and Submitted November 8, 2016 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A075-707-335
Elizabeth Hill (argued), Hill and Piibe, Los Angeles,
California, for Petitioner.
H. Yousef (argued), Trial Attorney; M. Jocelyn Lopez Wright,
Senior Litigation Counsel; Leslie McKay, Assistant Director;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Before: Marsha S. Berzon, Morgan B. Christen, and Jacqueline
H. Nguyen, Circuit Judges.
panel granted Natividad De Jesus Duran Escobar's petition
for review of the Board of Immigration Appeals' decision
finding her ineligible for cancellation of removal because
her conviction for witness tampering under California Penal
Code § 136.1(a) was a categorical crime involving moral
turpitude, and remanded.
panel held that the Immigration Judge and BIA erred by
finding CPC § 136.1(a) a categorical CIMT, because the
offense is overly broad and not a categorical match to the
generic definition of a CIMT.
panel granted Duran's petition with respect to her
application for cancellation, and remanded for the Agency to
consider whether CPC § 136.1(a) is divisible and, if so,
to conduct the modified categorical analysis. The panel noted
that on appeal the parties did not brief the divisibility
issue, and that the BIA had not reached the modified
categorical approach. The panel wrote that although it could
reach the question of divisibility sua sponte because the BIA
is not entitled to deference when interpreting criminal
statutes, it was declining to do so.
CHRISTEN, Circuit Judge:
immigration case turns on whether California Penal Code
section 136.1(a), California's witness tampering statute,
is a categorical crime involving moral turpitude. Petitioner
Natividad De Jesus Duran Escobar (Duran) is a native and
citizen of El Salvador, who fled to the United States after
several encounters with guerrillas in the 1980s. An
Immigration Judge (IJ) denied Duran's application for
cancellation of removal, concluding that she was ineligible
because her conviction for witness tampering under section
136.1(a) was a categorical crime involving moral turpitude.
Duran appealed, the Board of Immigration Appeals (BIA)
affirmed, and Duran timely filed a petition for review.
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We grant
the petition with respect to Duran's application for
cancellation of removal because the IJ and BIA failed to
consider the broad definition of "malice" in
California Penal Code section 136, which indicates that the
offense is not a categorical match to the generic definition
of a crime involving moral turpitude.
is a native and citizen of El Salvador. She entered the
United States without inspection on October 4, 1989. Duran
applied for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture (CAT) on
July 19, 2000, alleging that she and her family "were
mistreated and threatened by the guerrillas" in El
Salvador in the 1980s. An asylum officer declined to grant
the application, and on September 11, 2000, the Department of
Homeland Security served her with a Notice to Appear (NTA).
The NTA charged Duran with being removable because she was
present in the United States without being admitted or
paroled under section 212 (a)(6)(A)(i) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i).
Duran admitted removability, but applied for cancellation of
removal based on hardship to her minor U.S. citizen son,
ruled that Duran is statutorily ineligible for cancellation
of removal because she was previously convicted of a crime
involving moral turpitude (CIMT). On April 19, 2001, Duran
pleaded no contest to violating California Penal Code section
136.1(a), California's witness tampering statute. She was
sentenced to sixty days in county jail and two years
supervised release. The IJ concluded that section 136.1(a) is
categorically a CIMT because malice is an element of the
offense. The IJ did not hear the full testimony regarding
Duran's application for cancellation of removal because
the IJ deemed her statutorily ineligible. Duran timely
appealed to the BIA. The BIA, in an unpublished opinion,
affirmed the IJ's conclusion that Duran was ineligible
for cancellation of removal due to her previous conviction.
determination whether a conviction under a criminal statute
is categorically a crime of moral turpitude involves two
steps, to which different standards of review apply."
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th
Cir. 2013) (alterations omitted) (quoting Uppal v.
Holder, 605 F.3d 712, 714 (9th Cir. 2010)). "The
first step is to identify the elements of the statute of
conviction, " and, because the BIA "has no special
expertise by virtue of its statutory responsibilities in
construing state or federal criminal statutes, " we
review the first step de novo. Id. (quoting
Uppal, 605 F.3d at 714).
second step is to compare the elements of the statute of
conviction to the generic definition of a crime of moral
turpitude and decide whether the conviction meets that
definition." Id. "Because the BIA does
have expertise in making this determination, we defer to its
conclusion if warranted" under either Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) or Skidmore v. Swift & Co.,
323 U.S. 134 (1944). Id. (quoting Uppal,
605 F.3d at 714). Chevron applies "if the
decision is a published decision (or an unpublished decision
directly controlled by a published decision interpreting the
same statute), " while Skidmore governs
"if the ...