MORALES-GARCIA v. Holder
Facts and procedural History
Morales, a native and citizen of Mexico, entered the United States without inspection in September, 1986. In 2006, the Department of Homeland Security (“DHS”) served a Notice to Appear (“NTA”) on Morales, alleging that he was subject to removal on two grounds: first, for being an alien present in the United States without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), and second, for having been convicted of a CIMT. § 1182(a)(2)(A)(i)(I). It was alleged that on April 10, 2003, Morales was convicted in California Superior Court “for the offense of corporal injury to spouse/ cohabitant/former cohabitant/child’s parent, a Felony, in violation of Section 273.5(a) of the California Penal Code for which the term of imprisonment was two . . . years . . . .” At his hearing before the IJ, Morales conceded removability; however, he denied the fact of his conviction under Cal. Penal Code § 273.5. Morales pleaded guilty to a violation of § 273.5(a), and the court imposed a low term of 2 years, doubled to 4 years, under California’s habitual offender statute, Cal. Penal Code § 667(b)-(i).
The IJ sustained the factual allegations in the NTA and, based on that determination, the IJ also sustained the charge of removability on the ground that Morales had been convicted of a CIMT. The IJ then entered an order of removal. Morales timely appealed to the BIA, which dismissed the appeal in a per curiam order.
1. Whether the BIA erred in affirming the IJ’s determination that Morales’ conviction under Cal. Penal Code § 273.5(a) qualifies as a CIMT, both for purposes of determining his inadmissibility, see 8 U.S.C. § 1182(a)(2)(A)(i)(I), and his ineligibility for cancellation of removal. § 1229b(b)(1)(C).
1. An alien convicted of a CIMT is ineligible for cancellation of removal by virtue of the conviction itself (§ 1229b(b)(1)(C)), and because such a conviction precludes a finding of good moral character required by § 1229b(b)(1)(B).
1. Morales’ conviction under Cal. Penal Code § 273.5(a) for abuse of a cohabitant is not categorically a CIMT within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I)
and § 1229b(b)(1)(C).
2. Grant Morales’ petition for review, reverse the decision of the BIA, and remand for
further proceedings consistent with this opinion.
To determine whether a conviction is for a crime involving moral turpitude, the court applied the categorical and modified categorical approaches established by the Supreme Court in Taylor v. United States. See: Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir. 2007) (enbanc) (citing Taylor v. United States, 495 U.S. 575, 599-602 (1990)).
A. Definition of crimes involving moral turpitude
The court had to first determine whether a crime involves moral turpitude is determined by the statutory definition or by the nature of the crime and not by the specific conduct that resulted in the conviction. The categorical approach requires the court to “compare the elements of the statute of conviction to the generic definition [of moral turpitude], and decide whether the conduct proscribed . . . is broader than, and so does not categorically fall within, this generic definition. The court observed that there are no statutorily established elements for a crime involving moral turpitude (The court has previously defined ‘moral turpitude’ as involving conduct that is inherently base, vile, or depraved, and contrary to the private and social duties man owes to his fellow men or to society in general) See: Navarro-Lopez. Therefore, the test to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.
Under the categorical approach, the court answered the question of “whether all of the conduct prohibited by [the statute] is morally turpitudinous.” The court answered this question by looking at Cal. Penal Code § 273.5(a). Although the California Supreme Court has yet to interpret § 273.5(a), numerous California Court of Appeal decisions informed the court’s analysis.
B. Cal. Penal Code § 273.5(a)
The statute provides, in relevant part:
(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine
of up to six thousand dollars ($6,000) or by both that fine and imprisonment.
(c) As used in this section, “traumatic condition” means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force… Cal. Penal Code § 273.5.
In accord with the California courts’ interpretation of this statute, the standard California jury instruction lists the following three elements of the offense:
1. A person inflicted bodily injury upon [[his] [her][former] spouse] [a [former] cohabitant] [the [mother] [or] [father] of [his] [her] child];
2. The infliction of bodily injury was willful [and unlawful]; and
3. The bodily injury resulted in a traumatic condition. CALJIC 9.35, Cal. Jury Instructions — Criminal (2008).
C. Categorical analysis of § 273.5(a)
The court then compared the elements of § 273.5(a) to the generic definition of moral turpitude provided above, noting that the court previously held that spousal abuse under § 273.5(a) is a crime involving moral turpitude. See Grageda, 12 F.3d at 922.
The court mentioned that its past decisions make clear that assault and battery, without more, do not qualify as CIMTs. See Fernandez-Ruiz, 468 F.3d at 1165. Such offenses, however, may transform into CIMTs if they necessarily involved aggravating factors that significantly increased their culpability, such as “the intentional infliction of serious bodily injury on another” or “infliction of bodily harm upon a person whom society views as deserving special protection . . . .” Otherwise non-morally turpitudinous conduct targeted at a victim with whom the defendant has a special relationship may transform a crime into one involving moral turpitude.
Furthermore, the court reasoned that because all that is required to establish cohabitation is the existence of a “substantial, amorous relationship and, perhaps, a sporadic shared living arrangement, it stands to reason that many individuals have many former cohabitants. Noting, that not all of these individuals are committed to, trust, or depend upon, each other. Thus, not all victims under the statute are particularly “vulnerable,” nor are they entitled to care and protection by the perpetrator. Because some perpetrator-victim relationships covered by the statute are more akin to strangers or acquaintances, which, depending on the wording of the statute, does not necessarily trigger a crime of moral turpitude, the court held that this aggravating factor cannot, alone, transform § 273.5(a) into a crime categorically involving moral turpitude.
Note: Because the victims covered by § 273.5(a), as interpreted by the state courts, is overly-broad, we need not examine petitioner’s other contentions respecting the statute’s “evil intent” requirement, or extent-of-injury requirement.
II. Modified Categorical Approach
The court then analyzed whether even if a statutory offense fails to qualify as a CIMT under the categorical approach, in most cases, it is still possible that the crime of conviction at issue can qualify as a CIMT under the modified categorical approach.
In this case, the BIA concluded that § 273.5(a) was categorically a CIMT. It thus never made a determination under the modified categorical approach whether Morales’ offense qualifies as a CIMT. Rather than make that determination in the first instance, the court remanded to the agency to address the modified categorical approach. See INS v. Ventura, 537 U.S. 12, 16 (2002).
Conclusion: Reversed and Remanded.