Martinez-de Ryan v. Whitaker, No. 15-70759 (9th Cir. 2018)
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The Ninth Circuit amended a previous opinion and voted to deny the petition for panel rehearing.
The panel denied the petition for review of the BIA's denial of petitioner's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude. The panel held that bribery under 18 U.S.C. 666(a)(2) is categorically a crime involving moral turpitude because it requires proof of a corrupt mind. The panel applied Jordan v. De George, 341 U.S. 223 (1951), and Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), and held that the crime involving moral turpitude statute, 8 U.S.C. 1182(a)(2)(A)(i)(I), is not unconstitutionally vague. The panel also held that Jordan and Tseung Chu remain good law in light of the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
Court Description: Immigration. The panel denied a petition for review of the Board of Immigration Appeals’ denial of Martinez-de Ryan’s application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude. The panel rejected the government’s contention that the void-for-vagueness doctrine does not apply at all to any grounds of inadmissibility, such as crimes involving turpitude. Applying Jordan v. De George, 341 U.S. 223 (1951) (rejecting a void-for-vagueness challenge to the phrase “crime of moral turpitude”) and Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957) (following Jordan), the panel held that the crime involving moral turpitude statute, 8 U.S.C. § 1182(a)(2)(A)(i)(I), is not unconstitutionally vague. The panel concluded that Jordan and Tseung Chu remain good law in light of the Supreme Court’s decisions in Johnson v. United States, 135 S. Ct. 2551 (2015) (concluding that the residual clause of the federal criminal code’s definition of “crime of violence” is unconstitutionally vague), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (extending Johnson’s MARTINEZ-DE RYAN V. WHITAKER 3 holding to the immigration context). The panel explained that it was obliged to follow on-point Supreme Court precedent— here, Jordan—even if later Supreme Court cases cast some doubt on its general reasoning. The panel also pointed out that Johnson and Dimaya interpret statutory “residual” clauses whose wording does not include the phrase “moral turpitude” and which are not tethered to recognized common law principles.
This opinion or order relates to an opinion or order originally issued on July 17, 2018.
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