Argued and Submitted, Pasadena, California: February
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077-089-449.
Keli M. Reynolds (argued), Olmos & Reynolds Law Group, LLP, Los Angeles, California; Andres Z. Bustamante, Law Offices of Andres Z. Bustamante, Los Angeles, California, for Petitioner.
Jesse L. Busen (argued) and Gregory M. Kelch, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before: Barry G. Silverman and Andrew D. Hurwitz, Circuit Judges, and C. Roger Vinson, Senior District Judge.[*] Opinion by Judge Vinson.
VINSON, Senior District Judge:
Rodrigo Montiel Turijan petitions for review of a final decision of the Board of Immigration Appeals (" BIA" ). The issue on appeal is whether felony false imprisonment under California Penal Code (" CPC" ) § § 236 and 237 is a categorical crime involving moral turpitude (" CIMT" ) for purposes of the Immigration and Nationality Act (" INA" ). As this court has recognized, non-fraudulent crimes of moral turpitude " almost always" involve the intent to injure, actual injury, or a protected class of victim. See Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010). Because felony false imprisonment in California does not require any of these elements--and because courts in California have applied the statute to conduct that is not morally turpitudinous--we conclude that the offense is not a categorical CIMT. This conclusion also logically flows from (and is required by) Castrijon-Garcia v. Holder, 704 F.3d 1205, 1218 (9th Cir. 2013) (holding that simple kidnapping under CPC § 207(a) is not a categorical CIMT).
The petitioner is a native and citizen of Mexico, who was admitted into the United States as a lawful permanent resident in 2000. Less than five years later, he was charged in California state court with simple kidnapping in violation of CPC § 207(a). The petitioner later pled guilty to a lesser included offense of false imprisonment under CPC § 236. See, e.g., People v. Gibbs, 12 Cal.App.3d 526, 90 Cal.Rptr. 866, 879 (Ct. App. 1970) (false imprisonment is " necessarily" a lesser included offense of kidnapping). The record contains limited information regarding the circumstances of Turijan's crime and the details of his plea, but we know that he was sentenced to three years in state prison. This means that his crime was a felony " effected by violence, menace, fraud, or deceit...." See CPC § 237(a) (false imprisonment is a misdemeanor unless it involves one or more of those aggravating factors, in which case it is a felony and carries more than one year incarceration).
After his conviction, the Department of Homeland Security (" government" ) served Turijan with a Notice to Appear, charging him with removability pursuant to INA § 237(a)(2)(A)(iii), for being an alien who had been convicted of an aggravated felony. At a hearing before an Immigration Judge (" IJ" ) in December 2005, he was granted a continuance because the government had not provided his attorney with the conviction documents.
At his second hearing in March 2006, the government filed the conviction documents and, importantly for this appeal, amended the Notice to Appear to charge Turijan with removability under INA § 237(a)(2)(A)(i), for having ...