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« MARCO ANTONIO ROBLES-URREA, Petitioner, No. 06-71935  v. Agency No. ERIC H. HOLDER Jr., Attorney A037-805-968 General,  Respondent.  ...»

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCO ANTONIO ROBLES-URREA,

Petitioner,

No. 06-71935

v.

Agency No.

ERIC H. HOLDER Jr., Attorney A037-805-968

General,

Respondent.

MARCO ANTONIO ROBLES-URREA,

Petitioner, No. 06-74826  v. Agency No.

A037-805-968 ERIC H. HOLDER Jr., Attorney General, OPINION  Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 12, 2009—San Francisco, California Submission Vacated March 9, 2010 Resubmitted August 16, 2011 Filed April 23, 2012 4300 ROBLES-URREA v. HOLDER Before: Mary M. Schroeder and Stephen Reinhardt, Circuit Judges, and Louis H. Pollak,* Senior District Judge.

Opinion by Judge Reinhardt *The Honorable Louis H. Pollak, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

4302 ROBLES-URREA v. HOLDER COUNSEL Holly S. Cooper (argued), Cooper & White, Davis, California, for the petitioner.

Gregory G. Katsas, Assistant Attorney General; Bryan S.

Beier, Senior Litigation Counsel, Office of Immigration Litigation; Anh-Thu P. Mai-Windle (argued), Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

OPINION

REINHARDT, Circuit Judge:

Marco Antonio Robles-Urrea, a lawful permanent resident of the United States, petitions for review of a precedential decision of the Board of Immigration Appeals (“BIA”), holding that his conviction for misprision of a felony is categorically a crime involving moral turpitude under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). We have jurisdiction under 8 U.S.C.

§ 1252(a)(2)(D) to review constitutional and legal questions raised by aliens found removable on the basis of criminal activity. Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1056th Cir. 2006). We grant the petition for review in No. 06and deny as moot the petition for review in No. 06A crime involving moral turpitude is either one that involves fraud or one that involves grave acts of baseness or depravity, such that its commission “offend[s] the most fundamental values of society.” Navarro-Lopez v. Gonzales, 503 ROBLES-URREA v. HOLDER 4303 F.3d 1063, 1074-75 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). That an offense contravenes “societal duties” is not enough to make it a crime involving moral turpitude; otherwise, every crime would involve moral turpitude.

Id. at 1070 (majority opinion). Because the BIA relied on this flawed rationale in concluding that misprision of a felony is a crime involving moral turpitude, we cannot defer to its interpretation of the Immigration and Nationality Act (“INA”). Instead, we hold that misprision of a felony is not categorically a crime involving moral turpitude.

We remand, however, to allow the BIA to conduct a modified categorical analysis of Robles-Urrea’s conviction, see INS v. Ventura, 537 U.S. 12 (2002), and to consider whether Robles-Urrea is alternatively removable under 8 U.S.C.

§ 1182(a)(2)(C)(i), as an alien who “has been an illicit trafficker in any controlled substance.” On remand, the agency may also consider Robles-Urrea’s eligibility for relief from removal.

–  –  –

In 2002, Robles-Urrea pleaded guilty to misprision of a felony under 18 U.S.C. § 4, which states that any person who, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

The felony that Robles-Urrea allegedly concealed was conspiracy to distribute marijuana and cocaine.

4304 ROBLES-URREA v. HOLDER In 2005, having served his sentence for misprision, RoblesUrrea was stopped at the Arizona border as he was returning to the United States from Mexico.1 The Department of Homeland Security (“DHS”) served him with a Notice to Appear, charging him with removability under 8 U.S.C.

§ 1182(a)(2)(C) as a drug trafficker. DHS subsequently charged him with an additional ground of removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of a crime involving moral turpitude.

Robles-Urrea contested both charges and applied for cancellation of removal. The Immigration Judge (“IJ”) found him removable but did not specify on which ground.2 The IJ also found him ineligible for cancellation of removal under 8 U.S.C. § 1229b because his conviction for misprision of a felony had prevented him from accruing the requisite five years of permanent residency and seven years of lawful residency in the United States.

Robles-Urrea appealed, arguing that he is not inadmissible under either § 1182(a)(2)(A)(i)(I) or § 1182(a)(2)(C) and that he is eligible for cancellation of removal. On April 10, 2006, the BIA dismissed the appeal, finding “that one who knows a felony has been committed and takes affirmative steps to conceal the crime or to prevent its discovery by the authorities has committed a crime involving moral turpitude.” The BIA also held that Robles-Urrea’s commission of this offense, which could not fall under the petty offense exception, interrupted the requisite seven-year residency under the “stop-time rule,” 8 U.S.C. § 1229b(d)(1). It did not decide whether Robles-Urrea was stopped under 8 U.S.C. § 1101(a)(13), as a returning resident alien applying for admission with a prior criminal conviction.





From the transcript of the hearing, it seems that the IJ sustained the charge of inadmissibility based on the conviction for misprision of a felony, which would be the moral turpitude ground. The IJ may have been confused about the nature of the conviction, however, as his order refers to the offense as “administration of a felony.” ROBLES-URREA v. HOLDER 4305 Robles-Urrea was removable for drug trafficking under 8 U.S.C. § 1182(a)(2)(C). Robles-Urrea filed a timely petition for review, docketed as No. 06-71935, from this order.

Robles-Urrea also filed with the BIA a motion to reconsider, arguing that the BIA’s decision conflicted with Matter of Sloan, 12 I. & N. Dec. 840 (A.G. 1968, BIA 1966), which had held that misprision of a felony is not a crime involving moral turpitude and that the stop-time rule does not apply retroactively. The BIA granted the motion to reconsider and issued a precedential decision on September 27, 2006, overruling Matter of Sloan and holding that misprision of a felony is a crime involving moral turpitude. Matter of Robles-Urrea, 24 I. & N. Dec. 22 (BIA 2006). The BIA also concluded that the stop-time rule could apply retroactively. Id. The BIA thus reaffirmed its dismissal of Robles-Urrea’s appeal. RoblesUrrea filed a timely petition for review, docketed as No. 06from this second BIA decision. That petition has been consolidated with his original petition for review.

We have jurisdiction to decide the question of law that Robles-Urrea raises: whether misprision of a felony qualifies as a crime involving moral turpitude. See 8 U.S.C.

§ 1252(a)(2)(D); Galeana-Mendoza, 465 F.3d at 1056-57.

The BIA’s grant of the motion for reconsideration does not divest us of jurisdiction over the petition for review of its initial order, because the analysis and the result reached by the BIA after reconsideration were substantially the same as in the previous order. See Plasencia-Ayala v. Mukasey, 516 F.3d 738, 744-46 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). Because the precedential decision that the BIA issued upon granting the motion to reconsider effectively supersedes its initial, non-precedential opinion, however, the petition for review of that initial decision is moot.

II

We begin by reviewing the BIA’s determination that misprision of a felony is categorically a crime involving moral 4306 ROBLES-URREA v. HOLDER turpitude. To determine whether a given offense constitutes a crime involving moral turpitude, we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575 (1990). Marmolejo-Campos, 558 F.3d at

912. Under the categorical approach, which begins our inquiry, we “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.” Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010) (internal quotation marks omitted). In order to hold that the statute of conviction is overbroad, we must determine that there is a “realistic probability” of its application to conduct that falls beyond the scope of the generic federal offense. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 822 (2007).

When the elements of a given offense of conviction are clear, as they are here, “our review of the BIA’s determination that such offense constitutes a ‘crime of moral turpitude’ is governed by the same traditional principles of administrative deference we apply to the Board’s interpretation of other ambiguous terms in the INA.” Marmolejo-Campos, 558 F.3d at 911. Under those traditional principles, we first ask “whether Congress has directly spoken to the precise question at issue.” Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). If the statute is unclear, then we ask “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.

Because Congress has not spoken directly to the question at issue, we consider whether the BIA has permissibly interpreted the statute. We conclude that the BIA’s interpretation of the INA is impermissible. Instead, we hold that misprision of a felony is not categorically a crime involving moral turpitude.

<

A

[1] Although the INA does not define “crime involving moral turpitude,” courts and the BIA have generally defined ROBLES-URREA v. HOLDER 4307 this term as comprising crimes that are “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Robles-Urrea, 24 I. & N Dec. at 25; see also Navarro-Lopez, 503 F.3d at 1068 (using almost identical language). Such crimes are of two types: those involving fraud and those involving grave acts of baseness or depravity. See id. at 1074 (Reinhardt, J., concurring for the majority).

[2] As this definition makes clear, and as we explained in Navarro-Lopez, not all offenses against the accepted rules of social conduct qualify as crimes involving moral turpitude.

For that matter, not all offenses against the accepted rules of social conduct qualify as crimes at all. “[O]ffenses that are so base, vile, and depraved that they qualify as crimes of moral turpitude ‘even though they have no element of fraud’ ” typically “involve ‘rather grave acts of baseness or depravity’ such as murder, rape, and incest.” Id. (quoting RodriguezHerrera v. INS, 52 F.3d 238, 240 (9th Cir.1995)). The

Navarro-Lopez majority further explained:

Not all serious crimes meet this standard....

Indeed, we have determined, for example, that burglary, Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1020 (9th Cir. 2005), and assault with a deadly weapon, Carr v. INS, 86 F.3d 949, 951 (9th Cir.

1996), do not involve moral turpitude. To be considered a crime of moral turpitude, a crime other than fraud must be more than serious; it must offend the most fundamental moral values of society, or as some would say, ‘shock[ ] the public conscience.’ Medina v. United States, 259 F.3d 220, 227 (4th Cir.

2001) (quoting Matter of Danesh, 19 I. & N. Dec.

669, 670 (BIA 1988)).

Id. at 1074-75 (alteration in original). Only truly unconscionable conduct surpasses the threshold of moral turpitude.3 We In Matter of Silva-Trevino, 24 I. & N. Dec. 687 (BIA 2008), the Attorney General purported to “establish a uniform framework for ensuring that 4308 ROBLES-URREA v. HOLDER must determine whether misprision of a felony is categorically so base, vile, or depraved as to be morally turpitudinous.

B

[3] We begin that inquiry by reviewing the BIA’s reasoning. Although the BIA properly recites the definition of a crime involving moral turpitude—noting that such a crime must be “inherently base, vile, or depraved” as well as “contrary to the accepted rules of morality and the duties owed between persons or to society in general,” 24 I. & N Dec. at 25—it entirely fails to explain why misprision of a felony is “inherently base, vile, or depraved.” The BIA relies almost wholly on a rationale introduced by the Eleventh Circuit in Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), and embraced by our then-precedential panel decision in NavarroLopez v. Gonzales, 455 F.3d 1055 (9th Cir. 2006), reh’g en banc granted by 469 F.3d 800 (9th Cir. 2006). This rationale is that because misprision of a felony involves “both knowledge of a crime and some affirmative act of concealment or participation,” Branzburg v. Hayes, 408 U.S. 665, 696 n.36 (1972) (citation omitted), and such “behavior... runs contrary to accepted social duties,” Itani, 298 F.3d at 1216, it must be morally turpitudinous.4 the Act’s moral turpitude provisions are fairly and accurately applied.” Id.



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