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«JOSE CRISANTO GONZALEZ- No. 10-72781 CERVANTES, AKA Jose Crisanto Gonzalez, Agency No. Petitioner, A078-468-051 v. ERIC H. HOLDER, JR., Attorney ...»

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE CRISANTO GONZALEZ- No. 10-72781

CERVANTES, AKA Jose Crisanto

Gonzalez, Agency No.

Petitioner, A078-468-051

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

JOSE CRISANTO GONZALEZ- No. 10-73789 CERVANTES, AKA Jose Crisanto Gonzalez, Agency No.

Petitioner, A078-468-051 v.

OPINION ERIC H. HOLDER, JR., Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals 2 GONZALEZ-CERVANTES V. HOLDER Argued and Submitted December 4, 2012—San Francisco, California Filed March 8, 2013 Before: Dorothy W. Nelson, A. Wallace Tashima, and Mary H. Murguia, Circuit Judges.

Opinion by Judge D.W. Nelson;

Dissent by Judge Tashima SUMMARY* Immigration The panel denied Jose Gonzalez-Cervantes’ petitions for review of the Board of Immigration Appeals’ decision holding that there was no “realistic probability” that California would apply California Penal Code § 243.4(e), misdemeanor sexual battery, to conduct that is not morally turpitudinous, and the BIA’s denial of his motion to reconsider.

The panel found persuasive the BIA’s decision that the behavior involved in the offense is per se morally reprehensible and intrinsically wrong, and held that Gonzalez-Cervantes did not meet his burden to show that the California courts have applied CPC § 243.4(e) to conduct * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

GONZALEZ-CERVANTES V. HOLDER 3 falling outside the generic federal definition of moral turpitude.

Dissenting, Judge Tashima would hold that the BIA erred in finding no realistic probability that California would apply CPC § 243.4(e) to conduct not morally turpitudinous, and would reverse the BIA’s decision. Judge Tashima also wrote that he would grant the petition for review because Gonzalez-Cervantes’ plea proceedings and the judicially noticeable documents associated with it did not establish moral turpitude under the modified categorical approach.

COUNSEL Kathleen Kelly Kahn (argued), Phoenix, Arizona, for Petitioner.

Andrew B. Insenga (argued), Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for Respondent.

–  –  –

D.W. NELSON, Senior Circuit Judge:

Jose Crisanto Gonzalez-Cervantes petitions for review of the Board of Immigration Appeals’ (“BIA”) decision holding that there is no “realistic probability” that California would apply California Penal Code § 243.4(e) (“§ 243.4(e)”) to conduct that is not morally turpitudinous and the BIA’s decision denying his motion to reconsider. We have 4 GONZALEZ-CERVANTES V. HOLDER jurisdiction pursuant to 28 U.S.C. § 1252(a)(2)(D), and we deny the petitions.

I. STANDARD OF REVIEW

We review de novo the BIA’s interpretation of the statute of conviction and where, as here, the BIA does not issue a published decision in coming to its conclusion, the Court defers to the BIA’s determination that the statute of conviction constitutes a “crime of moral turpitude” to the extent that the BIA’s decision has the “power to persuade.” Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010) (internal quotation marks omitted) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); see also Rohit v. Holder, 670 F.3d 1085, 1088 (9th Cir. 2012).

II. ANALYSIS

Under the categorical approach, the Court looks to the statutory definition of the state offense, and not to the particular facts underlying the conviction, to determine whether the offense falls within the generic federal definition of the crime. See Taylor v. United States, 495 U.S. 575, 600 (1990). To show a state applies a statute to crimes outside the generic definition of the listed crime, the petitioner must show that either in her own case or in another case the state courts have actually applied the statute in the manner for which she argues. Gonzales v. Duenas-Alvarez, 549 U.S.

183, 193 (2007); Ortiz-Magana v. Mukasey, 542 F.3d 653, 660 (9th Cir. 2008). There must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition” of moral turpitude. Duenas-Alvarez, 549 U.S. at 193.

GONZALEZ-CERVANTES V. HOLDER 5 A crime is morally turpitudinous if it is “vile, base, or depraved,” and “violates accepted moral standards”; “the essence of moral turpitude” is an “evil or malicious intent.” Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012) (internal quotation marks omitted). In the context of sexual offenses, whether the crime involves moral turpitude turns on whether there is (1) actual harm or (2) a protected class of victim. Nunez, 594 F.3d at 1132; see also Mendoza v.

Holder, 623 F.3d 1299, 1303 n.7 (9th Cir. 2010) (interpreting Nunez). The term “harm” in this context includes psychological harm. See Nunez, 594 F.3d at 1136.

Misdemeanor sexual battery under § 243.4(e) has three elements: (1) the touching of an intimate part of another person, directly or through the clothing of the perpetrator or the victim; (2) against the person’s will; and (3) with specific intent to cause sexual arousal, sexual gratification, or sexual abuse. Cal. Penal Code § 243.4(e); In re Shannon T., 50 Cal.





Rptr. 3d 564 (Cal. Ct. App. 2006). “Intimate part” is defined as “the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.” Cal. Penal Code § 243.4(g)(1).

1. The BIA’s Decision is Persuasive

The BIA cited four California Court of Appeal cases in reaching its conclusion that there is no “realistic probability” that California would apply § 243.4(e) to conduct falling outside the generic federal definition of moral turpitude. In each, the Court of Appeal applied § 243.4(e) to acts where the defendant had the specific intent to cause sexual arousal, sexual gratification, or sexual abuse, and actually inflicted harm through the unlawful touching of the victim’s intimate parts. See People v. Chavez, 100 Cal. Rptr. 2d 680 (Cal. Ct.

App. 2000); People v. Dayan, 40 Cal. Rptr. 2d 391 (Cal. Ct.

6 GONZALEZ-CERVANTES V. HOLDER App. 1995); People v. Rodriguez, No. B182215, 2006 WL 1903041 (Cal. Ct. App. July 12, 2006); People v. Jones, No.

C045990, 2005 WL 2160425 (Cal. Ct. App. Sept. 7, 2005).

For instance, in Chavez, the court held that misdemeanor sexual battery is a crime of moral turpitude because it is a specific intent crime, and “[u]nlike simple or even felony battery, sexual battery does not result from a simple push or offensive touch.” 100 Cal. Rptr. 2d at 682. Sexual battery, the court found, involved “the degrading use of another, against her will, for one’s own sexual arousal.” Id. at 682–83 (quotations and citations omitted). In Jones, the court upheld the defendant’s conviction for misdemeanor sexual battery where the victim testified she woke up naked from the waist down to find the defendant lying naked on top of her.

2005 WL 2160425, at *3. In Dayan, the court upheld the defendant’s conviction for misdemeanor sexual battery for intentionally and unlawfully groping women in his dental office. 40 Cal. Rptr. 2d at 392–95. And in Rodriguez, the court found the evidence that the defendant touched the victim’s breast against her will established the crime of misdemeanor sexual battery. 2006 WL 1903041, at *7–8.

Since the sexual conduct in these cases actually harmed the victims through the non-consensual touching of their intimate parts, the acts fall within the generic federal definition of moral turpitude as applied in the context of sexGONZALEZ-CERVANTES V. HOLDER 7 related offenses.1 See Nunez, 594 F.3d at 1132; see also Mendoza, 623 F.3d at 1303 n.7.

2. Petitioner Fails to Meet His Burden On appeal, Gonzalez-Cervantes has not met his burden of showing the California courts have applied § 243.4(e) to conduct falling outside the generic federal definition of moral See Duenas-Alvarez, 549 U.S. at 193;

turpitude.

Ortiz-Magana, 542 F.3d at 660. Though Gonzalez-Cervantes cites three cases in arguing California has applied § 243.4(e) to conduct that did not rise to the level of “depraved, base, and vile,” in each case the defendant actually inflicted harm upon the victim with the specific intent to commit sexual abuse. See In re Shannon T., 50 Cal. Rptr. 3d 564 (Cal. Ct.

App. 2006); In re A.B., No. G043493, 2011 WL 193402 (Cal.

Ct. App. Jan. 20, 2011); In re Carlos C., No. B233338, 2012 WL 925029 (Cal. Ct. App. Mar. 20, 2012).

The dissent contends that the BIA’s decision “does not reflect the current state of California law” because the BIA “relied solely on cases in which sexual arousal or gratification was a necessary element of a § 243.4(e) offense.” Dissent at 14. But the BIA correctly defined § 243.4(e) as “a specific intent crime that consists of touching an intimate part of another against the victim’s will, committed for the purposes of sexual arousal, sexual gratification, or sexual abuse.” This is precisely the definition of § 243.4(e) used in all of the cases petitioner cites. See In re Shannon T., 50 Cal. Rptr. 3d 564, 565 (Cal. Ct. App. 2006); In re A.B., No. G043493, 2011 W L 193402, at *2 (Cal. Ct. App. Jan. 20, 2011); In re Carlos C., No. B233338, 2012 W L 925029, at *2 (Cal. Ct. App. Mar.

20, 2012). As the BIA correctly stated the law as we apply it here, we do not find that the grounds supporting our opinion represent a “new theory,” nor that the BIA applied a different understanding of the statute in concluding that § 243.4(e) is categorically a crime involving moral turpitude. See Dissent at 14.

8 GONZALEZ-CERVANTES V. HOLDER In In re Shannon T., for instance, the minor defendant pinched the breast of the minor victim, causing her emotional distress and resulting in a significant bruise. 50 Cal. Rptr. 3d at 565, 567. The court found that the defendant inflicted a sexual battery under § 243.4(e) with the specific purpose of sexual abuse because he first told her, “Get off the phone.

You’re my ho,” and when the victim responded, “whatever,” and walked away, the defendant pursued her, slapped her face, grabbed her arm, and pinched her breast. Id. at 566–67.

In In re A.B., the court found the minor defendant committed sexual battery when he poked the center of the victim’s buttocks, penetrating about an inch. 2011 WL 193402, at *1. The court stressed that the term sexual abuse included conduct beyond that which caused physical injury or pain because otherwise the sexual battery statute “would permit a perpetrator to intentionally humiliate or intimidate a woman by an unwanted touching of her genitalia or breasts without violating section 243.4.” Id. at *3. Because the defendant laughed with his companions as he touched the victim and used derogatory language, the court found the evidence demonstrated the defendant’s purpose was sexual abuse. Id. at *4.

Finally, in In re Carlos C., the court found there was substantial evidence to support the conclusion that the defendant acted with the specific purpose to embarrass and humiliate the victim when, upon seeing two of his friends slap the victim’s rear end, he “smack[ed]” the victim’s crotch area, laughed, and ran away. 2012 WL 925029, at *1, 3.

Based on “the act itself together with its surrounding circumstances,” the defendant had the specific intent to sexually abuse the victim when he touched her. Id. at *3 (quoting Shannon T., 50 Cal. Rptr. 3d at 566).

GONZALEZ-CERVANTES V. HOLDER 9 Though Gonzalez-Cervantes argues these cases show the conduct at issue did not rise to the level of “depraved, base, and vile,” in each case the defendant actually inflicted harm upon the victim by sexually abusing her. Moreover, it is precisely because the defendants in these cases had the specific intent to cause the victim psychological harm that the courts found the elements of § 243.4(e) were satisfied. Of course, specific intent alone will not render a crime morally turpitudinous if the acts at issue are “trivial,” see GaleanaMendoza v. Gonzales, 465 F.3d 1054, 1061 (9th Cir. 2006) (citing Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir. 2004)), or “mere [] provocation, bad taste, [or] failed humor,” Nunez, 594 F.3d at 1138. However, we do not find that pinching another’s breasts to the point of bruising, shoving a finger into another’s rear end, or smacking another’s crotch is easily characterized as merely provocative, in bad taste, or humor gone awry.

The dissent argues that the psychological harm the victim experienced in In re Carlos C.—embarrassment and humiliation—does not constitute the type of “actual harm” required under Nunez to elevate § 243.4(e) to a crime categorically involving moral turpitude.2 Dissent at 17. But this assumes that the non-consensual touching of an intimate part itself is not an actual harm. Analyzing harm solely from a post-actus reus perspective ignores the violation that occurs The dissent also asserts that “Nunez demonstrates that actual harm is not always sufficient to find that a sexual crime involved moral turpitude,” and cites two examples of indecent exposure referenced in Nunez. Dissent at 15–16. But it was precisely because these two examples involved conduct which the Court described as “relatively harmless” that the Court found the acts were not “base, vile, and depraved.” Nunez, 594 F.3d at

1138. Thus, we cannot agree that Nunez stands for the proposition the dissent asserts.

10 GONZALEZ-CERVANTES V. HOLDER during the sexual act. And only considering the severity of the psychological harm a victim may experience incorrectly focuses the inquiry on what a victim may be able to endure rather than on the morally reprehensible nature of the act itself. Sexually abusive battery necessarily inflicts actual harm on the victim.

3. Section 243.4(e) Resembles Other Morally Turpitudinous Crimes



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