Syed v. Barr, No. 17-71727 (9th Cir. 2020)
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The Ninth Circuit denied a petition for review of the BIA's decision and held that petitioner's conviction under California Penal Code 288.3(a), for attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, was categorically a crime involving moral turpitude that made him removable.
The panel explained that not all of section 288.3(a)'s enumerated offenses involve moral turpitude, and thus the statute is not categorically a crime involving moral turpitude. However, the panel held that the statute is divisible; petitioner pleaded guilty to section 288.3(a) with the specific intent of violating section 288; and thus he was properly deemed removable as an alien convicted of a crime involving moral turpitude under 8 U.S.C. 1227(a)(2)(A)(i). The panel also distinguished Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), from petitioner's circumstances in this case.
Court Description: Immigration Denying Nabil Ahmed Syed’s petition for review of a decision of the Board of Immigration Appeals, the panel held that Syed’s conviction under California Penal Code § 288.3(a), for attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, was categorically a crime involving moral turpitude that made him removable. Applying the categorical approach, the panel first observed that § 288.3(a) includes the following elements: (1) the defendant communicated with or attempted to communicate with a minor; (2) the defendant intended to commit one of 15 enumerated offenses involving that minor; and (3) the defendant knew or reasonably should have known that person was a minor. Because not all of § 288.3(a)’s enumerated offenses involve moral turpitude, the panel explained that the statute is not categorically a crime involving moral turpitude. However, the panel concluded that the statute is divisible and explained that the government asserted that Syed’s § 288.3(a) conviction was based on a specific intent to commit a violation of California Penal Code § 288, which criminalizes certain lewd or lascivious acts upon a child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child. SYED V. BARR 3 The panel held that the full range of conduct proscribed by § 288.3(a) with a specific intent of violating § 288 is a crime involving moral turpitude. First, the panel explained that the California statute is substantially similar to a Washington statute the court had found to be a crime involving moral turpitude. Second, the panel explained that § 288.3(a) and § 288, together, prohibit communicating with a child, while knowing or having reason to be believe the victim is a child, for the purpose of committing a lewd or lascivious act on the child. The panel concluded that a conviction under those statutes evinces an offense that is so “inherently wrong” and so “contrary to the accepted rules of morality” that it is a crime involving moral turpitude. The panel addressed Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), which held that § 288(c)(1) is not a crime involving moral turpitude. Menendez focused on the offense’s lack of a “good-faith reasonable mistake of age” defense because a defendant could be convicted of § 288(c)(1) without knowing the victim was a child. As a result, Menendez reasoned that the offense did not necessarily include the “evil or malicious intent” that is the touchstone of moral turpitude. In light of this lack of evil or malicious intent, Menendez also noted that § 288(c)(1) was not morally turpitudinous because the touching reached by the statute could be “outwardly innocuous and inoffensive.” Distinguishing Menendez, the panel explained that a conviction for § 288.3(a) requires that the defendant “knows or reasonably should know” that the victim was a minor at the time of the offense and, as a result, some form of a “good- faith reasonable mistake of age” defense is available. Observing that this court has held that the greater the requisite state of mind, the less serious the resulting harm has to be in order for the crime to be one involving moral 4 SYED V. BARR turpitude, the panel further concluded that even a non- injurious touching of a child with knowledge of the victim’s age—as required by conviction under § 288.3(a) based on the specific intent to commit a § 288 offense—is inherently depraved if done with a sexual intent. Finally, the panel concluded that Syed’s conviction documents established that he pleaded guilty to § 288.3(a) with a specific intent to violate § 288. Accordingly, the panel concluded that the Board correctly held that his offense was a categorical crime of moral turpitude that rendered him removable.
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