Javier Castrijon-Garcia v. Eric Holder, Jr. , 704 F.3d 1205 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER CASTRIJON -GARCIA , No. 09-73756
Petitioner,
Agency No.
v. A095-733-515
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 14, 2012—San Francisco, California
Filed January 9, 2013
Before: Stephen Reinhardt, Richard R. Clifton,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Reinhardt
2 CASTRIJON -GARCIA V . HOLDER
SUMMARY*
Immigration
The panel granted Javier Castrijon-Garcia’s petition for
review from the Board of Immigration Appeals’ decision
finding him statutorily ineligible for cancellation of removal,
based on the BIA’s holding that a conviction for simple
kidnapping, in violation of California Penal Code § 207(a), is
a categorical crime involving moral turpitude.
The panel held that CPC § 207(a) does not constitute a
categorical crime involving moral turpitude because it does
not require an intent to injure, actual injury, or a special class
of victims. The panel also found that California courts have
applied CPC § 207(a) to conduct that is not morally
turpitudinous, and remanded for the BIA to apply the
modified categorical approach.
COUNSEL
Gary A. Watt, Supervising Counsel; Stephen R. Tollafield,
Supervising Counsel; Heidi M. Hansen Kalscheur, Student
Counsel; Nolan R. Shaw (argued), Student Counsel, Hastings
Appellate Project, San Francisco, California, for Petitioner.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CASTRIJON -GARCIA V . HOLDER 3
Tony West, Assistant Attorney General, Civil Division; Mary
Jane Candaux, Assistant Director; Laura M.L. Maroldy
(argued), Trial Attorney, Office of Immigration Litigation,
Civil Division, Department of Justice, Washington, D.C., for
Respondent.
OPINION
REINHARDT, Circuit Judge:
Javier Castrijon-Garcia (“Castrijon”)1 petitions for review
of a decision of the Board of Immigration Appeals (“BIA”),
holding that his conviction for simple kidnapping under
California Penal Code (“CPC”) § 207(a) is categorically a
crime involving moral turpitude under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), making him statutorily ineligible for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). We
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to
determine whether a crime involves moral turpitude. See
Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010)
(“Whether a crime involves moral turpitude is a question of
law that we have jurisdiction to review pursuant to 8 U.S.C.
§ 1252(a)(2)(D).”). We grant the petition for review and
remand to the BIA for further proceedings.
We have held that “non-fraudulent crimes of moral
turpitude almost always involve an intent to harm someone,
the actual infliction of harm upon someone, or an action that
1
Petitioner’s last name is spelled inconsistently throughout the briefs
and record as “Castrijon,” “Castrejon,” and “Gastrejon.” W e use
“Castrijon,” the last name in the court docket.
4 CASTRIJON -GARCIA V . HOLDER
affects a protected class of victim.” Id. at 1131. Simple
kidnapping under CPC § 207(a) does not involve any of these
elements. Moreover, California courts have applied the statute
to conduct that is not morally turpitudinous. See Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007). Therefore, we
hold that simple kidnapping under CPC § 207(a) is not
categorically a crime involving moral turpitude. We remand
to allow the BIA to conduct a modified categorical analysis of
Castrijon’s crime. See INS v. Ventura, 537 U.S. 12 (2002).
FACTUAL AND PROCEDURAL BACKGROUND
Castrijon is a native and citizen of Mexico who, according
to his application for cancellation of removal, entered the
United States without inspection in 1989. He has resided in
the United States continuously since that time, with the
exception of two short trips to Mexico in 1998 and 2003. He
has three U.S. citizen children as well as U.S. citizen sisters,
and his mother is a legal permanent resident.
In 2007, the Department of Homeland Security charged
Castrijon with removability under 8 U.S.C.
§ 1182(a)(6)(A)(i), in that he was an alien present in the
United States without being admitted or paroled, or who
arrived in the United States at any time or place other than as
designated by the Attorney General. He conceded
removability, designated Mexico as his country of removal,
and submitted an application for cancellation of removal
under 8 U.S.C. § 1229b(b). The conviction records submitted
as part of the application for cancellation of removal reflect
that in 1992 Castrijon pled guilty to attempted kidnapping in
violation of CPC §§ 664 and 207(a), and received a
suspended sentence of 300 days in jail and 36 months of
CASTRIJON -GARCIA V . HOLDER 5
probation. During a hearing before the immigration judge, he
explained that the incident occurred while he was with friends
and that he did not know the victim. The conviction records
also reflect that in 2002 and 2005 Castrijon was convicted of
driving with a suspended license.
The immigration judge issued an oral decision finding
Castrijon ineligible for cancellation of removal under
8 U.S.C. § 1229b(b)(1)(C) because his conviction for
attempted simple kidnapping is a categorical crime of moral
turpitude in that “the language of the statute requir[ed] the
element of instilling fear in the victim.” The BIA affirmed in
an unpublished decision. It noted that it had previously “listed
kidnapping as an example of a [crime of moral turpitude], . . .
found that kidnapping for ransom under the Federal
Kidnapping Act involves moral turpitude,” and “found that
the offense of kidnapping, as defined by the California Penal
Code (CPC), involves moral turpitude.” The BIA identified
the elements of CPC § 207(a) as: “(1) a person was
unlawfully moved by use of physical force or fear, (2) the
movement was without the person’s consent, and (3) the
movement of the person was for a substantial distance.” It
held that, although ransom was an element under the Federal
Kidnapping Act, the lack of a ransom element in CPC
§ 207(a) was not relevant because “there is no requirement
that a state offense match all the elements of an analogous
federal offense in order to be classified as a [crime of moral
turpitude].” The BIA concluded that simple kidnapping is a
crime of moral turpitude because it “involves readiness to do
evil and is an offense that grievously offends the moral code
of mankind in its inherent nature,” citing to People v.
Zataray, 219 Cal. Rptr. 33, 39 (Cal. Ct. App. 1985). It
6 CASTRIJON -GARCIA V . HOLDER
therefore held that Castrijon was ineligible for cancellation of
removal. Castrijon now petitions for review.
ANALYSIS
“The determination whether a conviction under a criminal
statute is categorically a [crime of moral turpitude] involves
two steps, to which different standards of review apply.”
Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010); see also
Marmolejo-Campos v. Holder, 558 F.3d 903, 907–11 (9th
Cir. 2009) (en banc) (clarifying standard of review). The first
step is to identify the elements of the statute of conviction.
See Uppal, 605 F.3d at 714. “Because ‘[t]he BIA has no
special expertise by virtue of its statutory responsibilities in
construing state or federal criminal statutes,’ we review its
conclusion in that regard de novo.” Id. (quoting Marmolejo-
Campos, 558 F.3d at 907). 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. See id. “Because the BIA
does have expertise in making this determination, we defer to
its conclusion if warranted, following the Chevron framework
if the decision is a published decision (or an unpublished
decision directly controlled by a published decision
interpreting the same statute), and following the Skidmore
framework if the decision is unpublished (and not directly
controlled by any published decision interpreting the same
statute).” Id.; 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).
CASTRIJON -GARCIA V . HOLDER 7
I.
We turn to the first step of our analysis: identifying the
elements of the statute of conviction. Castrijon was convicted
of attempted2 simple kidnapping in violation of CPC § 207(a).
That statute provides:
Every person who forcibly, or by any other
means of instilling fear, steals or takes, or
holds, detains, or arrests any person in this
state, and carries the person into another
country, state, or county, or into another part
of the same county, is guilty of kidnapping.
CPC § 207(a). “To prove a defendant guilty of kidnapping,
the prosecution must establish that (1) the defendant took,
held, or detained another person by using force or by instilling
reasonable fear; (2) using that force or fear, the defendant
moved the other person, or made the other person move a
substantial distance; and (3) the other person did not consent
to the movement.” People v. Burney, 212 P.3d 639, 666 (Cal.
2009); see also People v. Jones, 133 Cal. Rptr. 2d 358, 362
(Cal. Ct. App. 2003). The California Supreme Court has
explained that “the force used against the victim need not be
physical. The movement is forcible where it is accomplished
through the giving of orders which the victim feels compelled
to obey because he or she fears harm or injury from the
2
“W e have previously looked to underlying crimes in determining
whether convictions for inchoate offenses constitute crimes involving
moral turpitude.” Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th
Cir. 2007). Therefore, we look to the elements of simple kidnapping under
CPC § 207(a) to determine whether a conviction for attempted simple
kidnapping is a crime involving moral turpitude.
8 CASTRIJON -GARCIA V . HOLDER
accused and such apprehension is not unreasonable under the
circumstances.” People v. Majors, 92 P.3d 360, 363 (Cal.
2004) (internal quotation marks and citation omitted). For
example, “an implicit threat of arrest satisfies the force or fear
element of section 207(a) kidnapping if the defendant’s
conduct or statements cause the victim to believe that unless
the victim accompanies the defendant the victim will be
forced to do so, and the victim’s belief is objectively
reasonable.” Id. at 367.
When the victim is a person capable of giving consent,
“the purpose or motive of the taking and carrying away is
immaterial.” In re Michele D., 59 P.3d 164, 168 (Cal. 2002)
(internal quotation marks, alterations and citation omitted).
“The rule governing the forcible carrying of conscious
persons capable of giving consent . . . makes a person who
forcibly carries such a person and transports him against his
will guilty of kidnap[p]ing, however good or innocent his
motive or intent may otherwise be . . . .” People v. Oliver, 361
P.2d 593, 595 (Cal. 1961); see also People v. Sheasbey, 255
P. 836, 838–39 (Cal. Ct. App. 1927) (holding that “no state of
mind or belief is a part of the crime of kidnap[p]ing”). This is
because “[s]imple kidnapping traditionally has been a general
intent crime,” and does not require, for example, the intent to
instill fear in the victim. People v. Moya, 6 Cal. Rptr. 2d 323,
325 (Cal. Ct. App. 1992). “A crime is characterized as a
‘general intent’ crime when the required mental state entails
only an intent to do the act that causes the harm . . . .” People
v. Davis, 896 P.2d 119, 148 n.15 (Cal. 1995). When the
victim is an unresisting infant or child or other person
incapable of giving consent, however, “the amount of force
required to kidnap . . . is simply the amount of physical force
required to take and carry the child away a substantial
CASTRIJON -GARCIA V . HOLDER 9
distance for an illegal purpose or with an illegal intent.” In re
Michele D., 59 P.3d at 171.
II.
A.
We now turn to the second step of our analysis:
comparing the elements of the statute of conviction to the
generic definition of a crime involving moral turpitude. The
parties disagree about whether we must defer to the BIA’s
unpublished decision. The government argues that because,
in its decision, the BIA cited to several published decisions,
including Matter of Lopez-Meza, Matter of P, Matter of
Nakoi, and Matter of C-M-, its decision that simple
kidnapping in violation of CPC § 207(a) is a crime involving
moral turpitude is entitled to Chevron deference.
Alternatively, the government argues that the BIA decision
was persuasive and is thus entitled to Skidmore deference.
Castrijon contends that the BIA decision is not entitled to
Chevron deference because the decision was unpublished and
the “cited decisions do not construe the identical statute . . .
and instead consist of boilerplate generalities and other
conclusory statements.” Castrijon also contends that the BIA
decision does not warrant deference under Skidmore because
its decision “lacks any real analysis and consists of a single
conclusory paragraph.”
We hold first that the BIA decision here is not entitled to
Chevron deference. Chevron deference is afforded to an
unpublished decision only when it is “directly controlled by
a published decision interpreting the same statute.” Uppal,
605 F.3d at 714. Although the BIA’s unpublished decision
10 CASTRIJON -GARCIA V . HOLDER
cites to published decisions, none interprets CPC § 207(a) and
thus none directly controls. The first case cited by the BIA,
Matter of Lopez-Meza, involved the offense of aggravated
driving under the influence in violation of Arizona law. 22 I.
& N. Dec. 1188 (BIA 1999). The second and third cases cited
by the BIA, Matter of P and Matter of Nakoi, involved
convictions under the Federal Kidnapping Act, which
contains different elements than simple kidnapping under
CPC § 207(a), most important being that the kidnapping be
committed for “ransom or reward or otherwise.” Matter of P,
5 I. & N. Dec. 444 (BIA 1953); Matter of Nakoi, 14 I. & N.
Dec. 208 (BIA 1972). Finally, although Matter of C-M-, the
fourth case cited by the BIA, involved a kidnapping
conviction under the California Penal Code, the BIA did not
interpret CPC § 207(a),3 or even decide that kidnapping was
a categorical crime of moral turpitude. 9 I. & N. Dec. 487
(BIA 1961). Rather, the petitioner took “no issue with the
finding [by the special inquiry officer] that the offense of
kidnapping, as defined by the California Penal Code, involves
moral turpitude,” instead arguing that he had been convicted
as a juvenile and that the proceedings were therefore not
criminal. Id. at 488. In sum, the cases cited by the BIA in its
unpublished decision did not “interpret[] the same statute”
and thus do not “directly control[]” the outcome here. See
Uppal, 605 F.3d at 714. Therefore, the BIA decision is not
entitled to Chevron deference.4
3
In fact, is not clear that Matter of C-M- involved CPC § 207(a), as the
BIA failed to specify under which California kidnapping statute the
petitioner had been convicted.
4
In its answering brief, the government argues that although the
published decisions cited by the BIA did not interpret CPC § 207(a), the
agency decision is nonetheless entitled to Chevron deference. It relies on
CASTRIJON -GARCIA V . HOLDER 11
We turn to the Skidmore framework to determine whether
we should nevertheless defer to the BIA decision to the extent
it has persuasive effect. Under Skidmore, the weight afforded
to the agency 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 Uppal,
605 F.3d at 715. Here, the BIA decision is unpersuasive. It
had little reasoning and its analysis of why CPC § 207(a)
constitutes a crime of moral turpitude consists only of two
conclusory statements. In these statements, the BIA simply
repeated phrases used in a decision by the California Court of
Appeal, Zataray, 219 Cal. Rptr. at 39, which decided that
under California evidence law, a simple kidnapping
conviction was admissible for impeachment purposes.
Borrowing the language from that decision, the BIA said that
simple kidnapping under CPC § 207(a) “involves readiness to
do evil and is an offense that grievously offends the moral
code of mankind in its inherent nature.” This is no analysis at
all; the BIA does not explain why simple kidnapping under
CPC § 207(a) involves a readiness to do evil (or even what
readiness to do evil means), or why it so deeply offends our
moral code — especially as it is a general intent crime, see
Moya, 6 Cal. Rptr. 2d at 325. Moreover, we have held that
whether a crime has been found to be one of moral turpitude
under California law is “not of great weight given the
our en banc decision in Marmolejo-Campos, 558 F.3d 903, to support its
argument. In that case, however, we afforded Chevron deference to an
unpublished BIA decision because it relied on “a precedential decision
addressing the dispositive question of statutory interpretation at issue in
this case” by interpreting the same statute, the Arizona aggravated driving
under the influence statute. Id. at 905–06, 911.
12 CASTRIJON -GARCIA V . HOLDER
different roles of the [crime involving moral turpitude]
designation under the [Immigration and Nationality Act] and
California law.” Latter-Singh v. Holder, 668 F.3d 1156, 1163
n.4 (9th Cir. 2012).5 The BIA’s unreasoned reliance on a state
court decision that is of a type that we have held “is not of
great weight” because it relates to the very different issue of
whether a crime is morally turpitudinous for purposes of
California evidence law, lacks “power to persuade” and thus
is not entitled to deference.6 See Saavedra-Figueroa v.
Holder, 625 F.3d 621, 627 (9th Cir. 2010) (holding that BIA
decision “has no persuasive authority” and declining
Skidmore deference where immigration judge speculated that
the crime was considered heinous by the people of California
without explanation and failed to address intent element);
Uppal, 605 F.3d at 715 (declining to afford BIA decision
Skidmore deference because its “analysis [was] neither
thoroughly reasoned nor consistent with prior BIA and Ninth
Circuit case law”). We therefore decline to grant deference to
5
W e discuss Zataray in more detail in part II.B. below, and conclude
that its holding does not affect our moral turpitude analysis in part because
the factors relied upon by the California Court of Appeal — that simple
kidnapping under CPC § 207(a) involves instilling fear in the victim and
is an inherently dangerous felony — fail to consider the absence of a
culpable mental state.
6
Notably, this is not the first time we have held a crime not to be a
categorical crime of moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I)
even though California courts have held the contrary under their
evidentiary standard for purposes of impeachment of a defendant.
Compare People v. Elwell, 253 Cal. Rptr. 480, 482 (Cal. Ct. App. 1988)
(assault with a deadly weapon is a crime of moral turpitude under
California evidentiary standard), with Carr v. INS, 86 F.3d 949, 951 (9th
Cir. 1996) (assault with deadly weapon is not a crime involving moral
turpitude under the Immigration and Nationality Act).
CASTRIJON -GARCIA V . HOLDER 13
the unpublished BIA decision and determine de novo whether
the elements of simple kidnapping under CPC § 207(a) meet
the generic definition of moral turpitude under immigration
law.
B.
To determine whether a given offense constitutes a crime
involving moral turpitude, we apply the categorical and
modified categorical approaches set forth in Taylor v. United
States, 495 U.S. 575 (1990). See Nunez, 594 F.3d at 1129.
Under the categorical approach, we “compare the elements of
the crime to the generic definition of moral turpitude and
decide whether the conduct proscribed in the statute is
broader than, and so does not categorically fall within, this
generic definition.” Id. at 1129 (internal quotation marks
omitted). 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.; see also
Duenas-Alvarez, 549 U.S. at 193. “If the crime does not
qualify under the categorical approach, we apply the modified
categorical approach and look to the documents within the
record of conviction to see whether the conviction in the
particular case involved moral turpitude.” Nunez, 594 F.3d at
1129–30.
The Immigration and Nationality Act does not define the
term “crime involving moral turpitude,” but “courts and the
BIA have generally defined [it] as comprising crimes that are
inherently base, vile, or depraved, and contrary to the
accepted rules of morality and the duties owed between
persons or to society in general.” Robles-Urrea v. Holder,
14 CASTRIJON -GARCIA V . HOLDER
678 F.3d 702, 708 (9th Cir. 2012) (internal quotation marks
and citation omitted).7 “Such crimes are of two types: those
involving fraud and those involving grave acts of baseness or
depravity.” Id. Fraud is not an element of simple kidnapping
under CPC § 207(a), nor is it inherent in the nature of the
crime. In fact, the California Supreme Court has held that
when the consent of the victim is obtained through fraud
alone, the defendant is not guilty of simple kidnapping. See
Majors, 92 P.3d at 364 (“In contrast to the use of force or fear
to compel asportation, asportation by fraud alone does not
constitute general kidnapping in California.”) (internal
quotation marks and citation omitted). We therefore focus on
whether simple kidnapping involves “grave acts of baseness
or depravity.”
We have explained that some “offenses . . . are so base,
vile, and depraved that they qualify as crimes of moral
turpitude even though they have no element of fraud. These
offenses involve ‘rather grave acts of baseness or depravity’
such as murder, rape, and incest.” Navarro-Lopez v.
Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007) (Reinhardt, J.,
concurring for the majority) (citation omitted), overruled on
other grounds by United States v. Aguila–Montes de Oca,
655 F.3d 915 (9th Cir. 2011) (en banc). The majority in
Navarro-Lopez explained:
7
“W e have held that, at this stage of our analysis, we ‘rel[y] on our own
generalized definition’ of moral turpitude because the BIA has failed to
provide any generic definition to which we could meaningfully defer.”
Nunez, 594 F.3d at 1130–31 n.3 (quoting Marmolejo-Campos, 558 F.3d
at 910) (alteration in original).
CASTRIJON -GARCIA V . HOLDER 15
Not all serious crimes meet this standard,
however. Indeed, we have determined, for
example, that burglary, Cuevas-Gaspar v.
Gonzales, 430 F.3d 1013, 1020 (9th Cir.
2005), and assault with a deadly weapon, Carr
v. INS, 86 F.3d 949, 951 (9th Cir. 1996), do
not involve moral turpitude. 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.’ Medina v. United States,
259 F.3d 220, 227 (4th Cir. 2001) (quoting
Matter of Danesh, 19 I. & N. Dec. 669, 670
(BIA 1988)).
Id. at 1074–75 (alteration in original). Ultimately, “[o]nly
truly unconscionable conduct surpasses the threshold of moral
turpitude.” Robles-Urrea, 678 F.3d at 708.
Crimes of moral turpitude generally involve some “evil
intent.” Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir.
2010). “The BIA has emphasized that evil or malicious intent
is the essence of moral turpitude,” and we have “upheld this
emphasis on evil intent.” Latter-Singh, 668 F.3d at 1161
(internal quotation marks, alterations, and citations omitted).
A review of our past cases8 analyzing whether particular
8
Only the Fifth Circuit has decided whether kidnapping is categorically
a crime involving moral turpitude, holding that it is not. Hamdan v. INS,
98 F.3d 183 (5th Cir. 1996). That case will be discussed infra. No case
from our circuit has addressed whether kidnapping is a crime involving
moral turpitude. One case from the First Circuit involved a removal on the
ground that kidnapping was a crime of moral turpitude, but the petitioner
16 CASTRIJON -GARCIA V . HOLDER
offenses are crimes of moral turpitude reveals that non-
fraudulent crimes of moral turpitude generally involve an
intent to injure, actual injury, or a protected class of victims.
Nunez, 594 F.3d at 1131. In Uppal, for example, we held that
a conviction for aggravated assault under § 268 of the Canada
Criminal Code was not categorically a crime involving moral
turpitude because “an assault statute not involving a specific
intent to injure or a special trust relationship and not requiring
that the assault cause death or even serious bodily injury
cannot qualify as a categorical [crime of moral turpitude].”
605 F.3d at 719 (emphases in original). Similarly, in
Saavedra-Figueroa, we analyzed a conviction for false
imprisonment under CPC § 236, and held that it was not a
categorical crime of moral turpitude because the statute “does
not proscribe conduct that categorically causes serious harm
or is directed against a protected class of persons” and “does
not require the defendant to have had the intent to harm
necessary for the crime to be base, vile, or depraved.”
625 F.3d at 626 & n.4 (internal quotation marks omitted).
Simple kidnapping under CPC § 207(a) does not require
an intent to injure, actual injury, or a special class of victims.
The three elements of simple kidnapping under the statute are:
“(1) the defendant took, held, or detained another person by
using force or by instilling reasonable fear; (2) using that
force or fear, the defendant moved the other person, or made
the other person move a substantial distance; and (3) the other
person did not consent to the movement.” Burney, 212 P.3d
at 666. It is a “general intent crime,” and does not require, for
in that case conceded removability, and the issue whether her crime was
categorically one of moral turpitude was not considered or decided.
Choeum v. INS, 129 F.3d 29 (1st Cir. 1997).
CASTRIJON -GARCIA V . HOLDER 17
example, the intent to instill fear in the victim. Moya, 6 Cal.
Rptr. 2d at 325. The California Supreme Court has held that
“the purpose or motive of the taking and carrying away is
immaterial” when the victim is capable of giving consent;
illegal intent or motive is required only when a child or other
person incapable of consenting is kidnapped. In re Michele
D., 59 P.3d at 168, 171 (internal quotation marks, alterations
and citation omitted). Therefore, a person can be guilty of
kidnapping “however good or innocent his motive or intent
may otherwise be.” Oliver, 361 P.2d at 595; see also People
v. Bruno, 193 P. 511, 512–14 (Cal. Ct. App. 1920)
(kidnapping conviction upheld even where defendant believed
that he was engaged to the victim and the victim would not
object). In fact, “no state of mind or belief is a part of the
crime of kidnap[p]ing,” Sheasbey, 255 P. at 838–39, and a
person can be convicted of kidnapping if he actually, but
unreasonably, believed that the victim consented to the
movement, see Mayberry, 542 P.2d at 1345; Williams,
841 P.2d at 965. Accordingly, the intent to cause injury is not
an element of simple kidnapping.9
Nor does simple kidnapping involve “the actual infliction
of harm upon someone, or an action that affects a protected
class of victim.” Nunez, 594 F.3d at 1131. There is no
9
For this reason, our decision here is consistent with our recent decision
in United States v. Marquez-Lobos, 697 F.3d 759 (9th Cir. 2012). In
Marquez-Lobos we held that Arizona’s kidnapping statute, ARS §13-
1304, is categorically a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A), but only because the Arizona kidnapping statute is a
specific intent crime that “includes the element of the ‘concept of a
nefarious purpose.’” Id. at 764; see also ARS § 13-1304 (listing six
motives, at least one of which the accused must have to be guilty of
kidnapping).
18 CASTRIJON -GARCIA V . HOLDER
requirement that the kidnapping result in actual injury to the
victim, and simple kidnapping convictions under CPC
§ 207(a) have been upheld even when the victims have been
found to be uninjured. See, e.g., People v. Felix, 112 Cal.
Rptr. 2d 311, 314–15 (Cal. Ct. App. 2001) (kidnapping
conviction upheld where defendant kidnapped victim to
request a renewal of their relationship and eventually returned
her home safely). Moreover, while a kidnapping under CPC
§ 207(a) could involve a minor victim or other person with a
special trust relationship to the defendant, see, e.g., In re
Michele D., 59 P.3d at 166 (victim was minor child), it can
also involve complete strangers, see, e.g., Majors, 360 P.3d
at 361 (victim was 18-year-old girl without relationship to
defendant).
Thus, simple kidnapping under CPC § 207(a) “does not
categorically have anything in common with the type of crime
we have normally held to involve moral turpitude. It can be
committed without any intention of harming anyone, it need
not result in actual harm, and it does not necessarily involve
a protected class of victim.” See Nunez, 594 F.3d at 1135. It
is true that the BIA’s and our cases note that some crimes
involve moral turpitude because they are “intrinsically wrong
(malum in se).” Mendoza, 623 F.3d at 1302. We have noted,
however, that “not all malum in se crimes categorically
involve moral turpitude.” Nicanor-Romero v. Mukasey,
523 F.3d 992, 998 (9th Cir. 2008), overruled on other
grounds by Marmolejo-Campos, 558 F.3d 903. Instead, we
have emphasized that “both the actus reus and the mens rea
must be considered in concert to determine whether the
behavior they describe is sufficiently culpable to be labeled
morally turpitudinous.” Id. at 999. In fact, in concluding that
kidnapping for ransom under the Federal Kidnapping Act was
CASTRIJON -GARCIA V . HOLDER 19
a crime of moral turpitude, the BIA emphasized that the
record of conviction established that the kidnapping had
involved ransom. Matter of P, 5 I. & N. Dec. at 446–47. Even
in the specific context of a kidnapping conviction, therefore,
the BIA has acknowledged the importance of considering the
presence of a culpable mental state in determining whether
the crime is one of moral turpitude.
In sum, simple kidnapping under CPC § 207(a) does not
fall within the types of cases we have previously held are
categorical crimes of moral turpitude. Moreover, courts in
California have applied CPC § 207(a) to conduct that is not
morally turpitudinous. For example, in one case, black
students at a college complained about the actions of a
football coach in beating a black football player during the
course of a game. People v. Apo, 102 Cal. Rptr. 242, 244
(Cal. Ct. App. 1972). Members of the Black Students Union
demanded to meet with several administrators, who
responded that only the president of the college could take
action on personnel issues. See id. The students then
surrounded the administrators and “marched from the
physical education building to the administration building, a
distance of 700 yards (just slightly less than four-tenths of a
mile),” so that the administrators could speak with the
president of the college regarding the incident. Id. at 244–45.
During the march, some students pushed the administrators,
and made threats to make them continue moving. See id.
Several of the students who participated in the march were
convicted of kidnapping. See id. at 245. Their convictions,
which were upheld on appeal, demonstrate that simple
kidnapping under CPC § 207(a) will be applied to conduct
that, although criminal, is not “truly unconscionable” such
that it meets the moral turpitude standard. The students in Apo
20 CASTRIJON -GARCIA V . HOLDER
acted foolishly, no doubt, but their conduct cannot be said to
“involve rather grave acts of baseness or depravity.” Navarro-
Lopez, 503 F.3d at 1074 (Reinhardt, J., concurring for the
majority) (internal quotation marks and citation omitted).
In a more recent case, the defendant was convicted of
kidnapping after he intercepted his 18-year-old niece, who
had run away to go live with her boyfriend, and drove her
back to his home. People v. Garibay, 2010 WL 2112947 (Cal.
Ct. App. May 27, 2010) (unpublished). The conviction was
upheld on appeal. The niece had made abuse allegations
against her father, and left home to go live with her boyfriend
and his parents. Id. at *1–*2. One night, when she and her
boyfriend were returning from dinner with some friends, the
defendant, his brother (the father of the girl), and two other
men intercepted their vehicle. Id. at *1. The father grabbed
the girl by the arm, threatened her friends, got her into the car
the defendant was driving, and the defendant drove away,
taking his brother and niece to his house. Id. at *2. That the
defendant, the uncle of the victim, was convicted of simple
kidnapping again demonstrates that CPC § 207(a) is applied
to conduct that is not morally turpitudinous. The defendant
acted in an unlawful manner, but assisting one’s brother in
bringing back a family member who has run away from home
is not conduct we would classify as “truly unconscionable”
such that it meets the moral turpitude standard.
These two cases demonstrate that there is a “a realistic
probability, not [just] a theoretical possibility, that
[California] would apply [the simple kidnapping] statute to
conduct that falls outside the generic definition of [the]
crime.” Duenas-Alvarez, 549 U.S. at 193. We have held that
“[t]his realistic probability can be established by showing
CASTRIJON -GARCIA V . HOLDER 21
that, in at least one other case, the state courts in fact did
apply the statute in the special (nongeneric) manner.” Nunez,
594 F.3d at 1129 (internal quotation marks and citation
omitted). Here, California courts “in fact did apply the statute
in the special (nongeneric) manner” to conduct that is not
morally turpitudinous. Thus, simple kidnapping under CPC
§ 207(a), when compared to the definition of moral turpitude,
is overbroad and not limited to conduct that constitutes a
crime of moral turpitude.
The government relies on a different California case,
Zataray, 219 Cal. Rptr. at 39, to support its position that
simple kidnapping is a categorical crime of moral turpitude.
As explained in part II.A., the decision in Zataray is “not of
great weight.” Latter-Singh, 668 F.3d at 1163 n.4. The issue
in Zataray was whether simple kidnapping was a crime of
moral turpitude for purposes of California evidentiary law.
219 Cal. Rptr. at 38–39. In California, a prior conviction of an
offense involving moral turpitude may be introduced for the
purpose of impeachment — to show that the defendant is
likely to lie under oath. Zataray concluded that a defendant
convicted of simple kidnapping had a bad character, a
readiness to do evil, and therefore had committed a crime of
moral turpitude, which could be used to impeach him. Id. at
39. The court failed, however, to consider whether CPC
§ 207(a) involved the most elementary requirement for an
offense to categorically constitute a crime of moral turpitude
as applied in cases relating to removal and similar
immigration provisions. To constitute moral turpitude in such
cases, the offense must generally include a requirement of
intent to injure, the infliction of actual injury, or a protected
class of victims. See Nunez, 594 F.3d at 1131.
22 CASTRIJON -GARCIA V . HOLDER
Zataray labeled all kidnapping as a crime of moral
turpitude in part because it grievously offends the inherent
“moral code of mankind.” 219 Cal. Rptr. at 39. We cannot
accept this sweeping hyperbolic statement, as the State itself
has created a lesser category of kidnapping that does not
require specific intent, the infliction of any injury, bad faith,
unlawful motive, or any other element establishing that all
such offenses would categorically be base, vile or depraved.
Compare CPC § 207 with CPC § 209. Similarly, Zataray
states that CPC § 207(a) is a felony dangerous to human life
and that the gravamen of the offense is the victim’s
apprehension or fear; it does not, however, state, as required
for purposes of moral turpitude under immigration law, that
the defendant must be aware of the risk and consciously
disregard it. Uppal, 605 F.3d at 718.
Our determination that CPC § 207(a) is not categorically
a crime involving moral turpitude is also consistent with our
recent decision in Delgado-Hernandez v. Holder, 697 F.3d
1125 (9th Cir. 2012), in which we held that CPC § 207(a) is
categorically a crime of violence under 18 U.S.C. § 16(b)
because kidnapping presents a “substantial risk that physical
force . . . may be used.” Id. at 1127–28 (quoting 18 U.S.C.
§ 16(b)). Delgado-Hernandez did not answer the question
here, i.e., whether the potential use of physical force in the
commission of a CPC § 207(a) kidnapping is categorically
turpitudinous. It is not the case that every categorical crime
of violence is also categorically a crime involving moral
turpitude. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,
1020 (9th Cir. 2005) (residential burglary is not a categorical
crime of moral turpitude even though it is categorically a
crime of violence), abrogated on other grounds by Holder v.
Martinez Gutierrez, 132 S. Ct. 2011 (2012); see also In re
CASTRIJON -GARCIA V . HOLDER 23
Brieva-Perez, 23 I & N Dec. 766, 772–73 (BIA 2005) (“Some
of the most common crimes falling within the definition of a
‘crime of violence’ do not necessarily involve moral
turpitude.”), overruled on other grounds by Judulang v.
Holder, 132 S. Ct. 476 (2011). Here, the violence inherent in
a CPC § 207(a) kidnapping does not render the crime a
categorical crime involving moral turpitude because the force
involved or threatened is not necessarily accompanied by an
evil intent. For example, in two of the cases we describe
above, which constituted kidnappings under CPC § 207(a),
the defendants (or their co-conspirators) used a modicum of
force against the victims; in Apo, the defendants pushed and
shoved university administrators to force them to march with
the protesting students, 102 Cal. Rptr. at 244–45, while in
Garibay the defendant’s brother grabbed his daughter, who
was a runaway, by the arm and forced her into the defendant’s
car, 2010 WL 2112947 at *1; see also Felix, 112 Cal. Rptr. 2d
at 314–15 (upholding a defendant’s conviction for kidnapping
his ex-girlfriend where he took their four-year old daughter,
who was in a car seat in the ex-girlfriend’s car, and put her in
his own car in order to convince the girlfriend to take a ride
in his car to discuss reunification, and then returned both
safely after a 30–45 minute drive). Yet despite the use of
physical force in these cases, the actions giving rise to the
kidnapping charges against the defendants under CPC
§ 207(a) were not “base, vile, and depraved,” Navarro-Lopez,
503 F.3d at 1074 (Reinhardt, J., concurring for the majority),
or “truly unconscionable,” Robles-Urrea, 678 F.3d at 708,
and did not “involv[e] a specific intent to injure,” Uppal,
605 F.3d at 719, or any other form of “evil intent,” Mendoza,
623 F.3d at 1302, as would be required for these offenses to
constitute crimes of moral turpitude. Accordingly, our
holding in Delgado-Hernandez that CPC § 207(a) is
24 CASTRIJON -GARCIA V . HOLDER
categorically a crime of violence under 18 U.S.C. § 16(b) is
fully consistent with our decision today.
Finally, we note that our holding here is in line with the
holding of the Fifth Circuit, the only other circuit to have
decided whether kidnapping qualifies as a categorical crime
of moral turpitude. Hamdan, 98 F.3d 183. The Louisiana
statute in that case, like the statute here, was a simple
kidnapping statute.10 The Fifth Circuit held that the
10
The Louisiana simple kidnapping statute provided:
A. Simple kidnapping is:
(1) The intentional and forcible seizing and carrying of
any person from one place to another without his
consent; or
(2) The intentional taking, enticing or decoying away,
for an unlawful purpose, of any child not his own and
under the age of fourteen years, without the consent of
its parent or the person charged with its custody; or
(3) The intentional taking, enticing or decoying away,
without the consent of the proper authority, of any
person who has been lawfully committed to any orphan,
insane, feeble-minded or other similar institution.
(4) The intentional taking, enticing or decoying away
and removing from the state, by any parent of his or her
child, from the custody of any person to whom custody
has been awarded by any court of competent
jurisdiction of any state, without the consent of the legal
custodian, with intent to defeat the jurisdiction of the
said court over the custody of the child.
CASTRIJON -GARCIA V . HOLDER 25
kidnapping “statute covers conduct that cannot be considered
inherently morally turpitudinous, and that the analysis must
extend beyond the statute to the record of conviction” to
determine whether the petitioner had been convicted of a
crime involving moral turpitude. Hamdan, 98 F.3d at 189. In
other words, the Fifth Circuit held that simple kidnapping
under Louisiana law is not categorically a crime of moral
turpitude, thus requiring application of the modified
categorical approach. Id. The Louisiana simple kidnapping
statute contains different elements than CPC § 207(a), but
there are sufficient similarities that the holding of the Fifth
Circuit provides a clear path to the result here. The Louisiana
statute requires “intentional and forcible seizing and carrying
of any person.” Simple kidnapping under CPC § 207(a)
similarly requires that the kidnapping be accomplished
“forcibly, or by any other means of instilling fear.” Neither
statute, however, requires the intent to cause harm, or that
actual harm result. Moreover, although both the Louisiana
statute and CPC § 207(a) relax the force and lack of consent
requirements when the victim is a child or unable to consent,
neither requires that the victim be from these protected
groups. Given these similarities, Hamdan provides persuasive
authority for holding that kidnapping under CPC § 207(a),
like kidnapping under the Louisiana simple kidnapping
statute, is not a categorical crime of moral turpitude.
(5) The taking, enticing or decoying away and removing
from the state, by any person, other than the parent, of
a child temporarily placed in his custody by any court
of competent jurisdiction in the state, with intent to
defeat the jurisdiction of said court over the custody of
the child.
Id. at 186–87 (quoting 14 L.A. Rev. Stat. § 45A).
26 CASTRIJON -GARCIA V . HOLDER
C.
This undoubtedly appears to be a difficult question at first
glance. Kidnapping is a serious crime, and our instincts may
be that it would meet the moral turpitude definition. “Not all
serious crimes meet [the moral turpitude] standard, however.”
Navarro-Lopez, 503 F.3d at 1074 (Reinhardt, J., concurring
for the majority). Even for serious offenses, we must look to
the specific elements of the statute of conviction and compare
them to the definition of crimes involving moral turpitude.
Here, the elements of simple kidnapping under CPC § 207(a)
“do[] not categorically have anything in common with the
type of crime we have normally held to involve moral
turpitude. It can be committed without any intention of
harming anyone, it need not result in actual harm, and it does
not necessarily involve a protected class of victim.” Nunez,
594 F.3d at 1135. “Only truly unconscionable conduct
surpasses the threshold of moral turpitude,” Robles-Urrea,
678 F.3d at 708, and simple kidnapping, as interpreted by
California courts, does not surpass that threshold. California
courts have in fact applied the simple kidnapping statute to
conduct that is clearly not morally turpitudinous.11 Therefore,
we hold that simple kidnapping under CPC § 207(a) is not a
categorical crime of moral turpitude.
11
W e also note that although simple kidnapping under CPC § 207(a) is
a serious crime, a defendant convicted under that statute can receive a
sentence of as little as three years, or if probation is granted, one year (or
less if a lesser sentence is in the interest of justice). CPC § 208. More
severe sentences are reserved for more serious forms of kidnapping, such
as kidnapping for ransom, robbery, or rape, which carry a possible
sentence of life. CPC § 209. Here, Castrijon received only a suspended
sentence of less than a year plus probation for his crime of attempt.
CASTRIJON -GARCIA V . HOLDER 27
D.
“In the absence of a categorical match, we generally apply
a modified categorical analysis, in which we consider whether
record documents or judicially noticeable facts establish that
the alien’s prior conviction satisfies the generic offense.”
Saavedra-Figueroa, 625 F.3d at 628. The BIA did not reach
the modified categorical approach analysis because it
erroneously held that simple kidnapping under CPC § 207(a)
is a categorical crime of moral turpitude. Although it seems
unlikely that on the basis of this record the agency could
conclude that Castrijon was convicted of a crime of moral
turpitude, “we recognize that the BIA is entitled to conduct
the analysis in the first instance.” Robles-Urrea, 678 F.3d at
712. We therefore remand to the BIA to conduct the modified
categorical approach.
CONCLUSION
Because simple kidnapping under CPC § 207(a) is not
categorically a crime involving moral turpitude, the BIA erred
in determining that Castrijon was statutorily ineligible for
cancellation of removal on that basis. We remand to the BIA
to determine whether, under the modified categorical
approach, Castrijon was convicted of a crime of moral
turpitude.
PETITION GRANTED and REMANDED.