Orellana v. Barr, No. 19-70164 (9th Cir. 2020)
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The Ninth Circuit denied a petition for review challenging petitioner's removal for committing two crimes involving moral turpitude (CIMT). The panel held that the BIA did not err in concluding that a California Penal Code 646.9(a) criminal stalking conviction qualifies as a CIMT because a section 646.9(a) offense is categorically a CIMT. The panel stated that the BIA's reliance on In re Ajami, 22 I. & N. Dec. 949 (B.I.A. 1999), to determine that a section 646.9(a) criminal stalking conviction constitutes a CIMT is entitled to Skidmore deference, rather than Chevron deference. Pursuant to the panel's review of the statutory text and in light of its CIMT precedents, the panel concluded that section 646.9 does not plainly and specifically criminalize conduct outside the contours of the federal definition of a CIMT.
The panel also held that the BIA reasonably concluded that petitioner's two section 646.9(a) counts of conviction did not arise out of a single scheme of criminal misconduct. In this case, Count 1 of the state felony complaint involved petitioner willfully and maliciously following and harassing one person between June 1, 2015 and April 26, 2017. Count 2 involved the same conduct by petitioner against a different person between March 1, 2017 and April 26, 2017. Accordingly, petitioner is removable as charged under 8 U.S.C. 1227(a)(2)(A)(ii).
Court Description: Immigration Denying Miguel Orellana’s petition for review of a decision of the Board of Immigration Appeals, the panel held that 1) a conviction for criminal stalking, in violation of California Penal Code (CPC) § 646.9(a), is categorically a crime involving moral turpitude (CIMT); and 2) the BIA reasonably concluded that Orellana’s two § 646.9(a) counts of conviction did not arise out of single scheme of criminal misconduct, and therefore, made him removable. Reviewing the statute of conviction de novo, the panel first concluded that the BIA did not err in identifying the elements of a § 646.9(a) offense. Next, comparing the elements of the statute with the federal definition of a CIMT, the panel concluded that the BIA did not err in concluding that Orellana’s § 646.9(a) conviction is a CIMT. The panel observed that this court has defined a CIMT as involving either fraud or base, vile, and depraved conduct that shocks the public conscience, and that CIMTs generally involve some evil intent. The panel explained that the BIA’s reliance on its published decision in In re Ajami, 22 I. & N. Dec. 949 (B.I.A. 1999), was not entitled to deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), because Ajami did not interpret § 646.9(a). Nonetheless, the panel concluded that the BIA’s reliance on ORELLANA V. BARR 3 Ajami was entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), explaining that: 1) in Ajami, the BIA determined that the offense was a CIMT because it involved transmission of threats, thus evincing a vicious motive or a corrupt mind; and 2) § 646.9(a) prohibits conduct that is materially identical to the offense in Ajami. The panel also concluded that there was not a “realistic probability” that the statute applies to conduct that is not morally turpitudinous because all the conduct that § 646.9(a) criminalizes is morally turpitudinous. The panel explained that § 646.9(a) was more similar to the criminal threat statute held to be a CIMT in Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012), than statutes this court has held are not CIMTs. The panel explained that § 646.9(a), like the statute in Latter-Singh, criminalizes only credible threats that cause the targeted person to reasonably fear for his or her safety or his or her family’s safety, threats made with the apparent ability to carry out the threat, and threats specifically intended to cause such fear in the targeted person. Further, the panel concluded that, although § 646.9(a) does not expressly require the threat of death or bodily injury (as does the statute in Latter-Singh), the BIA was entitled to place greater emphasis on the evil intent or corrupt mind required by § 646.9(a). The panel also held that the BIA reasonably concluded that Orellana’s two § 646.9(a) counts of conviction did not arise out of a single scheme of criminal conduct, and therefore, made him removable under 8 U.S.C. § 1227(a)(2)(A)(ii). The panel explained that the BIA’s determination accorded with its precedential decision in Matter of Adetiba, 20 I. & N. Dec. 506 (B.I.A. 1992), to which the court accords Chevron deference. Further, the panel upheld the BIA’s determination for the additional 4 ORELLANA V. BARR reason that the conclusion aligned with this court’s decision in Leon-Hernandez v. U.S. I.N.S., 926 F.2d 902 (9th Cir. 1991), which recognized a rebuttable presumption of separate crimes created by the fact that the crimes were committed on different dates. Concurring, Judge Owens joined the majority opinion in full because it correctly applied the law as it now stands, but wrote separately to express his view that the court’s current CIMT approach is, in the words of his Grandpa Harold, “dumb, dumb, dumb.” He wrote that other judges share that view and that a smarter (and more just) approach would be to look to a more objective standard, such as the length of the underlying sentence, before deciding if someone should be removed.
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