Submitted February 8, 2018 [*] Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency Nos. A075-594-042, A035-215-035
V. Perez (argued), Law Offices of Sarah V. Day, Los Angeles,
California, for Petitioner.
J. Tucker (argued) and Jane T. Schaffner, Trial Attorneys;
Papu Sandhu, Senior Litigation Counsel; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Before: William A. Fletcher, Consuelo M. Callahan, and John
B. Owens, Circuit Judges.
panel granted separate petitions for review filed by Elisa de
Jesus Menendez and Hector Rodriguez-Castellon from decisions
of the Board of Immigration Appeals, and held that California
Penal Code § 288(c)(1), which prohibits lewd or
lascivious acts when a victim is a child of 14 or 15 years
and the defendant is at least 10 years older than the child,
is neither a crime involving moral turpitude nor
categorically a "crime of child abuse."
a lawful permanent resident, was placed in removal
proceedings after her conviction under § 288(c)(1).
Menendez conceded removability under 8 U.S.C. §
1227(a)(2)(E)(i), as a noncitizen convicted of a crime of
child abuse, and applied for cancellation of removal.
However, the Immigration Judge and BIA found Menendez
ineligible for cancellation of removal on the ground that her
conviction under § 288(c)(1) was categorically a crime
of moral turpitude that triggered the stop-time rule, cutting
off her accrual of the period of continuous residence she
required for cancellation.
also a lawful permanent resident, was initially found
removable on the ground that his conviction under §
288(c)(1) was a crime of violence under 18 U.S.C. §
16(b) and therefore an aggravated felony. After this court
held in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
2015), that 18 U.S.C. § 16(b) is unconstitutionally
vague, Rodriguez-Castellon filed a motion to reconsider with
the BIA. The BIA acknowledged that the motion was untimely,
but noted that a fundamental change in law may warrant sua
sponte reopening. However, the BIA declined to exercise its
sua sponte authority after holding that Rodriguez was
removable under U.S.C. § 1227(a)(2)(E)(i), as a
noncitizen convicted of a crime of child abuse, even if he
was no longer removable as an aggravated felon.
deciding Menendez's petition, the panel held that Cal.
Penal Code § 288(c)(1) is not categorically a crime
involving moral turpitude, explaining that, because the
offense requires only sexual intent, and because a good-faith
reasonable mistake of age is not a defense, a defendant is
not required to have evil or malicious intent. Thus, the
panel concluded that the statute lacks the corrupt scienter
requirement that is the touchstone of moral turpitude. The
panel also concluded that § 288(c)(1) does not require
intent to injure or actual injury, noting that any touching
can violate the statute. Acknowledging that § 288(c)(1)
does involve a protected class of persons, the panel observed
that not all criminal statutes intended to protect minors
establish crimes involving moral turpitude and that the
elements of § 288(c)(1) create a realistic probability
of a conviction based on conduct that does not involve moral
panel further held that § 288(c)(1) contains a single,
indivisible set of elements such that the modified
categorical approach does not apply. Accordingly, the panel
concluded that the BIA erred in concluding that
Menendez's conviction triggered the stop-time rule and
rendered her ineligible for cancellation. The panel also
noted that, on remand, the BIA should consider whether
binding Menendez to her concession of removability under 8
U.S.C. § 1227(a)(2)(E)(1), as a noncitizen convicted of
a crime of child abuse, would produce an unjust result in
light of the panel's holding in the next section of the
opinion that a conviction under § 288(c)(1) is not a
crime of child abuse.
deciding Rodriguez-Castellon's petition, the panel held
that § 288(c)(1) is not categorically a crime of child
abuse under 8 U.S.C. § 1227(a)(2)(E)(1), concluding that
§ 288(c)(1) is broader than the generic definition of a
crime of child abuse in two ways. First, the generic
definition requires that a defendant act with a mens rea of
at least criminal negligence, but § 288(c)(1) has no
such requirement; § 288(c)(1) requires a defendant to
have acted willfully, but this requirement applies only to
the commission of the act and does not require any intent to
violate law, injure another, or acquire any advantage. In
this respect, the panel also noted the fact that a reasonable
and good-faith mistake of age is not a defense to §
288(c)(1). Second, unlike the generic definition, §
288(c)(1) does not require proof of actual injury, or a
sufficiently high risk of harm as an element of the offense;
instead, § 288(c)(1) applies irrespective of whether the
touching is outwardly innocuous, or whether the minor is
aware of the nature of the contact at all. Accordingly, the
panel concluded that the BIA did not rely on an appropriate
ground when it refused to reopen sua sponte on the ground
that Rodriguez-Castellon's § 288(c)(1) conviction
was a crime of child abuse that made him removable.
Judge Callahan, joined by Judge Owens, expressed the concern
that, here, immigration consequences and, in other settings,
sentences turn on a determination in the abstract of the
breadth of the underlying state statute rather than the
person's actual offense. Judge Callahan wrote that the
present system forces courts to parse state statutes for
determinations that no state legislator ever considered, and
leads to uneven results, as the immigration consequences to
individuals who committed basically the same offenses turn on
the fortuity of the breadth of the state statute, which in
most instances has nothing to do with the individual's
actual criminal conviction. Noting that if Congress will not,
or cannot act, Judge Callahan expressed the hope that the
Supreme Court will devise a more straight-forward approach to
this area of law.
FLETCHER, CIRCUIT JUDGE.
with two separate petitions for review. Petitioners Elisa de
Jesus Menendez and Hector Rodriguez-Castellon are both
subject to removal for their respective convictions under
Cal. Penal Code § 288(c)(1). In Menendez's case, No.
14-72730, the BIA determined that § 288(c)(1) is
categorically a crime involving moral turpitude under 8
U.S.C. § 1182(a)(2)(A)(i)(I). Because the commission of
such a crime stops the accrual of continuous residence, the
BIA held that Menendez failed to accrue the seven years of
residence required for cancellation of removal. In
Rodriguez's case, No. 16-70365, the BIA determined that
Cal. Penal Code § 288(c)(1) is categorically a crime of
child abuse under 8 U.S.C. § 1227(a)(2)(E)(i). On that
basis, the BIA denied sua sponte reopening of the case.
that § 288(c)(1) is neither categorically a crime
involving moral turpitude nor categorically a "crime of
child abuse." We grant Menendez's and
Rodriguez's petitions for review. We remand both cases to
the BIA for further proceedings consistent with this opinion.