Pannu, et al v. Holder

Filing

FILED OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and RONALD M. GOULD) REMANDED. Judge: MDH Authoring, FILED AND ENTERED JUDGMENT. [7747951]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURSHARAN SINGH PANNU,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.





No. 07-71988
Agency No.
A042-385-535
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 14, 2011—Pasadena, California
Filed May 11, 2011
Before: Stephen Reinhardt, Michael Daly Hawkins, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Hawkins

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COUNSEL
Joseph J. Siguenza and Ashwani K. Bhakhri, Law Offices of
Ashwani K. Bhakhri, Burlingame, California, for the petitioner.
John B. Holt and Rebecca Hoffberg, United States Department of Justice, Civil Division, Washington, D.C., for the
respondent.

OPINION
HAWKINS, Senior Circuit Judge:
Gursharan Singh Pannu (“Pannu”), a native of India admitted to the United States in 1990 as a lawful permanent resident (“LPR”), petitions for review of a decision by the Board
of Immigration Appeals (“BIA”), affirming the immigration

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judge’s (“IJ”) determination that he is removable for having
been convicted of two or more crimes involving moral turpitude (“CIMT”), one being his failure to register as a sex
offender as required by California law. Because of several
significant legal developments since the BIA issued its decision in 2007, we remand for the BIA to consider their impact
on this case in the first instance. See INS v. Ventura, 537 U.S.
12, 16 (2002) (per curiam).
FACTS AND PROCEDURAL HISTORY
Pannu came to the United States in 1990 as a LPR. In 1994,
he was convicted under California Penal Code § 314.1 of misdemeanor indecent exposure. Later that same year, he was
convicted a second time for indecent exposure. The second
conviction was classified as a felony, requiring Pannu to register as a sex offender.
In 2001, Pannu was convicted of misdemeanor theft under
California Penal Code § 484(a). In 2002, he was convicted
under California Penal Code § 290(g)(1) for the misdemeanor
of failing to register as a sex offender.
Pannu was issued a Notice to Appear in January 2004,
charging him with removability for convictions of two or
more crimes involving moral turpitude, and for conviction of
an aggravated felony (this basis for removal was later withdrawn). Pannu conceded the fact of his four convictions and
conceded that his theft conviction qualified as a CIMT. He
denied that the remaining convictions constituted CIMTs, and
also sought relief from inadmissibility.
In August 2004, an IJ pretermitted his applications for
relief and ordered him removed for having been convicted of
two or more CIMTs. 8 U.S.C. § 1227(a)(2)(A)(ii). Pannu

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appealed; the BIA held that Pannu’s convictions for indecent
exposure were categorically1 CIMTs.
Pannu then petitioned this court for review. In the prior
appeal, we determined that the indecent exposure convictions
were not categorically CIMTs, and remanded for the BIA to
either apply the modified categorical analysis or determine
whether the failure to register conviction constituted a CIMT.
Pannu v. Gonzales, No. 05-70422, 2006 WL 2233237 (9th
Cir. Aug. 4, 2006).
On remand, the BIA determined that Pannu’s conviction
for failing to register constituted a CIMT, and, coupled with
the conceded theft CIMT, rendered him removable. The BIA
thus found it unnecessary to conduct a modified categorical
analysis regarding Pannu’s indecent exposure convictions.
Pannu now seeks review of the BIA’s determination.
DISCUSSION
The law impacting this case has changed considerably since
the BIA’s decision. Shortly before we remanded to the BIA
in the previous appeal, the BIA issued a precedential decision,
In re Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007), which
held that a failure to register as a sex offender in violation of
California Penal Code § 290(g)(1) categorically constituted a
CIMT.2 Pannu was convicted of the same California failure to
register statute as Tobar-Lobo. Thus, when the BIA addressed
1

See generally Taylor v. United States, 495 U.S. 575 (1990).
The version of California law in effect at the time of Pannu’s conviction provided:
2

Any person who is required to register under this section based
on a misdemeanor conviction or juvenile adjudication who willfully violates any requirement of this section is guilty of a misdemeanor punishable by imprisonment in a county jail not
exceeding one year.
Cal. Penal Code § 290(g)(1) (2002).

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Pannu’s case following our remand, it understandably found
the intervening Tobar-Lobo decision to be controlling. However, subsequent to the BIA’s decision in this case, we considered whether failure to register as a sex offender under a
similar Nevada law (Nev. Rev. Stat. § 179D.550) constituted
a CIMT. Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir.
2008).
Reviewing the BIA’s decision de novo, we rejected its reasoning, explaining that moral turpitude involves conduct that
is “inherently base, vile, or depraved,” and that such crimes
must be done willfully or with evil intent. Id. at 746 (citations
omitted). We noted that the Nevada law creates strict liability
for failing to register or notify of a change of address, so that
a defendant could be convicted for forgetting to register or
even for accidentally sending his registration forms to the
wrong address. Id. at 747; see also id. at 743 n.2 (noting that
although the California statute purportedly requires willfulness, it also extends to forgetfulness).
[1] We also rejected the BIA’s reasoning that the failure to
register was a breach of a duty owed to society, noting that
commission of any crime, by definition, runs contrary to some
duty owed to society, but does not necessarily demonstrate
moral depravity. Id. at 748. We concluded that “it is the sexual offense that is reprehensible, not the failure to register”
and that although the registration laws may serve useful purposes, “the mere failure to register as a sex offender cannot
constitute morally turpitudinous behavior.” Id. at 748-49.
[2] Later still, however, this court, sitting en banc, held
that we should afford Chevron3 deference to the BIA’s unpublished determinations of whether a crime constitutes a CIMT,
if those decisions rely on prior precedential decisions of the
BIA that are dispositive of the interpretive issue in the case.
3

Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984).

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Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir.
2009) (en banc) (“[W]e conclude that where, as here, the
Board determines that certain conduct is morally turpitudinous in a precedential decision, we apply Chevron deference
regardless of whether the order under review is the precedential decision itself or a subsequent unpublished order that
relies upon it.”). In doing so, the en banc court expressly overruled Plasencia-Ayala to the extent it employed a de novo
standard of review, but did not otherwise address the merits
of Plasencia-Ayala’s analysis of the sex offender registration
CIMT issue. Id.
[3] Furthermore, subsequent to the BIA’s decision below,
the Attorney General issued an opinion in Matter of SilvaTrevino, 24 I. & N. Dec. 687 (A.G. 2008), for the purpose of
producing a standardized approach to making determinations
of CIMTs to replace the “patchwork of conflicting legal and
evidentiary standards” existing in the circuit courts. Id. at 688.
The Attorney General: (1) opined that the IJ or BIA must
determine whether there is a “realistic probability, not a theoretical possibility” that the underlying criminal statute would
be applied to reach conduct that does not involve moral turpitude, id. at 690 (citing Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007)); (2) noted that if the categorical analysis
does not resolve the inquiry, the agency should proceed to a
modified categorical inquiry, first considering the typical
record of conviction documents, but permitting an examination of evidence beyond the formal record of convictions,4 id.;
and (3) most important here, addressed the proper definition
of moral turpitude, explaining that “[a] finding of moral turpitude under the Act requires that a perpetrator have committed
the reprehensible act with some form of scienter,” id. at 706
(emphasis added).
4

As in Marmolejo-Campos, this portion of the Attorney General’s decision is not before us and we express no opinion regarding it. See 558 F.3d
at 907 n.6.

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In Marmolejo-Campos, we frequently cited Silva-Trevino
for this scienter requirement, noting that the “presence of
scienter” is “an essential element of a crime involving moral
turpitude.” 558 F.3d at 915; see also id. at 910, 914, 916. We
also applied Silva-Trevino in Saavedra-Figueroa v. Holder,
625 F.3d 621 (9th Cir. 2010), concluding that a misdemeanor
false imprisonment conviction was not categorically a CIMT,
and noting that this result was not inconsistent with SilvaTrevino, because the misdemeanor conviction lacked any
degree of scienter. Id. at 627.
[4] We perceive the Silva-Trevino scienter requirement to
be in tension with the BIA’s earlier decision in Tobar-Lobo.
Even though the California sex offender registration statute
facially requires a willful violation, the BIA acknowledged
that it had been applied by California courts to include even
mere forgetfulness. Tobar-Lobo, 24 I. & N. Dec. at 144-45
(citing People v. Barker, 96 P.3d 507 (Cal. 2004); People v.
Cox, 115 Cal. Rptr. 2d 123 (Cal. Ct. App. 2002)). That California courts have applied the statute in such a manner makes
clear that there is a “realistic probability,” and not just a “theoretical possibility,” of such an application. Silva-Trevino, 24
I. & N. Dec. at 697-98. The result is, in effect, a strict liability
crime. Cf. id. at 706-07 (rejecting conclusion that Texas statute involving sexual conduct with a minor is a categorical
CIMT because it lacked a mistake-of-age defense).5
[5] In light of these significant intervening developments,
we remand for the BIA to reconsider whether Pannu’s crime
constitutes a CIMT under the “proper definition of moral turpitude” as outlined in Silva-Trevino, id. at 705-06. See Ven5

On remand the BIA may also wish to consider the additional analysis
of the Tobar-Lobo decision contained in this court’s earlier decision in
Plasencia-Ayala and more recently by the Tenth Circuit in Efagene v.
Holder, ___ F.3d ___, No. 10-9546, 2011 WL 1614299 (10th Cir. Apr. 29,
2011), as the BIA did not have the benefit of these decisions at the time
of its prior ruling.

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tura, 537 U.S. at 16 (stating that a “court of appeals should
remand a case to an agency for decision of a matter that statutes place primarily in agency hands”); see also Lopez v. Ashcroft, 366 F.3d 799, 806-07 (9th Cir. 2004) (noting we
generally remand if BIA has applied erroneous legal standard). Should the BIA determine Pannu’s failure to register
conviction does not qualify as a CIMT, it should consider the
issue left open in its prior ruling regarding Pannu’s indecent
exposure convictions.
REMANDED for further proceedings consistent with this
disposition.