Rodrigo Turijan v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODRIGO MONTIEL TURIJAN, No. 10-72027

Petitioner,

Agency No.

v. A077-089-449

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 6, 2014—Pasadena, California

Filed March 10, 2014

Before: Barry G. Silverman and Andrew D. Hurwitz,

Circuit Judges, and C. Roger Vinson, Senior District

Judge.*

Opinion by Judge Vinson

*

The Honorable C. Roger Vinson, Senior District Judge for the U.S.

District Court for the Northern District of Florida, sitting by designation.

2 TURIJAN V. HOLDER

SUMMARY**

Immigration

The panel granted Rodrigo Montiel Turijan’s petition for

review of the Board of Immigration Appeals’ decision finding

that his conviction for felony false imprisonment, in violation

of California Penal Code §§ 236 and 237, is a categorical

crime involving moral turpitude.

The panel held that felony false imprisonment under

California law is not a categorical CIMT, because it does not

require the intent to injure, actual injury, or a protected class

of victim, and because courts in California have applied the

statute to conduct that is not morally turpitudinous. The

panel also found that, where this court held in

Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013),

that simple kidnapping under CPC § 207(a) is not a

categorical CIMT, the lesser included offense to which

petitioner pled guilty and which requires an even lesser mens

rea is not a categorical CIMT either.

The panel wrote that it was not in the position to

undertake a modified categorical analysis because the record

was undeveloped and included no details of the conviction.

The panel also wrote that it would not remand to the BIA for

further development of the record because the government

did not request such relief.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

TURIJAN V. HOLDER 3

COUNSEL

Keli M. Reynolds (argued), Olmos & Reynolds Law Group,

LLP, Los Angeles, California; Andres Z. Bustamante, Law

Offices of Andres Z. Bustamante, Los Angeles, California,

for Petitioner.

Jesse L. Busen (argued) and Gregory M. Kelch, Office of

Immigration Litigation, United States Department of Justice,

Washington, D.C., for Respondent.

OPINION

VINSON, Senior District Judge:

Rodrigo Montiel Turijan petitions for review of a final

decision of the Board of Immigration Appeals (“BIA”). The

issue on appeal is whether felony false imprisonment under

California Penal Code (“CPC”) §§ 236 and 237 is a

categorical crime involving moral turpitude (“CIMT”) for

purposes of the Immigration and Nationality Act (“INA”). As

this court has recognized, non-fraudulent crimes of moral

turpitude “almost always” involve the intent to injure, actual

injury, or a protected class of victim. See Nunez v. Holder,

594 F.3d 1124, 1131 (9th Cir. 2010). Because felony false

imprisonment in California does not require any of these

elements—and because courts in California have applied the

statute to conduct that is not morally turpitudinous—we

conclude that the offense is not a categorical CIMT. This

4 TURIJAN V. HOLDER

conclusion also logically flows from (and is required by)

Castrijon-Garcia v. Holder, 704 F.3d 1205, 1218 (9th Cir.

2013) (holding that simple kidnapping under CPC § 207(a) is

not a categorical CIMT).

I.

The petitioner is a native and citizen of Mexico, who was

admitted into the United States as a lawful permanent resident

in 2000. Less than five years later, he was charged in

California state court with simple kidnapping in violation of

CPC § 207(a). The petitioner later pled guilty to a lesser

included offense of false imprisonment under CPC § 236.

See, e.g., People v. Gibbs, 90 Cal. Rptr. 866, 879 (Ct. App.

1970) (false imprisonment is “necessarily” a lesser included

offense of kidnapping). The record contains limited

information regarding the circumstances of Turijan’s crime

and the details of his plea, but we know that he was sentenced

to three years in state prison. This means that his crime was

a felony “effected by violence, menace, fraud, or deceit . . . .”

See CPC § 237(a) (false imprisonment is a misdemeanor

unless it involves one or more of those aggravating factors, in

which case it is a felony and carries more than one year

incarceration).

After his conviction, the Department of Homeland

Security (“government”) served Turijan with a Notice to

Appear, charging him with removability pursuant to INA

§ 237(a)(2)(A)(iii), for being an alien who had been convicted

of an aggravated felony. At a hearing before an Immigration

Judge (“IJ”) in December 2005, he was granted a continuance

TURIJAN V. HOLDER 5

because the government had not provided his attorney with

the conviction documents.

At his second hearing in March 2006, the government

filed the conviction documents and, importantly for this

appeal, amended the Notice to Appear to charge Turijan with

removability under INA § 237(a)(2)(A)(i), for having been

convicted of a CIMT within five years of his admission into

the United States. Because the petitioner needed additional

time to evaluate the new charge and to review the just-filed

conviction documents, the IJ continued the matter to June

2006, after stating that “if the government had just mailed

these, we wouldn’t [have to continue the hearing], a colossal

waste of everybody’s time.”

At his third hearing, the IJ declined to rule on the CIMT

issue because the government attorney was not prepared, so

the hearing was continued once again. Finally, at his fourth

hearing in September 2006, the government requested yet

another continuance because it was again not prepared. The

IJ denied the request, noting that the hearing had been

continued three times during which “[s]omeone could have

looked up a case or something.” The IJ then proceeded to

issue an oral ruling. He observed that the California false

imprisonment statute was very broad and appeared to be

malum prohibitum, and not malum in se. The IJ concluded

that the government failed to carry its burden and provide

“guidance as to why this is a crime involving moral

turpitude”, so he terminated the case in Turijan’s favor.

The government appealed to the BIA, which reversed in

an unpublished order. The BIA concluded that one or more of

6 TURIJAN V. HOLDER

the statutorily-required elements of violence, menace, fraud,

and deceit “necessarily indicate a state of mind that falls

within the definition of a crime involving moral turpitude.” In

re Rodrigo Montiel Turijan, 2008 WL 5025230 (BIA Oct. 24,

2008) (unpublished). For its conclusion, the BIA relied solely

on People v. Cornelio, 255 Cal. Rptr. 775 (Ct. App. 1989),

which held that felony false imprisonment is a CIMT for

purposes of California evidence law.1 The BIA subsequently

entered a final order of removal to Mexico, and the petitioner

now appeals.

II.

We only need to consider Turijan’s argument that felony

false imprisonment under California law is not a CIMT. As

this court has observed, moral turpitude is “perhaps the

quintessential example of an ambiguous phrase.” Marmolejo-

Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en

banc). The analytical process to determine if an offense

qualifies as a CIMT in the Ninth Circuit is as follows:

To determine if a crime involves moral

turpitude, we first apply the categorical

approach. This requires us to compare the

elements of the crime to the generic definition

of moral turpitude and decide whether the

conduct proscribed in the statute is broader

than, and so does not categorically fall within,

this generic definition. In making this

determination, we must find a realistic

1

The issue in Cornelio was whether the defendant’s prior conviction for

false imprisonment was a CIMT for the purpose of being used as

impeachment evidence in his trial for drug possession.

TURIJAN V. HOLDER 7

probability, not a theoretical possibility, that

the State would apply its statute to conduct

that falls outside the generic definition of

moral turpitude. This realistic probability can

be established by showing that, in at least one

other case, the state courts in fact did apply

the statute in the special (nongeneric) manner

....

Nunez, 594 F.3d at 1129 (citations and quotation marks

omitted). Thus, we must compare the elements of felony false

imprisonment in California to the generic definition of a

CIMT—and look to cases where the statute has been

applied—to determine if all the proscribed conduct can be

said to involve moral turpitude. If the statute has been applied

in at least one previous case to conduct that does not satisfy

the generic definition, then the offense is not a categorical

CIMT. See, e.g., Castrijon-Garcia, 704 F.3d at 1214–15.

The three elements of felony false imprisonment in

California are: (1) a person intentionally and unlawfully

restrained, confined, or detained another person, compelling

him to stay or go somewhere; (2) that other person did not

consent; and (3) the restraint, confinement, or detention was

accomplished by violence or menace. Cal. Jury Instructions,

Criminal 9.60 (Fall 2006 Revision); see also People v.

Fernandez, 31 Cal. Rptr. 2d 677, 680–81 & n.4 (Ct. App.

1994). “Violence” means the use of physical force to restrain

beyond the force necessary to effect the restraint; “menace”

8 TURIJAN V. HOLDER

is the threat of harm express or implied by word or act. See

Fernandez, 31 Cal. Rptr. 2d at 680 n.4.2

As to the generic definition of a CIMT, circuit precedent

tells us that non-fraudulent crimes of moral turpitude

generally involve “base, vile, and depraved” conduct that

“shock[s] the public conscience.” Nunez, 594 F.3d at 1131

(quotation marks omitted). They are “contrary to the rules of

morality and the duties owed between man and man,”

Marmolejo-Campos, 558 F.3d at 910 (quotation marks

omitted), and they involve at least some “evil intent.”

Castrijon-Garcia, 704 F.3d at 1213 (quotation marks

omitted); accord Fernandez-Ruiz v. Gonzales, 468 F.3d 1159,

1165–66 (9th Cir. 2006). Not every offense that runs against

“accepted rules of social conduct” will qualify as a CIMT,

however. Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th Cir.

2012). Rather, “[o]nly truly unconscionable conduct

surpasses the threshold of moral turpitude.” Id. Non-

fraudulent CIMTs will almost always involve an intent to

injure someone, an actual injury, or a protected class of

victims. See, e.g., Nunez, 594 F.3d at 1131.

Upon review, we conclude that felony false imprisonment

under California law does not qualify as a categorical CIMT

for two reasons.3 First, the crime does not require any of the

2

As previously noted, the statute provides that felony false

imprisonment can also be accomplished by fraud or deceit. Because it is

clear that fraud-based crimes are morally turpitudinous, see, e.g., Nunez,

594 F.3d at 1131, our focus is limited to whether false imprisonment by

violence or menace qualifies.

3

In reaching this conclusion, we are unpersuaded by the BIA’s reliance

on Cornelio, 255 Cal. Rptr. at 775, which involved an evidentiary issue

(namely, the impeachment of a defendant) under California law. As this

TURIJAN V. HOLDER 9

three factors set forth above, and the statute has been applied

by California courts in a non-generic manner. See People v.

Islas, 147 Cal. Rptr. 3d 872, 875–82 (Ct. App. 2012) (two

gang members convicted of false imprisonment by menace

after hiding from police for about 15 minutes in an apartment

rented by a mother and her children; conviction upheld even

though the defendants did not brandish a weapon, did not act

in a hostile manner, did not touch the woman or her family,

did not issue any verbal threats, and, in fact, expressly told

her that “they were not going to harm her or her children”)

(emphasis in original).4 Other cases are analogous. See, e.g.,

People v. Wardell, 77 Cal. Rptr. 3d 77 (Ct. App. 2008).

California courts, therefore, have interpreted the felony false

imprisonment statute to reach conduct that, while meeting the

definition of menace under state law, falls short of the generic

definition of “moral turpitude,” as the term has been defined

in this circuit’s case law. Because “the full range of conduct

prohibited by the statute” does not fall within the definition

court explained while confronting the exact same situation in Castrijon-

Garcia: “The BIA’s unreasoned reliance on a state court decision . . . is

not of great weight because it relates to the very different issue of whether

a crime is morally turpitudinous for purposes of California evidence law,

lacks power to persuade and thus is not entitled to deference.” See

704 F.3d at 1211 (quotation marks omitted); see also id. at n.6 (further

noting that “this is not the first time we have held a crime not to be a

categorical crime of moral turpitude . . . even though California courts

have held the contrary under their evidentiary standard for purposes of

impeachment of a defendant”) (emphasis in original).

4

While the situation was clearly (and quite understandably) frightening

for the family, what the defendants actually did in that case cannot be

fairly described as “truly unconscionable” conduct demonstrating “evil

intent” or involving “base, vile, and depraved” behavior which “shock[s]

the public conscience.” Nor did the case involve an intent to injure, actual

injury, or a protected class of victim.

10 TURIJAN V. HOLDER

of that term, see Nunez, 594 F.3d at 1133, felony false

imprisonment under California law is not a categorical CIMT.

In addition and more conclusively, a panel of this court

has held that simple kidnapping under CPC § 207(a) is not a

categorical CIMT. See Castrijon-Garcia, 704 F.3d at 1218.

Obviously, if the crime with which the petitioner was

originally charged is not a categorical CIMT, a fortiori, the

lesser included offense to which he later pled guilty—which

requires, if anything, an even lesser mens rea —is not a

categorical CIMT either.5

III.

In Saavedra-Figueroa v. Holder, this court held that

misdemeanor false imprisonment is not a categorical CIMT

under California law, but left for another day whether felony

false imprisonment might be. See 625 F.3d 621, 622–28 &

626 n.5 (9th Cir. 2010). We hold today, consistent with

Castrijon-Garcia, that it is not.6 Accordingly, the petition is

5

The elements of the two offenses are similar. Compare Fernandez,

31 Cal. Rptr. 2d at 680–81 & n.4 (setting forth the elements of felony false

imprisonment) with People v. Burney, 212 P.3d 639, 666 (Cal. 2009)

(setting forth the elements of simple kidnapping). The main difference

between the two is false imprisonment requires “violence or menace” in

the detention, while kidnapping requires the use of “force or fear.” Since

simple kidnapping does not qualify as a categorical CIMT under

Castrijon-Garcia, the same result necessarily follows for the lesser

included offense of felony false imprisonment.

6

Because we grant Turijan’s petition on statutory grounds, we do not

resolve his due process claim. We also need not consider whether he was

removable for being an alien who had been convicted of an aggravated

felony because the government has abandoned that claim.

TURIJAN V. HOLDER 11

GRANTED, and the BIA’s final order of removal is

VACATED.7

7

Ordinarily, if an offense is not a CIMT under the categorical approach,

we would apply a modified categorical approach and look to documents

in the record to see if the facts of the offense involved moral turpitude. See

Nunez, 594 F.3d at 1129–30. The modified categorical approach is not

available here, however, since the record is undeveloped and does not

include any details of the conviction. Thus, we are not in the position to

undertake the modified categorical analysis. See id. at 1130 (concluding

same). Nor will we remand to the BIA for further development of the

record as the government has not requested such relief on appeal.