Quintero-Salazar v. Keisler ( 2007 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ALBERTO RENE QUINTERO-SALAZAR,             
    Petitioner,                No. 04-73128
    v.
            Agency No.
    A43-780-675
    PETER D. KEISLER,* Acting
    Attorney General,                                    OPINION
    Respondent.
    
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    November 16, 2006—San Francisco, California
    Filed October 9, 2007
    Before: Andrew J. Kleinfeld and Sidney R. Thomas,
    Circuit Judges, and Ronald B. Leighton,** District Judge.
    Opinion by Judge Thomas;
    Dissent by Judge Kleinfeld
    *Peter D. Keisler is substituted for his predecessor, Alberto R. Gon-
    zales, as Acting Attorney General of the United States, pursuant to Fed.
    R. App. P. 43(c)(2).
    **The Honorable Ronald B. Leighton, United States District Judge for
    the Western District of Washington, sitting by designation.
    13593
    13596            QUINTERO-SALAZAR v. KEISLER
    COUNSEL
    Zachary Nightingale, Van Der Hout, Brigagliano & Nightin-
    gale, San Francisco, California, argued the cause for the peti-
    tioner; Marc Van Der Hout, Van Der Hout, Brigagliano &
    Nightingale, San Francisco, California, was on the brief.
    Ernesto H. Molina, Jr., Senior Litigation Counsel, Office of
    Immigration Litigation, Civil Division, United States Depart-
    ment of Justice, Washington, D.C., argued the cause for the
    respondent; Peter D. Keisler, Assistant Attorney General, and
    David V. Bernal, Assistant Director, Civil Division, United
    States Department of Justice, Washington, D.C., were on the
    brief.
    OPINION
    THOMAS, Circuit Judge:
    This case presents the question of whether Cal. Penal Code
    § 261.5(d) is categorically a crime involving moral turpitude
    within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I), thus
    making an alien removable. We conclude that it is not, and
    grant the petition for review from the contrary decision of the
    Board of Immigration Appeals (“BIA”).
    I
    Alberto Rene Quintero-Salazar is a citizen and national of
    Mexico who entered the United States in 1990, obtained his
    conditional residence in 1992, and became a Lawful Perma-
    nent Resident in 1994. His wife, three children and two step-
    children are all United States citizens. Quintero-Salazar runs
    a home repair and maintenance business at which he employs
    several United States citizens.
    QUINTERO-SALAZAR v. KEISLER                     13597
    In 1998, Quintero-Salazar pleaded nolo contendere to con-
    tributing to the delinquency of a minor in violation of Cal.
    Penal Code § 272, engaging in intercourse with a minor who
    is three years younger than the perpetrator in violation of Cal.
    Penal Code § 261.5(c), and engaging in intercourse with a
    minor who is under 16 years of age when the perpetrator is
    21 years of age or older in violation of Cal. Penal Code
    § 261.5(d). He was sentenced to eleven months imprisonment
    and ordered to attend counseling and other rehabilitation pro-
    grams as directed by his probation officer.1
    On April 2, 2002, Quintero-Salazar was returning to the
    United States from visiting family in Mexico when he was
    detained by the Immigration and Naturalization Service
    (“INS”) upon seeking admission in San Francisco. On April
    12, 2002, the INS filed a notice to appear and began removal
    proceedings against Quintero-Salazar, charging him with
    being an inadmissible alien under INA § 212(a)(2)(A)(i)(I) for
    having been convicted of a crime involving moral turpitude.2
    On January 7, 2003, Quintero-Salazar filed an application for
    waiver of grounds of excludability on the basis of the hard-
    ship it would cause his U.S. citizen wife and children pursuant
    to INA § 212(h).
    1
    Shortly thereafter, Quintero-Salazar began participating in the SAFER
    Program, which is a therapy and relapse-prevention program for ex-
    offenders. Quintero-Salazar’s therapist in the program writes that he “is
    very responsible about his treatment,” and, after already complying with
    a SAFER requirement of one year of individual therapy, has started
    attending additional therapy “to deepen his awareness.” Quintero-
    Salazar’s therapist also offers that “[i]n the time I have known Mr. Quin-
    tero I have learned how involved he is with his children and how hard it
    will be for them to be apart from their father.” She adds that he “is a car-
    ing father” and “is very responsible not only about his family but also his
    workers.” Quintero-Salazar’s probation officer also adds that he “has
    reported as directed on a regular basis, attended counseling . . . and paid
    all fines and fees in full.”
    2
    The notice to appear relied only on the §§ 261.5(c) and (d) convictions
    and not the § 272 conviction.
    13598             QUINTERO-SALAZAR v. KEISLER
    Aliens charged with removability can apply for a waiver if
    their removal would result in extreme hardship to a United
    States citizen spouse or children. See 8 U.S.C.
    § 1182(h)(1)(B). Waiver of removability of those eligible is at
    the discretion of the Attorney General. 
    Id. Waiver is
    not avail-
    able, however, if the person seeking it has been convicted of
    an aggravated felony. 
    Id. Thus, the
    question before the IJ was
    twofold: (1) whether Quintero-Salazar was removable for
    committing a crime of moral turpitude and (2) if so, whether
    his crime constituted an aggravated felony, making him ineli-
    gible for waiver of removability.
    On February 7, 2003, the immigration judge (“IJ”) issued
    her decision, ordering Quintero-Salazar removed to Mexico.
    Analogizing to a 1966 BIA decision interpreting a Wisconsin
    statute,3 the IJ found the California § 261.5 convictions cate-
    gorically to be crimes involving moral turpitude. The IJ then
    found Quintero-Salazar ineligible for waiver because she
    found that § 261.5(d) is also an “aggravated felony” under
    INA § 101(a)(43)(A). The BIA summarily affirmed pursuant
    to 8 C.F.R. § 1003.1(e)(4).
    This timely petition for review followed. We review de
    novo the question of whether a state statutory crime consti-
    tutes a crime involving moral turpitude. Carty v. Ashcroft, 
    395 F.3d 1081
    , 1083 (9th Cir. 2005) (citing Rodriguez-Herrera v.
    INS, 
    52 F.3d 238
    , 240 n. 4 (9th Cir. 1995)).
    II
    The BIA erred in holding that a violation of Cal. Penal
    Code § 261.5(d) is categorically a crime involving moral tur-
    pitude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I).
    “To determine whether a specific crime falls within a particu-
    lar category of grounds for removability, we apply the cate-
    gorical and modified categorical approaches set forth in
    3
    See Matter of Dingena, 11 I&N Dec. 723 (BIA 1966).
    QUINTERO-SALAZAR v. KEISLER              
    13599 Taylor v
    . United States, 
    495 U.S. 575
    (1990).” Cuevas-
    Gaspar v. Gonzales, 
    430 F.3d 1013
    , 1017 (9th Cir. 2005).
    A categorical analysis requires us to compare the elements
    of the statute of conviction with a federal definition of the
    crime to determine whether conduct proscribed by the statute
    is broader than the generic federal definition. 
    Id. In doing
    so,
    we “cannot examine the underlying facts of the prior offense,
    but ‘look only to the fact of conviction and the statutory defi-
    nition of the prior offense.’ ” United States v. Corona-
    Sanchez, 
    291 F.3d 1201
    , 1203, 1212-13 (9th Cir. 2002) (en
    banc) (quoting 
    Taylor, 495 U.S. at 602
    ). If the statute of con-
    viction criminalizes conduct that would not satisfy the federal
    definition of the crime at issue, then the conviction does not
    qualify as a predicate offense under the categorical approach.
    
    Id. at 1203.
    In short, under the categorical approach, the issue
    is whether the full range of conduct encompassed by the stat-
    ute constitutes a crime of moral turpitude. See United States
    v. Castillo-Rivera, 
    244 F.3d 1020
    , 1022 (9th Cir. 2001). “[T]o
    satisfy the categorical test, even the least egregious conduct
    . . . must qualify.” United States v. Lopez-Solis, 
    447 F.3d 1201
    , 1206 (9th Cir. 2006).
    [1] For a conviction to be a “crime of moral turpitude”
    under immigration law, it “must be a crime that (1) is vile,
    base or depraved and (2) violates societal moral standards.”
    Navarro-Lopez v. Gonzales, ___ F.3d ___, 
    2007 WL 2713211
    , *8 (9th Cir. 2007) (en banc). It “must also be done
    willfully” or with “evil intent.” Fernandez-Ruiz v. Gonzales,
    
    468 F.3d 1159
    , 1165-66 (9th Cir. 2006); see also Michel v.
    INS, 
    206 F.3d 253
    , 263 (2d Cir. 2000) (“it is in the intent that
    moral turpitude inheres. . . . one way to determine whether a
    crime involves moral turpitude is whether the act is accompa-
    nied by a vicious motive or corrupt mind”). Where an act is
    only statutorily prohibited, rather than inherently wrong, the
    act generally will not involve moral turpitude. Beltran-Tirado
    v. INS, 
    213 F.3d 1179
    , 1184 (9th Cir.2000) (noting difference
    between malum prohibitum, an act only statutorily prohibited,
    13600            QUINTERO-SALAZAR v. KEISLER
    and malum in se, an act inherently wrong). For there to be
    moral turpitude, “the crime [must] involve some level of
    depravity or baseness ‘so far contrary to the moral law’ that
    it gives rise to moral outrage.” Navarro-Lopez, 
    2007 WL 2713211
    , *6 (quoting Jordan v. DeGeorge, 
    341 U.S. 223
    , 237
    n.9 (1951) (Jackson, J., dissenting)).
    The statute at issue here is Cal. Penal Code § 261.5(d),
    which provides:
    Any person 21 years of age or older who engages in
    an act of unlawful sexual intercourse with a minor
    who is under 16 years of age is guilty of either a mis-
    demeanor or a felony, and shall be punished by
    imprisonment in a county jail not exceeding one
    year, or by imprisonment in the state prison for two,
    three, or four years.
    [2] In other words, among the range of conduct criminal-
    ized by § 261.5(d), would be consensual intercourse between
    a 21-year-old (possibly a college sophomore) and a minor
    who is 15 years, 11 months (possibly a high school junior).
    That relationship may very well have begun when the older
    of the two was a high school senior and the younger a high
    school freshman and have continued monogamously without
    intercourse for two to three years before the offending event.
    On its face, such behavior may be unwise and socially unac-
    ceptable to many, but it is not “inherently base, vile, or
    depraved,” Hamdan v. INS, 
    98 F.3d 183
    , 186 (5th Cir. 1996),
    or accompanied by a “vicious motive or corrupt mind,”
    
    Michel, 206 F.3d at 263
    . Nor is it “so far contrary to the moral
    law” as to “give rise to moral outrage.” Navarro-Lopez, 
    2007 WL 2713211
    , *6. In short, the conduct discussed does not
    meet the first Fernandez-Ruiz requirement of being an “act of
    baseness or depravity contrary to accepted moral standards.”
    
    Fernandez-Ruiz, 468 F.3d at 1165-66
    .
    QUINTERO-SALAZAR v. KEISLER                     13601
    [3] Indeed, § 261.5(d) proscribes some conduct that is
    malum prohibitum. We know it is malum prohibitum and not
    malum in se because some conduct criminalized under
    § 261.5(d) would be legal if the adult and minor were mar-
    ried. See Cal. Penal Code § 261.5(a) (defining “unlawful sex-
    ual intercourse” for purposes of 261.5(d) as involving
    intercourse “with a person who is not the spouse of the perpe-
    trator, if the person is a minor”); Cal. Fam. Code § 302 (per-
    mitting a minor to marry with written consent of a parent and
    a court order). We also know it is malum prohibitum because
    some conduct under § 261.5(d) is legal in other states. See
    Ark. Code Ann. § 5-14-125(a)(3) (2006) (criminalizing inter-
    course with minors who are fourteen or under); S.C. Code
    Ann. § 16-3-655 (2006) (same). Finally, California’s purpose
    in passing the law reveals that it was not moral, so much as
    pragmatic—they were attempting to reduce teenage pregnan-
    cies. See Michael M. v. Superior Court of Sonoma County,
    
    450 U.S. 464
    , 471 (1980) (“the justification for the statute
    offered by the State, and accepted by the Supreme Court of
    California, is that the legislature sought to prevent illegitimate
    teenage pregnancies”). Because § 261.5(d) defines conduct
    that is malum prohibitum in at least some cases, it cannot cat-
    egorically be a crime of moral turpitude. Moreover, because
    § 261.5(d) is a strict liability crime that does not require any
    showing of scienter, it lacks the requisite element of willful-
    ness or evil intent as required by Fernandez-Ruiz.4
    4
    The government cites Bendel v. Nagle, 
    17 F.2d 719
    , 720 (9th Cir.
    1927), but that eighty-year-old case involved a Maryland statute different
    from the one at issue here and preceded both the establishment of the cate-
    gorical analysis of prior crimes in Taylor and the other intervening Ninth
    Circuit precedents cited herein. The government also relies on Afridi v.
    Gonzales, 
    442 F.3d 1212
    (9th Cir. 2006). However, Afridi does not
    address the question of whether conviction under § 261.5(d) constitutes a
    crime involving moral turpitude. Rather, Afridi dealt with whether convic-
    tion under § 261.5(d) constitutes an “aggravated felony.” Thus, Afridi
    would only come into play were we to hold that Quintero-Salazar did
    commit a crime involving moral turpitude, was removable, and we were
    forced to consider whether he was eligible for waiver or whether he was
    13602               QUINTERO-SALAZAR v. KEISLER
    [4] For these reasons, we conclude that Cal. Penal Code
    § 261.5(d) criminalizes conduct that is broader than that con-
    templated under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Therefore,
    § 261.5(d) is not categorically a crime involving moral turpi-
    tude within the meaning of the immigration statutes.
    III
    [5] If the crime of conviction does not categorically qualify
    as a predicate offense under a federal statute, it still may qual-
    ify under a modified categorical analysis. 
    Corona-Sanchez, 291 F.3d at 1203
    . Under the modified categorical approach
    we examine “ ‘documentation or judicially noticeable facts
    that clearly establish that the conviction is a predicate convic-
    tion’ ” for removal purposes. 
    Id. (quoting United
    States v.
    Rivera-Sanchez, 
    247 F.3d 905
    , 908 (9th Cir. 2001) (en banc)).
    Under the modified categorical approach, if “judicially notice-
    able facts would allow the defendant to be convicted of an
    offense other than that defined as a qualifying offense,” it
    cannot be used as a basis for removal. 
    Id. (quoting United
    States v. Casarez-Bravo, 
    181 F.3d 1074
    , 1077 (9th Cir.
    1999)). “As we have noted repeatedly, the government has the
    burden to establish clearly and unequivocally the conviction
    was based on all of the elements of a qualifying predicate
    ineligible on account of having committed an aggravated felony. Because
    we need not reach that question, Afridi does not control our analysis.
    Likewise, our court’s recent decision in United States v. Gomez-
    Mendez, ___ F.3d ___ (9th Cir. 2007) also does not address whether con-
    viction under § 261.5(d) constitutes a crime involving moral turpitude.
    Rather, Gomez-Mendez dealt with whether § 261.5(d) was a “crime of vio-
    lence” under the Federal Sentencing Guidelines. It answered in the affir-
    mative because those guidelines explicitly defined “crime of violence” as
    including “statutory rape.” Because we are not guided by as clear a statu-
    tory definition, and because our task is to determine what is a crime
    involving moral turpitude and not a “crime of violence,” our decision is
    controlled by Fernandez-Ruiz and Navarro-Lopez, and not Gomez-
    Mendez.
    QUINTERO-SALAZAR v. KEISLER                   13603
    offense.” United States v. Navidad-Marcos, 
    367 F.3d 903
    ,
    908 (9th Cir. 2004) (citing United States v. Velasco-Medina,
    
    305 F.3d 839
    , 851 (9th Cir. 2002); United States v. Pimentel-
    Flores, 
    339 F.3d 959
    , 968 (9th Cir. 2003); 
    Corona-Sanchez, 291 F.3d at 1211
    ).
    [6] Here, the only evidence that the government tendered
    was the fact of conviction. Therefore, absent any other judi-
    cially noticeable facts, application of the modified categorical
    approach does not alter our analysis.
    IV
    [7] Because the crime of conviction does not qualify as a
    crime involving moral turpitude within the meaning of 8
    U.S.C. § 1182(a)(2)(A)(i)(I), the BIA and IJ erred in finding
    that Quintero-Salazar was removable. Because he was not
    removable as having committed a crime of moral turpitude,
    we need not reach the question of whether he was eligible for
    a waiver of excludability on the basis of the hardship it would
    cause his U.S. citizen wife and children pursuant to INA
    § 212(h).
    PETITION GRANTED.
    KLEINFELD, Circuit Judge, dissenting:
    I respectfully dissent.
    Precedent compels me to reach the conclusion that the
    crime of which Quintero-Salazar was convicted is indeed a
    crime of moral turpitude. The crime is statutory rape, specifi-
    cally sexual intercourse by a person over 21 with a person
    under 16.1 We have held that “the crime of having carnal
    1
    Cal. Penal Code § 261.5(d). See also United States v. Gomez-Mendez,
    ___ F.3d ___ 
    2007 WL 1393657
    , at * 2 (9th Cir. 2007) (concluding that
    the “full range of conduct proscribed by Cal. Penal Code § 261.5(d)”
    meets the definition of “statutory rape”).
    13604                QUINTERO-SALAZAR v. KEISLER
    knowledge of a . . . child of the age of 15 years” “manifestly
    involves moral turpitude.”2 We have said, in dicta, that “statu-
    tory rape” is a “crime of moral turpitude.”3
    Our court has also “consistently . . . held that statutory rape
    laws prohibiting sexual contact with a minor under 16 pro-
    scribe conduct constituting sexual abuse of a minor,”4 an
    aggravated felony.5 We have even said that Quintero-
    Salazar’s crime is a “crime of violence.”6 These precedents
    leave no room, in my view, for us to conclude that the crime
    is not one of moral turpitude or is not an aggravated felony.
    I would therefore conclude, as the BIA concluded, that
    Quintero-Salazar was ineligible for a waiver.7
    The argument of the majority opinion is strong. Under
    some of the language in our circuit’s recent decision in
    Fernandez-Ruiz v. Gonzales, there might be a real question as
    to whether Quintero-Salazar’s crime is one of moral turpitude.8
    2
    Bendel v. Nagle, 
    17 F.2d 719
    , 720 (9th Cir. 1927); see also Rodriguez-
    Herrera v. INS, 
    52 F.3d 238
    , 240 (9th Cir. 1995) (“[W]e have found that
    . . . having carnal knowledge of a 15 year old female . . . involve[s] moral
    turpitude.”).
    3
    Gonzales-Alvarado v. INS, 
    39 F.3d 245
    , 246 (9th Cir. 1994). (“Typi-
    cally, crimes of moral turpitude involve fraud. However, we have included
    in this category acts . . . such as . . . statutory rape, which involve moral
    turpitude by their very nature.”) (internal quotation marks omitted).
    4
    United States v. Lopez-Solis, 
    447 F.3d 1201
    , 1205-06 (9th Cir. 2006).
    5
    See 8 U.S.C. § 1101(43) (“The term ‘aggravated felony’ means . . .
    murder, rape, or sexual abuse of a minor . . . .”).
    6
    United States v. Gomez-Mendez, ___ F.3d ___ 
    2007 WL 1393657
    , at
    * 2-3 (9th Cir. 2007).
    7
    See 8 U.S.C. § 1182(h)(1)(B) (“No waiver shall be granted . . . in the
    case of an alien who has previously been admitted to the United States as
    an alien lawfully admitted for permanent residence if . . . since the date
    of such admission the alien has been convicted of an aggravated felony
    . . . .”).
    8
    See Fernandez-Ruiz v. Gonzales, 
    468 F.3d 1159
    , 1165-66 (9th Cir.
    2006) (“[W]hile spousal abuse may be a “base or depraved act,” that fac-
    QUINTERO-SALAZAR v. KEISLER                      13605
    But Fernandez-Ruiz was about domestic assault.9 I do not
    think that the implications of the language in a domestic
    assault case can overcome our specific holdings and strong
    dicta speaking more specifically to Quintero-Salazar’s crime.
    Our precedent on the crime at issue (as opposed to the impli-
    cations of language we have written about other crimes)
    leaves me unable to join the majority.
    tor alone is not sufficient for a crime to constitute moral turpitude: the act
    must also be done willfully. . . . Indeed, this circuit’s precedent generally
    requires ‘willfulness’ or ‘evil intent’ in order for a crime to be classified
    as one involving moral turpitude. . . . Other circuits similarly emphasize
    that willfulness is critical to a moral turpitude determination. See generally
    Michel v. INS, 
    206 F.3d 253
    , 263 (2d Cir. 2000) (‘[C]orrupt scienter is the
    touchstone of moral turpitude.’).”).
    9
    
    Id. at 1161.
    

Document Info

Docket Number: 04-73128

Filed Date: 10/9/2007

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (20)

Jean Patrick Michel v. Immigration and Naturalization ... , 206 F.3d 253 ( 2000 )

Hamdan v. Immigration & Naturalization Service , 98 F.3d 183 ( 1996 )

United States v. Moses Corona-Sanchez, A/K/A Enrique ... , 291 F.3d 1201 ( 2002 )

Jose Roberto Fernandez-Ruiz v. Alberto R. Gonzales, ... , 468 F.3d 1159 ( 2006 )

United States v. Pedro Velasco-Medina , 305 F.3d 839 ( 2002 )

United States v. Jose Luis Navidad-Marcos , 367 F.3d 903 ( 2004 )

United States of America,plaintiff-Appellee v. Jose De ... , 244 F.3d 1020 ( 2001 )

United States v. Abel Casarez-Bravo, D.C. No , 181 F.3d 1074 ( 1999 )

United States v. Javier Rivera-Sanchez, A/K/A Jose Sanchez , 247 F.3d 905 ( 2001 )

Enrique Cuevas-Gaspar v. Alberto R. Gonzales, Attorney ... , 430 F.3d 1013 ( 2005 )

United States v. Gilberto Pimentel-Flores , 339 F.3d 959 ( 2003 )

Bendel v. Nagle , 17 F.2d 719 ( 1927 )

Jose Carlos Gonzalez-Alvarado v. Immigration & ... , 39 F.3d 245 ( 1994 )

Octavia Beltran-Tirado,petitioner v. Immigration and ... , 213 F.3d 1179 ( 2000 )

Theophile Carty v. John Ashcroft, Attorney General , 395 F.3d 1081 ( 2005 )

Rahmatullah Afridi v. Alberto R. Gonzales, Attorney General , 442 F.3d 1212 ( 2006 )

United States v. Alfredo Lopez-Solis, AKA Alfredo Lopez , 447 F.3d 1201 ( 2006 )

Noel Ali Rodriguez-Herrera v. Immigration and ... , 52 F.3d 238 ( 1995 )

Jordan v. De George , 71 S. Ct. 703 ( 1951 )

Taylor v. United States , 110 S. Ct. 2143 ( 1990 )

View All Authorities »