Jose Ortiz Narez v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO ORTIZ NAREZ, Nos. 19-72039
Petitioner, 20-71416
v. Agency No.
A013-623-921
MERRICK B. GARLAND, Attorney
General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 6, 2021
Pasadena, California
Filed February 16, 2022
Before: Milan D. Smith, Jr., Kenneth K. Lee, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Lee
2 ORTIZ NAREZ V. GARLAND
SUMMARY *
Immigration
Denying Jose Ortiz Narez’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that voluntary manslaughter under California law qualifies
as a crime involving moral turpitude (CIMT).
Ortiz entered the United States as a lawful permanent
resident, but was later found removable on the ground that
he committed two CIMTs not arising out of single scheme
of conduct. Ortiz contended that his conviction for voluntary
manslaughter under California Penal Code (CPC) § 192(a)
was not a CIMT.
Applying the categorical approach, the panel first
explained that California defines voluntary manslaughter as
the “unlawful killing of a human being without malice . . .
upon a sudden quarrel or heat of passion.” CPC § 192(a). In
turn, the California Supreme Court has construed the statute
as requiring some form of culpable mental state—an intent
to kill or a conscious disregard for life.
Second, the panel compared CPC § 192(a) to the federal
definition of a CIMT, which this court has defined as
involving either fraud or base, vile, and depraved conduct
that shocks the public conscience. The panel explained that
the court considers the requisite state of mind as well as the
resulting harm in tandem; as the level of conscious behavior
decreases (i.e., from intentional to reckless conduct), more
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ORTIZ NAREZ V. GARLAND 3
serious resulting harm is required to find that the crime
involves moral turpitude. Thus, a crime committed only
recklessly requires a more serious harm to qualify as a
CIMT. Here, the panel agreed with the BIA that CPC
§ 192(a) is a CIMT, explaining that the statute only requires
recklessness, but the harm—the unlawful killing of a
human—stands at the apex.
The panel rejected Ortiz’s other claims in a separate
memorandum disposition.
COUNSEL
Erika Vejar (argued), Vejar Law Firm, San Dimas,
California, for Petitioner.
Kristen H. Blosser (argued), Trial Attorney; Anthony P.
Nicastro, Assistant Director; Brian Boynton, Acting
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C., for Respondent.
OPINION
LEE, Circuit Judge:
Under federal immigration law, a non-citizen may be
removed from the country if he has been convicted of a
“crime involving moral turpitude” (CIMT). 8 U.S.C
§ 1227(a)(2)(A). The question before us is whether
voluntary manslaughter under California law qualifies as a
CIMT. We hold that it does because voluntary manslaughter
requires the defendant to cause the death of a person with
4 ORTIZ NAREZ V. GARLAND
intent to kill or with conscious disregard for life. We thus
deny Jose Ortiz Narez’s petition challenging the Board of
Immigration’s (BIA) final order of removal. 1
BACKGROUND
Ortiz entered the United States from Mexico as a lawful
permanent resident at a young age. While in this country,
Ortiz amassed an extensive juvenile and adult criminal
history. Relevant here, he pleaded guilty to voluntary
manslaughter in violation of California Penal Code (CPC)
§ 192(a) in 1984 and was sentenced to six years’
imprisonment. 2 Ortiz was also later convicted of corporal
punishment or injury of a child in violation of CPC § 273d
in 2002.
Under 8 U.S.C. § 1227(a)(2)(A), the Attorney General
can order the removal of a non-citizen who either (i) was
convicted within five years of entering the United States of
a CIMT that may be punishable by a sentence of one year or
longer, or (ii) was convicted of two or more CIMTs not
arising out of a single scheme of criminal misconduct.
The United States Department of Homeland Security
(DHS) served Ortiz with a Notice to Appear charging him
with removability because he committed crimes of moral
1
We address and reject Ortiz’s other claims in a separate
memorandum disposition.
2
The documents in the record cite California Penal Code § 192.1,
but the actual voluntary manslaughter provision at the time of Ortiz’s
conviction was § 192(1). See People v. Thomas, 740 P.2d 419, 423 n.3
(Cal. 1987). It has since been renumbered to § 192(a), but the text “has
remained constant since 1872.” Quijada-Aguilar v. Lynch, 799 F.3d
1303, 1307 (9th Cir. 2015). For clarity, we use the current citation
throughout this opinion.
ORTIZ NAREZ V. GARLAND 5
turpitude not arising out of a single scheme of criminal
misconduct. DHS alleged that Ortiz was convicted of
manslaughter in violation of CPC § 192(a) and corporal
punishment or injury of child in violation of CPC § 273d.
Ortiz moved to terminate his removal proceedings. The
Immigration Judge (IJ) determined that Ortiz was removable
because his convictions for child abuse and voluntary
manslaughter were categorically CIMTs. She rejected
Ortiz’s argument that voluntary manslaughter is not a CIMT,
explaining that the BIA “has consistently found voluntary
manslaughter to be a CIMT.” Because both convictions
involved different victims and occurred nearly twenty years
apart, the IJ determined that the convictions did not arise out
of a single scheme of criminal conduct.
Ortiz appealed the IJ’s decision to the BIA. The BIA
denied Ortiz’s motion to terminate and dismissed his appeal,
reiterating that voluntary manslaughter under CPC § 192(a)
is a CIMT. Relying on California state cases, the BIA held
that voluntary manslaughter—despite not requiring a
specific intent to kill—qualifies as a CIMT because it
involves moral depravity. See People v. Lasko, 999 P.2d 666(Cal. 2000); People v. Coad, 181 Cal. App. 3d 1094, 1107–
08 (Cal. Ct. App. 1986); People v. Parrish, 170 Cal. App. 3d
336, 350 (Cal. Ct. App. 1985). Ortiz then timely petitioned
for review with this court.
STANDARD OF REVIEW
We review de novo whether a state conviction
constitutes a CIMT for removal purposes. Romero-Mendoza
v. Holder, 665 F.3d 1105, 1107 (9th Cir. 2011).
6 ORTIZ NAREZ V. GARLAND
ANALYSIS
I. Voluntary Manslaughter Under California Law
Qualifies as a Crime Involving Moral Turpitude.
This court uses a two-step categorical approach to
determine whether a conviction qualifies as a CIMT. Fugow
v. Barr, 943 F.3d 456, 458 (9th Cir. 2019). First, the court
determines the elements of the state crime, reviewing de
novo the BIA’s conclusions. Vinh Tan Nguyen v. Holder,
763 F.3d 1022, 1027 (9th Cir. 2014). Second, the court
“compare[s] the elements of the statute of conviction to the
generic [federal] definition of a crime of moral turpitude and
decide[s] whether the conviction meets that definition.”
Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc)
(internal quotation marks and citation omitted). We give
some deference to the BIA’s assessment under this second
step because of its expertise with this issue. 3
3
The court gives Chevron deference to the BIA’s conclusion “if the
decision is published or directly controlled by a published decision.”
Ceron, 747 F.3d at 778. Otherwise, we afford only Skidmore deference.
See Lezama-Garcia v. Holder, 666 F.3d 518, 524–25 (9th Cir. 2011).
Under Skidmore, the measure of deference varies “depend[ing] 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 v. Swift & Co., 323 U.S. 134, 140 (1944). Because the BIA
dismissed Ortiz’s appeal in an unpublished order and did not rely on a
directly controlling decision, we only afford Skidmore deference to the
BIA’s second step analysis.
ORTIZ NAREZ V. GARLAND 7
A. California requires a culpable mental state—an
intent to kill or a conscious disregard for life—for
voluntary manslaughter.
The first step of our analysis requires determining the
elements of voluntary manslaughter under California law.
See Leal v. Holder, 771 F.3d 1140, 1144 (9th Cir. 2014).
California defines voluntary manslaughter as the “unlawful
killing of a human being without malice . . . upon a sudden
quarrel or heat of passion.” CPC § 192(a). The California
Supreme Court, in turn, has construed the voluntary
manslaughter statute as requiring some form of culpable
mental state—an intent to kill or a conscious disregard for
life. People v. Bryant, 301 P.3d 1136, 1141 (Cal. 2013).
Latching onto the “without malice” language in the
statute, Ortiz argues that California’s voluntary
manslaughter statute—unlike the federal definition of a
crime of moral turpitude—has no scienter or intent
requirement. If California does not require scienter for
voluntary manslaughter, then it cannot be a CIMT because
those crimes generally require some culpable intent. See
Leal, 771 F.3d at 1146. But California courts have rejected
Ortiz’s interpretation of the statute. As the California
Supreme Court put it, it has “never suggested that [voluntary
manslaughter] could be committed without either an intent
to kill or a conscious disregard for life.” Bryant, 301 P.3d
at 1141. The statute’s reference to “without malice” merely
explains that voluntary manslaughter involves mitigating
circumstances (e.g., adequate provocation) that negate the
malice aforethought required for murder. It does not mean
that voluntary manslaughter lacks any culpable mental state.
To the contrary, a conscious disregard for life or specific
intent to kill is still required. See id. at 1142.
8 ORTIZ NAREZ V. GARLAND
In sum, the elements of voluntary manslaughter in
California require: (1) a human was killed; (2) the killing
was unlawful; (3) the perpetrator of the killing either
intended to kill the alleged victim or acted in conscious
disregard for life; and (4) the perpetrator’s conduct led to the
unlawful killing. See id. at 1141–42.
B. Voluntary manslaughter meets the federal
definition of a CIMT because it involves the most
serious harm—the unlawful death of a person.
The second step of our categorical analysis requires
comparing California’s elements of voluntary manslaughter
with the federal definition of a CIMT. Fugow, 943 F.3d
at 458. While there is no federal statutory definition of a
CIMT, we have defined it as involving “either fraud or base,
vile, and depraved conduct that shocks the public
conscience.” Id. (citation omitted).
And when comparing a state statute with the federal
definition of a CIMT, we consider the requisite state of mind
as well as the resulting harm in tandem. Leal, 771 F.3d at
1146. “[A]s the level of conscious behavior decreases, i.e.,
from intentional to reckless conduct, more serious resulting
harm is required in order to find that the crime involves
moral turpitude.” Id. (quoting Ceron, 747 F.3d at 783). A
crime committed only recklessly thus requires a more
serious harm to qualify as a CIMT.
Contrary to Ortiz’s assertions, a crime committed
recklessly can still qualify as a CIMT. In Leal, for example,
this court upheld the BIA’s determination that an Arizona
law barring “recklessly endangering another person with a
substantial risk of imminent death” constitutes a CIMT.
771 F.3d at 1144 (quoting Ariz. Rev. Stat. § 13-1201). Even
though the offense only required a state of mind of
ORTIZ NAREZ V. GARLAND 9
recklessness, the court found that the “creation of a
substantial, actual risk of imminent death is sufficiently
reprehensible” to establish a CIMT. Id. at 1146. Here, too,
California’s voluntary manslaughter only requires
recklessness, but the harm—the unlawful killing of a
human—stands at the apex. We thus agree with the BIA’s
determination that California’s voluntary manslaughter
statute qualifies as a CIMT.
Our decision tracks the BIA’s prior decisions holding
that other states’ voluntary manslaughter statutes qualify as
CIMTs. For example, in Matter of Rosario, the BIA held
that Puerto Rico’s voluntary manslaughter statute is a CIMT.
15 I. & N. Dec. 416, 416–17 (BIA 1975). Puerto Rico’s
statute required the “unlawful killing of a human being
without malice” for a conviction. Id. Rejecting the
respondent’s argument that “without malice” did not make
the offense a CIMT, the BIA reasoned that, under Puerto
Rico’s law, voluntary manslaughter qualifies as a CIMT. Id.
at 417. 4
While we had not directly addressed this issue before, we
now hold what is obvious: voluntary manslaughter in
4
See also, e.g., Matter of Sanchez-Linn, 20 I. & N. Dec. 362, 366
(BIA 1991) (noting that voluntary manslaughter is a CIMT); Matter of
Wojtkow, 18 I. & N. Dec. 111, 113 (BIA 1981) (holding that New York’s
voluntary manslaughter statute is a CIMT); Matter of Ghunaim, 15 I. &
N. Dec. 269, 269 (BIA 1975) (holding that Ohio’s voluntary
manslaughter statute is a CIMT); Matter of Ptasi, 12 I. & N. Dec. 790,
791 (BIA 1968) (holding that Connecticut’s voluntary manslaughter
statute is a CIMT).
10 ORTIZ NAREZ V. GARLAND
California qualifies as a crime involving moral turpitude
under 8 U.S.C § 1227(a)(2)(A).
PETITION FOR REVIEW IS DENIED.