Full Circuit Calls for Fix Amid Shaky Precedent
(CN) - Assault with a deadly weapon under California law may not necessarily qualify as a crime involving moral turpitude for removal purposes, the en banc 9th Circuit ruled.
The Monday reversal asks the Board of Immigration Appeal to reconsider whether Ruben Adolfo Ceron's conviction for assault with a deadly weapon other than a firearm, in violation of California Penal Code section 245(a)(1), is a categorical crime involving moral turpitude.
Development of both federal and state law over the last six decades has undermined the reasoning of two previous decisions on the issue, the nine-judge majority found.
In Gonzales v. Barber in 1953, the 9th Circuit held that a conviction under California Penal Code section 245 - which at the time encompassed a range of aggravated assaults, including assault with a firearm and assault with a deadly weapon - "per se" involved moral turpitude.
Likewise, in 1946, the BIA held in In re G-R- that an alien's conviction under that section involved moral turpitude.
The reasoning in those cases runs counter, however, to the Supreme Court's announcement in 1990 that a "categorical approach" must be used to determine whether a conviction meets a federal definition.
Rather than looking to the facts of the underlying conviction to determine if a crime involves moral turpitude, the court must look to the state law defining the conviction. For a violation of the state statute to qualify under the federal definition, the full range of conduct must fall within the scope of the federal statutory provision.
"In In re G-R-, the BIA examined the underlying facts of the alien's conviction - now prohibited by the categorical approach - to decide that it involved moral turpitude," Judge Susan Graber wrote for the court.
In the case at hand, the BIA determined that it did not need to decide whether section 245 categorically describes a crime involving moral turpitude because the facts of the actual case involved moral turpitude, according to the ruling.
"Whatever validity that analysis had in 1946, today's categorical approach mandates a match between the federal definition and 'the full range of conduct covered by the state statute,'" Graber wrote. "In sum, re G-R- did not hold that California Penal Code section 245 categorically constitutes a crime involving moral turpitude."
The 9th Circuit had held in Barber that "assault with a deadly weapon is such a crime" involving moral turpitude under federal law.
To support its decision in that case, the circuit cited four cases, but each of them involved interpretation of an assault statute from states other than California. Under today's law, justifying another state's assault statute under the federal definition fails to qualify of the assault statute at issue.
"In short, our reasoning in Barber, which relied entirely on other state statutes, was insufficient to support the conclusion that this particular state statute categorically involved moral turpitude," Graber wrote.
No other decision by either the circuit or the BIA that analyzed whether section 245 categorically defines a crime involving moral turpitude could be found, according to the ruling. Related precedents also do not provide an answer to that question.
"Given the circumstances, the prudent course of action is to remand this case to the BIA to consider the issue in the first instance," Graber wrote. "The BIA understandably followed In re G-R- and Barber - the controlling precedents at the time of its decision. By holding today that those cases are no longer good law, we have created error in the BIA's decision and have thwarted the ordinary procedure through which the BIA has the first opportunity to assess whether a crime involves moral turpitude."
A prompt decision from the BIA "could help to limit the number of individuals who decide to plead guilty without proper guidance as to the immigration consequences of that decision," the majority added.
Even though the offense at issue was a "wobbler" offense - meaning that the state court could treat the conviction as either a felony or as a misdemeanor - it meets the removal provision that the conviction is for "a crime for which a sentence of one year or longer may be imposed," the court also noted.
If Ceron's conviction was a felony, the maximum penalty was imprisonment for four years in the state prison, and if it was a misdemeanor, then the maximum penalty was one year in the county jail.
The dissenting judges agreed with the majority that Ceron's conviction met the one-year sentence provision, but disagreed that the categorical approach should be used to determine whether the crime involves moral turpitude.
Binding here is the Supreme Court's decision in Jordan v. De George, which analyzes whether a crime falls into the Immigration and Naturalization Act's category of "crimes involving moral turpitude," the dissent states.
In that case, the Supreme Court "ruled that stare decisis is the correct method of determination of what crimes fall into the appellation of 'crimes involving moral turpitude,'" Judge Carlos Bea wrote, joined by Judge Ronald Gould.
"Under De Goerge I would look to the weight of the federal and state court authority, just as the BIA here did and just as our circuit did in Barber, and find that assault with a deadly weapon is a crime involving moral turpitude," Bea added.