Hugo Orosco v. Eric Holder, Jr., US Attorney

Filing

UNPUBLISHED OPINION FILED. [09-60432 Reversed and Remanded] Judge: EBC , Judge: LHS , Judge: CH Mandate pull date is 10/25/2010 [09-60432]

Hugo Orosco v. Eric Holder, Jr., US Attorney

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60432 September 3, 2010 Lyle W. Cayce Clerk H U G O ROMEO OROSCO, Petitioner v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL,

R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A070-643-979

B e fo r e CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges. P E R CURIAM:* P e t itio n e r Hugo Romeo Orosco ("Orosco") is a native and citizen of G u a t e m a la who was convicted in 1994 and 2001 of violating section 20002(a) of t h e California Vehicle Code. In 2006, Orosco was charged with removal, and he c o n c e d e d that he was removable as charged. Orosco applied for cancellation of r e m o v a l under 8 U.S.C. § 1229b(b)(1). An immigration judge ("IJ") denied O r o s c o 's application. The IJ found that Orosco's 1994 and 2001 convictions were c r im e s involving moral turpitude and, as a result, the IJ found that Orosco was
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

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No. 09-60432 in e lig ib le for cancellation of removal under § 1229b(b)(1). Orosco appealed the I J 's decision to the Board of Immigration Appeals ("BIA"). The BIA agreed with t h e IJ's decision and dismissed Orosco's appeal. Orosco petitions this court for r e v ie w of the BIA's decision. R E V E R S E and REMAND. I. FACTUAL AND PROCEDURAL HISTORY O r o s c o entered the United States in 1989 without first being inspected or a d m it t e d by an immigration officer. In 2006, he and his wife were charged by t h e Department of Homeland Security with removal. Orosco and his wife We GRANT Orosco's petition for review and

c o n c e d e d that they were removable as charged, and they both applied for c a n c e lla t io n of removal under 8 U.S.C. § 1229b(b)(1). Under § 1229b(b)(1), an a lie n is eligible for cancellation of removal if he: (A) "has been physically present in the United States for a continuous period of not less than 10 years im m e d ia t e ly preceding the date of such application;" (B)"has been a person of g o o d moral character during such period;" (C)"has not been convicted of an o f fe n s e under" 8 U.S.C. § 1182(a)(2) (referring to crimes involving moral t u r p it u d e ); and (D) "establishes that removal would result in exceptional and e x t r e m e ly unusual hardship to the alien's spouse, parent, or child, who is a c it iz e n of the United States or an alien lawfully admitted for permanent r e s id e n c e ." After conducting a hearing on their applications for cancellation of r e m o v a l, the IJ granted Orosco's wife's application but denied his application. The IJ found that Orosco had satisfied requirements (A), (B), and (D) but was in e lig ib le for cancellation because he could not satisfy requirement (C). The IJ found that Orosco failed to satisfy requirement (C) because he had b e e n convicted of a crime involving moral turpitude ("CIMT"). Specifically, in 1 9 9 4 and 2001, Orosco was convicted of violating section 20002(a) of the C a lifo r n ia Vehicle Code. At all times relevant to this appeal, section 20002(a) r e q u ir e d a driver who was involved in an accident resulting in property damage 2

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No. 09-60432 t o immediately stop and leave certain information. CAL. VEH. CODE § 20002(a). The IJ found that Orosco's 1994 and 2001 convictions were for crimes involving m o r a l turpitude. In making its determination, the IJ did not rely on evidence fo u n d in Orosco's record of conviction; instead, the IJ relied on testimony elicited f r o m Orosco during the immigration hearing and a police report. Orosco a p p e a le d the IJ's decision to the BIA, arguing that he had not been convicted of a CIMT. The BIA heard and dismissed Orosco's appeal. The BIA found that

O r o s c o 's convictions under section 20002(a) were categorically crimes involving m o r a l turpitude and, therefore, that Orosco was ineligible for cancellation of r e m o v a l. Alternatively, the BIA found that even if Orosco's convictions under s e c t io n 20002(a) were not categorically crimes involving moral turpitude, it w o u ld find Orosco's convictions to be such under a modified categorical approach in light of Orosco's testimony and the police report. Orosco petitioned this court fo r review of the BIA's decision. II. JURISDICTION T h is court has "jurisdiction to review . . . questions of law associated with [a ] claim for discretionary relief." Garcia-Maldonado v. Gonzales, 491 F.3d 284, 2 8 7 (5th Cir. 2007) (citing 8 U.S.C. § 1252(a)(2)(D)). Because the issue of

w h e t h e r Orosco has been convicted of "a CIMT is a purely legal question, we h a v e jurisdiction to consider [his] petition." Id. III. STANDARD OF REVIEW W e apply "a two-part standard of review to the BIA's conclusion that an a lie n has committed a crime involving moral turpitude: First, we accord

s u b s t a n t ia l deference to the BIA's definition of the term `moral turpitude;' and "Second, we review de novo whether the elements of the state or federal [offense a t issue] fit the BIA's definition of a [crime involving moral turpitude]."

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No. 09-60432 A m o u z a d e h v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (alterations in the o r ig in a l); Rodriguez-Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir. 2005). IV. DISCUSSION O n appeal, Orosco contends that he is eligible for discretionary c a n c e lla t io n of removal because his convictions under section 20002(a) of the C a lifo r n ia Vehicle Code do not qualify as crimes involving moral turpitude. The B I A , through its administrative decisions, has crafted the following definition o f the term "moral turpitude": Moral turpitude refers generally to conduct that shocks the public c o n s c ie n c e as being inherently base, vile, or depraved, and contrary t o the accepted rules of morality and the duties owed between p e r s o n s or to society in general. Moral turpitude has been defined a s an act which is per se morally reprehensible and intrinsically w r o n g , or malum in se, so it is the nature of the act itself and not t h e statutory prohibition of it which renders a crime one of moral t u r p it u d e . Among the tests to determine if a crime involves moral t u r p it u d e is whether the act is accompanied by a vicious motive or a corrupt mind. A m o u z a d e h , 467 F.3d at 455. In determining whether a state law meets the B I A 's definition of "moral turpitude," we employ a categorical approach that " fo c u s e s on the inherent nature of the crime, as defined in the statute . . ., rather th a n the circumstances surrounding the particular transgression." Id. (quotation m a r k s omitted) (emphasis added). "When applying the categorical approach, the s t a t u t e must be read at the minimum criminal conduct necessary to sustain a c o n v ic t io n under the statute." Rodriguez-Castro, 427 F.3d at 320 (quotation m a r k s omitted). "Generally, a statute that encompasses both acts that do and do n o t involve moral turpitude cannot be the basis of removal determination under t h e categorical approach." Id. "An exception to this general rule is made if the s t a t u t e is divisible into discrete subsections of acts that are and those that are n o t [crimes involving moral turpitude]." Amouzadeh, 467 F.3d at 455 (quotation m a r k s omitted) (alteration in the original). "If the statute is divisible, we [apply 4

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No. 09-60432 a modified categorical approach and] look at the alien's record of conviction to d e t e r m in e whether he has been convicted of a subsection that qualifies as a" C I M T . Id. (quotation marks omitted). The BIA applied the categorical approach and then, in the alternative, the m o d ifie d categorical approach to find that Orosco's convictions under section 2 0 0 0 2 (a ) of the California Vehicle Code were crimes involving moral turpitude. After applying both approaches to the facts at hand, we conclude that the BIA's d e c is io n was incorrect. A. The Categorical Approach O r o s c o was convicted in 1994 and 2001 of violating section 20002(a) of the C a lifo r n ia Vehicle Code.1 As stated above, under the categorical approach, we m u s t look at the "minimum criminal conduct necessary to sustain a conviction u n d e r " section 20002(a), and if that minimum conduct "is not necessarily

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In 1994, section 20002(a) read as follows: (a) The driver of any vehicle involved in an accident resulting in damage to any property, including vehicles, shall immediately stop the vehicle at the scene of the accident and do either of the following: (1) Locate and notify the owner or person in charge of that property of the name and address of the driver and owner of the vehicle involved and, upon locating the driver of any other vehicle involved or the owner or person in charge of any damaged property, upon being requested, present his or her driver's license, and vehicle registration, to the other driver, property owner, or person in charge of that property. The information presented shall include the current residence address of the driver and of the registered owner. If the registered owner of an involved vehicle is present at the scene, he or she shall also, upon request, present his or her driver's license information, if available, or other valid identification to the other involved parties. (2) Leave in a conspicuous place on the vehicle or other property damaged a written notice giving the name and address of the driver and of the owner of the vehicle involved and a statement of the circumstances thereof and shall without unnecessary delay notify the police department of the city wherein the collision occurred or, if the collision occurred in unincorporated territory, the local headquarters of the Department of the California Highway Patrol. CAL. VEH. CO D E § 20002(a) (1994). The 2001 version of § 20002(a) differs only with respect to the text of subsection (a) in a way not material here.

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No. 09-60432 c o n t r a r y to accepted rules of morality," a conviction under § 20002(a) will not c a t e g o r ic a lly be a CIMT. See Garcia-Maldonado, 491 F.3d at 288-89. Under s e c t io n 20002(a)(2), a driver in an accident resulting in property damage to a n o t h e r vehicle will violate the statute if he: (1) stops; (2) leaves in a conspicuous p la c e on the other vehicle his name, his address, and a statement of the c ir c u m s t a n c e s that lead to the accident; and (3) notifies the police; but (4) w illfu lly fails to leave the name of the owner of the vehicle. CAL VEH. CODE § 2 0 0 0 2 (a )(2 ) (1994) and (2001); see People v. Crouch, 166 Cal. Rptr. 818, 823 (Cal. C t . App. 1980) (showing that an individual violates section 20002(a) by willfully fa ilin g to give all the information required by the statute). "Moral turpitude refers generally to conduct that shocks the public c o n s c ie n c e as being inherently base, vile, or depraved, and contrary to the a c c e p t e d rules of morality . . . ." Amouzadeh, 467 F.3d at 455. The failure to r e p o r t an accident involving a parked car to the local police department after le a v in g the name and address to notify the driver of the parked car of the in c id e n t is not conduct that rises to the level of moral turpitude; accordingly, we fin d that the BIA erred when it found that Orosco's convictions under section 2 0 0 0 2 (a ) of the California Vehicle Code were categorically crimes involving m o r a l turpitude. See Garcia-Maldonado, 491 F.3d at 289 (finding that a state s t a t u t e was not categorically a CIMT because the statute could be violated by t h e failure to share information); Serrano-Castillo v. Mukasey, 263 F. App'x 625, 6 2 6 (9th Cir. 2008) (unpublished) ("Violations of Cal. Vehicle Code § 20002 do n o t categorically involve moral turpitude."). B. The Modified Categorical Approach A s an alternative basis for its decision, the BIA held that Orosco's c o n v ic t io n s would also be considered crimes involving moral turpitude under the m o d ifie d categorical approach. The modified categorical approach could

c o n c e iv a b ly apply here only if there were some minimum criminal conduct that 6

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No. 09-60432 w o u ld violate this statute and constitute a CIMT under the definition discussed a b o v e and some that would not be a CIMT. See Amouzadeh, 467 F.3d at 455

(q u o ta t io n marks omitted) (alteration in the original). To determine whether s e c t io n 20002(a) is such a statute, we begin our analysis by examining the mens r e a requirement for a conviction under section 20002(a). An act can be a CIMT if it "involves . . . a vicious motive or a corrupt mind." Amouzadeh, 467 F.3d at 4 5 5 ; Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) ("Offering a bribe under t h is statute is a crime involving moral turpitude, for a corrupt mind is an e s s e n t ia l element of the offense."). To be convicted under section 20002(a), the s t a t e must prove the following: "(1) that the defendant knew he had been in v o lv e d in an accident, (2) which he knew resulted in damage to [property] and t h a t , (3) he knowingly and willfully left the scene of the accident [and] (4) [w illfu lly failed to give] the required information . . . ." Crouch, 166 Cal. Rptr. a t 823. There is no corrupt mind or vicious motive element in section 20002(a). As a consequence, no act under section 20002(a) can be a CIMT based on our c o r r u p t mind and vicious motive jurisprudence. An act can also be deemed a CIMT if the act itself is "morally r e p r e h e n s ib le and intrinsically wrong" or "malum in se." Amouzadeh, 467 F.3d a t 455; see also In re Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (B.I.A. 1999) (d e s c r ib in g the following crimes as those "involving acts of baseness or depravity [w h ic h ] have been found to be crimes involving moral turpitude even though t h e y have no element of fraud and, in some cases, no explicit element of evil in t e n t :" (1) murder, (2) rape, (3) robbery, (3) kidnaping, (4) voluntary m a n s la u g h t e r , (5) some involuntary manslaughter offenses, (6) aggravated a s s a u lts , (7) mayhem, (8) theft offenses, (9) spousal abuse, (10) child abuse, (11) a n d incest. ). We have deemed a number of acts to be intrinsically wrong or

m a lu m in se such that they are crimes involving moral turpitude. For example,

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No. 09-60432 t h e failure to stop and render aid, Garcia-Maldonado,2 491 F.3d at 290 ("The s u b s e c t io n of section 550.21 that criminalizes failure to render aid proscribes b e h a v io r that runs contrary to accepted social duties . . . and is `intrinsically w r o n g .'" ), and theft, Okoro v. INS, 125 F.3d 920, 926 (5th Cir.1997). Section 2 0 0 0 2 (a ) proscribes the willful failure to provide identifying information after k n o w i n g l y being involved in an accident resulting in property damage. The fa ilu r e to stop and provide information after an auto accident involving property d a m a g e is not morally reprehensible and intrinsically wrong or malum in se. Finally, we will examine whether any act under section 20002(a) would in v o lv e as an element of the offense fraud or deception because such acts tend t o be crimes involving moral turpitude. Hyder v. Keisler, 506 F.3d 388, 391 (5th C ir . 2007) ("We have repeatedly emphasized that crimes whose essential e le m e n t s involve fraud or deception tend to be CIMTs."). "If the government m u s t prove that the defendant acted . . . intentionally [to] deceive[] someone, we h a v e been more likely to classify [the criminal act] as a crime of moral t u r p it u d e ." Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002). Section 2 0 0 0 2 (a ) does not contain as an element of the crime any fraud or deceptive e le m e n t ; therefore, the government, in any case under section 20002(a), would n o t have to prove any fraud, false statement or deception to obtain a conviction. Accordingly, our fraud and deceit jurisprudence does not show that any act u n d e r section 20002(a) is a CIMT.

The government makes much of the failure to stop under section 20002(a), and, relying on Garcia-Maldonado, argues that the failure to stop renders a crime a CIMT. Our decision in Garcia-Maldonado does not reach that far. The failure to stop was not the element that rendered the crime in Garcia-Maldonado a CIMT; rather, it was the failure to render aid that was dispositive because such conduct is intrinsically wrong. See 491 F.3d at 290.

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No. 09-60432 I n light of our precedents, section 20002(a) does not involve any conduct t h a t can be deemed a CIMT and the modified categorical approach does not come in t o play.3 V . Conclusion B e c a u s e we conclude that Orosco's convictions under section 20002(a) are n o t crimes involving moral turpitude, we find that the BIA erred when it deemed h im ineligible for cancellation of removal.4 Accordingly, we GRANT Orosco's p e t it io n for review, and we REVERSE the BIA's decision and REMAND to the B I A for further proceedings consistent with this opinion.

We note that in applying the modified categorical approach, the BIA relied on a police report and testimony elicited from Orosco during the immigration proceedings. Orosco objects to considering such evidence for this purpose. Given our resolution of the CIMT issue, we decline to address this issue. Our conclusion that Orosco is eligible for cancellation of removal should not be confused with a finding that Orosco is entitled to cancellation of removal. The Attorney General may ultimately choose to deny Orosco's application for cancellation, and such a decision is within the Attorney General's discretion. See § 1229b(b)(1) (stating that the Attorney General "may cancel removal" of an alien who meets the statutory requirements for cancellation).
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