Gonzalez-Cervantes v. Holder, Jr., No. 10-72781 (9th Cir. 2013)
Annotate this CasePetitioner petitioned for review of the BIA's decision holding that there was no "realistic probability" that California would apply California Penal Code 243.4(e) to conduct that was not normally turpitudinous and the BIA's decision denying his motion to reconsider. The court held that section 243.4(e)(1)'s requirement that defendant specifically intended to damage his victim psychologically evidenced the malicious intent that was the essence of moral turpitude. The BIA's decision that this kind of behavior was per se morally reprehensible and intrinsically wrong was persuasive. Because the court agreed that there was no "realistic probability" that California courts would apply section 243.4(e) to conduct falling outside the generic federal definition of moral turpitude, the court denied the petitions.
Court Description: 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 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.
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