De Jesus Menendez v. Whitaker, No. 14-72730 (9th Cir. 2018)

Court Description: Immigration. The panel granted separate petitions for review filed by Elisa de Jesus Menendez and Hector Rodriguez-Castellon from decisions of the Board of Immigration Appeals, and held that California Penal Code § 288(c)(1), which prohibits lewd or lascivious acts when a victim is a child of 14 or 15 years and the defendant is at least 10 years older than the child, is neither a crime involving moral turpitude nor categorically a “crime of child abuse.” Menendez, a lawful permanent resident, was placed in removal proceedings after her conviction under § 288(c)(1). Menendez conceded removability under 8 U.S.C. § 1227(a)(2)(E)(i), as a noncitizen convicted of a crime of child abuse, and applied for cancellation of removal. However, the Immigration Judge and BIA found Menendez ineligible for cancellation of removal on the ground that her conviction under § 288(c)(1) was categorically a crime of moral turpitude that triggered the stop-time rule, cutting off her accrual of the period of continuous residence she required for cancellation. Rodriguez-Castellon, also a lawful permanent resident, was initially found removable on the ground that his conviction under § 288(c)(1) was a crime of violence under 18 U.S.C. § 16(b) and therefore an aggravated felony. After this court held in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 4 MENENDEZ V. WHITAKER 2015), that 18 U.S.C. § 16(b) is unconstitutionally vague, Rodriguez-Castellon filed a motion to reconsider with the BIA. The BIA acknowledged that the motion was untimely, but noted that a fundamental change in law may warrant sua sponte reopening. However, the BIA declined to exercise its sua sponte authority after holding that Rodriguez was removable under U.S.C. § 1227(a)(2)(E)(i), as a noncitizen convicted of a crime of child abuse, even if he was no longer removable as an aggravated felon. In deciding Menendez’s petition, the panel held that Cal. Penal Code § 288(c)(1) is not categorically a crime involving moral turpitude, explaining that, because the offense requires only sexual intent, and because a good-faith reasonable mistake of age is not a defense, a defendant is not required to have evil or malicious intent. Thus, the panel concluded that the statute lacks the corrupt scienter requirement that is the touchstone of moral turpitude. The panel also concluded that § 288(c)(1) does not require intent to injure or actual injury, noting that any touching can violate the statute. Acknowledging that § 288(c)(1) does involve a protected class of persons, the panel observed that not all criminal statutes intended to protect minors establish crimes involving moral turpitude and that the elements of § 288(c)(1) create a realistic probability of a conviction based on conduct that does not involve moral turpitude. The panel further held that § 288(c)(1) contains a single, indivisible set of elements such that the modified categorical approach does not apply. Accordingly, the panel concluded that the BIA erred in concluding that Menendez’s conviction triggered the stop-time rule and rendered her ineligible for cancellation. The panel also noted that, on remand, the BIA should consider whether binding Menendez to her concession MENENDEZ V. WHITAKER 5 of removability under 8 U.S.C. § 1227(a)(2)(E)(1), as a noncitizen convicted of a crime of child abuse, would produce an unjust result in light of the panel’s holding in the next section of the opinion that a conviction under § 288(c)(1) is not a crime of child abuse. In deciding Rodriguez-Castellon’s petition, the panel held that § 288(c)(1) is not categorically a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(1), concluding that § 288(c)(1) is broader than the generic definition of a crime of child abuse in two ways. First, the generic definition requires that a defendant act with a mens rea of at least criminal negligence, but § 288(c)(1) has no such requirement; § 288(c)(1) requires a defendant to have acted willfully, but this requirement applies only to the commission of the act and does not require any intent to violate law, injure another, or acquire any advantage. In this respect, the panel also noted the fact that a reasonable and good-faith mistake of age is not a defense to § 288(c)(1). Second, unlike the generic definition, § 288(c)(1) does not require proof of actual injury, or a sufficiently high risk of harm as an element of the offense; instead, § 288(c)(1) applies irrespective of whether the touching is outwardly innocuous, or whether the minor is aware of the nature of the contact at all. Accordingly, the panel concluded that the BIA did not rely on an appropriate ground when it refused to reopen sua sponte on the ground that Rodriguez-Castellon’s § 288(c)(1) conviction was a crime of child abuse that made him removable. Concurring, Judge Callahan, joined by Judge Owens, expressed the concern that, here, immigration consequences and, in other settings, sentences turn on a determination in the abstract of the breadth of the underlying state statute rather than the person’s actual offense. Judge Callahan wrote that 6 MENENDEZ V. WHITAKER the present system forces courts to parse state statutes for determinations that no state legislator ever considered, and leads to uneven results, as the immigration consequences to individuals who committed basically the same offenses turn on the fortuity of the breadth of the state statute, which in most instances has nothing to do with the individual’s actual criminal conviction. Noting that if Congress will not, or cannot act, Judge Callahan expressed the hope that the Supreme Court will devise a more straight-forward approach to this area of law.