Duran Escobar v. Lynch, No. 12-70930 (9th Cir. 2017)
Annotate this CasePetitioner, a native and citizen of El Salvador, seeks review of the BIA's decision affirming the IJ's denial of petitioner's application for cancellation of removal. The IJ determined that petitioner was removeable based on her prior conviction under California Penal Code section 136.1(a), for witness tampering, because it is a categorical crime involving moral turpitude. The court granted the petition for review with respect to the application for cancellation of removal, concluding that the IJ and BIA failed to consider the broad definition of “malice” in section 136, which indicates that the offense is not a categorical match to the generic definition of a crime involving moral turpitude. The court declined to reach the question of divisibility sua sponte. The court remanded to the BIA to consider whether section 136.1(a) is divisible and, if so, to conduct the modified categorical analysis.
Court Description: Immigration. The panel granted Natividad De Jesus Duran Escobar’s petition for review of the Board of Immigration Appeals’ decision finding her ineligible for cancellation of removal because her conviction for witness tampering under California Penal Code § 136.1(a) was a categorical crime involving moral turpitude, and remanded. The panel held that the Immigration Judge and BIA erred by finding CPC § 136.1(a) a categorical CIMT, because the offense is overly broad and not a categorical match to the generic definition of a CIMT. The panel granted Duran’s petition with respect to her application for cancellation, and remanded for the Agency to consider whether CPC § 136.1(a) is divisible and, if so, to conduct the modified categorical analysis. The panel noted that on appeal the parties did not brief the divisibility issue, and that the BIA had not reached the modified categorical approach. The panel wrote that although it could reach the question of divisibility sua sponte because the BIA is not entitled to deference when interpreting criminal statutes, it was declining to do so. DURAN V. LYNCH 3
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