Hernandez-Gonzalez v. Holder, No. 11-70359 (9th Cir. 2015)Annotate this Case
Petitioner, a native and citizen of Mexico, appealed the BIA's decision finding that his conviction for weapons possession, enhanced for sentencing purposes for gang activity, constituted a crime of moral turpitude. The court held that petitioner's sentence enhancement under California Penal Code 186.22(b)(1) does not categorically elevate a crime to a crime involving moral turpitude because the offense of weapons possession with a gang enhancement has none of the characteristics of moral turpitude the court has identified, and because California cases demonstrate that there is a realistic probability, not just a theoretical possibility, that California does in fact apply the gang enhancement that does not involve moral turpitude. Therefore, a conviction under California's gang enhancement statute does not change the crime of moral turpitude status of the predicate offense. The court held that application of the gang enhancement under section 186.22(b)(1) does not render petitioner's conviction for weapons possession under California Penal Code 12020 a crime of moral turpitude. Accordingly, the court granted the petition for review and remanded for further proceedings.