that
victims of child pornography continue to suffer long into the future. See United
States v. Stevens, 197 F.3d 1263, 1269 n.6 (9th Cir. 1999) (observing that, as long
as the images of the victim in the child pornography “are in circulation, the
possessors of the images continue to victimize the people depicted”). Therefore,
under the categorical approach and applying Skidmore deference, we hold that the
Board did not err in holding that Section 311.11(a) is categorically a CIMT. We,
therefore, deny the petition.
7