Barrera-Lima v. Sessions, No. 13-73022 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit granted a petition for review of the BIA's decision finding petitioner ineligible for cancellation of removal and voluntary departure. The panel held that petitioner's convictions for indecent exposure under Wash. Rev. Code 9A.88.010(1) and under Wash. Rev. Code 9A.88.010(2)(b) are not categorically crimes involving moral turpitude. Furthermore, both statutes were indivisible and thus the modified categorical approach was inapplicable. In the absence of a conviction for a crime involving moral turpitude, petitioner was eligible to apply for cancellation of removal and voluntary departure. The panel remanded for the BIA to consider anew petitioner's request for cancellation of removal and voluntary departure.
Court Description: Immigration. The panel granted Juan Carlos Barrera-Lima’s petition for review of a decision of the Board of Immigration Appeals that found him ineligible for cancellation of removal and voluntary departure, holding that: 1) Barrera-Lima’s convictions for indecent exposure under Wash. Rev. Code § 9A.88.010(1) and under Wash. Rev. Code § 9A.88.010(2)(b) are not categorically crimes involving moral turpitude; and 2) both statutes are indivisible such that the modified categorical approach is inapplicable, and remanded. With respect to Barrera-Lima’s indecent exposure conviction under Wash. Rev. Code § 9A.88.010(1), the panel concluded, as a threshold matter, that the BIA’s decision in this case was not entitled to deference under either Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), or Skidmore v. Swift & Co., 323 U.S. 134 (1944), because the BIA failed to properly apply its decision in Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013). In Cortes Medina, the BIA held that indecent exposure statutes are categorically crimes involving moral turpitude if they include sexual motivation or lewd intent as an element. The BIA also embraced a definition of lewd intent that was restricted to sexually motivated exposure. Here, the panel concluded that Cortes Medina’s definition of lewd intent could not be squared with the BIA’s decision in
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