On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A096-380-472.
The opinion of the court was delivered by: Reinhardt, Circuit Judge
Argued and Submitted April 19, 2007 -- San Francisco, California
Before: Stephen Reinhardt, Jay S. Bybee and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt; Dissent by Judge Bybee
Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. There is simply no overall agreement on many issues of morality in contemporary society.
Morality is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals, to whose decisions the courts must give great deference. Yet, for the purpose of our immigration laws we are required to follow those determinations and to start by applying categories of offenses that the judiciary or the Board members appointed by the Attorney General have deemed morally turpitudinous in all of their applications. We call this the categorical approach. How sensible those decisions are and how close to rational concepts of morality they may come can be seen by considering one of the offenses involved in the case before us. While under our law numerous felonies are deemed not to be morally turpitudinous, all acts of petty theft automatically qualify for that label and the drastic legal consequences that may follow. As some in today's society might say, and with good reason, "Go figure."
Victor Ocegueda Nuñez appeals the Board of Immigration Appeals' (BIA) affirmance of an Immigration Judge's (IJ) decision ordering him removed to Mexico. The BIA determined that Ocegueda had been convicted of two crimes of moral turpitude and that he was thus statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(B). Because we conclude that indecent exposure under § 314 of the California Penal Code is not categorically a crime of moral turpitude, we grant the petition and remand.
III. Factual and Procedural Background
Victor Ocegueda Nuñez ("Ocegueda"),*fn1 a native and citizen of Mexico, entered the United States without inspection in March 1993, at the age of 15. While in the United States, he met and married his wife, a U.S. citizen, with whom he has three U.S. citizen children. On June 30, 2003, the Department of Homeland Security began removal proceedings against him on the ground that he was present in the United States without having been lawfully admitted or paroled. He conceded removability, but applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1), on the basis that his removal would result in exceptional and extremely unusual hardship to his wife and children.
On September 15, 2004, one day before the hearing on Ocegueda's application for cancellation was to be held, the government filed a motion to pretermit. It argued that Ocegueda was statutorily ineligible for cancellation because he had been convicted of two crimes of moral turpitude during the past ten years: petty theft in 1995 and indecent exposure in 2003. The government's only evidence of the petty theft conviction was an FBI Report indicating that Ocegueda had been arrested and charged with petty theft on May 25, 1995. The Report did not indicate the disposition of the charge. Although Ocegueda's counsel was aware of the indecent exposure conviction, the motion to pretermit was apparently the first she had heard of Ocegueda's 1995 arrest for petty theft. A single conviction for a crime involving moral turpitude is not a statutory bar to cancellation of removal if the maximum penalty does not exceed one year's imprisonment, and if the individual is sentenced to six months or less. See 8 U.S.C. § 1182(a)(2)(A)(ii). Two convictions, however, render an alien ineligible for cancellation. 8 U.S.C. § 1229b(b)(1)(C).
Immediately after the government filed its motion to pretermit, Ocegueda filed an emergency motion to continue the hearing. He argued that he needed time to establish: (1) that indecent exposure was not a crime involving moral turpitude, and (2) that he had not actually been convicted of the petty theft offense. The IJ denied the motion.
At the September 16 hearing, the IJ questioned Ocegueda about the petty theft charge. He admitted that he had been arrested after a store security guard accused him of stealing a pair of pants and that he had subsequently appeared in court and paid a $100 fine. The IJ concluded that this testimony sufficed to establish a prior conviction for petty theft. The IJ determined that both petty theft and indecent exposure are crimes of moral turpitude and that Ocegueda was statutorily ineligible for cancellation on the basis of the two convictions. The IJ then concluded the hearing, without hearing any of Ocegueda's evidence that his removal would result in exceptional and extremely unusual hardship to his U.S. citizen family.
Ocedgueda appealed to the BIA. He argued that indecent exposure was not a crime of moral turpitude, and that the IJ's denial of his motion for a continuance violated Due Process. He did not contest the classification of petty theft as a crime of moral turpitude. The BIA affirmed the IJ, concluding that indecent exposure, the offense proscribed by California Penal Code § 314, was also such a crime. It did not address the Due Process issue or the petty theft conviction except to agree with the IJ that Ocegueda's two convictions for crimes of moral turpitude made him statutorily ineligible for cancellation.
On appeal, Ocegueda raises two challenges to the BIA's decision. First, he argues that indecent exposure is not categorically a crime of moral turpitude. Second, he argues that his Due Process rights were violated because he never had an opportunity to respond to the government's motion to pretermit. Because we agree that California Penal Code § 314 covers a broader range of offenses than the generic definition of crimes of moral turpitude, we hold that indecent exposure is not categorically such a crime. Accordingly, we need not reach the Due Process question.
IV. Jurisdiction and Standard of Review
Whether a crime involves moral turpitude is a question of law that we have jurisdiction to review pursuant to 8 U.S.C. § 1252(a)(2)(D). We review the BIA's interpretation of the statute of conviction de novo. Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc). The BIA's conclusion that a particular crime does or does not involve moral turpitude is subject to different standards of review depending on whether the BIA issues or relies on a published decision in coming to its conclusion. If it does either, we accord Chevron deference. Id. If it does neither, we defer to its conclusion to the extent that it has the "power to persuade." Id. at 909 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
 To determine if a crime involves moral turpitude, we first apply the categorical approach. Nicanor-Romero v. Mukasey, 523 F.3d 992, 999 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos, 558 F.3d at 908-09. This requires us to compare the elements of the crime to the generic definition of moral turpitude and "decide whether the conduct proscribed in the statute is broader than, and so does not categorically fall within, this generic definition." Id. (quoting Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003)). In making this determination, we must find "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition" of moral turpitude. Id. at 1004 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). This realistic probability can be established by showing that, in at least one other case, "the state courts in fact did apply the statute in the special (nongeneric) manner...." Id. at 1004-05 (relying on one case to establish a realistic probability); see also Matter of Silva-Trevino, 24 I. & N. Dec. 687, 708 (2008) (same).*fn2
If the crime does not qualify under the categorical approach, we apply the modified categorical approach and look to documents within the record of conviction to see whether the conviction in the particular case involved moral turpitude. However, because the only information before the IJ was the fact of conviction, Ocegueda's conviction of indecent exposure can qualify as a crime of moral turpitude on the record before us only if it so qualifies under the categorical approach.
California's indecent exposure statute reads as follows:
Every person who willfully and lewdly... [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby... is guilty of a misdemeanor.
Cal. Penal Code § 314(1).
 The BIA correctly identified the elements of § 314. The provision prohibits: (1) sexually motivated exposure of one's private parts; (2) in a public place or a place where others are present. With respect to the mens rea element, California courts require "proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront." In re Smith, 497 P.2d 807, 810 (Cal. 1972); see also People v. Archer, 119 Cal. Rptr. 2d 783, 786 (Cal. Ct. App. 2002) (holding that "sexual" modifies "arousal," "gratification", and "affront").
B. Generic definition of "moral turpitude"
We have previously discussed at some length the inherent ambiguity of the phrase "moral turpitude" and the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.*fn3 See, e.g., Marmolejo-Campos, 558 F.3d at 909 (" '[M]oral turpitude' is perhaps the quintessential example of an ambiguous phrase."); id. at 921 (Berzon, J., dissenting) ("[T]he BIA's precedential case law regarding the meaning of the phrase 'crime involving moral turpitude'... is a mess of conflicting authority."); NicanorRomero, 523 F.3d at 997-99 (summarizing Ninth Circuit law on moral turpitude and recognizing that "[w]e have not relied on a consistent or easily applied set of criteria" to identify crimes of moral turpitude). Our definition tells us only that crimes of moral turpitude are crimes that involve either fraud or "base, vile, and depraved" conduct that "shock[s] the public conscience." Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074-75 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority) (internal quotation marks removed).
 Absent consistent or logical rules to follow as we determine whether a crime (other than one involving fraud) involves moral turpitude, our most useful guidance often comes from comparing the crime with others that we have previously deemed morally turpitudinous. See Navarro-Lopez, 503 F.3d at 1075 (Reinhardt, J, concurring for the majority) ("Under our current test for moral turpitude, we compare a crime's depravity with that of crimes we have previously determined to be base, vile, and depraved...."). A review of BIA and Ninth Circuit precedent reveals that non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.*fn4
See, e.g., In re Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA 1999) (identifying "murder, rape, robbery, kidna[p]ping, voluntary manslaughter, some involuntary manslaughter offenses, aggravated assaults, mayhem, theft offenses, spousal abuse, child abuse, and incest" as crimes of moral turpitude); Morales-Garcia v. Holder, 567 F.3d 1058, 1065-66 (9th Cir. 2009) (explaining that assault is not generally a crime of moral turpitude unless it involves either intentional infliction of serious harm or infliction of harm on a protected class of victim); Marmolejo-Campos v. Gonzales, 503 F.3d 922, 927 (9th Cir. 2007) (D.W. Nelson, J., dissenting), reheard in banc, 558 F.3d 903 (9th Cir. 2009) (citing cases in which the BIA and Ninth Circuit determined that burglary, assault and battery, malicious mischief, alien smuggling, assault with a deadly weapon, indecency, rioting, and money laundering are not crimes of moral turpitude).
This is no less true when it comes to sexual offenses. We have held that the following sex-related crimes are categorically crimes of moral turpitude: "lewd and lascivious conduct toward a child," Schoeps v. Carmichael, 177 F.2d 391, 394 (9th Cir. 1949); incest, Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994); knowing possession of child pornography, United States v. Santacruz, 563 F.3d 894, 897 (9th Cir. 2009); and communication with a minor for immoral purposes, Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir. 2007). We have also recognized that rape is categorically a crime of moral turpitude. Navarro-Lopez, 503 F.3d at 1075 (Reinhardt, J, concurring for the majority). These crimes universally involve either actual infliction of harm or a protected class of victim; most often a combination of the two. In fact, never without the presence of at least one of these factors have we deemed a sexual offense to involve moral turpitude.
If we search far enough back into the case law of the BIA and other circuits, it is true that we find decisions holding that conduct that is "shock[ing]," not by virtue of its impact upon victims, but by virtue of its incompatibility with contemporary sexual attitudes is, on that basis alone, "morally turpitudinous." At various times, the BIA and the courts have labeled as morally turpitudinous such offenses as consensual oral sex, Matter of Leyva, 16 I. & N. Dec. 118 (BIA 1977), consensual anal sodomy, Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972), and "overt and public homosexual activity" Matter of Alfonzo-Bermudez, 12 I. & N. Dec. 225 (BIA 1967). These cases remind us that private, consensual homosexual conduct, which the Supreme Court held to be constitutionally protected in Lawrence v. Texas, 539 U.S. 558 (2003), was not so long ago deemed "base and depraved" and a crime of moral turpitude in some courts. See, e.g., Williams v. State, 316 So. 2d 362, 363-64 (Ala. 1975) ("[W]e have no hesitancy whatever in arriving at the conclusion that a crime that ...