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«JAVIER CASTRIJON-GARCIA, No. 09-73756 Petitioner, Agency No. v. A095-733-515 ERIC H. HOLDER, JR., Attorney General, OPINION Respondent. On Petition ...»

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Agency No.

v. A095-733-515

ERIC H. HOLDER, JR., Attorney

General, OPINION


On Petition for Review of an Order of the

Board of Immigration Appeals Argued and Submitted May 14, 2012—San Francisco, California Filed January 9, 2013 Before: Stephen Reinhardt, Richard R. Clifton, and N. Randy Smith, Circuit Judges.

Opinion by Judge Reinhardt 2 CASTRIJON-GARCIA V. HOLDER SUMMARY* Immigration The panel granted Javier Castrijon-Garcia’s petition for review from the Board of Immigration Appeals’ decision finding him statutorily ineligible for cancellation of removal, based on the BIA’s holding that a conviction for simple kidnapping, in violation of California Penal Code § 207(a), is a categorical crime involving moral turpitude.

The panel held that CPC § 207(a) does not constitute a categorical crime involving moral turpitude because it does not require an intent to injure, actual injury, or a special class of victims. The panel also found that California courts have applied CPC § 207(a) to conduct that is not morally turpitudinous, and remanded for the BIA to apply the modified categorical approach.

COUNSEL Gary A. Watt, Supervising Counsel; Stephen R. Tollafield, Supervising Counsel; Heidi M. Hansen Kalscheur, Student Counsel; Nolan R. Shaw (argued), Student Counsel, Hastings Appellate Project, San Francisco, California, for Petitioner.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

CASTRIJON-GARCIA V. HOLDER 3 Tony West, Assistant Attorney General, Civil Division; Mary Jane Candaux, Assistant Director; Laura M.L. Maroldy (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for Respondent.


REINHARDT, Circuit Judge:

Javier Castrijon-Garcia (“Castrijon”)1 petitions for review of a decision of the Board of Immigration Appeals (“BIA”), holding that his conviction for simple kidnapping under California Penal Code (“CPC”) § 207(a) is categorically a crime involving moral turpitude under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), making him statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to determine whether a crime involves moral turpitude. See Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010) (“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 grant the petition for review and remand to the BIA for further proceedings.

We have held 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 Petitioner’s last name is spelled inconsistently throughout the briefs and record as “Castrijon,” “Castrejon,” and “Gastrejon.” W e use “Castrijon,” the last name in the court docket.

4 CASTRIJON-GARCIA V. HOLDER affects a protected class of victim.” Id. at 1131. Simple kidnapping under CPC § 207(a) does not involve any of these elements. Moreover, California courts have applied the statute to conduct that is not morally turpitudinous. See Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007). Therefore, we hold that simple kidnapping under CPC § 207(a) is not categorically a crime involving moral turpitude. We remand to allow the BIA to conduct a modified categorical analysis of Castrijon’s crime. See INS v. Ventura, 537 U.S. 12 (2002).


Castrijon is a native and citizen of Mexico who, according to his application for cancellation of removal, entered the United States without inspection in 1989. He has resided in the United States continuously since that time, with the exception of two short trips to Mexico in 1998 and 2003. He has three U.S. citizen children as well as U.S. citizen sisters, and his mother is a legal permanent resident.

In 2007, the Department of Homeland Security charged Castrijon with removability under 8 U.S.C.

§ 1182(a)(6)(A)(i), in that he was an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General. He conceded removability, designated Mexico as his country of removal, and submitted an application for cancellation of removal under 8 U.S.C. § 1229b(b). The conviction records submitted as part of the application for cancellation of removal reflect that in 1992 Castrijon pled guilty to attempted kidnapping in violation of CPC §§ 664 and 207(a), and received a suspended sentence of 300 days in jail and 36 months of CASTRIJON-GARCIA V. HOLDER 5 probation. During a hearing before the immigration judge, he explained that the incident occurred while he was with friends and that he did not know the victim. The conviction records also reflect that in 2002 and 2005 Castrijon was convicted of driving with a suspended license.

The immigration judge issued an oral decision finding Castrijon ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C) because his conviction for attempted simple kidnapping is a categorical crime of moral turpitude in that “the language of the statute requir[ed] the element of instilling fear in the victim.” The BIA affirmed in an unpublished decision. It noted that it had previously “listed kidnapping as an example of a [crime of moral turpitude],...

found that kidnapping for ransom under the Federal Kidnapping Act involves moral turpitude,” and “found that the offense of kidnapping, as defined by the California Penal Code (CPC), involves moral turpitude.” The BIA identified the elements of CPC § 207(a) as: “(1) a person was unlawfully moved by use of physical force or fear, (2) the movement was without the person’s consent, and (3) the movement of the person was for a substantial distance.” It held that, although ransom was an element under the Federal Kidnapping Act, the lack of a ransom element in CPC § 207(a) was not relevant because “there is no requirement that a state offense match all the elements of an analogous federal offense in order to be classified as a [crime of moral turpitude].” The BIA concluded that simple kidnapping is a crime of moral turpitude because it “involves readiness to do evil and is an offense that grievously offends the moral code of mankind in its inherent nature,” citing to People v.

Zataray, 219 Cal. Rptr. 33, 39 (Cal. Ct. App. 1985). It 6 CASTRIJON-GARCIA V. HOLDER therefore held that Castrijon was ineligible for cancellation of removal. Castrijon now petitions for review.

–  –  –

“The determination whether a conviction under a criminal statute is categorically a [crime of moral turpitude] involves two steps, to which different standards of review apply.” Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010); see also Marmolejo-Campos v. Holder, 558 F.3d 903, 907–11 (9th Cir. 2009) (en banc) (clarifying standard of review). The first step is to identify the elements of the statute of conviction.

See Uppal, 605 F.3d at 714. “Because ‘[t]he BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes,’ we review its conclusion in that regard de novo.” Id. (quoting MarmolejoCampos, 558 F.3d at 907). The second step is to compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition. See id. “Because the BIA does have expertise in making this determination, we defer to its conclusion if warranted, following the Chevron framework if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute), and following the Skidmore framework if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute).” Id.; see also Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 134 (1944).


–  –  –

We turn to the first step of our analysis: identifying the elements of the statute of conviction. Castrijon was convicted of attempted2 simple kidnapping in violation of CPC § 207(a).

That statute provides:

–  –  –

CPC § 207(a). “To prove a defendant guilty of kidnapping, the prosecution must establish that (1) the defendant took, held, or detained another person by using force or by instilling reasonable fear; (2) using that force or fear, the defendant moved the other person, or made the other person move a substantial distance; and (3) the other person did not consent to the movement.” People v. Burney, 212 P.3d 639, 666 (Cal.

2009); see also People v. Jones, 133 Cal. Rptr. 2d 358, 362 (Cal. Ct. App. 2003). The California Supreme Court has explained that “the force used against the victim need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the “W e have previously looked to underlying crimes in determining whether convictions for inchoate offenses constitute crimes involving moral turpitude.” Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007). Therefore, we look to the elements of simple kidnapping under CPC § 207(a) to determine whether a conviction for attempted simple kidnapping is a crime involving moral turpitude.

8 CASTRIJON-GARCIA V. HOLDER accused and such apprehension is not unreasonable under the circumstances.” People v. Majors, 92 P.3d 360, 363 (Cal.

2004) (internal quotation marks and citation omitted). For example, “an implicit threat of arrest satisfies the force or fear element of section 207(a) kidnapping if the defendant’s conduct or statements cause the victim to believe that unless the victim accompanies the defendant the victim will be forced to do so, and the victim’s belief is objectively reasonable.” Id. at 367.

When the victim is a person capable of giving consent, “the purpose or motive of the taking and carrying away is immaterial.” In re Michele D., 59 P.3d 164, 168 (Cal. 2002) (internal quotation marks, alterations and citation omitted).

“The rule governing the forcible carrying of conscious persons capable of giving consent... makes a person who forcibly carries such a person and transports him against his will guilty of kidnap[p]ing, however good or innocent his motive or intent may otherwise be....” People v. Oliver, 361 P.2d 593, 595 (Cal. 1961); see also People v. Sheasbey, 255 P. 836, 838–39 (Cal. Ct. App. 1927) (holding that “no state of mind or belief is a part of the crime of kidnap[p]ing”). This is because “[s]imple kidnapping traditionally has been a general intent crime,” and does not require, for example, the intent to instill fear in the victim. People v. Moya, 6 Cal. Rptr. 2d 323, 325 (Cal. Ct. App. 1992). “A crime is characterized as a ‘general intent’ crime when the required mental state entails only an intent to do the act that causes the harm....” People v. Davis, 896 P.2d 119, 148 n.15 (Cal. 1995). When the victim is an unresisting infant or child or other person incapable of giving consent, however, “the amount of force required to kidnap... is simply the amount of physical force required to take and carry the child away a substantial CASTRIJON-GARCIA V. HOLDER 9 distance for an illegal purpose or with an illegal intent.” In re Michele D., 59 P.3d at 171.

–  –  –

We now turn to the second step of our analysis:

comparing the elements of the statute of conviction to the generic definition of a crime involving moral turpitude. The parties disagree about whether we must defer to the BIA’s unpublished decision. The government argues that because, in its decision, the BIA cited to several published decisions, including Matter of Lopez-Meza, Matter of P, Matter of Nakoi, and Matter of C-M-, its decision that simple kidnapping in violation of CPC § 207(a) is a crime involving moral turpitude is entitled to Chevron deference.

Alternatively, the government argues that the BIA decision was persuasive and is thus entitled to Skidmore deference.

Castrijon contends that the BIA decision is not entitled to Chevron deference because the decision was unpublished and the “cited decisions do not construe the identical statute...

and instead consist of boilerplate generalities and other conclusory statements.” Castrijon also contends that the BIA decision does not warrant deference under Skidmore because its decision “lacks any real analysis and consists of a single conclusory paragraph.” We hold first that the BIA decision here is not entitled to Chevron deference. Chevron deference is afforded to an unpublished decision only when it is “directly controlled by a published decision interpreting the same statute.” Uppal, 605 F.3d at 714. Although the BIA’s unpublished decision 10 CASTRIJON-GARCIA V. HOLDER cites to published decisions, none interprets CPC § 207(a) and thus none directly controls. The first case cited by the BIA, Matter of Lopez-Meza, involved the offense of aggravated driving under the influence in violation of Arizona law. 22 I.

& N. Dec. 1188 (BIA 1999). The second and third cases cited by the BIA, Matter of P and Matter of Nakoi, involved convictions under the Federal Kidnapping Act, which contains different elements than simple kidnapping under CPC § 207(a), most important being that the kidnapping be committed for “ransom or reward or otherwise.” Matter of P, 5 I. & N. Dec. 444 (BIA 1953); Matter of Nakoi, 14 I. & N.

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