Nicarnor-Romero v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTURO NICANOR-ROMERO, 
Petitioner, No. 03-73564
v.
 Agency No.
A92-881-306
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 7, 2006*
Pasadena, California
Filed April 24, 2008
Before: Harry Pregerson, William A. Fletcher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge William A. Fletcher;
Partial Concurrence by Judge Pregerson;
Dissent by Judge Bybee
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
4309
NICANOR-ROMERO v. MUKASEY 4313
COUNSEL
Steven A. Guilin, San Diego, California, for the petitioner.
Linda S. Wernery, Janice K. Redfern, U.S. Department of
Justice, Washington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
In 1990, a jury convicted Arturo Nicanor-Romero of a vio-
lation of California Penal Code § 647.6(a). At the time of his
conviction, § 647.6(a) provided, “Every person who annoys
or molests any child under the age of 18 shall be punished by
a fine . . . , by imprisonment in a county jail not exceeding
one year, or by both the fine and imprisonment.” It has been
changed in immaterial respects since Nicanor-Romero’s con-
viction. A violation of § 647.6(a) is a misdemeanor.
4314 NICANOR-ROMERO v. MUKASEY
The government now seeks to remove Nicanor-Romero to
Mexico, based on his § 647.6(a) conviction, for having com-
mitted a “crime involving moral turpitude” within the mean-
ing of 8 U.S.C. § 1227(a)(2)(A)(i)(I). We hold that the
government has failed to show that Nicanor-Romero’s
§ 647.6(a) conviction makes him removable on this ground.
I. Background
Nicanor-Romero was born in Mexico in 1956. In April
1981, he entered the United States without inspection. Soon
thereafter, he applied for adjustment of status to lawful per-
manent resident. His application was granted on January 11,
1990. He has lived here as a lawful permanent resident, work-
ing steadily and paying taxes, since then.
On July 3, 1990, Nicanor-Romero was charged in San
Diego County, California, with two misdemeanor counts of
annoying or molesting a child under the age of eighteen in
violation of § 647.6(a). The criminal complaint sheds little
light on the underlying facts of the § 647.6(a) violation. For
both counts, it simply alleges that, “on or about June 29,
1990, . . . a misdemeanor was committed by said defendant
who did annoy or molest” a girl “under the age of 18 years
. . . .”
On August 7, 1990, a jury convicted Nicanor-Romero of
violating § 647.6(a). The verdict sheet reveals little about the
precise nature of Nicanor-Romero’s offense. It states only,
“We, the jury, . . . find the defendant, Arturo Romero
Nicanor, GUILTY of a misdemeanor who did annoy or
molest a child under the age of 18 years, in violation of Penal
Code section 647.6 . . . .” Nicanor-Romero received a 163-
day sentence. As one of the conditions of probation, he was
ordered to register as a sex offender. See Cal. Penal Code
§ 290(a)(2)(A).
On January 8, 2001, ten-and-a-half years after his misde-
meanor conviction, the government began removal proceed-
NICANOR-ROMERO v. MUKASEY 4315
ings against him based on the conviction under § 647.6(a).
The Notice to Appear charged Nicanor-Romero as subject to
removal under § 237(a)(2)(A)(iii) of the Immigration and
Nationality Act (“INA” or “the Act”), 8 U.S.C. § 1227(a)(2)
(A)(iii), as an alien convicted of an aggravated felony “as
defined in section 101(a)(43)(A) of the Act, a law relating to
sexual abuse of a minor.”
The government filed an additional charge of removal in a
second Notice to Appear on May 7, 2001. The second Notice
contains an apparent error. It charged Nicanor-Romero as
removable pursuant to
Section 237(a)(2)(A)(ii) of the Immigration and
Nationality Act, as amended, by the Immigration Act
of 1990, in that [he was] an alien who has been con-
victed of a crime involving moral turpitude commit-
ted within five years after the date of admission.
The government almost certainly meant to rely on INA
§ 237(a)(2)(A)(i)(I) rather than INA § 237(a)(2)(A)(ii). As
codified at 8 U.S.C. § 1227(a)(2)(A)(ii), INA § 237(a)(2)
(A)(ii) makes an alien removable if he or she “at any time
after admission is convicted of two or more crimes involving
moral turpitude, not arising out of a single scheme of criminal
misconduct . . . .” Yet the government never argued before the
agency that Nicanor-Romero’s § 647.6(a) conviction satisfied
the criterion of “two or more crimes involving moral turpitude
not arising out of a single scheme of criminal misconduct.”
Given that Nicanor-Romero’s § 647.6(a) conviction was for
conduct occurring on a single date, it is highly unlikely that
it satisfies this criterion. On the other hand, INA § 237(a)(2)
(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I), makes an alien
removable if he or she “is convicted of a crime involving
moral turpitude committed within five years . . . after the date
of admission[.]” Nicanor-Romero has made no argument
against removal based on the government’s charge of remov-
ability under § 1227(a)(2)(A)(ii) rather than § 1227(a)(2)(A)
4316 NICANOR-ROMERO v. MUKASEY
(i)(I). There is no difference in the definition of “moral turpi-
tude” in these two sections.
Nicanor-Romero applied for cancellation of removal pursu-
ant to 8 U.S.C. § 1229b(a), and for waiver of deportation pur-
suant to former INA § 212(c), 8 U.S.C. § 1182(c) (repealed
1996). After a brief hearing, an Immigration Judge (“IJ”) con-
cluded that a § 647.6(a) violation categorically constitutes
both an “aggravated felony” and a “crime involving moral
turpitude.” He denied Nicanor-Romero’s requested relief and
issued a final order of removal. The Board of Immigration
Appeals (“BIA”) affirmed, and this petition followed.
II. Jurisdiction
We have jurisdiction under the REAL ID Act. The
jurisdiction-stripping provision of the INA provides that noth-
ing in the statute “which limits or eliminates judicial review,
shall be construed as precluding review of constitutional
claims or questions of law . . . .” 8 U.S.C. § 1252(a)(2)(D).
Whether a crime is an aggravated felony or involves moral
turpitude is a question of law that we have jurisdiction to
review. Notash v. Gonzales, 427 F.3d 693, 696 (9th Cir.
2005); Martinez-Perez v. Gonzales, 417 F.3d 1022, 1024-25
(9th Cir. 2005).
III. Merits
Nicanor-Romero makes several arguments challenging his
final order of removal. We need respond only to his argument
that the government failed to establish that his § 647.6(a) con-
viction was categorically either an “aggravated felony” or a
“crime involving moral turpitude.”
A. “Aggravated Felony”
In United States v. Pallares-Galan, 359 F.3d 1088, 1102-03
(9th Cir. 2004), we held that a violation of § 647.6(a) is not
NICANOR-ROMERO v. MUKASEY 4317
categorically an aggravated felony, and in particular, not “sex-
ual abuse of a minor,” as defined in 8 U.S.C.
§ 1227(a)(2)(A)(iii). We reasoned that sexual abuse “requires
more than improper motivation; it requires conduct that is
abusive.” Id. at 1101-02. In contrast, conduct proscribed
under § 647.6(a), “regardless of a defendant’s lewd intent,”
may “involve neither harm or injury to a minor, nor the touch-
ing of or by a minor,” and therefore “does not constitute ‘sex-
ual abuse of a minor’ . . . .” Id. at 1102. The government
concedes that under Pallares-Galan it cannot establish that
Nicanor-Romero committed an aggravated felony for pur-
poses of the INA.
B. “Crime Involving Moral Turpitude”
1. Standard of Review
Whether a crime involves “moral turpitude” requires us to
address two issues of statutory interpretation.
First, what is the definition of “crime involving moral turpi-
tude” under 8 U.S.C. § 1227(a)(2)(A)(i)(I)? We defer to the
BIA’s interpretation of the INA, provided that the interpreta-
tion is reasonable and not inconsistent with the statute’s plain
meaning. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1021
(9th Cir. 2005). As we discuss below, however, the BIA has
provided little concrete guidance. We agree with the Seventh
Circuit that, “[s]ince the Board hasn’t done anything to partic-
ularize the meaning of ‘crime involving moral turpitude,’ giv-
ing . . . deference to its determination of that meaning has no
practical significance.” Mei v. Ashcroft, 393 F.3d 737, 739
(7th Cir. 2004).
Second, does a petitioner’s misdemeanor conviction under
§ 647.6(a) come within the definition of “crime involving
moral turpitude”? Because this inquiry requires an analysis of
a California penal statute rather than the INA, we do not defer
to the BIA’s interpretation on this question. Rather, “[w]e
4318 NICANOR-ROMERO v. MUKASEY
review de novo whether the statutory basis for an alien’s con-
viction defines a crime involving moral turpitude.” Gonzalez-
Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994).
2. Definition of “Crime Involving Moral Turpitude”
Although “the term ‘moral turpitude’ has deep roots in the
law,” Jordan v. De George, 341 U.S. 223, 227 (1951), it has
been criticized as an “undefined and undefinable standard,”
id. at 235 (Jackson, J., dissenting). The phrase “moral turpi-
tude” first appeared in federal immigration law in 1891, when
Congress barred “persons who have been convicted of a fel-
ony or other infamous crime or misdemeanor involving moral
turpitude” from entering the country. Act of Mar. 3, 1891, 26
Stat. 1084. In 1950, a Senate Report admitted that, despite
repeated use, the phrase “ha[d] not been definitely and con-
clusively defined by the courts.” S. Rpt. No. 1515, at 351
(Apr. 20, 1950). The 1950 Report defined a crime involving
moral turpitude as “ ‘[a]n act of baseness, vileness, or deprav-
ity, in the private and social duties which a man owes to his
fellow man or to society . . . .’ ” Id. (quoting United States ex
rel. Mylius v. Uhl, 203 F. 152, 154 (S.D.N.Y. 1913)). The
Report, however, refused to commit to a single method for
determining whether a crime involves moral turpitude, and
instead endorsed a case-by-case approach. Id.
[1] The BIA defines “crime involving moral turpitude” as
“conduct that shocks the public conscience as being inher-
ently base, vile, or depraved, contrary to the rules of morality
and the duties owed between man and man, either one’s fel-
low man or society in general.” Matter of Short, 20 I. & N.
Dec. 136, 139 (BIA 1989). The BIA concedes that “moral tur-
pitude” is a “nebulous concept,” id., and that it does not apply
a single set of criteria to determine which offenses qualify.
For example, the BIA has declared that “[t]he essence of
moral turpitude is an evil or malicious intent,” In re Tran, 21
I. & N. Dec. 291, 293 (BIA 1996), and that a crime involving
moral turpitude “is per se morally reprehensible and intrinsi-
NICANOR-ROMERO v. MUKASEY 4319
cally wrong or malum in se,” In re Ajami, 22 I. & N. Dec.
949, 950 (BIA 1999). However, the BIA has also stated that
a crime may qualify as one of moral turpitude even if the
offense is malum prohibitum or does not require the prosecu-
tion to establish specific intent. See In re Torres-Varela, 23 I.
& N. Dec. 78, 83 (BIA 2001) (“[A]lthough crimes involving
moral turpitude often involve an evil intent, such a specific
intent is not a prerequisite to finding that a crime involves
moral turpitude . . . . While it is generally the case that a crime
that is ‘malum in se’ involves moral turpitude and that a
‘malum prohibitum’ offense does not, this categorization is
more a general rule than an absolute standard.”); see also
Matter of Medina, 15 I. & N. Dec. 611, 614 (BIA 2001)
(holding that violation of Illinois assault statute requiring a
mens rea of recklessness was a crime involving moral turpi-
tude).
We have held that “[c]rimes of moral turpitude are of basi-
cally two types, those involving fraud and those involving
grave acts of baseness or depravity.” Carty v. Ashcroft, 395
F.3d 1081, 1083 (9th Cir. 2005). We look to “accepted moral
standards” to determine what conduct falls within the latter
category. See Rodriguez-Herrera v. INS, 52 F.3d 238, 240
(9th Cir. 1995) (internal quotation marks omitted). Under this
approach, we have held that some crimes, such as incest with
a minor and spousal abuse, clearly involve moral turpitude.
See Gonzalez-Alvarado, 39 F.3d at 246-47 (incest with a
minor); Gragreda v. INS, 12 F.3d 919, 922 (9th Cir. 1993)
(spousal abuse). In contrast, we have held that battery, bur-
glary, and possession of a firearm are not categorically crimes
involving moral turpitude. Galeana-Mendoza v. Gonzales,
465 F.3d 1054, 1055 (9th Cir. 2006) (battery); Cuevas-
Gaspar, 430 F.3d at 1020 (burglary); Komarenko v. INS, 35
F.3d 432, 435 (9th Cir. 1994) (firearm offense).
We have not relied on a consistent or easily applied set of
criteria to reach these results. The distinction between malum
in se and malum prohibitum is one important indicator, see,
4320 NICANOR-ROMERO v. MUKASEY
e.g., Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir.
2000), but not all malum in se crimes categorically involve
moral turpitude. See Galeana-Mendoza, 465 F.3d at 1055
(concluding that battery does not categorically involve moral
turpitude); Cuevas-Gaspar, 430 F.3d at 1019-20 (concluding
that burglary does not categorically involve moral turpitude).
We have declared that whether a crime involves moral turpi-
tude “turns on whether evil intent . . . is an essential element
of the crime.” Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir.
1993). But, “[w]hile mental state is an important factor,” we
have also “reject[ed] the contention that all crimes requiring
some degree of evil intent are necessarily crimes involving
moral turpitude.” Rodriguez-Herrera, 52 F.3d at 241.
[2] A crime’s actus reus requirement is an important con-
sideration. However, “it is the combination of the base or
depraved act and the willfulness of the action that makes the
crime one of moral turpitude.” Grageda, 12 F.3d at 922
(emphasis added). A crime with trivial consequences does not
necessarily involve moral turpitude just because it requires the
defendant to act with criminal intent. Conversely, an offense
with serious consequences may involve moral turpitude even
if the defendant acts only recklessly when committing it.
Compare Matter of Wojtkow, 18 I. & N. Dec. 111 (BIA 1981)
(concluding that second-degree manslaughter, which requires
a showing of recklessness, involves moral turpitude), with In
re Fualaau, 21 I. & N. Dec. 475, 477 (BIA 1996) (concluding
that simple assault, which also requires a showing of reckless-
ness, does not involve moral turpitude). See also Mei, 393
F.3d at 740 (“[C]rimes deemed not to involve moral turpitude
. . . are either very minor crimes that are deliberate or graver
crimes committed without a bad intent, most clearly strict-
liability crimes.”). Thus, 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.
NICANOR-ROMERO v. MUKASEY 4321
3. Application to Misdemeanor Conviction under
§ 647.6(a)
Based on the above guidance, such as it is, we now turn to
Nicanor-Romero’s crime. To determine if his misdemeanor
conviction under § 647.6(a) is a conviction for a “crime
involving moral turpitude,” we apply the categorical and
modified-categorical approaches. See Cuevas-Gaspar, 430
F.3d at 1017.
a. Categorical Approach
i. Section 647.6(a)
[3] The categorical approach, first articulated in Taylor v.
United States, 495 U.S. 575 (1990), requires that we “make
a categorical comparison of the elements of the statute of con-
viction to the generic definition” of moral turpitude, and then
“decide whether the conduct proscribed [in the statute] is
broader than, and so does not categorically fall within, this
generic definition.” Huerta-Guevara v. Ashcroft, 321 F.3d
883, 887 (9th Cir. 2003). Under the categorical approach, we
look only to the fact of the conviction and the statutory defini-
tion of the alien’s offense. Cuevas-Gaspar, 430 F.3d at 1017.
“The issue is not whether the actual conduct constitutes a
crime involving moral turpitude, but rather, “whether the full
range of conduct encompassed by the statute constitutes a
crime of moral turpitude.” Id. (emphasis added).
We note at the outset that we agree entirely with Judge
Bybee’s sentiments about the moral horror of sexual predation
on children. Judge Bybee writes, and we agree:
Perhaps no conduct so unequivocally violates Amer-
ican ethics as that which encompasses both of these
categories, namely sexual predation upon the most
vulnerable members of our society. Children in
particular—because of their naiveté, their depen-
4322 NICANOR-ROMERO v. MUKASEY
dence on adults, and their inability to understand,
flee, or resist such advances—are vulnerable to
adults who seek to take advantage of them sexually.
Thus, we find such conduct especially repulsive and
worthy of the severest moral opprobrium.
Dissent at 4345. The question in this case, however, is
whether the behavior prohibited by § 647.6(a) may categori-
cally be grouped with the crimes of “sexual predation” that
elicit the moral revulsion described above. Cf. Quintero-
Salazar, 506 F.3d 688, 694 (9th Cir. 2007) (concluding that
a California statute prohibiting consensual intercourse
between an adult 21 or older and a minor under 16 encom-
passed conduct that is not “ ‘so far contrary to the moral law’
as to ‘give rise to moral outrage’ ”) (quoting Navarro-Lopez
v. Gonzales, 503 F.3d 1063, 1071 (9th Cir. 2007)); Pallares-
Galan, 359 F.3d at 1102-03 (holding that a violation of
§ 647.6(a) is not “sexual abuse of a minor,” as defined in 8
U.S.C. § 1227(a)(2)(A)(iii)). That is, the question is not
whether some of the conduct prohibited by § 647.6(a) is mor-
ally turpitudinous. The question, rather, is whether all of the
conduct prohibited by § 647.6(a) is morally turpitudinous.
[4] When Nicanor-Romero was convicted, § 647.6(a) pro-
vided that “[e]very person who annoys or molests any child
under the age of 18 shall be punished by a fine . . . , by
imprisonment in a county jail not exceeding one year, or by
both the fine and imprisonment.” To prove a violation of
§ 647.6(a), the State must prove both actus reus and mens rea.
It must show that the defendant (1) engaged in “conduct a
normal person would unhesitatingly be irritated by” and (2)
was “motivated by an unnatural or abnormal sexual interest in
the victim.” People v. Lopez, 19 Cal. 4th 282, 289 (1998)
(internal quotation marks omitted); see also Cal. Jur. Instr.
(Crim.) § 16.440, Annoying or Molesting a Child (7th ed.
2005); People v. Kongs, 30 Cal. App. 4th 1741, 1750 (1994).
As construed by California courts, these two requirements
NICANOR-ROMERO v. MUKASEY 4323
encompass a broader swath of behavior than their formal
description suggests.
[5] Section 647.6(a)’s actus reus requirement — “conduct
a normal person would unhesitatingly be irritated by” — can
be satisfied fairly easily. Without its mens rea requirement,
§ 647.6(a) would prohibit many acts that hardly shock the
public conscience as gravely base or depraved. Even brief
touching of a child’s shoulder qualifies as annoying conduct
under the actus reus requirement of § 647.6(a). See In re Hud-
son, 143 Cal. App. 4th 1, 5 (2006) (placing hand on child’s
shoulder while he played video game); see also People v.
McFarland, 78 Cal. App. 4th 489, 492 (2000) (stroking
child’s arm and face in laundromat). In fact, no actual touch-
ing is required. See Cal. Jur. Instr. (Crim.) § 16.440. For
example, photographing children in public places with no
focus on sexual parts of the body satisfies the actus reus ele-
ment of § 647.6(a), so long as the manner of photographing
is objectively “annoying.” People v. Dunford, No. D039720,
2003 WL 1275417, at *4 (Cal. Ct. App. Mar. 19, 2003)
(rejecting argument that “the defendant’s conduct” must “be
sexual” in nature). “[H]and and facial gestures” or “[w]ords
alone” also satisfy the actus reus of § 647.6(a). Pallares-
Galan, 359 F.3d at 1101 (internal quotation marks and
emphasis omitted). Words need not be lewd or obscene so
long as they, or the manner in which they are spoken, are
objectively irritating to someone under the age of eighteen.
People v. Thompson, 206 Cal. App. 3d 459, 465 (1988).
Moreover, “[i]t is not necessary that the act[s or conduct]
actually disturb or irritate the child . . . .” Cal. Jur. Instr.
(Crim.) § 16.440. That is, the actus reus component of
§ 647.6(a) does “not necessarily require harm or injury,
whether psychological or physical.” United States v. Baza-
Martinez, 464 F.3d 1010, 1015 (9th Cir. 2006). In short,
§ 647.6(a) is an annoying photograph away from a thought
crime.
Judge Bybee, dissenting in this case, complains that we
have “suggest[ed] that a crime cannot involve moral turpitude
4324 NICANOR-ROMERO v. MUKASEY
unless the actus reus results in some sort of injury to the vic-
tim.” Dissent at 4350. We have suggested nothing of the sort.
We simply observe that the actus reus component of
§ 647.6(a) is satisfied by relatively minor conduct.
Having examined the actus reus requirement of § 647.6(a),
we turn to the question of whether the relatively non-culpable
acts proscribed by § 647.6(a) become morally turpitudinous
when considered together with the statute’s mens rea require-
ment. We note, as an initial matter, that we are aware of no
cases outside of the fraud context in which this court has held
that a non-serious crime falls within the moral turpitude cate-
gory solely by virtue of its mens rea element. See Rodriguez-
Herrera, 52 F.3d at 240 (“[W]e have not held that if a statute
requires evil intent, it necessarily involves moral turpitude.
We have held only that without an evil intent, a statute does
not necessarily involve moral turpitude.” (emphases in origi-
nal)). “[O]utside of the fraud context, the bare presence of
some degree of evil intent is not enough to convert a crime
that is not serious into one of moral turpitude,” and even in
the case of fraud, evil intent is “necessary, but not sufficient,
for a crime inevitably to involve moral turpitude.” Id. at 241.
[6] The mens rea requirement, like the actus reus require-
ment, does not pose a particularly high hurdle to conviction
under § 647.6(a). By judicial construction, § 647.6(a) has
been interpreted to apply only to conduct that is “motivated
by an unnatural or abnormal sexual interest or intent.” In re
Gladys R., 1 Cal. 3d 855, 867 (1970) (confirming interpreta-
tion of People v. Pallares, 112 Cal. App. 2d 895, 901 (1952)).
As construed by the California courts, this “unnatural or
abnormal sexual interest” requirement is not very demanding.
To be convicted under § 647.6(a), the defendant need not pos-
sess a specific intent to commit any crime, sexual or other-
wise, against the child. See People v. Maurer, 32 Cal. App.
4th 1121, 1126-27 (1995) (noting that § 647.6(a) is a “strange
beast” because despite the motivation requirement, “no spe-
cific intent is prescribed as an element of this particular
NICANOR-ROMERO v. MUKASEY 4325
offense” (internal quotation marks omitted)). Rather, the
unnatural or abnormal nature of a defendant’s sexual interest
under § 647.6(a) may be shown by the mere fact that the sub-
ject of the interest was underage. That is, a sexual interest that
would be natural and normal if motivated by conduct directed
at an 18-year old becomes unnatural or abnormal under
§ 647.6(a) if directed at someone who is underage. For exam-
ple, in People v. Villareal, No. B16161735, 2003 WL
21153430 (Cal. Ct. App. May 20, 2003), described in greater
detail below, the Court of Appeal affirmed the conviction of
a defendant who made suggestive comments and offered a
ride to an underage girl. Likewise, in Dunford, the Court of
Appeal affirmed the conviction of a defendant who took non-
sexually-explicit photographs of non-sexual parts of the
bodies of two fully clothed underage girls “in an annoying
manner and with a sexual motivation.” 2003 WL 1275417, at
*4; see also People v. Thompson, 206 Cal. App. 3d 459, 466
n.3 (1988) (affirming a conviction on several grounds, noting,
“His sexual interest was also made clear by his own admis-
sion that he had been ‘admiring’ the [underage] girl’s legs”).
Judge Bybee maintains that § 647.6(a) requires proof of a
“predatory” sexual interest. Dissent at 4358. He supports this
contention by citing various formal statements of the “unnatu-
ral or abnormal sexual interest” requirement. Id. at 4358. As
the cited statements make clear, however, it is Judge Bybee
who has supplied the word “predatory.” That word does not
appear in § 647.6(a); nor does it appear in California courts’
recitations of the elements of § 647.6(a).
[7] As part of its case-in-chief, the prosecution in a
§ 647.6(a) case may prove mens rea merely by showing that
the subject of an otherwise natural sexual interest was under
eighteen. See Cal. Jur. Instr. § 16.440. The defendant may
raise his lack of knowledge of the victim’s age as a defense.
But a defendant with a good faith but “unreasonable” mis-
taken belief that the victim is eighteen or older still satisfies
the mens rea requirement of § 647.6(a). People v. Magpuso,
4326 NICANOR-ROMERO v. MUKASEY
23 Cal. App. 4th 112, 115 (1994); People v. Atchison, 22 Cal.
3d 181, 183-84 (1978) (Clark, J., concurring and dissenting);
see also Thompson, 206 Cal. App. 3d at 466 n.3. In other
words, a defendant may be convicted under § 647.6(a) if he
is merely negligent in believing that the victim is eighteen or
older. See People v. Rippberger, 231 Cal. App. 3d 1667, 1682
(1991) (“As long as the trier of fact determines that the defen-
dant was unreasonable in [his or her] belief,” “[c]riminal neg-
ligence may be found even when a defendant acts with a
sincere good faith belief that his or her actions pose no risk.”
(emphasis in original)). Thus, under California law, a defen-
dant may be found to have manifested an “unnatural or abnor-
mal sexual interest,” and thereby have satisfied the mens rea
requirement of § 647.6(a), solely because he possessed an
otherwise natural and normal interest in an underage person
whom he negligently believed to be eighteen.
[8] Based on the combination of § 647.6(a)’s actus reus and
mens rea requirements, we conclude that the statute, consid-
ered in the abstract, encompasses behavior that is not morally
turpitudinous. Judge Bybee complains that we have reached
this conclusion by employing a “novel test” that “divid[es] the
offense into decontextualized actus reus and mens rea compo-
nents.” Dissent at 4349. But we have done just the opposite.
It is clear that a statute’s actus reus and mens rea requirements
must be considered together. As we state above, “A crime
with trivial consequences does not necessarily involve moral
turpitude just because it requires the defendant to act with
criminal intent. Conversely, an offense with serious conse-
quences may involve moral turpitude even if the defendant
acts only recklessly when committing it.” Supra, at 4320. We
fail to see how assessing the culpability of a crime by consid-
ering its actus reus and mens rea together constitutes a “novel
test.”
In fact, it is Judge Bybee’s failure to consider the actus reus
and mens rea requirements together that prevents him from
recognizing the distinction between a violation of § 647.6(a)
NICANOR-ROMERO v. MUKASEY 4327
and the crimes we have previously held to be morally turpi-
tudinous. For example, Judge Bybee complains that “[u]nder
the majority’s mens rea analysis, it is doubtful that any statute
criminalizing behavior directed at children would qualify as
a crime of moral turpitude so long as it did not provide for a
good faith mistake-of-age defense.” Dissent at 4353. As Judge
Bybee notes, and we agree, crimes such as statutory rape and
carnal knowledge of a minor, which allow no good faith
mistake-of-age defense, may categorically involve moral tur-
pitude. Dissent at 4344. The only way Judge Bybee could fail
to see the difference between these crimes and a conviction
under § 647.6(a) is by focusing solely on their mens rea
requirements, and ignoring their actus reus requirements. As
should be clear to Judge Bybee, statutory rape and carnal
knowledge of a minor are more culpable than the conduct pro-
hibited by § 647.6(a) because the former involve sexual inter-
course with a child, a deeply offensive actus reus, while the
latter involves only “conduct a normal person would unhe-
sitatingly be irritated by.” Lopez, 19 Cal. 4th at 289 (internal
quotation marks omitted).
Judge Bybee makes the same mistake when he argues that
child abuse, which “is a crime involving moral turpitude only
because of the age of the victim,” “could not survive the
majority’s rigorous mens rea requirement” without allowing
a good faith mistake-of-age defense. Dissent at 4354 n.6. For
the same reason that we have no difficulty distinguishing
between sexual intercourse with a child and conduct prohib-
ited by § 647.6(a), we have no difficulty distinguishing
between child abuse and assault of an adult. Although both
crimes involve the same mens rea, the actus reus of assaulting
a child is obviously more culpable than the act of assaulting
an adult.
Judge Bybee’s failure to recognize that moral turpitude
depends on the combination of actus reus and mens rea is also
responsible for his mistaken assertion that the present case is
controlled by Morales v. Gonzales, 478 F.3d 972 (9th Cir.
4328 NICANOR-ROMERO v. MUKASEY
2007). See Dissent at 4351-52. In Morales, we held that a
Washington statute prohibiting “communicat[ion] with a
minor for immoral purposes” was categorically a crime of
moral turpitude. Morales, 478 F.3 at 978 (citing Wash. Rev.
Code § 9.68A.090). But just as statutory rape involves a more
culpable actus reus than § 647.6(a), § 9.68A.090 requires a
more culpable mens rea. This is so for two reasons.
First, § 9.68A.090 requires that the communication with a
minor be for “immoral purposes.” See Morales, 478 F.3d at
978 (“[I]mmorality is one of the elements of the crime under
Washington law.”). The Washington courts have indicated
that to be “immoral,” a communication must be designed to
“promot[e] a minor’s exposure and involvement in ‘sexual
misconduct.’ ” State v. Hosier, 157 Wash. 2d 1, 11-12 (2006).
For example, in Hosier, 157 Wash. 2d at 14, the Washington
Supreme Court noted that the defendant had placed pink
underpants on a fence with the “overall intent . . . to convince
a young girl to take off her underpants to engage in sexual
misconduct.” Further, the Court noted that the defendant did
not dispute that he wrote notes to the 13-year-old girl with the
“purpose of promoting a minor’s exposure and involvement
in sexual misconduct.” Id. at 11-12 (internal quotation marks
omitted). By contrast, there is no requirement under
§ 647.6(a) that the defendant have such a purpose. For exam-
ple, the defendant in Dunford was convicted under § 647.6(a)
based on his taking pictures of fully clothed children in a pub-
lic place, focusing on non-sexual parts of their bodies, with no
showing that he intended to expose the children to, or involve
them in, sexual misconduct. 2003 WL 1275417, at *4. Judge
Bybee simply fails to recognize the distinction between pro-
moting a child’s involvement in sexual misconduct, as in
§ 9.68A.090, and annoying a child by objectively non-sexual
conduct while holding an unarticulated private sexual interest,
as in § 647.6(a). See Dissent at 4356 n.8.
Second, § 9.68A.090 requires that the defendant act with
specific criminal intent. See Hosier, 157 Wash. 2d at 15; State
NICANOR-ROMERO v. MUKASEY 4329
v. Montoya, 115 Wash. App. 1050, No. 28017-5-II, 2003 WL
464075, at *2 (Feb. 25, 2003) (explaining what evidence of
“[s]pecific criminal intent” is sufficient to support a
§ 9.68A.090 conviction). By contrast, § 647.6(a) does not
require specific intent. Maurer, 32 Cal. App. 4th at 1126-27.
We find these distinctions significant. To be convicted
under § 9.68A.090, a defendant must intend to engage a
minor in sexual misconduct and must do so with full knowl-
edge that the victim is underage. To be convicted under
§ 647.6(a), a defendant need do neither. Judge Bybee empha-
sizes that § 9.68A.090, like § 647.6(a), does not require actual
harm to the child and suggests that we are therefore unable to
distinguish this case from Morales. Dissent at 4356 n.8; see
also Dissent at 4351 n.4 (“[T]he majority provides no expla-
nation why, after Morales, we should place any weight on the
absence of a physical-contact element in determining whether
violation of § 647.6(a) involves moral turpitude.”). Judge
Bybee has again considered actus reus and mens rea sepa-
rately rather than in combination. Although § 9.68A.090, like
§ 647.6(a), does not require actual harm to a child, it requires
a significantly more culpable mens rea than does § 647.6(a).
Under the California case law just described, an 18-year-
old man’s sexual interest in a girl one day short of her eigh-
teenth birthday, whom the man negligently believes to be over
eighteen, manifested only by annoying behavior such as pho-
tographing nonsexual parts of her fully clothed body, could
support a conviction under § 647.6(a). We would not hold
such behavior morally turpitudinous. Until a short time ago,
the possibility of a conviction on such facts would have been
enough, under the categorical approach, for us to hold that a
defendant convicted of violating § 647.6(a) did not commit a
crime of moral turpitude.
[9] However, after this case was briefed and submitted for
decision, the Supreme Court decided Gonzales v. Duenas-
Alvarez, 127 S. Ct. 815 (2007). The petitioner in Duenas-
4330 NICANOR-ROMERO v. MUKASEY
Alvarez was a legal permanent resident who claimed that he
was not removable because his conviction was not a “theft
offense” under the INA. Id. at 818. The Court rejected this
claim after applying the categorical approach first articulated
in Taylor. Id. The Court went through the familiar steps of
identifying the generic definition of theft and comparing it to
the California law under which Duenas-Alvarez had been
convicted. Id. at 820-21. But then the Court wrote:
[I]n our view, to find that a state statute creates a
crime outside the generic definition of a listed crime
in a federal statute requires more than the application
of legal imagination to a state statute’s language. It
requires a realistic probability, not a theoretical
possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a
crime. To show that realistic possibility, an offender,
of course, may show that the statute was so applied
in his own case. But he must at least point to his own
case or other cases in which the state courts in fact
did apply the statute in the special (nongeneric) man-
ner for which he argues.
Id. at 822 (emphasis added).
The full implications of the Court’s “realistic probability”
test are, at this point, unclear. In the more than a decade and
a half since the Court decided Taylor, this court and others
have developed a substantial body of case law deciding
whether various state criminal statutes fall within the scope of
the “crime involving moral turpitude” offense. This case law
has brought some measure of predictability to the law despite
the vagaries of the phrase “moral turpitude.” The same is true
of many other state criminal statutes with respect to the vari-
ous crimes that may constitute “aggravated felonies” under
both immigration and sentencing law. In much of this case
law, we have relied on the “application of legal imagination
to a state statute’s language” to determine the range of con-
NICANOR-ROMERO v. MUKASEY 4331
duct that might be successfully prosecuted under it. By disap-
proving of such an approach, Duenas-Alvarez leaves
uncertain the continued validity of this extensive case law.
The Court in Duenas-Alvarez also leaves unaddressed
important issues about how courts are to decide whether the
“realistic probability” showing has been made. We mention
only two such issues here.
First, it is unclear who bears the burden of demonstrating
a “realistic probability” that conduct reached by a statute falls
within the scope of a “crime involving moral turpitude.” The
Court’s opinion in Duenas-Alvarez could be read to suggest
that it was incumbent on the petitioner to make this showing.
Id. But in a removal proceeding such as the case now before
us, it is the government that bears the burden of proving
removability by “clear, unequivocal, and convincing evi-
dence.” Notash, 427 F.3d at 697 (internal quotation marks
omitted).
Second, the opinion fails to specify what type of evidence
may be used to satisfy the “realistic probability” requirement.
A sufficient showing under Duenas-Alvarez might be based
on factual evidence of actual convictions, on unpublished and
nonprecedential opinions, on statutory language and the logic
of published opinions, or on some combination thereof. This
evidentiary issue is likely to arise in many forms, and we note
that in immigration proceedings some of the ordinary eviden-
tiary rules do not apply. Hernandez-Guadarrama v. Ashcroft,
394 F.3d 674, 681 (9th Cir. 2005).
Whatever the practicalities of demonstrating a conviction
through factual evidence, however, it cannot be that the pres-
ence of a “realistic probability” under Duenas-Alvarez
depends on whether a conviction is described in an unpub-
lished rather than a published opinion. But see Dissent at
4357, 4361-64 (complaining that we rely on an unpublished
opinion in applying Duenas-Alvarez). In determining the
4332 NICANOR-ROMERO v. MUKASEY
actual application of a statute, a conviction is a conviction,
regardless of the manner in which it is reported. We trust that
if a client sought advice regarding the scope of a state statute,
Judge Bybee would not advise the client to engage in conduct
that had already been held illegal simply because the convic-
tion was reported in an unpublished opinion.
[10] Similarly, we do not believe that the categorical
approach after Duenas-Alvarez is satisfied only when a state
repeatedly applies a statute to non-turpitudinous conduct. But
see Dissent at 4363 (“[I]t is unwise to rely on a single unpub-
lished decision.”). Duenas-Alvarez’s “realistic probability”
requirement eliminated the application of “legal imagination”
in defining the outer reaches of a state law. But it did not alter
the fundamental logic of the categorical approach, which
looks to “whether the full range of conduct encompassed by
the statute constitutes a crime of moral turpitude.” Cuevas-
Gaspar, 430 F.3d at 1017 (emphasis added). To suggest that
a state law does not apply to conduct involving moral turpi-
tude unless it is regularly applied to non-turpitudinous con-
duct would not only bring an end to the “categorical”
approach, but would also require an entirely unmanageable
standard. See Duenas-Alvarez, 127 S. Ct. at 822 (noting that
a defendant may show a “realistic probability” that a state
would apply its statute to conduct outside the generic defini-
tion of a crime simply by pointing to “his own case”).
ii. Application of Duenas-Alvarez
[11] Although the “reasonable probability” requirement of
Duenas-Alvarez may be satisfied in a variety of ways, it is
clear that an alien has not been convicted of a crime involving
moral turpitude if he can “point to his own case or other cases
in which the state courts in fact did apply the statute” to non-
turpitudinous conduct. Duenas-Alvarez, 127 S. Ct. at 822.
One unpublished opinion by the California Court of Appeal
provides a detailed description of factual circumstances that
supported an actual conviction under § 647.6(a). Based on
NICANOR-ROMERO v. MUKASEY 4333
this conviction, I believe there is “a realistic probability, not
a theoretical possibility, that the State would apply
[§ 647.6(a)] to conduct that falls outside the generic definition
[of a ‘crime involving moral turpitude’].” Duenas-Alvarez,
127 S. Ct. at 822.
The case is People v. Villareal, 2003 WL 21153430. A 13-
year-old girl was walking along “a quiet, somewhat isolated
street” in Lompoc, a small town in California, to catch a bus
to soccer practice. Id. at *1. The defendant stopped his pickup
truck across the street from her and asked the girl her name.
Id. After she told him, he asked her if “she had gone ‘to see
the flag.’ ” Id. The flag was a “display of flowers planted to
resemble a flag,” which could be viewed from a place “known
as ‘make-out point’ ” not far from the street. Id. at *1 & n.2.
The girl responded that she had gone to see the flag. The
defendant then told her, “Well, when I look at you I see
stars.” Id. at *1. The girl “thought the comment was inappro-
priately sexual and that [the defendant] was smirking at her.
Id. She felt scared and violated . . . .” Id. The girl “began to
walk and then to run away from [the defendant] toward the
bus stop.” Id. The defendant followed her in his truck and
asked her if she needed a ride. Id. “She said no and kept run-
ning. He continued to follow her for a short distance and then
turned a corner,” and drove away. Id. The foregoing was the
full extent of the defendant’s interaction with the girl.
As luck would have it, the girl was the daughter of a Lom-
poc police officer. Id. After being informed by her daughter
of what had happened, the police officer searched for, and
apprehended, the defendant. Id. When he was apprehended,
the defendant stated that he thought the victim was “a ‘cute
girl’ and that she was 16 or 17 years old. . . . Now that he
knew [her] age, [he] agreed that his comment about seeing
stars was ‘kind of inappropriate, being that it was kind of
strange.’ He denied having any sexual intent in speaking to
[the girl].” Id. The defendant further stated that he had been
diagnosed with schizophrenia but had quit taking his medica-
4334 NICANOR-ROMERO v. MUKASEY
tion before the incident on the advice of “his mental health
workers.” Id.
On this evidence, the California Court of Appeal con-
cluded:
Appellant stopped to talk to a 13-year old girl who
was walking alone on an isolated street. His refer-
ences to a local “make out” spot and to seeing stars
when he looked at [the girl] would be irritating to a
normal person and demonstrate that the conversation
was motivated by appellant’s sexual interest in [the
girl]. (People v. Maurer, . . . , 32 Cal. App. 4th at p.
1127, 38 Cal. Rptr. 2d 335 [mental state required to
violate § 647.6 is conduct motivated by unnatural or
abnormal sexual interest].) The child believed that
appellant’s comments were sexual in nature and tes-
tified that he was “smirking” at her. Even if the ini-
tial comments were ambiguous, appellant followed
[the girl] down the street as she ran away from him
and asked her if she needed a ride. This conduct
unquestionably would irritate a normal person. . . .
Finally, appellant confirmed the sexual nature of his
conduct when he told Sgt. Strange that he thought
[the girl] was a “cute girl[.]”
Id. at *2 (bracketed phrase “[the girl]” added to replace the
girl’s name; other brackets in original; internal citations omit-
ted). On this basis, the court affirmed the defendant’s convic-
tion under § 647.6(a).
The Court of Appeal’s decision in Villareal is, of course,
a proper holding that Villareal violated § 647.6(a). But the
issue is not whether Villareal’s conduct violated § 647.6(a),
which it clearly did. The issue is whether that conduct was
morally turpitudinous. I do not believe that Villareal’s con-
duct constituted a “grave act[ ] of baseness or depravity.”
Carty, 395 F.3d at 1083. Nor, in my view, did it constitute
NICANOR-ROMERO v. MUKASEY 4335
“conduct that shocks the public conscience as being inher-
ently base, vile, or depraved, contrary to the rules of morality
and the duties owed between man and man, either one’s fel-
low man or society in general.” Matter of Short, 20 I. & N.
Dec. at 139.
Judge Bybee objects to this analysis of Villareal because
that case involved the revocation of probation, and “the stan-
dard of proof was [therefore] lower than the ‘beyond a reason-
able doubt’ standard required in a criminal trial.” Dissent at
4364. For this objection to be relevant, the behavior covered
by a statute would have to vary depending on the standard of
proof applied. To state this proposition is to refute it.
[12] Judge Bybee further objects that we have offered a
“sterile retelling” of the facts in Villareal. He would hold that,
because “the trier of fact determined that Villareal engaged in
offensive behavior that was motivated by unnatural or abnor-
mal sexual interest in the victim,” Villareal’s conduct
involved moral turpitude. Dissent at 4363. Judge Bybee has
once again assumed that, because the formal elements of
§ 647.6(a) sound morally turpitudinous, a conviction may
only be had under the statute for morally turpitudinous con-
duct. As we have explained above, and as Villareal confirms,
the actual application of § 647.6(a) by California courts shows
that mere annoying behavior, motivated by a sexual interest
that would not be abnormal if directed at an adult, may be
deemed a violation of § 647.6(a) if directed at a person who
is underage.
Yet, based on his erroneous interpretation of § 647.6(a) as
requiring a “predatory” sexual interest, Judge Bybee argues
that, because the trier of fact found a violation of § 647.6(a)
in Villareal, it must have found that the conduct in Villareal
manifested a predatory sexual interest. Id. At best, his argu-
ment is circular. At worst, it manifests a lack of fidelity to the
record, with Judge Bybee treating his own speculations as if
they were established facts. See id. (referring to Villareal as
4336 NICANOR-ROMERO v. MUKASEY
“a story of a prelude to a rape”). To avoid any possibility of
confusion as to what Villareal did (and did not) do, I attach
the full report of the Court of Appeal’s decision. Infra, app.
A.
iii. Conclusion
[13] After examining the elements of § 647.6(a), as set
forth in the statute and as construed by California courts, we
conclude that there is a “realistic probability, not a theoretical
possibility,” that a misdemeanor conviction under § 647.6(a)
can be based on behavior that, while criminal, does not rise
to the level of a “crime involving moral turpitude” within the
meaning of 8 U.S.C. § 1227(a)(2)(A)(i)(I).
b. Modified Categorical Approach
Because § 647.6(a) prohibits conduct that may not neces-
sarily involve moral turpitude, we turn to the modified cate-
gorical approach to determine if Nicanor-Romero’s actual
offense involved moral turpitude. We “look beyond the lan-
guage of the statute to a narrow, specified set of documents
that are part of the record of conviction, including the indict-
ment, the judgment of conviction, jury instructions, a signed
guilty plea, or the transcript from the plea proceedings.”
Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004) (inter-
nal quotation mark omitted). We do not look beyond such
documents, however, to determine what particular underlying
facts might have supported Nicanor-Romero’s conviction. Id.
Under the modified categorical approach, the government
must show by clear and convincing evidence that the actual
crime committed by Nicanor-Romero was a “crime involving
moral turpitude.” See Notash, 427 F.3d at 697.
[14] The relevant documents tell us little about what
Nicanor-Romero actually did. Both the criminal complaint
and the jury verdict sheet simply recite the elements of the
crime described in § 647.6(a). Nicanor-Romero was also con-
NICANOR-ROMERO v. MUKASEY 4337
victed of battery, but the record does not tell us in what way
the battery may have been related to his § 647.6(a) conviction.
“Inferences . . . are insufficient under the modified categorical
approach.” Cisneros-Perez v. Gonzales, 451 F.3d 1053, 1059
(9th Cir. 2006). The fact that Nicanor-Romero had to register
as a sex offender gives us no information beyond the bare fact
of a conviction under § 647.6(a), because registration is auto-
matically required for everyone convicted of a § 647.6(a) vio-
lation. See Cal. Penal Code § 290(a)(2)(A). In short, the
modified categorical approach does not allow us to determine
with the requisite degree of certainty that the actual offense
committed by Nicanor-Romero was a “crime involving moral
turpitude.”
Conclusion
[15] We conclude that the government has failed to show
that Nicanor-Romero committed either an aggravated felony
or a crime involving moral turpitude. We therefore grant the
petition and vacate the order of removal.
Petition GRANTED; order of removal VACATED.
4338 NICANOR-ROMERO v. MUKASEY
Appendix A
NICANOR-ROMERO v. MUKASEY 4339
4340 NICANOR-ROMERO v. MUKASEY
NICANOR-ROMERO v. MUKASEY 4341
PREGERSON, Circuit Judge, specially concurring:
Our decision in this case is constrained by a meager record.
All the record tells us is that Nicanor-Romero was convicted
of violating § 647.6(a), a broadly written statute that provides,
“Every person who annoys or molests any child under the age
of 18 shall be punished by a fine . . . by imprisonment in a
county jail not exceeding one year, or by both fine and impris-
onment.” Cal. Pen. Code § 647.6(a) (West 2005). We also
know that Nicanor-Romero was sentenced to 163-days in
prison and was ordered to register as a sex offender. But the
record does not tell us what Nicanor-Romero actually did to
violate § 647.6(a). In fact, we have no knowledge of the fac-
tual circumstances that led to Nicanor-Romero’s misdemea-
nor conviction under § 647.6(a).
Like Judge Fletcher, I conclude that there is a “realistic
probability, not a theoretical possibility,” that a misdemeanor
conviction under § 647.6(a) can be based on behavior that,
while criminal, does not rise to the level of a “crime involving
moral turpitude” within the meaning of 8 U.S.C.
§ 1227(a)(2)(A)(i)(I). Section 647.6(a) encompasses behavior
that is not morally turpitudinous and, consequently, I cannot
conclude, given the meager record before us, that Nicanor-
Romero’s violation of § 647.6(a) is a crime involving moral
turpitude. I therefore join Judge Fletcher in refusing to hold
that every violation of § 647.6(a) constitutes a crime of moral
turpitude regardless of its factual circumstances.
I disagree, however, with Judge Fletcher’s reliance on Peo-
ple v. Villareal, 2003 WL 21153430 (Cal. Ct. App. May 20,
2003). In that case, Villareal, who was driving a pick-up
truck, “stopped to talk to a 13-year old girl who was walking
alone on an isolated street.” Id. at * 2. “[M]otivated by [his]
sexual interest” in the young girl, Villareal referred to “a local
‘make out’ spot and to seeing stars.” Id. The girl believed
these comments “were sexual in nature” and noted that Villa-
real was “smirking” at her. Id. She felt “scared and violated.”
4342 NICANOR-ROMERO v. MUKASEY
Id. at * 1. She began to walk and then to run away. Id. Villa-
real followed her in his pick-up truck, even after she refused
his offer to give her a ride. Id. He then turned the corner and
drove away. Id. I am firmly convinced that Villareal’s actions
constituted a crime of moral turpitude. His behavior was
indeed the sort of “conduct that shocks the public conscience
as being inherently base, vile, or depraved, contrary to the
rules of morality and the duties owed between man and man,
either one’s fellow man or society in general.” Matter of
Short, 20 I. & N. Dec. 136, 139 (BIA 1989).
Without relying on Villareal, I reject the dissent’s sugges-
tion that a violation of § 647.6(a) is per se a crime of moral
turpitude. Accordingly, I join Judge Fletcher in granting the
petition and vacating the order of removal.
BYBEE, Circuit Judge, dissenting:
California Penal Code § 647.6(a) punishes objectively
offensive behavior toward children that is motivated by an
unnatural or abnormal sexual interest. The majority holds that
violation of § 647.6(a) is not, categorically, a crime involving
moral turpitude. The majority accomplishes this by focusing
exclusively—and separately—on the actus reus and mens rea
of the offense. However, we have never subjected sexual
offenses to the type of rigorous actus reus and mens rea anal-
ysis employed by the majority to determine whether they
involve moral turpitude. Rather, with sex crimes we have
relied on contemporary moral standards and the distinction
between malum in se and malum prohibitum offenses. The
majority abandons both approaches.
I agree with the majority that “[w]e have not relied on a
consistent or easily applied set of criteria” to judge what con-
stitutes a crime involving moral turpitude, and I would
applaud any effort to reconcile the cases and bring clarity to
NICANOR-ROMERO v. MUKASEY 4343
this area. Maj. Op. at 4319. However, I believe that the major-
ity’s approach renders our precedents less comprehensible.
The majority essentially eliminates an entire category of anal-
ysis from our jurisprudence and would require us to repudiate
much of our precedent involving sexual offenses against
minors. In my view, the majority has not tried to reconcile our
cases so much as to upend them. Furthermore, in the process,
the majority recasts § 647.6(a) in a way that renders it unrec-
ognizable to California courts. The Supreme Court warned us
this last Term that we must do more than apply our “legal
imagination to a state statute’s language.” Gonzales v.
Duenas-Alvarez, 127 S. Ct. 815, 822 (2007). No less can be
said about applying our imagination to a state’s caselaw.
I respectfully dissent.
I
In this section, I first discuss how we have treated sexual
offenses and then turn to how our precedent on moral turpi-
tude applies to the California statute in question, California
Penal Code § 647.6(a).
A
“We have generally divided crimes involving moral turpi-
tude into two basic types: ‘those involving fraud and those
involving grave acts of baseness or depravity.’ ” Galeana-
Mendoza v. Gonzales, 465 F.3d 1054, 1058 (9th Cir. 2006)
(quoting Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.
2005)). Although the latter category is not well-defined, both
we and our sister circuits have consistently held that sexual
offenses generally fall within that category. See Morales v.
Gonzales, 478 F.3d 972, 978 (9th Cir. 2007) (immoral com-
munication with a minor); Gonzalez-Alvarado v. INS, 39 F.3d
245, 246-47 (9th Cir. 1994) (incest) (per curiam); Schoeps v.
Carmichael, 177 F.2d 391, 394 (9th Cir. 1949) (lewd and las-
civious conduct); Bendel v. Nagle, 17 F.2d 719, 720 (9th Cir.
4344 NICANOR-ROMERO v. MUKASEY
1927) (statutory rape); see also Sheikh v. Gonzales, 427 F.3d
1077, 1082 (8th Cir. 2005) (contributing to delinquency of a
minor); Maghsoudi v. INS, 181 F.3d 8, 14-15 (1st Cir. 1999)
(indecent assault); Palmer v. INS, 4 F.3d 482, 485 (7th Cir.
1993) (contributing to sexual delinquency of a minor); Castle
v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (carnal knowl-
edge of a minor) (per curiam); Marciano v. INS, 450 F.2d
1022, 1024 (8th Cir. 1971) (statutory rape); United States v.
Kiang, 175 F. Supp. 2d 942, 951-52 (E.D. Mich. 2001)
(fourth degree sexual assault).1 Such offenses so violate con-
temporary moral standards that they “involve moral turpitude
by their very nature.” Gonzalez-Alvarado, 39 F.3d at 246
(internal quotation marks omitted).
Sexual offenses have consistently been classified as crimes
involving moral turpitude irrespective of any injury to the vic-
tim, physical or otherwise. Sexual misconduct need not rise to
the level of rape or involve physical assault to violate contem-
porary moral standards. In fact, to constitute a crime involv-
ing moral turpitude, the sexual misconduct need not even
involve physical contact: We recently held that mere verbal
communication with a minor “for immoral purposes of a sex-
ual nature” is sufficiently contrary to American ethics to con-
stitute a crime involving moral turpitude. Morales, 478 F.3d
at 978.
We have also recognized that baseness and depravity inhere
in offenses committed against particularly vulnerable victims,
such as children or spouses. We have held, for example, that
1
Although statutory rape has long been considered a crime involving
moral turpitude, we recently held that California Penal Code § 261.5(d),
which makes it a crime for an individual twenty-one years of age or older
to engage in sexual intercourse with a minor who is under sixteen years
of age, “is not categorically a crime involving moral turpitude within the
meaning of the immigration statutes.” Quintero-Salazar v. Keisler, 506
F.3d 688, 694 (9th Cir. 2007). In reaching that conclusion, however, we
relied on the distinction between crimes that are malum in se and malum
prohibitum, see id. at 693-94, an approach that the majority abandons.
NICANOR-ROMERO v. MUKASEY 4345
both spousal abuse and child abuse are crimes involving
moral turpitude, even though under California law, they are
merely variations on the offense of battery—which is not
itself a crime involving moral turpitude. See CAL. PENAL CODE
§ 243(e)(1) (battery against one’s spouse); Grageda v. INS, 12
F.3d 919, 922 (9th Cir. 1993) (noting that spousal status
makes spousal abuse a more grievous offense than assault);
Guerrero de Nodahl v. INS, 407 F.2d 1405, 1405-07 (9th Cir.
1969) (child abuse); Matter of Garcia-Hernandez, 23 I & N
Dec. 590, 591, 594 (BIA 2003) (noting that battery as defined
in the California Penal Code is not a crime involving moral
turpitude). In holding spousal abuse to be a crime involving
moral turpitude, we observed that
an adult is not as helpless of a victim as a child; nev-
ertheless, a spouse is committed to a relationship of
trust with, and may be dependent upon, the perpetra-
tor. This relationship makes the crime of spousal
abuse different from violence between strangers or
acquaintances, which, depending on the wording of
the statute, is not necessarily a crime of moral turpi-
tude.
Grageda, 12 F.3d at 922. Our recognition that the victim’s
vulnerability or intimate relationship with her victimizer can
render an act inherently base or vile simply reflects contem-
porary American mores.
Perhaps no conduct so unequivocally violates American
ethics as that which encompasses both of these categories,
namely sexual predation upon the most vulnerable members
of our society. Children in particular—because of their nai-
veté, their dependence on adults, and their inability to under-
stand, flee, or resist such advances—are vulnerable to adults
who seek to take advantage of them sexually. Thus, we find
such conduct especially repulsive and worthy of the severest
moral opprobrium. Cf. New York v. Ferber, 458 U.S. 747,
757, 763 (1982) (noting that the “prevention of sexual exploi-
4346 NICANOR-ROMERO v. MUKASEY
tation and abuse of children constitutes a government objec-
tive of surpassing importance” and holding on that basis that
child pornography, unlike adult pornography, falls outside
First Amendment protection). Put differently, sexual miscon-
duct, particularly such conduct directed toward children, falls
neatly into the category of crimes that are malum in se. Courts
have long considered the distinction between malum in se and
malum prohibitum crimes to be the main, if not the deciding,
factor in determining whether a crime involves moral turpi-
tude. See, e.g., Quintero-Salazar, 506 F.3d at 694 (“Because
§ 261.5(d) defines conduct that is malum prohibitum in at
least some cases, it cannot categorically be a crime of moral
turpitude.”); Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir.
2007) (“Moral turpitude has been defined as an act which is
per se morally reprehensible and intrinsically wrong, or
malum in se . . . .” (quoting Hamdan v. INS, 98 F.3d 183, 186
(5th Cir. 1996))); Nguyen v. Chertoff, 501 F.3d 107, 109 n.3
(2d Cir. 2007) (same); Recio-Prado v. Gonzales, 456 F.3d
819, 821 (8th Cir. 2006) (finding “that moral turpitude inheres
in” the crime of maliciously and intentionally firing a weapon
into an occupied dwelling because it was “undoubtedly
malum in se”); Padilla v. Gonzales, 397 F.3d 1016, 1020 (7th
Cir. 2005) (“We have acknowledged that the distinction
between crimes that involve moral turpitude and those that
don’t corresponds to the distinction between crimes that are
mala in se and those that are mala prohibita.”); Beltran-
Tirado v. INS, 213 F.3d 1179, 1184-85 (9th Cir. 2000) (rely-
ing on distinction between malum prohibitum and malum in
se to conclude that a malum prohibitum crime did not involve
moral turpitude); In re Flores, 17 I & N Dec. 225, 227 (B.I.A.
1980) (defining moral turpitude “as an act which is per se
morally reprehensible and intrinsically wrong or malum in se,
so it is the nature of the act itself and not the statutory prohibi-
tion of it which renders a crime one of moral turpitude”).
The reprehension with which we view such acts explains
the consistent, and uncontradicted, determinations by federal
courts that sexual misconduct targeting children involves
NICANOR-ROMERO v. MUKASEY 4347
moral turpitude, even where the criminal provision requires
no injury or even contact. Such conduct directed at “a minor
is inherently wrong and contrary to the accepted rules of
morality and the duties owed between persons.” Morales, 478
F.3d at 978. This is so even where the defendant acted with
no specific criminal intent: Because such conduct is so base
and vile in and of itself, the defendant commits a crime of
moral turpitude simply by willfully committing the wrongful
act. See Matter of Torres-Varela, 23 I & N Dec. 78, 84 (BIA
2001); Matter of Tran, 21 I & N Dec. 291, 293 (BIA 1996)
(noting that moral turpitude is present “[w]here knowing or
intentional conduct is an element of a morally reprehensible
offense”).
B
Section 647.6(a) falls squarely within this category of sex-
ual offenses that we have deemed to involve moral turpitude.
The provision criminalizes acting with an abnormal sexual
intent so as to “annoy[ ] or molest[ ] any child under 18 years
of age.” One can be convicted of violating § 647.6(a) only by
committing “an act that is objectively and unhesitatingly
viewed as irritating or disturbing, prompted by an abnormal
sexual interest in children.” Terry v. Davis Cmty. Church, 33
Cal. Rptr. 3d 145, 154 n.3 (Cal. Ct. App. 2005); accord In re
Gladys R., 464 P.2d 127, 137 (Cal. 1970) (noting that
§ 647.6(a) is “narrow” and limited to offenders “motivated by
unnatural or abnormal sexual interest or intent”); People v.
Maurer, 38 Cal. Rptr. 2d 335, 338 (Cal. Ct. App. 1995) (not-
ing that § 647.6(a) is violated only by a disturbing act “moti-
vated by an unnatural or abnormal sexual interest or intent
with respect to children” (emphasis and internal quotation
marks omitted)). Acting offensively or in a way “designed to
disturb, irritate, . . . injure, or at least tend to injure” a child,
People v. Lopez, 965 P.2d 713, 717 (Cal. 1998), for the pur-
poses of satisfying one’s own “unnatural or abnormal sexual
interest” or with such intent shocks the American conscience
and is regarded as universally repulsive in this country. Under
4348 NICANOR-ROMERO v. MUKASEY
our cases involving sexual offenses, the universal condemna-
tion accorded such acts by contemporary Americans is suffi-
cient to qualify violations of § 647.6(a) as crimes involving
moral turpitude.
Section 647.6(a) applies only to a “comparatively narrow
province” of conduct. In re Gladys R., 464 P.2d at 137; see
also People v. Pallares, 246 P.2d 173, 177 (Cal. Ct. App.
1952) (holding that § 647.6(a) does not prohibit mere “annoy-
ance” of a minor). California courts take seriously the require-
ment that the conduct supporting a § 647.6(a) conviction be
objectively offensive. See, e.g., People v. Kongs, 37 Cal. Rptr.
2d 327, 331 (Cal. Ct. App. 1994) (holding that “the section
must be construed reasonably as setting up an objective test
for annoyance or molestation”). As People v. Carskaddon,
318 P.2d 4 (Cal. 1957), illustrates, when the conduct does not
rise to that level, a conviction under § 647.6(a) will not stand.
In that case, the defendant had approached two children, aged
six and four, in a public park and walked a short distance with
them on a sidewalk. Id. at 5. The court overturned the convic-
tion, noting that the record contained no evidence of any lewd
or obscene behavior on the defendant’s part. Id. at 5-6. In
other words, the defendant’s conduct lacked the objectively
offensive act required under the statute.
More importantly, the statute does not extend even to all
offensive conduct; it reaches only offensive conduct that is
motivated by an abnormal sexual interest in the child. See,
e.g., Lopez, 965 P.2d at 717. The statute targets the motivation
common to sexual predators of all types, but it criminalizes
only those predators who specifically direct their abnormal
interests toward children under the age of 18, presumably in
recognition of such children’s special vulnerability to those
driven by such motives. This limitation makes sense in light
of the purpose of this statute, which is to protect “children
from interference by sexual offenders, and the apprehension,
segregation and punishment of the latter.” In re Gladys R.,
464 P.2d at 137 (quoting People v. Moore, 290 P.2d 40, 41
NICANOR-ROMERO v. MUKASEY 4349
(Cal. Ct. App. 1955)); see also People v. Thompson, 253 Cal.
Rptr. 564, 569 (Cal. Ct. App. 1988). A desire to prey sexually
on any member of our society, much less the most vulnerable
members, so fundamentally offends the contemporary Ameri-
can moral sensibility that it unquestionably involves moral
turpitude.
Finally, California itself recognizes the moral gravity of the
offense. Violations of § 647.6(a) are “viewed as base, vile and
depraved” and are, therefore, deemed to involve “moral turpi-
tude.” Brewer v. Dep’t of Motor Vehicles, 155 Cal. Rptr. 643,
648 (Cal. Ct. App. 1979). The California Penal Code defines
violations of § 647.6(a) as “sexual abuse,” CAL. PENAL CODE
§ 11165.1, and perpetrators who are convicted under this pro-
vision must register as sex offenders with the State of Califor-
nia, CAL. PENAL CODE § 290(a)(1)(A), (a)(2)(A); cf. Kongs, 37
Cal. Rptr. 2d 327, 331 (Cal. Ct. App. 1994) (“For the most
part, [this section] has been applied to incidents of explicit
sexual conduct . . . .”).
II
Having demonstrated that § 647.6(a) falls comfortably
within our standard approach to sexual offenses, I now turn
to the problems attending the novel test proposed by the
majority and demonstrate that it wreaks havoc on our prece-
dent involving such offenses. The majority accomplishes this
by dividing the offense into decontextualized actus reus and
mens rea components. Isolating these elements from each
other,2 the majority then concludes that neither element suf-
2
The majority objects that I am the one who errs by failing to consider
the mens rea and actus reus in conjunction with each other. Maj. Op. at
4326-27. True, the majority purports to “consider the actus reus and mens
rea requirements together,” id. at 4326, and claims to derive its conclusion
“[b]ased on the combination of § 647.6(a)’s actus reus and mens rea
requirements,” id. at 4326. But nowhere in the opinion does the majority
consider the two elements together; it is always and only focused on one
or the other. See, e.g., id. at 4324 (“The mens rea requirement, like the
actus reus requirement, does not pose a particularly high hurdle to convic-
tion . . . .”).
4350 NICANOR-ROMERO v. MUKASEY
fices to render the prohibited conduct morally turpitudinous.
See Maj. Op. 4320-27.
The majority’s new analysis not only departs from our prior
analysis, it does violence to the integrity of § 647.6(a). The
majority does precisely what California courts have expressly
refused to do: It has completely isolated the actus reus and
mens rea from each other, bringing about “an unrealistic sepa-
ration of motivation and acts.” Thompson, 253 Cal. Rptr. at
568; see also id. (“We doubt the court [in Carskaddon, 318
P.2d at 4-6] intended to separate the two elements when it
made its general statement about [§ 647.6(a)].”); People v.
Dunford, 2003 WL 1275417 (Cal. Ct. App. March 19, 2003),
at *6 (noting that some, but not all, photography of fully
clothed children is morally offensive because it is “the moti-
vation in combination with the perpetrator’s disturbing con-
duct” that determines whether an act falls within the statute’s
scope). In the sections that follow, I explain why the majori-
ty’s actus reus/mens rea analysis is artificial and why it is
inconsistent with our precedents.
A
The majority suggests that a crime cannot involve moral
turpitude unless the actus reus results in some sort of injury
to the victim, whether physical or psychological; such injury,
it implies, is the sine qua non of base or depraved conduct.
See Maj. Op. at 4323-24. However, as I noted above, we have
never required a showing of injury as a prerequisite to classi-
fying a sexual offense as a crime involving moral turpitude,
and such a requirement is simply irrelevant to determining the
moral offensiveness of such acts.
The majority objects that § 647.6(a) covers non-sexual
touching or behavior involving no physical contact whatso-
ever. Maj. Op. at 4323. This characterization of the statute’s
requirements is tendentious at best.3 But even if accurate, the
3
The cases cited by the majority involved touchings that were admit-
tedly not sexual in the sense of involving contact with the victim’s sexual
NICANOR-ROMERO v. MUKASEY 4351
majority’s objection simply is irrelevant given our prior
approach to sexual offenses. For example, the provision at
issue in our recent decision in Morales provided that “a per-
son who communicates with a minor for immoral purposes,
or a person who communicates with someone the person
believes to be a minor for immoral purposes, is guilty of a
gross misdemeanor.” WASH. REV. CODE § 9.68A.090(1),
quoted in Morales, 478 F.3d at 978. To violate that provision,
the defendant need only engage in mere verbal communica-
tion with a minor “for immoral purposes of a sexual nature.”
Morales, 428 F.3d at 978 (citing State v. Hosier, 133 P.3d
936, 941 (Wash. 2006)). Despite the absence of any require-
ment that there be physical contact, we held that mere
“[s]exual communication with a minor is inherently wrong
and contrary to the accepted rules of morality and the duties
owed between persons.” Id. As such, violation of the statute
“categorically constitutes a crime involving moral turpitude.”4
Id.
organs, but they certainly were sexual in the sense that the contact was
motivated by the defendant’s sexual desire. See, e.g., In re Hudson, 49
Cal. Rptr. 3d 74, 76-78 (Cal. Ct. App. 2006) (noting defendant’s prior con-
victions for child molestation and his possession of child pornography);
People v. McFarland, 92 Cal. Rptr. 2d 884, 886 (Cal. Ct. App. 2000) (not-
ing defendant’s prior lewd conduct convictions and noting the defendant’s
statement to the victim’s mother that he “had to come see [her] beautiful
children”). Again, the majority misses this precisely because of its unwar-
ranted and entirely novel separation of the elements of the offense from
each other.
4
Our holding in Morales renders irrelevant the majority’s objection that
because gestures and words are conduct sufficient for conviction under
§ 647.6(a), it cannot categorically be a crime involving moral turpitude.
See Maj. Op. at 4323 (citing United States v. Pallares-Galan, 359 F.3d
1088, 1101 (9th Cir. 2004)). It is true that in Pallares-Galan, we rejected
the contention that convictions under this statute categorically constituted
child abuse under the Immigration and Nationality Act because it does not
require physical contact. See 359 F.3d at 1101. But the majority provides
no explanation why, after Morales, we should place any weight on the
absence of a physical-contact element in determining whether violation of
§ 647.6(a) involves moral turpitude.
4352 NICANOR-ROMERO v. MUKASEY
The majority further objects that § 647.6(a) does not
require the child to be offended by, irritated by, or even aware
of the act. Maj. Op. at 4323. This objection again misses the
point. After all, it is unlikely that many young children are
aware of the “repulsive [ ] nature” of the act perpetrated upon
them by their molesters. Schoeps, 177 F.2d at 394. Our revul-
sion at the inappropriate touching of a minor is not amelio-
rated if the child happens to be sleeping or is otherwise
unaware of the offensive contact, and we do not view sexual
communication with a minor less blameworthy if the minor
fails to recognize the offensive nature of the communication.
Cf. State v. Hosier, 103 P.3d 217, 222 (Wash. Ct. App. 2004)
(noting that it would be absurd to require the minor targeted
with immoral communication as defined in the statute at issue
in Morales to be able to understand the offensive nature of the
communication because that reading would “restrict the stat-
ute’s application to victims sexually mature beyond their
years, or [ ] omit from its reach the very victims it is intended
to protect”). What is lost in the majority’s analysis is the fact
that we find such acts so repulsive in part because we do not
expect children to be sexually aware, and because we find
actions that impose such awareness on them—or take advan-
tage of their lack of awareness—to be especially depraved. It
is for precisely this reason that § 647.6(a) criminalizes acts
that are objectively disturbing or irritating: It would be absurd
to rely on the subjective feelings of a two-year-old in deter-
mining whether the act was offensive.5
5
The requirement that the conduct be objectively offensive is an impor-
tant qualifier, as it prevents the statute from being either over- or under-
inclusive: Objectively offensive conduct does not include conduct that an
over-sensitive child would find offensive, but it does include offensive
conduct that a naive child would not recognize as such. See Pallares, 246
P.2d at 177 (noting that the objective requirement excludes “a childish and
wholly unreasonable subjective annoyance”); Carskaddon, 318 P.2d at 5
(“Ordinarily, the annoyance or molestation which is forbidden is not con-
cerned with the state of mind of the child but it is the objectionable acts
of defendant which constitute the offense.” (internal quotation marks omit-
ted)).
NICANOR-ROMERO v. MUKASEY 4353
B
The majority’s handling of the mens rea element similarly
upends our precedents. The majority objects that the mens rea
for § 647.6(a) “does not pose a particularly high hurdle” for
the prosecution because it provides only for a reasonable
mistake-of-age defense and requires no specific intent to com-
mit a crime. Maj. Op. at 4323-26.
The majority improperly conflates a defendant’s “negli-
gen[ce] in believing that the victim is eighteen or older” with
“negligence-based crimes,” which generally do not involve
moral turpitude. Maj. Op. at 4325-26. A negligent assault, for
example, “is unintentional, unwitting, and committed without
contemplation of the risk of injury involved.” Partyka v. Att’y
Gen., 417 F.3d 408, 414 (3d Cir. 2005). Whether a
negligence-based crime is a crime involving moral turpitude
bears no relation to whether a crime that would otherwise
constitute a crime involving moral turpitude is subject to a
negligent mistake-of-age defense. Cf. Castle, 541 F.2d at
1066 (“It is unnecessary for judicial or administrative officials
to examine the extenuating factors which an offender [con-
victed for the crime of carnal knowledge of a minor] might
raise in his attempt to cleanse himself of the stigma of moral
obliquity where the commission of the crime itself must nec-
essarily involve moral turpitude. The inherent nature of the
offense rather than the circumstances surrounding the trans-
gression is the determinative element.”). Neither we nor any
of our sister circuits have ever required the availability of
such a defense in the context of sexual offenses, particularly
those directed at minors.
Under the majority’s mens rea analysis, it is doubtful that
any statute criminalizing behavior directed at children would
qualify as a crime of moral turpitude so long as it did not pro-
vide for a good faith mistake-of-age defense. See Maj. Op. at
4325-26. Even if such a defense were available, the majority’s
analysis calls into question whether any crime dependent on
the victim’s age can categorically involve moral turpitude
4354 NICANOR-ROMERO v. MUKASEY
given the ever-present possibility that a child just below the
age threshold might be sufficiently precocious that the con-
duct does not “shock the public conscience.”6 Id. at 4322; see
also id. at 4325-26. This result would be, to put it mildly,
counterintuitive: In many instances, it is the fact that the
wrongful act is directed at a child that makes it especially
base or vile.
C
In sum, however appropriate the majority’s approach might
be for non-sexual crimes whose moral offensiveness is less
clear, it is simply irreconcilable with our cases involving sex-
ual misconduct, particularly where that misconduct is directed
at minors. A brief example will illustrate this insurmountable
conflict.
6
The majority’s approach would arguably produce the same result in
cases involving convictions for child abuse, which we have categorized as
a crime involving moral turpitude. See Guerrero de Nodahl, 407 F.2d at
1406-07. Under our precedent, simple assault is not a crime involving
moral turpitude, and under the categorical approach, even assault with a
deadly weapon does not constitute such a crime. See, e.g., Carr v. INS, 86
F.3d 949, 950-51 (9th Cir. 1996); Komarenko v. INS, 35 F.3d 432, 435
(9th Cir. 1994); Matter of Short, 20 I & N Dec. 136, 139 (BIA 1989). Yet,
under California law, the statute defining child abuse is essentially identi-
cal to the statute defining assault—the only difference is that the former
statute requires the victim to be a child. People v. Smith, 678 P.2d 886,
891 (Cal. 1984) (“The elements of section 245 [assault with a deadly
weapon] and the offense here [child abuse] are strikingly similar; the prin-
cipal difference is that the assault prohibited by section 273a is committed
on a child.” (footnote omitted)); see also People v. Valdez, 42 P.3d 511,
517 (Cal. 2002) (noting the similarity between child abuse, assault, and
assault with deadly weapon). If child abuse is a crime involving moral tur-
pitude only because of the age of the victim, it could not survive the
majority’s rigorous mens rea requirement. After all, under the categorical
approach, one would have to account for the possibility that the defendant
made an “honest but unreasonable” mistake as to the victim’s age, and
according to the majority, the lack of such a defense would be fatal. Yet
we and other circuits have held that abuse of a child violates American
ethics and is therefore a crime involving moral turpitude. See, e.g., Guer-
rero de Nodahl, 407 F.2d at 1406-07.
NICANOR-ROMERO v. MUKASEY 4355
The majority’s reasoning directly contradicts our recent
decision in Morales, where we held that communication with
a minor for immoral purposes under Washington law is a
crime involving moral turpitude. See 478 F.3d at 978. The
statute at issue in that case punishes communication—
whether through “words or conduct”—with a minor “for
immoral purposes of a sexual nature.” Id. The Washington
provision requires neither injury nor contact, and it lacks a
mistake of age defense. In other words, under the majority’s
approach, it is indistinguishable from § 647.6(a) and should
not be classified as a crime involving moral turpitude.
The conflict, however, runs deeper. Not only are the actus
reus and mens rea elements of § 9.68A.090 analogous to
those at issue here; the scope of conduct prohibited by both
provisions is also remarkably similar. We have previously
noted that much of the conduct prohibited by the Washington
statute falls outside the scope of sexual abuse of a minor as
we have defined it, Parrilla v. Gonzales, 414 F.3d 1038,
1042-43 (9th Cir. 2005) (holding that WASH. REV. CODE
§ 9.68A.090 does not categorically involve sexual abuse of a
minor), and the Washington Supreme Court has confirmed
that § 9.68A.090 broadly “prohibits communication with chil-
dren for the predatory purpose of promoting their exposure to
and involvement in sexual misconduct.”7 State v. McNallie,
846 P.2d 1358, 1364 (Wash. 1993). Furthermore, Washington
courts have noted that the statute must apply even to commu-
nications not understood by the target, because not to apply
them in such cases would defeat the very purpose of the stat-
ute by “restrict[ing] the statute’s application to victims sexu-
7
This broad interpretation derives in part from the legislature’s declared
motivation for enacting this provision: “ ‘The legislature finds that the pre-
vention of sexual exploitation and abuse of children constitutes a govern-
ment objective of surpassing importance. The care of children is a sacred
trust and should not be abused by those who seek commercial gain or per-
sonal gratification based on the exploitation of children.’ ” State v. McNal-
lie, 846 P.2d 1358, 1363 (Wash. 1993) (quoting WASH. REV. CODE
§ 9.68A.001).
4356 NICANOR-ROMERO v. MUKASEY
ally mature beyond their years[ and] omit[ting] from its reach
the very victims it is intended to protect.” Hosier, 103 P.3d at
222. The prohibited conduct includes indirect communication,
such as sexually explicit notes left on a minor’s lawn, even
where the minor has herself never seen the notes, or on the
fence of a kindergarten, even though the children were unable
to read. See State v. Hosier, 133 P.3d 936, 940-43 (Wash.
2006). It can also involve a game of truth or dare at a slumber
party where the host suggested “dares” to the minors, includ-
ing “(1) for a 12-year-old boy to walk next door and sexually
proposition [the host’s] neighbor, (2) for a boy to touch a
girl’s breasts, and (3) for 12-year-old girls to go outside and
expose themselves.” State v. Montoya, 2003 Wash. App.
LEXIS 299, at *11 (Wash. Ct. App. Feb. 25, 2003). If, as we
held in Morales, the conduct covered by WASH. REV. CODE
§ 9.68A.090 categorically involves moral turpitude, the
majority is obligated to offer a plausible explanation as to
how conduct prohibited by § 647.6(a) is materially distinguish-
able.8
8
None of the reasons given by the majority provides a plausible basis
for distinguishing these two statutes. Maj. Op. at 4327-29. First, the major-
ity emphasizes that the communications under § 9.68A.090 have the pur-
pose of exposing the minor to, or involving him or her in, sexual
misconduct. Maj. Op. at 4327-29. It may be true that the Washington and
California statutes are not coextensive on this point, but I fail to see why
it is relevant. California punishes offensive conduct motivated by unnatu-
ral or abnormal sexual interest. That is surely a form of sexual misconduct
directed at minors.
Second, although the specific-intent requirement does represent a mate-
rial distinction between § 9.68A.090 and § 647.6(a), specific intent has
never been treated as a dispositive factor in the moral turpitude inquiry,
as the majority itself recognizes. See Maj. Op. at 4319 (citing In re Torres-
Varela, 23 I. & N. Dec. 78, 83 (BIA 2001)).
Finally, just as in § 647.6(a), the Washington statute’s “actus reus
requirement does ‘not necessarily require harm or injury, whether psycho-
logical or physical.’ ” Maj. Op. at 4323 (quoting United States v. Baza-
Martinez, 464 F.3d 1010, 1015 (9th Cir. 2006)). Given that the majority
concludes that, absent such a requirement, it cannot find that § 647.6(a) is
a crime of moral turpitude, id., I fail to see how it can simultaneously
believe that Morales was properly decided and that its test properly states
the law of moral turpitude.
NICANOR-ROMERO v. MUKASEY 4357
The majority insists that it does not intend to repudiate
prior decisions finding sexual misconduct to be morally turpi-
tudinous, but the fact remains that the majority’s test is novel
and cannot be reconciled with our precedents involving sexual
misconduct. In those cases, we have never looked either to the
victim’s injury, awareness, or understanding or to whether the
defendant acted with specific intent; rather, we have consis-
tently evaluated the prohibited conduct in light of contempo-
rary American ethics and the distinction between malum in se
and malum prohibitum. The majority, with no explanation,
jettisons this approach and replaces it with a test that fails to
account for much of what we find most offensive in sexually
motivated conduct directed at children.)
III
The majority’s new, but flawed, method really comes home
to roost when it analyzes California cases the majority thinks
prove that we cannot employ the categorical approach. See
Duenas-Alvarez, 127 S. Ct. at 822.
First, the majority completely misstates California law. The
majority asserts: “[T]he unnatural or abnormal nature of a
defendant’s sexual interest under § 647.6(a) may be shown by
the mere fact that the subject of the interest was underage.”
Maj. Op. at 4324. Then, so that there can be no misunder-
standing of its position, the majority repeats its misreading of
California law: “That is, a sexual interest that would be natu-
ral and normal if motivated by conduct directed at an 18-year
old becomes unnatural or abnormal under § 647.6(a) if
directed at someone who is underage.” Id. With all due
respect, that is not California law.
The majority’s erroneous interpretation of the mens rea ele-
ment derives in part from a logical error: The majority
improperly infers the required mens rea from its understand-
ing of the prohibited conduct, and because the conduct in
some cases would not be offensive if directed toward an adult
4358 NICANOR-ROMERO v. MUKASEY
woman, the majority reasons that the victim’s age alone
explains California’s decision to prohibit the conduct. This
reasoning is precisely backwards. California courts have
made clear that it is the offensive conduct plus the predatory
sexual interest that brings conduct within the scope of the stat-
ute; or stated differently, § 647.6(a) punishes those who have
an unnatural or abnormal sexual interest in a child and have
acted that interest out in some objectively offensive way.
The California courts could not have been more clear on
this point. As the California Court of Appeal explained,
§ 647.6(a) punishes “an abnormal sexual interest or intent
manifested by acts of annoyance or molestation toward chil-
dren.” Brewer, 155 Cal. Rptr. at 648 (emphasis added); see
also Lopez, 965 P.2d at 717 (conduct must be “motivated by
an unnatural or abnormal sexual interest in the victim” (inter-
nal quotation marks omitted)); Kongs, 37 Cal. Rptr. 2d at 331
(holding that “the acts forbidden [by the statute] are those
motivated by an unnatural or abnormal sexual interest or
intent with respect to children”); Thompson, 253 Cal. Rptr. at
568 (holding that acts must be “motivated by an abnormal or
unnatural sexual interest in the child victim” to violate
§ 647.6(a)).9 Correctly understood, then, a § 647.6(a) convic-
tion requires not merely negligence with regard to the vic-
tim’s age; it also necessarily involves an unnatural or
abnormal sexual interest in the child victim. This predatory
sexual interest is sufficiently evil to render the prohibited acts
morally turpitudinous; indeed, they would be such even if
directed at an adult.
Without support for its conclusion in what the California
courts have said, the majority resorts to selective factual dis-
tinctions to determine what factual showing § 647.6(a)
9
The California Jury Instructions confirm this interpretation of the stat-
ute. They make the victim’s age an element of the actus reus and describe
the mens rea simply as “motivated by an unnatural or abnormal sexual
interest.” CAL. MODEL JURY INSTRUCTIONS § 16.440.
NICANOR-ROMERO v. MUKASEY 4359
requires for conviction. It points to three cases, two of which
are unpublished decisions, and gives us its own reading of the
facts. See Maj. Op. at 4323-26, 4332-35. I do not think the
cases fall the majority’s way. In People v. Dunford, 2003 WL
1275417 (Cal. Ct. App. March 19, 2003), for example, the
California Court of Appeal upheld the conviction of a defen-
dant who was charged with surreptitiously taking photographs
of fully clothed young girls. Id. at *1-2. The majority thinks
it obvious that no one would find it “unnatural or abnormal”
for an adult man to take pictures of non-sexual parts of the
body of a fully clothed adult woman. See Maj. Op. at 4324-
25. In most cases, I would agree, but the majority’s hypotheti-
cal differs markedly from the facts of Dunford and glosses
over the mental state that brought the defendant’s actions in
that case within the scope of § 647.6(a). In Dunford, the
defendant persistently followed three female children and
photographed them over the course of several weeks in vari-
ous locations around their neighborhood. Dunford, 2003 WL
1275417, at *1. Dunford had a previous conviction under
§ 647.6(a) for taking photos of an 11-year-old girl and three
of her friends with “a camera attached to the belt loop of his
pants” with “[h]is pants . . . unzipped and his penis . . . pro-
truding.” Id. at *2. On another occasion, the defendant had
been seen “secretively photographing young girls in bathing
suits” at a public swimming pool. Id.
Nothing in Dunford supports the majority’s implication that
Dunford’s sexual interest was abnormal or unnatural because
his victims were under the age of eighteen. Indeed, the Cali-
fornia Court of Appeal was pellucid on this point. It stated
that “[w]hether the defendant’s conduct was objectively
annoying is distinct from the issue of whether the defendant
had an actual perverse sexual motive,” because “[s]ection
647.6 is violated by conduct that would unhesitatingly irritate
a normal person and that is motivated by an unnatural or
abnormal sexual interest in the victim.” Id. at *3. It freely
acknowledged that “the act of viewing children for sexual
pleasure may not, in itself, be criminal,” and that “a person
4360 NICANOR-ROMERO v. MUKASEY
photographing a scene open to the public, without more, does
not violate section 647.6.” Id. at *3-*4. The court concluded:
Dunford’s argument is premised on the erroneous
belief that the conduct required under the statute
must be objectively sexual. . . . [S]ection 647.6 may
proscribe conduct or acts that are not themselves
lewd or obscene. Rather the objectively annoying
conduct must be motivated by an abnormal or unnat-
ural sexual interest in the child victim. It is the moti-
vation in combination with the perpetrator’s
disturbing conduct that limits the scope of the stat-
ute.
Id. at *6 (footnote and citations omitted). I am firmly con-
vinced that Dunford’s conduct, motivated by such an obvi-
ously predatory sexual interest, would be offensive even if
directed at an adult woman, much less at three pre-pubescent
girls, including one as young as six. California has chosen to
punish only those with such abnormal and unnatural desires
who target children. I cannot fathom how that means that
§ 647.6(a) does not categorically define a crime involving
moral turpitude.10
10
The majority’s implication that a defendant’s mental state can never
render normally innocuous conduct morally offensive reflects an almost
willful blindness to the danger sexual predators pose to potential victims
of all ages. To take just one real-world example, the New York Times
recently reported the controversy surrounding Jack McClellan, a self-
professed pedophile who spends much of his time taking nonsexual photo-
graphs of children in public places. Jennifer Steinhauer, Parents’ Ire
Grows at Pedophile’s Unabashed Blog, N.Y. TIMES, July 27, 2007, at A1.
McClellan has also created websites where he has posted “nonsexual pic-
tures of children . . . intended to promote the acceptance of pedophiles,
and to direct other pedophiles to events and places where children tended
to gather.” Id. Apparently, in the majority’s view, were McClellan to be
convicted under § 647.6(a), the only reason for deeming his actions mor-
ally offensive would be that his subjects were underage children; his con-
duct would be entirely innocuous if directed at adult women,
notwithstanding his predatory sexual interest in the subjects of his photog-
raphy, because the photography itself is nonsexual. I cannot agree.
NICANOR-ROMERO v. MUKASEY 4361
A second case cited by the majority, People v. Thompson,
253 Cal. Rptr. 564 (Cal. Ct. App. 1988), is simply irrelevant:
The defendant in that case did not challenge the trial court’s
determination that he was motivated by an unnatural or abnor-
mal sexual interest. Thompson followed a twelve-year old girl
on a bicycle, passing her some ten times. The child was so
afraid that she went to a nearby residence—someone she did
not know—shaking, crying and asking for help. The resident
noticed the car pass her home an additional three to four
times. Id. at 565-66. On appeal, Thompson claimed that
§ 647.6 required a “lewd or obscene act.” The court rejected
his argument, stating that the section “only requires proof of
articulable, objective acts which would cause a normal person
to be unhesitatingly irritated, provided the acts are motivated
by an abnormal or unnatural sexual interest in the child vic-
tim.” Id. at 568. The court found that there was sufficient evi-
dence that Thompson engaged in conduct that, objectively
viewed, annoyed the victim. The court specifically noted that
Thompson did “not challenge the sufficiency of the evidence
of abnormal sexual intent” and did not address that question.
Id. at 568. Nothing in Thompson supports the majority’s the-
ory.
Finally, Judge Fletcher places the greatest weight on Peo-
ple v. Villareal, 2003 WL 21153430 (Cal. Ct. App. May 20,
2003), a two-page, unpublished decision.11 See Maj. Op. at
4332-36. Villareal arises in an unusual procedural setting.
11
Judge Pregerson does not join in Judge Fletcher’s reliance on Villa-
real, see Concurring Op. at 4341, which means that a majority of this
panel believes that Villareal does not demonstrate “a realistic probability
. . . that the State would apply its statute to conduct that falls outside the
generic definition.” Duenas-Alvarez, 127 S. Ct. at 822. Without Villareal
or any other California case to support the majority’s determination that
§ 647.6(a) criminalizes at least some conduct that is not morally turpitudi-
nous, we are left simply with the majority’s imaginative conjecture that “a
misdemeanor conviction under § 647.6(a) can be based on behavior that,
while criminal, does not rise to the level of a ‘crime involving moral turpi-
tude.’ ” Concurring Op. at 4341.
4362 NICANOR-ROMERO v. MUKASEY
Villareal had prior (unspecified) felony convictions and was
on probation. His hearing in this case was to revoke his proba-
tion because he had violated § 647.6(a). Villareal contested
the sufficiency of the evidence to support the order revoking
his probation. Villareal had stopped a thirteen-year old girl
and asked her name and where she was going. Villareal then
asked her if she had gone “to see the flag,” a reference to a
remote area known as a “make-out point.” Id. at *1 & n.2. He
told her that “when I look at you I see stars,” which the girl
took—based on the way that he “smirk[ed] at her”—as “inap-
propriately sexual.” Id. at *1. The victim, describing herself
as “scared and violated,” began running from Villareal, who
followed her in his truck and continued to talk to her. Villa-
real finally drove away. The victim complained to her mother,
a police officer, who confronted Villareal. When a second
officer arrived and arrested Villareal, he told the second offi-
cer that the victim was “a cute girl.” At his probation violation
hearing, Villareal explained that when he saw the victim
“there was like a glimmering around her like an aura of some
sort. I see things sometimes. And so it made me excited and
that’s why I stopped.” Id. at *1. He admitted that “his com-
ment about seeing stars was ‘kind of inappropriate, being that
it was kind of strange,’ ” and although he denied having any
sexual intent in speaking to the victim, he stated “I remember
I felt happy about it, that I had seen that and it seemed kind
of special and I was happy.” Id.
The California Court of Appeal concluded in a very brief
unpublished opinion that there was sufficient evidence to sup-
port revoking Villareal’s probation. The court first recited the
standard, conduct (1) that “a normal person would unhesitat-
ingly be irritated by” and (2) that was “motivated by an unnat-
ural or abnormal sexual interest.” Id. at *2 (internal quotation
marks and citations omitted). The court found that “stopp[ing]
to talk to a 13-year old girl who was walking alone on an iso-
lated street,” referring to “a local ‘make out’ spot and to see-
ing stars” would irritate a normal person and “demonstrate
that the conversation was motivated by [Villareal’s] sexual
NICANOR-ROMERO v. MUKASEY 4363
interest in [the victim].” Id. The court pointed to the victim’s
testimony that she believed that his “comments were sexual
in nature and testified that he was ‘smirking’ at her.” Id.
Judge Fletcher claims that he does not question whether
Villareal is a “proper holding that Villareal violated
§ 647.6(a).” Maj. Op. at 4334. But that is exactly what he has
done. Judge Fletcher retells the story from Villareal’s
perspective—Villareal saw a “cute” girl, thought she was
older, asked her if she had been to a make-out spot, said he
saw “stars,” and then followed her in his truck to offer her a
ride. See Maj. Op. at 4332-33. But that sterile retelling is not
what the victim testified to, or what the trier of fact was
required to find. The victim told a story of a prelude to a rape
—of being approached by a stranger who “smirk[ed]” and
asked “inappropriately sexual” comments; of being followed
by the man in his truck even after she ran away from him; of
being “scared and violated.” The trier of fact heard both sto-
ries, including from Villareal himself, who admitted that his
comments were “inappropriate” and “kind of strange” and
admitted that seeing stars around her “made [him] excited”
and “happy” and “seemed kind of special.” The trier of fact
determined that Villareal engaged in offensive behavior that
was motivated by unnatural or abnormal sexual interest in the
victim, a judgment Judge Fletcher concedes was a “proper
holding.” Given that Villareal—and every other § 647.6(a)
case, both published and unpublished—involves conduct that
fits within our prior definition of “moral turpitude,” I have no
hesitation in concluding that Nicanor-Romero was convicted
of a crime involving moral turpitude.
Finally, I object to the use of an unpublished decision in
this way. I do not believe that the Supreme Court in Duenas-
Alvarez meant for us to take the least generous approach pos-
sible in analyzing state cases under the categorical approach,
as Judge Fletcher does in his discussion of Villareal. Califor-
nia courts universally require a showing that the defendant
was motivated by an abnormal or unnatural sexual interest—
4364 NICANOR-ROMERO v. MUKASEY
in other words, a predatory interest—in addition to evidence
that the victim was a minor. In most of the reported cases, the
court makes clear that the defendant was motivated by that
type of interest; in the sole reported case the majority cites as
suggesting that the mens rea is something less, the question
of the defendant’s mens rea was not even raised on appeal.
See Thompson, 253 Cal. Rptr. at 566. Judge Fletcher is thus
left with two cases, Dunford, which I have shown clearly sets
forth the abnormality of the defendant’s sexual interest, and
Villareal, where the court admittedly spends little time deal-
ing with the question of the nature of the defendant’s sexual
interest and which a majority of this panel has found to
involve a crime of moral turpitude. See Concurring Op. at
4341.
Judge Fletcher takes me to task for objecting to his use of
an unpublished opinion to satisfy the requirements of Duenas-
Alvarez. See Maj. Op. at 4331. There may be situations where
the “realistic probability” requirement of Duenas-Alvarez is
satisfied by relying on unpublished decisions. But this cer-
tainly is not one of those situations, and this case illustrates
precisely why it is unwise to rely on a single unpublished
decision (or to elevate to published status an unpublished Cal-
ifornia decision, see Maj. Op. at App. A) to determine
whether there is a “realistic probability” that California prose-
cutors use § 647.6(a) to convict individuals for non-morally
turpitudinous conduct. There is no in-depth discussion in Vil-
lareal, as there likely would be in a published opinion, of the
elements of the crime. Furthermore, the procedural posture of
Villareal—revocation of probation, not a trial after indictment
or information—means that the standard of proof was lower
than the “beyond a reasonable doubt” standard required in a
criminal trial.12 See Villareal, 2003 WL 21153430, at *2
12
Judge Fletcher says that this distinction only makes a difference if the
behavior covered by the statute varies with the standard of proof. Maj. Op.
at 4335. But I suspect that the standard of proof played a major role in
defense counsel’s strategy at the parole revocation hearing—and, accord-
ingly, the issues on which the California court commented in its terse two-
page decision.
NICANOR-ROMERO v. MUKASEY 4365
(“Before revoking appellant’s probation, the trial court was
required to find by a preponderance of the evidence, that he
violated section 647.6, subdivision (a).” (emphasis added)
(citing People v. Rodriguez, 795 P.2d 783, 785 (Cal. 1990))).
However it is characterized, Villareal does not demonstrate “a
realistic probability . . . that the State would apply its statute
to conduct that falls outside the generic definition.” Duenas-
Alvarez, 127 S. Ct. at 822. Given the unanimous view and
consistent application of the statutory requirements by Cali-
fornia courts, I do not believe that we may seize on a cursory
discussion in an unpublished opinion to support a conclusion
that the statute fails the categorical test. Rather, we should
evaluate the offensiveness of the defendant’s conduct in Villa-
real, and in all other cases, in light of the necessary finding
that the defendant acted with an abnormal or unnatural sexual
intent.
IV
Nicanor-Romero was convicted under a statute that
requires the willful commission of an act that by its very
nature is reprehensible and contrary to American ethics. Cali-
fornia courts view violation of § 647.6(a) as a sex crime
involving moral turpitude. So should we. I would find that
Nicanor-Romero is removable under 8 U.S.C. § 1227(a)(2)
(A)(i).
I respectfully dissent.