Navarro-Lopez v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO NAVARRO-LOPEZ, 

Petitioner, No. 04-70345

v.

 Agency No.

A92-283-781

ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 13, 2006—San Francisco, California

Filed September 19, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,

Harry Pregerson, Stephen Reinhardt, Alex Kozinski,

Diarmuid F. O’Scannlain, Michael Daly Hawkins,

Sidney R. Thomas, Kim McLane Wardlaw,

William A. Fletcher, Richard A. Paez, Richard C. Tallman,

Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Pregerson;1

Concurrence by Judge Reinhardt;

Dissent by Judge Tallman;

Dissent by Judge Bea

1

This opinion serves as the opinion of the majority of the court save for

the four paragraphs that comprise section A.2. That section is to be viewed

as Judge Pregerson’s special concurrence.

12563

12566 NAVARRO-LOPEZ v. GONZALES

COUNSEL

James Robert Patterson, Law Office of Lilia S. Velasquez,

San Diego, California, for the petitioner.

Francis W. Fraser, Department of Justice, Washington, D.C.,

for the respondent.

OPINION

PREGERSON, Circuit Judge:

Armando Navarro-Lopez petitions for review of a final

order of removal, arguing that the Board of Immigration

Appeals (“BIA”) erred in summarily affirming the immigra-

tion judge’s (“IJ”) determination that Navarro-Lopez’s con-

viction under California Penal Code section 32 for accessory

after the fact was a conviction for a crime involving moral

turpitude. Based on Navarro-Lopez’s conviction, the IJ con-

cluded he was inadmissible and ineligible for cancellation of

removal. We have jurisdiction pursuant to 28 U.S.C.

§ 1252(a)(1), and we grant the petition.

NAVARRO-LOPEZ v. GONZALES 12567

FACTS AND PRIOR PROCEEDINGS

Navarro-Lopez is a native and citizen of Mexico. He is

married to a U.S. citizen and has applied for permanent resi-

dency through his wife. He has two U.S. citizen children, ages

thirteen and sixteen, and a twenty-four-year-old child who is

a legal permanent resident. He has been working in the United

States for over twenty years, and he and his wife own their

own home.

Navarro-Lopez entered the United States in June 1984. On

August 9, 1999, Navarro-Lopez pled guilty to one count of

California Penal Code section 32, accessory after the fact. He

was sentenced to 270 days in jail and three years probation.

In February 2001, Navarro-Lopez traveled to Tijuana, Mexico

to visit his mother who was gravely ill. On February 11, 2001,

Navarro-Lopez tried to re-enter the United States at the San

Ysidro point of entry. When he presented his employment

authorization card, the border patrol denied him entry and

detained him. The Immigration and Naturalization Service

(“INS”)2 thereafter commenced removal proceedings.

The INS charged Navarro-Lopez with being inadmissible

because he did not have valid entry documents under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) and because he had been convicted of a

crime involving moral turpitude under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). At his merits hearing, Navarro-Lopez

conceded inadmissibility under 8 U.S.C. § 1182(a)(7)(A)

(i)(I), but argued that he had not been convicted of a crime of

moral turpitude. Although Navarro-Lopez admitted having

been convicted under California Penal Code section 32 for

accessory after the fact, he disputed the INS’s categorization

of that crime as one involving moral turpitude.

2

On March 1, 2003, the INS was dissolved as an independent agency

within the United States Department of Justice, and its functions were

transferred to the Department of Homeland Security. Homeland Security

Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135.

12568 NAVARRO-LOPEZ v. GONZALES

The IJ nonetheless held that Navarro-Lopez’s accessory

after the fact conviction constituted a crime involving moral

turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ, there-

fore, held Navarro-Lopez removable. The IJ also denied

Navarro-Lopez’s application for cancellation of removal on

the grounds that Navarro-Lopez had been convicted of a

crime involving moral turpitude. Further, the IJ held that

because Navarro-Lopez had been convicted of a crime involv-

ing moral turpitude, Navarro-Lopez did not have the requisite

good moral character to be eligible for cancellation of

removal. Thus, the IJ’s characterization of California Penal

Code section 32 as a crime involving moral turpitude served

to bar Navarro-Lopez’s application in two ways: (1) a convic-

tion for a crime involving moral turpitude renders someone

ineligible for cancellation or removal and (2) a conviction for

a crime involving moral turpitude demonstrates a lack of the

requisite good moral character necessary to qualify for cancel-

lation of removal.

The IJ ordered Navarro-Lopez removed to Mexico.

Navarro-Lopez timely appealed to the BIA, which summarily

affirmed the IJ on December 24, 2003. Navarro-Lopez timely

filed this petition for review on January 22, 2004.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the petition under 8 U.S.C.

§ 1252 as amended by section 106(a) of the REAL ID Act of

2005, Pub. L. No. 109-13, Div. B., § 106(a)(1)(A)(iii), 119

Stat. 231, 310 (codified as amended at 8 U.S.C.

§ 1252(a)(2)(D)). See Notash v. Gonzales, 427 F.3d 693, 695-

96 (9th Cir. 2005). While we do not normally have jurisdic-

tion to review “any final order of removal against an alien

who is removable by reason of having committed [certain

criminal offenses],” 8 U.S.C. § 1252(a)(2)(C), including

crimes involving moral turpitude,3 we are not barred from

3

See 8 U.S.C. §§ 1252(a)(2)(C), 1182(a)(2), & 1227(a)(2)(A). This case

involves only a single alleged crime of moral turpitude, which alone

NAVARRO-LOPEZ v. GONZALES 12569

hearing the constitutional claims or questions of law raised in

a petition. 8 U.S.C. § 1252(a)(2)(D). Whether Navarro-

Lopez’s conviction is a crime involving moral turpitude is a

question of law, which we have jurisdiction to reach. See

Notash, 427 F.3d at 696.

We review de novo “whether a state statutory crime consti-

tutes a crime involving moral turpitude.” Cuevas-Gaspar v.

Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005). “Where the

BIA affirms an IJ’s order without opinion, we review the IJ’s

decision as the final agency action.” Khup v. Ashcroft, 376

F.3d 898, 902 (9th Cir. 2004).

ANALYSIS

Navarro-Lopez asserts that the IJ erred in deciding that a

conviction for accessory after the fact under California Penal

Code section 32 constitutes a crime involving moral turpitude.

Navarro-Lopez asks that we remand his petition to the BIA

for a grant of cancellation of removal. To qualify for cancella-

tion of removal, an alien must demonstrate, inter alia, that he

has not been convicted of a crime of moral turpitude and that

he has maintained good moral character for the ten years

immediately preceding the date of his application. 8 U.S.C.

§ 1229b(b)(1). Under 8 U.S.C. § 1101(f)(3), no person may

be found to have good moral character who has been con-

victed of a crime listed in 8 U.S.C. § 1182(a)(2)(A), which

includes a crime involving moral turpitude. 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). The IJ did not rely on facts other than

Navarro-Lopez’s conviction when he determined that

Navarro-Lopez lacked good moral character. Thus, Navarro-

Lopez’s eligibility for cancellation of removal turns on

would not fall within the jurisdictional limitations of § 1252(a)(2)(C).

However, because the crime rendered Navarro-Lopez inadmissible and

occurred before his re-entry into the United States, it falls within the scope

of § 1182(a)(2)(A)(i), and accordingly, § 1252(a)(2)(C).

12570 NAVARRO-LOPEZ v. GONZALES

whether a conviction under California Penal Code section 32

constitutes a crime of moral turpitude.

To determine whether a conviction is for a crime involving

moral turpitude, we apply the categorical and modified cate-

gorical approaches established by the Supreme Court in Tay-

lor v. United States, 495 U.S. 575, 599-602 (1990).4 Cuevas-

Gaspar, 430 F.3d at 1017.

A. The Categorical Approach

1.

The categorical approach requires us to “make a categorical

comparison of the elements of the statute of conviction to the

generic definition [of the crime], and decide whether the con-

duct proscribed by [the statute] is broader than, and so does

not categorically fall within, this generic definition.” Huerta-

Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003).

Therefore, we begin the categorical approach by determining

the generic elements of a crime involving moral turpitude for

the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I). See Taylor,

495 U.S. at 580-81.

[1] A difficulty arises here as there are no statutorily-

established elements for a crime involving moral turpitude.

Courts, however, have consistently defined “moral turpitude”

4

In his dissent, Judge Bea argues that we should not apply the Taylor

categorical approach when determining whether a crime involves moral

turpitude. This plainly conflicts with our precedent. See, e.g., Fernandez-

Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir. 2006); Kepilino v. Gon-

zales, 454 F.3d 1057, 1060-62 (9th Cir. 2006); Cuevas-Gaspar, 430 F.3d

at 1017. Instead, Judge Bea urges us to look at the manner in which moral

turpitude has been applied in judicial decisions. Bea Dissent at 12603.

This is in essence how we begin the categorical approach for crimes

involving moral turpitude. As explained below, moral turpitude lacks a

statutory definition and instead we look to common law (i.e. “judicial

decisions”) to determine the generic definition of the crime.

NAVARRO-LOPEZ v. GONZALES 12571

as involving conduct that is inherently base, vile, or depraved,

and contrary to the private and social duties man owes to his

fellow men or to society in general. See, e.g., Morales v. Gon-

zales, 478 F.3d 972, 978 (9th Cir. 2007). This is the definition

employed by the BIA, see, e.g., Matter of E—, 2 I&N Dec.

134, 140 (BIA 1944), and the definition is relatively consis-

tent throughout the federal courts, see, e.g., Sosa-Martinez v.

U.S. Att’y Gen., 420 F.3d 1338, 1341-42 (11th Cir. 2005);

Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005)

(also asking whether the act involved arouses “serious” indig-

nation in the law-abiding public); Omagah v. Ashcroft, 288

F.3d 254, 259-60 (5th Cir. 2002) (further adding that morally

turpitudinous acts are “per se morally reprehensible and

intrinsically wrong”); Medina v. United States, 259 F.3d 220,

227 (4th Cir. 2001) (adding that morally turpitudinous con-

duct “shocks the public conscience”).

This widespread judicial consistency is supported by basic

notions of moral turpitude. Moral turpitude involves “immoral

or depraved” conduct. Random House Dictionary of English

Usage Unabridged 930 (1973). Crimes of moral turpitude

“involv[e] grave infringement of the moral sentiment of the

community.” Webster’s New International Dictionary

Unabridged 1593 (2d ed. 1940). Thus, the generic definition

of a crime involving moral turpitude is a crime involving con-

duct that (1) is base, vile, or depraved and (2) violates

accepted moral standards.5

5

In his oral decision, the IJ set forth a slightly different definition of

moral turpitude, stating that “[a] crime involving moral turpitude generally

refers to conduct which is inherently base, vile, or depraved, or is contrary

to the accepted rules of morality and to the duties owed between men in

society.” (emphasis added). The IJ’s definition differs from the generic

definition of moral turpitude in one key respect. The IJ stated that moral

turpitude involves conduct that is either (1) inherently base, vile, or

depraved or (2) contrary to the accepted duties owed between man and

society. This definition is incorrect because crimes of moral turpitude

involve both elements.

12572 NAVARRO-LOPEZ v. GONZALES

2.

In his dissent, Judge Tallman states that all crimes involv-

ing morally turpitudinous conduct fall into one of two catego-

ries: those involving fraud and those involving grave acts of

baseness or depravity. Tallman Dissent at 12591; accord

Reinhardt Conc. at 12582. The dissent draws this formulation

from Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005),

wherein we stated: “Crimes of moral turpitude are of basi-

cally two types, those involving fraud and those involving

grave acts of baseness or depravity.” Id. at 1083 (emphasis

added). Although Carty can be read to stand for the proposi-

tion that crimes involving moral turpitude generally fall into

these two categories, these two categories do not define moral

turpitude. As explained above, crimes involving moral turpi-

tude involve base, vile, and depraved conduct that shocks the

conscience and is contrary to the societal duties we owe each

other.

[2] Crimes involving fraud are not a per se category of

crimes involving moral turpitude. Crimes involving fraud,

depending on the circumstances, merely present examples of

conduct that may fall under the umbrella of inherently base

and vile conduct that shocks the conscience. Indeed, some

crimes involving the intent to defraud (especially in the dis-

sent’s broad definition, which encompasses any crime involv-

ing “dishonesty”) are not necessarily crimes involving moral

turpitude.6

The IJ cited Matter of Flores, 17 I&N Dec. 225 (BIA 1980), for his def-

inition, but the IJ appears to have misread that case. Matter of Flores set

forth the correct definition of moral turpitude: “Moral turpitude is a nebu-

lous concept which refers generally to conduct which is inherently base,

vile, or depraved, contrary to the accepted rules of morality and the duties

owed between man and man, either one’s fellow man or society in gener-

al.” Matter of Flores, 17 I&N Dec. at 227. Thus, Matter of Flores does

not support the definition of moral turpitude used by the IJ.

6

In section III of his concurrence, Judge Reinhardt states that my

approach dilutes the meaning of moral turpitude and would broaden the

NAVARRO-LOPEZ v. GONZALES 12573

[3] Crimes “involving fraud” encompasses such a broad

category of possible offenses, that it is not proper simply to

label all such crimes morally turpitudinous. There may be

crimes involving fraud that do involve moral turpitude. For

example, someone perpetrating a vast fraud to deprive wid-

ows of pension benefits or employees of ERISA benefits

would qualify as base, vile, depraved, and shocking society’s

conscience. On the other hand, some actions involving fraud

may not qualify as base, vile, and depraved. Take the example

of a welfare mother who falsely endorses and then cashes a

social security check mistakenly issued to her deceased father.

The woman knows that she does not have the right to the

money. She forges her father’s signature. But, she needs

money to feed her hungry children. Although such conduct is

illegal, it is not base, vile, or depraved. Both of these crimes

involve fraud, but they present very different circumstances.

Because such a large swath of crimes involve fraud, we

should conduct an individualized analysis for offenses involv-

ing fraud — not immediately label them as involving moral

turpitude.

[4] As this circuit and the BIA have consistently held, we

must engage in an individualized analysis of each challenged

statute to determine whether it falls under the rubric of crimes

involving moral turpitude. See, e.g., Morales, 578 F.3d at 978;

Cuevas-Gaspar, 430 F.3d at 1017. As the majority of crimes

involve some element of dishonesty — from Enron executives

operating massive fraud on the public to a twenty-year-old

category of crimes involving moral turpitude. Reinhardt Conc. at 12585.

My approach does exactly the opposite. Although prior case law describes

fraud as a category of crimes involving moral turpitude, crimes involving

fraud can be crimes of moral turpitude but are not necessarily crimes

involving moral turpitude. Judge Reinhardt interprets this as “compelling”

us to label all crimes involving fraud as base, vile, and depraved. Rein-

hardt Conc. at 12583. I specifically hold that crimes involving fraud do not

compel such a holding. A crime involving moral turpitude must be one

that is base, vile, or depraved and shocks society’s conscience. Where a

crime includes an element of fraud, this same standard must be met.

12574 NAVARRO-LOPEZ v. GONZALES

using his older brother’s ID to buy a beer — classifying all

such crimes as involving moral turpitude would rob the

phrase “moral turpitude” of any distinct meaning. Thus, while

Judge Tallman’s dissent and Judge Reinhardt’s concurrence

inquire into whether accessory after the fact is a crime involv-

ing fraud, the real question is whether accessory after the fact

is a crime that is inherently base, vile, or depraved and contra-

dicts accepted moral standards.7

3.

After determining the generic elements of a crime, the next

step of the categorical approach is to compare those elements

with the state statute in question. Cuevas-Gaspar, 430 F.3d at

1017. Here, we assess whether accessory after the fact under

California Penal Code section 32 is a crime involving moral

turpitude. Whether a crime involves moral turpitude “is deter-

mined by the statutory definition or by the nature of the crime

[and] not by the specific conduct that resulted in the convic-

tion.” McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)

(per curiam). We may not consider the circumstances under

which the crime was committed.

California Penal Code section 32 provides:

Every person who, after a felony has been commit-

ted, harbors, conceals or aids a principal in such fel-

7

Even if we were to hold that crimes involving fraud are always crimes

involving moral turpitude, accessory after the fact pursuant to California

Penal Code section 32 is not a crime necessarily involving fraud. It is not

enough that an offense involve some sort of sneaky or dishonest behavior

— we look for intent to defraud. See Carty, 395 F.3d at 1084 (holding that

a statute prohibiting conduct with “specific intent to evade a tax” did not

contain, as an essential element of the offense: an intent to defraud); see

also Goldeshtein v. INS, 8 F.3d 645, 647-48 (9th Cir. 1993). A review of

the statutory language of California Penal Code section 32 demonstrates

that intent to defraud is not an essential element of a conviction under the

statute.

NAVARRO-LOPEZ v. GONZALES 12575

ony, with the intent that said principal may avoid or

escape from arrest, trial, conviction or punishment,

having knowledge that said principal has committed

such felony or has been charged with such felony or

convicted thereof, is an accessory to such felony.

[5] Under California law, the crime of accessory after the

fact has the following essential elements:

(1) someone other than the person charged as an

accessory, that is to say, a principal, must have com-

mitted a specific completed felony; (2) the accused

must have harbored, concealed or aided the principal

(3) with knowledge that the principal committed a

felony; and (4) further, the hiding, concealing or har-

boring must be with the specific intent that the prin-

cipal may escape from arrest and trial.

People v. Prado, 136 Cal. Rptr. 521, 523 (Ct. App. 1977).

Thus, a conviction under section 32 requires knowing inter-

ference with the enforcement of the law with the specific

intent to help a principal avoid arrest or trial.

The IJ applied his incorrect definition of moral turpitude8

and then held that a conviction under California Penal Code

section 32 necessarily implicates a crime of moral turpitude

in all circumstances. He explained:

It is a crime involving moral turpitude because a

conviction under this provision does show conduct

contrary to the duty owed to society in general. His

conviction was in contradiction of the enforcement

of a state law relating to a felony. Furthermore, it

involves knowledge that the individual that the

respondent is harboring or aiding has committed

such a felony, given the fact that it involves the

8

See supra n.4.

12576 NAVARRO-LOPEZ v. GONZALES

knowledge that the principal has committed the fel-

ony and the individual is [under]taking conduct,

whether that be harboring or aiding. Such assistance

to one known to have committed a felony is clearly

contrary to the accepted rules owed between mem-

bers of society.

The IJ based his holding on the fact that an accessory vio-

lates a duty owed to society to obey the law and not to impede

the investigation of crimes. However, commission of any

crime, by definition, runs contrary to some duty owed to soci-

ety. If this were the sole benchmark for a crime involving

moral turpitude, every crime would involve moral turpitude.

We certainly owe a duty to society not to destroy another’s

property, not to assault another, and not to break and enter

private property. Yet, we have held that convictions for these

acts do not categorically involve moral turpitude. E.g.,

Cuevas-Gaspar, 430 F.3d at 1020 (burglary with intent to

commit a crime within the residence); Carr v. INS, 86 F.3d

949, 950-51 (9th Cir. 1996) (assault with a deadly weapon);

Rodriguez-Herrera v. INS, 52 F.3d 238, 239-40 (9th Cir.

1995) (“knowingly and maliciously . . . caus[ing] physical

damage to property of another”).

It is apparent that the IJ’s definition of moral turpitude is

overbroad because under his definition, all crimes would be

crimes of moral turpitude. Such a reading of the statute is

untenable. If Congress had intended any conviction to make

an alien ineligible for cancellation of removal, it would have

said so. There would be no reason to designate specific cate-

gories of crimes. For example, 8 U.S.C. § 1182(a)(2)(A)(i)

states that aliens are inadmissible where they have committed

a crime involving moral turpitude or a crime relating to a con-

trolled substance. If all conduct “contrary to the duty owed to

society in general” rendered an individual inadmissible under

the prohibition on crimes involving moral turpitude, the sec-

ond category of crimes relating to controlled substances

would be mere surplusage.

NAVARRO-LOPEZ v. GONZALES 12577

[6] The IJ omitted the second crucial element of the defini-

tion of a crime involving moral turpitude: that the crime

involve some level of depravity or baseness “so far contrary

to the moral law” that it gives rise to moral outrage. Jordan

v. DeGeorge, 341 U.S. 223, 236 n.9 (1951) (Jackson, J., dis-

senting). The crime of accessory after the fact need not

involve grave acts of baseness or depravity. Determining

whether a crime is base or depraved is a subjective decision

about societal values. The broad range of acts proscribed

under California Penal Code section 32 do not all give rise to

moral outrage. “Any kind of overt or affirmative assistance to

a known felon” can be the basis of a conviction under section

32. People v. Duty, 74 Cal. Rptr. 606, 609 (Ct. App. 1969)

(emphasis added). The act of harboring a felon can be as sim-

ple as providing food or shelter to someone who has commit-

ted a felony — even where that person is a family member.

See United States v. Hill, 279 F.3d 731, 736 (9th Cir. 2002).

Yet such conduct hardly entails baseness or depravity.

Actions that are more harmful than the conduct underlying

an accessory after the fact conviction have been deemed not

to categorically involve moral turpitude. To hold that a con-

viction for accessory after the fact is necessarily a crime of

moral turpitude leads to an absurd result where a principal

who commits a crime may not have undertaken a morally tur-

pitudinous act, but the person who gave the principal food and

shelter necessarily did. See 9 U.S. Dep’t of State Foreign

Affairs Manual 40.21(a) n.2.4(b) (“[W]here an alien has been

convicted of . . . accessory before or after the fact . . . and the

underlying crime is not deemed to involve moral turpitude,

then [8 U.S.C. § 1182](a)(2)(A)(i)(I) would not be applica-

ble.”); cf. Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th Cir.

1993) (“[C]onspiracy to commit an offense involves moral

turpitude only when the underlying substantive offense is a

crime involving moral turpitude.”)

The motivation underlying accessory crimes is often pro-

tection of a friend or of a family member during a time of

12578 NAVARRO-LOPEZ v. GONZALES

trouble, and such actions, while criminal, do not necessarily

evidence moral depravity. Many states, including one in this

circuit, have recognized the difficult choices facing the family

members of an escaping felon and have exempted family

members from accessory after the fact liability. See Nev. Rev.

Stat. § 195.030. California, however, has no such explicit

exception. Thus, in California, a wife could be convicted of

harboring her husband, or a father or mother of harboring a

son or daughter. It would be illogical to conclude that society

in general would call the action of harboring one’s son or

daughter a crime that is inherently base or depraved when

many states do not even consider such conduct criminal.

The Supreme Court recently examined the Taylor categori-

cal approach and cautioned against employing “legal imagina-

tion” when determining whether a state statute falls under the

generic definition of a crime. Gonzales v. Duenas-Alvarez,

127 S. Ct. 815, 822 (2007). Specifically, the court stated that

to find that a state statute falls outside of a generic definition,

there must be a “realistic probability, not a theoretical possi-

bility, that the State would apply its statute to conduct that

falls outside the generic definition of a crime.” Id.

[7] The Supreme Court was indicating that we should not

simply hypothesize unusual cases that would fall outside the

generic definition of a crime. See James v. United States, 127

S. Ct. 1586, 1597 (2007). Indeed, the Court has explained that

we should look to the “nature” of the offense at issue. Id.

Thus, the question before us is whether California Penal Code

section 32 describes a crime that by its nature involves moral

turpitude. It clearly does not. Accessory after the fact is not

a crime whose very nature is base, vile, or depraved; nor is it

a crime necessarily contradicting moral standards.

Judge Tallman’s dissent argues that Duenas-Alvarez

requires us to provide specific examples of California prose-

cuting people under Penal Code section 32 for acts that would

fall outside the generic definition for crimes involving moral

NAVARRO-LOPEZ v. GONZALES 12579

turpitude. Tallman Dissent at 12598. He presents a list of

cases where defendants were prosecuted under section 32 for

acting as accessories to serious crimes. This list misses the

point. The issue is not whether in some cases violators of sec-

tion 32 have been involved in a crime of moral turpitude. The

issue is whether everyone prosecuted under that section has

necessarily committed a crime involving moral turpitude.

There is nothing inherent in the crime of accessory after the

fact that makes it a crime involving moral turpitude in all

cases.

A few examples illustrate this point. In a recent case, Cali-

fornia prosecuted Malcolm, a juvenile, for accessory after the

fact where the principal was charged with possession of an

assault weapon. In re Malcolm M., 54 Cal. Rptr. 3d 74 (Ct.

App. 2007). Although the California Court of Appeal held

that Malcolm was responsible for aiding and abetting instead

of acting as an accessory after the fact, id. at 84, his case dem-

onstrates that in California one can be charged and convicted

with accessory after the fact for crimes that do not involve

moral turpitude. No court has ever found possession of a

weapon to be a crime involving moral turpitude. Cf. Carr, 86

F.3d at 950-51 (holding that assault with a deadly weapon

was not a crime involving moral turpitude). Moreover, Mal-

colm’s efforts to conceal a weapon by placing it under his

feet, see In re Malcom M., 54 Cal. Rptr. 3d at 77, do not dem-

onstrate conduct that is by its nature base, depraved, or vile.

Additionally, people are regularly convicted under Califor-

nia Penal Code section 32 in California for harboring or con-

cealing principals who have committed assault or burglaries.

See, e.g., Shortridge v. Mun. Ct., 198 Cal. Rptr. 749 (Ct. App.

1984) (accessory to burglary of a trailer home); People v.

Luna, 295 P.2d 457 (Cal. Ct. App. 1956) (accessory to

assault); Ex Parte Goldman, 88 P. 819 (Cal. Ct. App. 1906)

(accessory to theft of personal property). Such actions do not

rise to the level of offending societal conscience. They do not

constitute grave acts of immorality any more than any viola-

12580 NAVARRO-LOPEZ v. GONZALES

tion of the law does.9 We have held that neither burglary nor

assault with a deadly weapon constitute crimes of moral turpi-

tude. Cuevas-Gaspar, 430 F.3d at 1020 (burglary with intent

to commit a crime within the residence); Carr, 86 F.3d at

950-51 (assault with a deadly weapon). Aiding and abetting

such crimes would not demonstrate conduct involving moral

turpitude. Acting as an accessory after the fact to such crimes

should not necessarily do so either.

[8] Conduct underlying an accessory after the fact convic-

tion does not necessarily involve conduct that involves base-

ness or depravity. Thus, California Penal Code section 32

refers to a potential set of crimes broader than the generic def-

inition of a “crime involving moral turpitude.” Under the Tay-

lor categorical approach, Navarro-Lopez’s conviction for

accessory after the fact does not fall under the generic defini-

tion and was not for a crime involving moral turpitude.

B. The Modified Categorical Approach

In the Ninth Circuit, we have held that where a state statute

is categorically broader than the generic definition of a crime,

we employ a modified categorical approach. Kepilino v. Gon-

zales, 454 F.3d 1057, 1062 (9th Cir. 2006). In Carty, we

explained that a modified categorical approach is proper when

a statute is divisible into several crimes, some of which may

involve moral turpitude and some of which may not. Carty,

395 F.3d at 1084.

The modified categorical approach, however, only applies

when the particular elements in the crime of conviction are

broader than the generic crime. When the crime of conviction

is missing an element of the generic crime altogether, we can

9

As noted earlier, at some level all illegal acts violate societal norms

and values — that is why the acts are illegal. However, “crimes involving

moral turpitude” is a limited category of crimes and does not extend to

cover all conduct that violates the law.

NAVARRO-LOPEZ v. GONZALES 12581

never find that “a jury was actually required to find all the ele-

ments of” the generic crime. See Li v. Ashcroft, 389 F.3d 892,

899-901 (9th Cir. 2004) (Kozinski, J., concurring) (providing

examples).

[9] Accessory after the fact under California Penal Code

section 32 lacks an element of the generic crime — i.e., the

moral turpitude, the requisite depravity. The crime of convic-

tion can never be narrowed to conform to the generic crime

because the jury is not required — as Taylor mandates — to

find all the elements of the generic crime.10 Even if Navarro-

Lopez had admitted to depraved acts, those admissions could

not be used to modify the crime because they were not neces-

sary for a conviction. See Shepard v. United States, 544 U.S.

13, 24 (2005) (holding that government must show that “a

prior conviction ‘necessarily’ involved (and a prior plea nec-

essarily admitted) facts equating to generic burglary”). The

modified categorical approach thus cannot be used to conform

Navarro-Lopez’s accessory after the fact conviction to the

generic definition of crimes involving moral turpitude.

CONCLUSION

[10] A crime involving moral turpitude must be a crime

that (1) is vile, base or depraved and (2) violates societal

moral standards. Accessory after the fact under California

Penal Code section 32 does not fall under this definition. The

categorical and modified categorical approaches outlined in

Taylor support this conclusion. Therefore, we grant the peti-

tion and remand to the BIA for full consideration of Navarro-

Lopez’s application for cancellation of removal.

PETITION GRANTED and REMANDED.

10

This same analysis applies in cases, as the one currently before us,

where courts review plea agreements instead of jury verdicts.

12582 NAVARRO-LOPEZ v. GONZALES

REINHARDT, Circuit Judge, Concurring, joined by Chief

Judge SCHROEDER and Judges KOZINSKI, HAWKINS,

THOMAS, WARDLAW, W. FLETCHER, and PAEZ:

I join Judge Pregerson’s opinion except for Section A(2).

Although I agree that accessory after the fact is not a crime

of moral turpitude, I cannot agree that offenses involving

fraud are subject to the same test as other crimes when we

determine which offenses fall within that classification. Gen-

erally, crimes are deemed to be offenses of moral turpitude if

they are base, vile, or depraved — if they offend society’s

most fundamental values, or shock society’s conscience.

Fraudulent offenses, however, are so classified simply by vir-

tue of their fraudulent nature. Such has been the clearly estab-

lished rule with respect to fraud since at least 1951. Jordan v.

De George, 341 U.S. 223, 227-32 (1951). Nevertheless, Judge

Pregerson is correct that “accessory after the fact” is not a

crime of moral turpitude.

I.

Judge Pregerson’s opinion states that “crimes involving

fraud are not a per se category of crimes involving moral tur-

pitude,” but rather fraud is “an example of conduct that may

fall under the umbrella of inherently base and vile conduct

that shocks the conscience.” According to the Judge Preger-

son, courts should evaluate crimes involving fraud the same

way that they evaluate other crimes, by determining whether

they are base, vile, or depraved. Doing so would, however,

directly contradict what the Supreme Court stated unequivo-

cally in Jordan to be the universal rule: “Without exception

. . . a crime in which fraud is an ingredient involves moral tur-

pitude.” 341 U.S. at 227. It would also directly contradict

what we reiterated only two years ago in Carty v. Ashcroft:

“Crimes of moral turpitude are of basically two types, those

involving fraud and those involving grave acts of baseness or

depravity.” 395 F.3d 1081, 1083 (9th Cir. 2005). There was,

in fact, nothing new in Carty, as far as this circuit is con-

NAVARRO-LOPEZ v. GONZALES 12583

cerned. Almost thirty years earlier, we said in Winestock v.

INS: “A crime having as an element the intent to defraud is

clearly a crime involving moral turpitude.” 576 F.2d 234, 235

(9th Cir. 1978); see also McNaughton v. INS, 612 F.2d 457,

459 (9th Cir. 1980).

There are other offenses that are so base, vile, and depraved

that they qualify as crimes of moral turpitude “even though

they have no element of fraud.” Rodriguez-Herrera v. INS, 52

F.3d 238, 240 (9th Cir. 1995). These offenses involve “rather

grave acts of baseness or depravity” such as murder, rape, and

incest. Id. Not all serious crimes meet this standard, however.

Indeed, we have determined, for example, that burglary,

Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1020 (9th Cir.

2005), and assault with a deadly weapon, Carr v. INS, 86 F.3d

949, 951 (9th Cir. 1996), do not involve moral turpitude. To

be considered a crime of moral turpitude, a crime other than

fraud must be more than serious; it must offend the most fun-

damental moral values of society, or as some would say,

“shock[ ] the public conscience.” Medina v. United States,

259 F.3d 220, 227 (4th Cir. 2001) (quoting Matter of Danesh,

19 I. & N. Dec. 669, 670 (BIA 1988)).

II.

For the reasons explained earlier, we are not free to follow

Judge Pregerson’s suggestion that we treat crimes involving

fraud like all other crimes, under the base, vile, and depraved

standard. Moreover, to do so in the face of controlling law

would render our doctrine totally incoherent. We would be

compelled to label all crimes involving fraud as base, vile and

depraved, and thus to deem all instances of fraud more offen-

sive to society than the numerous serious and even violent fel-

onies that are punishable by lengthy sentences but that we

deem not turpitudinous.

Not only would Judge Pregerson’s approach render our

existing doctrine incoherent, it would also dilute the meaning

12584 NAVARRO-LOPEZ v. GONZALES

of moral turpitude. Terms like “base,” “vile,” and “depraved”

are subjective and nebulous, so we rely on comparisons with

other morally turpitudinous crimes when considering whether

a crime fits that description. Under our current test for moral

turpitude, we compare a crime’s depravity with that of crimes

we have previously determined to be base, vile, and depraved

— crimes such as murder, rape, and incest. See, e.g.,

Rodriguez-Herrera, 52 F.3d at 240. Judge Pregerson’s

approach would, in addition, require us to compare the

depravity of a crime with that of minor fraud offenses, such

as providing false information on a passport application. See

Bisaillon v. Hogan, 257 F.2d 435, 437-38 (9th Cir. 1958).

Sweeping all fraud cases within the category of the most

immoral offenses would lower the bar for what we deem to

be base, vile, and depraved, with the likely result that all felo-

nies would soon be included and the definition of morally

offensive crimes would be expanded beyond recognition.

The term “crimes involving moral turpitude” is already at

risk of losing its meaning. As Judge Pregerson points out in

his opinion, an overly-broad definition of crimes of moral tur-

pitude would leave nothing to distinguish those offenses from

all other crimes or felonies — an “untenable” result. We must

exercise care in defining the limits of special categories of

offenses or the categories will disappear. The Immigration

Code does not purport to require the deportation of all aliens

convicted of a serious crime. Instead, Congress used the term

“crime of moral turpitude” to apply to two categories of

crimes: 1) fraudulent offenses; and 2) crimes of an especially

morally offensive character. Maintaining the distinction

between fraud offenses and offenses that are base, vile, and

depraved helps preserve the integrity of the classification of

“crimes involving moral turpitude.” If we do not adhere to our

precedents limiting the scope of the term, the category will

sooner or later come to mean simply “crimes.” This not only

would dilute our language, it would also contravene Con-

gress’s intent.

NAVARRO-LOPEZ v. GONZALES 12585

III.

The term “moral turpitude” is not an isolated example of

words that lose their meaning through expansive interpreta-

tion. The term “aggravated felony,” defined in 8 U.S.C.

§1101(a)(43), now includes crimes that are actually misde-

meanors. United States v. Gonzalez-Tamariz, 310 F.3d 1168,

1170-71 (9th Cir. 2002) (“An offense classified as a misde-

meanor under state law may . . . be considered an aggravated

felony . . . .”). One would think that the category of “aggra-

vated felony” would include only the most serious of felonies,

but it actually includes crimes that are not even felonies at all.

Likewise, the word “violence” has been expanded beyond

recognition. Various courts have held that pickpocketing,

United States v. Mobley, 40 F.3d 688, 696 (4th Cir. 1994);

tampering by unlawful operation of a vehicle, United States

v. Johnson, 417 F.3d 990, 995-99 (8th Cir. 2005); and escape,

United States v. Mathias, 482 F.3d 743, 747 (4th Cir. 2007),

are “violent” crimes.

Expanding these categories beyond recognition at the

expense of depriving common words like “felony” and “vio-

lence” of their ordinary meaning does a disservice to the law.

In order for judges to apply laws and for citizens to obey

them, words must have meanings that are consistent and pre-

dictable. Precision in language is necessary not only for effec-

tive communication, but also for a well-functioning legal

system. As guardians of the rule of law, we should be careful

not to contribute to the deterioration of the English language,

with the loss of respect for the law that inevitably results.

IV.

Judge Pregerson’s opinion persuasively dispenses with the

claim that accessory after the fact is base, vile, and depraved.1

1

Judge Tallman’s reliance on the California Supreme Court’s holding in

In re Young, 776 P.2d 1021 (Cal. 1989), that Penal Code § 32 is a crime

12586 NAVARRO-LOPEZ v. GONZALES

I will address at greater length, however, the dissenters’ argu-

ment that fraud is inherent in the crime of accessory after the

fact.

When we analyze a statute to determine whether the con-

duct it criminalizes is fraudulent, and thus whether the offense

qualifies as a crime of moral turpitude, we consider whether

the statute meets either of two conditions: that intentional

fraud is an element of the offense; or that the nature of the

crime is inherently fraudulent. See Goldeshtein v. INS, 8 F.3d

645, 647-50 (9th Cir. 1993); McNaughton, 612 F.2d at 459.

As Judge Pregerson’s opinion states, it is clear that Califor-

nia’s accessory after the fact statute does not, on its face,

require fraud for conviction. Thus, it is necessary to determine

whether fraud is “implicit in the nature of the crime.” Wine-

stock, 576 F.2d at 235.

Our cases hold that in order to be inherently fraudulent, a

crime must involve knowingly false representations made in

order to gain something of value. See Goldeshtein, 8 F.3d at

649.2 Accessory after the fact does not necessarily involve

of moral turpitude for the purposes of California Business and Professions

Code § 6106 is misplaced. The term “moral turpitude” encompasses far

more conduct in California state bar disciplinary proceedings than it does

in the federal immigration context. The California Supreme Court has

explained that “[a]ny crime or misconduct reflecting dishonesty, particu-

larly when committed in the course of his practice, is clearly relevant to

the fitness of an attorney to continue to practice law, and thus is conduct

involving moral turpitude for purposes of State Bar disciplinary proceed-

ings.” Baker v. State Bar, 781 P.2d 1344, 1350 n.3 (Cal. 1989). Indeed,

a lawyer’s conduct need not even amount to a crime to be considered mor-

ally turpitudinous under § 6106. See Martin v. State Bar, 575 P.2d 757,

758 (Cal. 1978) (“Habitual neglect of client interests, constituting wilful

or grossly negligent conduct, involves moral turpitude under Business and

Professions Code section 6106.”).

2

Judge Tallman claims in his dissent that Goldeshtein does not hold that

establishing fraud requires that a defendant have made false representa-

tions in order to obtain something. Instead, he contends that Goldeshtein

merely found such factors to be “instructive.” Id. This reading is errone-

NAVARRO-LOPEZ v. GONZALES 12587

false representations, nor does it necessarily result in personal

gain. While a conviction under California Penal Code § 32

could result from making false representations to authorities,

see, e.g., People v. Plengsangtip, 148 Cal. App. 4th 825, 836

(Ct. App. 2007) (“It is clear that certain lies or ‘affirmative

falsehoods’ to authorities, when made with the requisite

knowledge and intent, will constitute the aid or concealment

contemplated by section 32.”), such conduct is not a prerequi-

site. Many accessory after the fact convictions result from

concealment or assistance in evading the authorities and do

not involve false representations or affirmative deceit. See

People v. Riley, 20 Cal. App. 4th 1808, 1816-17 (Ct. App.

1993) (stating that attempting to dispose of the murder

weapon constitutes accessory after the fact); People v. Gunn,

197 Cal. App. 3d 408, 415-16 (Ct. App. 1987) (holding that

driving the principal from the crime scene and assisting in

concealing the weapon could amount to accessory after the

fact); People v. Scott, 170 Cal. App. 3d 267, 269-70 (Ct. App.

1985) (holding that the driver of a getaway car can be con-

victed of accessory after the fact). Depriving the government

of evidence or information does not, however, rise to the level

of fraud. Goldeshtein, 8 F.3d at 649.

Even when an accessory after the fact conviction does

involve false representations to the authorities, the defendant

will often not gain something of value. The type of benefit at

issue in fraud cases is not the evasion of criminal penalties,

but rather something more tangible, such as money,

ous. In Goldeshtein, we distinguished the statute in question from other

statutes solely on the basis that the latter all involved falsification in order

to obtain some tangible benefit. 8 F.3d at 649 (“Unlike the alien in Flores,

however, Goldeshtein did not obtain anything from the government by

deceit, graft, trickery, or dishonest means. . . . The other cases upon which

the INS and the BIA rely are subject to the same distinction . . . .”). It is

plain from our opinion that in order to establish that fraud is inherent in

an offense, the criminalized conduct must necessarily involve false repre-

sentations or deceit for the purpose of gaining something of value.

12588 NAVARRO-LOPEZ v. GONZALES

McNaughton, 612 F.2d at 459, a passport, Bisaillon, 257 F.2d

at 437, naturalization papers, United States ex rel. Popoff v.

Reimer, 79 F.2d 513, 515 (2d Cir. 1935), or an occupational

deferment from military service, Matter of R-, 5 I. & N. Dec.

29, 38 (BIA 1952). Helping another evade criminal penalties

involves preventing a loss of liberty, not securing a gain of

something of tangible value.

Judge Tallman’s dissent cites Itani v. Ashcroft, 298 F.3d

1213 (11th Cir. 2002), and Padilla v. Gonzales, 397 F.3d

1016 (7th Cir. 2005), as support for its argument that acces-

sory after the fact is an inherently fraudulent offense. Neither

case is persuasive. In Itani, the court found that misprision of

felony was a crime of moral turpitude because “it necessarily

involves an affirmative act of concealment or participation in

a felony, behavior that runs contrary to accepted societal

duties and involves dishonest or fraudulent activity.” 298 F.3d

at 1216. All crimes “run contrary to accepted societal duties.”

Thus, the court’s statement that misprision does so serves at

most to justify the classification of that act as a crime, not as

a crime of moral turpitude. The court offers no explanation at

all for its pronouncement that misprision involves dishonest

or fraudulent activity. It simply offers that bare conclusion.

Further, the court wrongly equates dishonest behavior with

fraud. Padilla uses the same faulty reasoning in concluding

that obstruction of justice is a crime of moral turpitude

because it “specifically entails dishonesty.” 397 F.3d at 1020.

Most crimes involve dishonesty of some kind, but our prece-

dents require more for an offense to be considered fraudulent.

See, e.g., Carty, 395 F.3d at 1084; Goldeshtein, 8 F.3d at 649.

“Fraud” is a term with a specific meaning in the law — it is

not synonymous with “dishonesty.” A construction of moral

turpitude that includes all acts of dishonesty, when coupled

with the expansive construction the dissent would undoubt-

edly give to the other prong of moral turpitude, would

undoubtedly result in the inclusion of almost all criminal

offenses in a category that was intended to single out certain

types of crimes as particularly offensive to society’s values.

NAVARRO-LOPEZ v. GONZALES 12589

If, as the logic of the dissent suggests, the term “moral turpi-

tude” applies to the offense of assisting any person who has

committed a crime — whether that underlying crime is a

crime of moral turpitude or not, whether, indeed, the underly-

ing crime is only a misdemeanor — simply because that

offense is “dishonest,” then the difference between criminal

conduct and crimes of moral turpitude has truly been elimi-

nated and all crimes have finally become equally turpitudi-

nous.

Conclusion

Judge Pregerson’s opinion combines the two prongs of our

moral turpitude doctrine by applying the same standard both

to offenses involving fraud and to offenses involving deprav-

ity, contrary to controlling Supreme Court and Ninth Circuit

law. Moreover, that method of analysis would have the effect

of rendering the term “crimes of moral turpitude” even more

difficult to apply than it already is. We would be required to

compare crimes that are entirely different in kind, and the

inevitable result would be even greater incoherence in our

decisions. Furthermore, such an approach lacks clear limits

and could lead to the expansion of the definition of crimes of

moral turpitude to the point of including nearly every criminal

offense. Our current analytical method, under which fraud is

deemed turpitudinous under a different standard than is appli-

cable to other crimes, has a limiting effect on the scope of

offenses that may be deemed base, vile, or depraved. Given

that we are not free to eliminate fraud from the set of crimes

considered to be turpitudinous, we must retain the distinction

between the two classes of offenses in order to keep the con-

cept of moral turpitude within its historic bounds.

Under our two-pronged approach, accessory after the fact

under California Penal Code § 32 is neither a crime of fraud

nor a crime of depravity. Accordingly, I agree that it is not a

crime involving moral turpitude.

12590 NAVARRO-LOPEZ v. GONZALES

TALLMAN, Circuit Judge, with whom Circuit Judges

O’SCANNLAIN, RAWLINSON, CLIFTON, and BYBEE

join, dissenting:

We took this case en banc to clarify our jurisprudence

regarding crimes of moral turpitude. The fractured decision

we announce today only compounds the uncertainty attending

this arcane subject of criminal opprobrium. Navarro-Lopez’s

petition for review of his final order of removal should be

denied because the crime of being an accessory after the fact

in violation of California Penal Code section 32 is a crime

involving moral turpitude under the categorical approach

established in Taylor v. United States, 495 U.S. 575 (1990).

In reaching the opposite conclusion, the majority employs

dubious reasoning and ignores relevant case law from our sis-

ter circuits, creating yet another unnecessary circuit split. I

respectfully dissent.

I

The opinion authored by Judge Pregerson offers various

definitions for “moral turpitude,” some quite vivid,1 before

concluding that a conviction under California Penal Code sec-

tion 32 does not, categorically, fit within the appropriate defini-

tion.2 See Maj. op. at 12570-71. For reasons outlined in Part

1

The majority is even content to cite to a dissent in order to support its

characterization of moral turpitude. See Maj. op. at 12577 (quoting Jordan

v. De George, 341 U.S. 223, 237 n.9 (1951) (Jackson, J., dissenting)).

Indeed, in its zeal to set a high bar for a finding of moral turpitude, the

majority refers to morally turpitudinous conduct as that which is “so far

contrary to the moral law” that it gives rise to “moral outrage.” Maj. op.

at 12577. Not surprisingly, the phrase “moral outrage” (in so far as it per-

tains to moral turpitude) appears only once in all of federal law—in the

dissent to the now-vacated panel decision in this case. See Navarro-Lopez

v. Gonzales, 455 F.3d 1055, 1060 (9th Cir. 2006) (Pregerson, J., dissent-

ing).

2

Judge Pregerson’s citation to definitions from multiple circuits and dic-

tionaries illustrates a problem our court recognized over fifty years ago—

NAVARRO-LOPEZ v. GONZALES 12591

I of Judge Reinhardt’s concurrence, see pp. 12582-83, and

which I will not belabor here, there is a fundamental problem

with the majority’s approach to defining moral turpitude—it

fails to recognize an important distinction in both Ninth Cir-

cuit and Supreme Court jurisprudence. Our case law plainly

establishes two broad and wholly distinct categories of crimes

involving moral turpitude: those “involving fraud and those

involving grave acts of baseness or depravity.” Carty v. Ash-

croft, 395 F.3d 1081, 1083 (9th Cir. 2005) (citing Rodriguez-

Herrera v. INS, 52 F.3d 238, 240 (9th Cir. 1995)); see also

Jordan v. De George, 341 U.S. 223, 229 (1951) (“[F]raud has

consistently been regarded as such a contaminating compo-

nent in any crime that American courts have, without excep-

tion, included such crimes within the scope of moral

turpitude.”). Thus, I cannot agree with the attempt to shoehorn

fraud crimes within a larger umbrella category of crimes that

are base or depraved. Recognizing the two categories as ana-

lytically distinct, I would hold that a conviction under section

32 of the California Penal Code qualifies as a crime involving

moral turpitude under the prong addressing fraudulent con-

duct.

namely, that strict definitions of “moral turpitude” are not very helpful. In

Tseung Chu v. Cornell, 247 F.2d 929, 933 (9th Cir. 1957), we observed

that we were not unmindful of the “myriad decisions sponsoring various

concepts of moral turpitude,” but that none of them offered any “well set-

tled criteria” which would help us in making this determination. By cob-

bling together its own definition of the term, the court’s opinion today

amounts to saying little more than it knows moral turpitude when it sees

it, and California Penal Code section 32 isn’t it. The opinion does nothing

to clarify the criteria one should employ in determining which fraud

crimes are “base, vile, or depraved,” see, e.g., Maj. op. at 12574, and

which are not. It concludes, contrary to the opinion of the Supreme Court

of California, that Penal Code section 32 can never be a crime of moral

turpitude. Compare In re Young, 776 P.2d 1021, 1024 (Cal. 1989), with

Maj. op. at 12581.

12592 NAVARRO-LOPEZ v. GONZALES

II

Determining whether section 32 qualifies as a crime of

moral turpitude warrants an examination of judicial decisions

addressing similar statutes. See Jordan, 341 U.S. at 227 (stat-

ing that courts must “look to the manner in which the term

‘moral turpitude’ has been applied by judicial decision”).

Indeed, the few circuits that have addressed this issue have all

determined that moral turpitude attaches to convictions under

statutes criminalizing concealment of crime.3

In Itani v. Ashcroft, the Eleventh Circuit determined that a

conviction under the federal misprision of felony statute, 18

U.S.C. § 4, qualified as a crime of moral turpitude. 298 F.3d

1213, 1216 (11th Cir. 2002). Like a conviction under section

32 of the California Penal Code, a federal conviction for mis-

prision of felony requires a showing that the accused has

knowledge of a felony and “conceals and does not as soon as

possible make known the same to [civil authorities].” 18

U.S.C. § 4. Highlighting the fact that the misprision statute

requires an affirmative act of concealment, the Itani court

concluded that a conviction under the statute is a crime of

moral turpitude because it involves “behavior that runs con-

trary to accepted societal duties and involves dishonesty or

fraudulent activity.” 298 F.3d at 1216.

Similarly, in Padilla v. Gonzales, the Seventh Circuit deter-

mined that a conviction under Illinois’s obstruction of justice

statute was a crime involving moral turpitude. 397 F.3d 1016,

1021 (7th Cir. 2005). Under Illinois law, a defendant is guilty

of obstruction if he “knowingly furnish[es] false information

3

Though the question of whether a crime involves moral turpitude for

federal immigration purposes requires an analysis of federal law, it is per-

suasive that the California Supreme Court has held that a conviction under

Penal Code section 32 necessarily involves moral turpitude. See Young,

776 P.2d at 1024 (upholding an attorney’s section 32 conviction and

declaring that “[t]his crime necessarily involves moral turpitude since it

requires that a party has a specific intent to impede justice with knowledge

that his actions permit a fugitive of the law to remain at large”).

NAVARRO-LOPEZ v. GONZALES 12593

‘with intent to prevent the apprehension or obstruct the prose-

cution or defense of any person.’ ” Id. at 1019 (quoting 720

Ill. Comp. Stat. 5/31-4(a)). Focusing on the statute’s specific

intent requirement, our sister circuit noted that a conviction

under the statute could be characterized as malum in se—a

designation generally associated with crimes involving moral

turpitude. Id. at 1020 (“Specific intent is inconsistent with a

crime that is malum prohibitum.”).

The Seventh Circuit then addressed two elements of the

Illinois statute: knowingly making false statements and inten-

tionally concealing criminal activity. As to the former, the

court noted that “[s]ome courts have read ‘fraudulent intent,’

and thus moral turpitude, into conduct ‘the likely effect of

which would be to mislead or conceal.’ ” Id. (quoting Smalley

v. Ashcroft, 354 F.3d 332, 337-38 (5th Cir. 2003)); see also

Itani, 298 F.3d at 1215 (“Generally, a crime involving dishon-

esty or false statement is considered to be one involving moral

turpitude.” (internal quotation marks omitted)). As a result,

the appellate court concluded that “Padilla was convicted of

. . . a crime that specifically entails dishonesty and thus impli-

cates moral turpitude.” Padilla, 397 F.3d at 1020. As to the

second element, intent to conceal a crime, the court cited Itani

with approval and held that concealment “likewise involves

moral turpitude.” Id. at 1021; see also Cabral v. INS, 15 F.3d

193, 197 (1st Cir. 1994) (holding that an alien convicted of

accessory after the fact to murder committed a crime involv-

ing moral turpitude because he intentionally assisted the prin-

cipal in evading authorities).

Section 32 of the California Penal Code punishes essen-

tially the same behavior addressed by the federal misprision

of felony statute and Illinois’s obstruction of justice law. Each

statute contains a specific intent element, and each addresses

the concealment or protection of a criminal or his crime. It

makes little sense to treat the same conduct with different

punishments: in the Eleventh Circuit, an alien is removable

for actively concealing a known felon, but under the majori-

12594 NAVARRO-LOPEZ v. GONZALES

ty’s reading, in the Ninth Circuit a friend who harbors the

same criminal in California is not. Moreover, I find persua-

sive the reasoning cited with approval in Padilla, equating

fraudulent intent with conduct intended to mislead or conceal,

because, by its very nature, an act in furtherance of evasion

from prosecution entails some form of deceit. Cf. Smalley,

354 F.3d at 338. Therefore, I would follow the California

Supreme Court’s decision in Young and our sister circuits and

hold that a conviction under California’s accessory after the

fact statute necessarily involves moral turpitude, rendering

Navarro-Lopez removable from this country.

III

The reasoning employed in Young, Itani, and Padilla is

consistent with our prior definition of moral turpitude as a

crime involving fraud. Under the test set forth in Goldeshtein

v. INS, 8 F.3d 645 (9th Cir. 1993), and in conformance with

these extracircuit precedents, I would hold that a conviction

as an accessory after the fact qualifies categorically as a crime

involving moral turpitude.

In Goldeshtein, we determined that a conviction under fed-

eral law for structuring financial institutions to avoid currency

reports did not constitute a crime involving moral turpitude.

Id. at 647-48. In reaching this conclusion, we acknowledged

that fraud crimes involved moral turpitude if intent to defraud

is (1) an essential element of the crime or (2) “if such intent

is ‘implicit in the nature of the crime.’ ” Id. at 648 (quoting

Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978)); see also

McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (not-

ing that courts may look to “the statutory definition or . . . the

nature of the crime”); Matter of Flores, 17 I. & N. Dec. 225,

228 (BIA 1980) (“[W]here fraud is inherent in an offense, it

is not necessary that the statute prohibiting it include the usual

phraseology concerning fraud in order for it to involve moral

turpitude.”). Because “[t]he offense of structuring financial

transactions to avoid currency reports . . . does not involve the

NAVARRO-LOPEZ v. GONZALES 12595

use of false statements or counterfeit documents, [ ]or [the

obtaining of] anything from the government,” we concluded

that “fraud is not inherent in the nature of this offense.”

Goldeshtein, 8 F.3d at 649.

Notably, in Goldeshtein we did not hold that providing

false statements or obtaining something from the government

for one’s own benefit was required to establish that fraud is

inherent in a particular crime; our holding may be read fairly

as identifying such conduct as sufficient but not necessary in

light of the facts of that particular case. Nevertheless, holding

that moral turpitude attaches to a conviction under Califor-

nia’s accessory after the fact statute is consistent with this rea-

soning.

Goldeshtein suggested that pecuniary gain is not necessary.

See id. at 649 & n.9. Nor need the gain be tangible. See id.

at 649 (citing Matter of R-, 5 I. & N. Dec. 29, 38 (BIA 1952)

(finding that fraud is inherent where an alien made a false

statement to obtain an occupational deferment to which he

was not entitled)). Furthermore, we stopped short of holding

that the benefit must accrue to the individual, as opposed to

a third party. See id. (citing United States ex rel. Popoff v.

Reimer, 79 F.2d 513, 515 (2d Cir. 1935) (holding that fraud

is inherent where an individual makes false statements on

behalf of an alien to aid the alien in obtaining naturalization)).

Thus, while an accessory after the fact under California law

may not personally gain something of value, he certainly pro-

cures a benefit for the principal in the form of prolonged free-

dom from detection or apprehension. This assistance after the

commission of a felony may allow evidence to disappear or

become stale, give the principal the opportunity to flee the

country, or worse, enable him to commit another crime.

Regardless of the exact benefit to the principal, however, the

help of an accessory impedes the swift administration of jus-

tice, a result which is morally reprehensible.

12596 NAVARRO-LOPEZ v. GONZALES

Section 32 punishes a host of acts intended to assist the

principal in evading capture. At base, however, the statute

punishes deception, regardless of whether it comes in the

form of false statements or some other act of concealment or

aid. The intent to assist a felon in evading detection and pros-

ecution remains the same. Indeed, California cases have made

clear that a conviction under section 32 is proper only if the

accessory engaged in “overt or affirmative assistance.” People

v. Duty, 74 Cal. Rptr. 606, 609 (Ct. App. 1969); see also Peo-

ple v. Elliott, 18 Cal. Rptr. 2d 426, 430 (Ct. App. 1993) (reit-

erating that a conviction under section 32 must be for

something “more than mere encouragement or incitement”).

Therefore, simply failing to disclose the location of a felon

does not violate the statute; section 32 requires some form of

actual assistance intended to aid the principal in avoiding

detection by authorities. In many cases, this assistance invari-

ably will manifest itself as false statements. However, as long

as the net effect is one of deception to help cover up the crime

or delay apprehension of its perpetrator,4 I see no reason to

limit narrowly the overt act to statements in order to conclude

that fraud is inherent in a conviction under California’s acces-

sory statute.

Thus, in light of the holdings of our sister circuits and the

fraud analysis we articulated in Goldeshtein, I would follow

the California Supreme Court’s authoritative interpretation of

its own laws and hold that a conviction under section 32 of

the California Penal Code qualifies as a crime involving

moral turpitude.

4

Judge Reinhardt cites a handful of California cases to support the argu-

ment that a conviction under section 32 does not necessarily involve “false

representations or affirmative deceit.” Reinhardt conc. at 12587. However,

I cannot see how disposing of a weapon, see People v. Riley, 20 Cal. App.

4th 1808, 1816-17 (Ct. App. 1993), or driving a getaway car, see People

v. Scott, 170 Cal. App. 3d 267, 271 (Ct. App. 1985), “with the intent that

the principal may escape from arrest and trial,” People v. Prado, 136 Cal.

Rptr. 521, 523 (Ct. App. 1977), is anything other than an overt act, the

effect of which is to mislead or otherwise confound the efforts of law

enforcement.

NAVARRO-LOPEZ v. GONZALES 12597

IV

The majority opinion does little to undermine the analysis

of extracircuit precedent or Goldeshtein. Instead, the majority

proceeds on several faulty and somewhat misleading prem-

ises. As an initial matter, the majority is misguided in its

attempt to look to “the broad range of acts” punishable under

the accessory after the fact statute as support for its conclu-

sion that “providing food or shelter to one who has committed

a felony” does not fall within the definition of moral turpi-

tude. Maj. op. at 12577. I fail to see the benevolence of pro-

viding shelter to a known felon, at least in the manner

prohibited by California’s accessory law. Let us be clear here:

the statute does not punish those who merely provide food

and shelter to a felon; it punishes those who do so with the

specific intent that the felon escape arrest or trial. See Prado,

136 Cal. Rptr. at 523. The majority’s citation to our decision

in United States v. Hill, 279 F.3d 731, 736 (9th Cir. 2002); see

Maj. op. at 12577, is unavailing because in Hill we empha-

sized that culpability attached under Oregon’s accessory stat-

ute only upon a showing that the provision of food or shelter

was for the purpose of helping a known felon escape detec-

tion. Id. at 738 (“Hill provided [her husband] with food and

shelter in northern Mexico so that he would not have to go

back to the United States to retrieve their belongings himself

and she did so after she knew there was a felony warrant for

his arrest.” (emphasis added)).

Moreover, the majority’s analogy to the provision of food

and shelter (or any other example intended to evoke sympa-

thy, such as the classic example of a priest offering sanctuary)

is misplaced for another reason: this is exactly the type of cre-

ative hypothesizing in Taylor categorical cases that the

Supreme Court recently condemned. In Gonzales v. Duenas-

Alvarez, the Supreme Court reversed us and held that a con-

viction under section 10851(a) of the California Vehicle Code

for aiding and abetting a vehicle theft falls within the scope

of the generic theft definition under federal law. 127 S. Ct.

12598 NAVARRO-LOPEZ v. GONZALES

815, 818 (2007). Rejecting Duenas-Alvarez’s argument that

the wording of the California law might lead to punishment

for acts outside the relevant federal definition, the Court made

clear that

to find that a state statute creates a crime outside the

generic definition of a listed crime in a federal stat-

ute requires more than the application of a legal

imagination to a state statute’s language. It requires

a realistic probability, not a theoretical possibility,

that the State would apply its statute to conduct that

falls outside the generic definition of a crime. To

show that realistic possibility, an offender, of course,

may show that the statute was so applied in his own

case. But he must at least point to his own case or

other cases in which the state courts in fact did apply

the statute in the special (nongeneric) manner for

which he argues.5

Id. at 822; see also James v. United States, 127 S. Ct. 1586,

1597 (2007) (reiterating the Duenas-Alvarez reasoning).

The majority’s treatment of Duenas-Alvarez is unpersua-

sive, and it fails to identify any cases in which an individual

has been prosecuted under section 32 for the particularly

benign acts of providing food or shelter to a loved one “dur-

ing a time of trouble.” See Maj. op. at 12577-78. Indeed, find-

ing such a helpful example might prove quite difficult as a

brief survey of cases involving the accessory statute demon-

strates that the state has not chosen to prosecute those whose

5

I agree with the majority that the charging documents in this case do

not provide sufficient detail from which to glean the factual basis for

Navarro-Lopez’s conviction under the California accessory after the fact

statute. See Maj. op. at 12581. However, because I believe a conviction

under section 32 is categorically a crime of moral turpitude, the lack of

specific information is irrelevant since we need not employ the modified

categorical approach. See Taylor, 495 U.S. at 600; United States v.

Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002).

NAVARRO-LOPEZ v. GONZALES 12599

actions are easily defensible on moral grounds. See, e.g., Peo-

ple v. Nguyen, 26 Cal. Rptr. 2d 323, 328 (Ct. App. 1993)

(accessory to genital penetration); People v. Wilson, 21 Cal.

Rptr. 2d 420, 421-23 (Ct. App. 1993) (accessory to attempted

voluntary manslaughter and assault with a firearm); Prado,

136 Cal. Rptr. at 522-23 (accessory to armed robbery); Duty,

74 Cal. Rptr. at 607 (accessory to arson); People v. Allsip, 74

Cal. Rptr. 550, 550 (Ct. App. 1969) (accessory to rape); Peo-

ple v. Kloss, 19 P.2d 822, 822-23 (Cal. Ct. App. 1933), over-

ruled in part on other grounds, People v. McCoy, 24 P.3d

1210 (Cal. 2001) (accessory to murder).

In addition, the fact that one state within our circuit

expressly exempts family members from accessory liability,

see Nev. Rev. Stat. § 195.030, has no bearing on whether a

conviction under California’s statute is a crime involving

moral turpitude. One state’s legislative prerogative to exempt

family members is no more important than the other eight

states’ individual decisions not to exempt them. Moreover, I

cannot say that exempting family members from accessory

liability makes much sense as a practical matter because flee-

ing felons are often most likely to seek assistance from family

before anyone else. Indeed, in at least one case, California’s

decision to make family members liable illustrates the wis-

dom of the statutory inclusion. See, e.g., Wilson, 21 Cal. Rptr.

2d at 422-23 (noting that a wife could be charged as an acces-

sory where, knowing her husband had committed a felony,

she complied with his request to locate and hide a firearm that

he had used during a car chase in which he wounded one of

the two men he was pursuing).

Finally, by focusing on the categorization of the underlying

felony, the majority completely ignores the analytically dis-

tinct and morally reprehensible nature of a conviction under

section 32 of the California Penal Code. The principal’s con-

duct should be irrelevant to the analysis because any attempt

to assist in the evasion of the due administration of justice

12600 NAVARRO-LOPEZ v. GONZALES

merits society’s reprobation.6 The Supreme Court has

reminded us that “[c]oncealment of crime has been con-

demned throughout our history.” See Roberts v. United States,

445 U.S. 552, 557 (1980); see also Branzburg v. Hayes, 408

U.S. 665, 696 (1972) (emphasizing that each citizen bears the

responsibility to “raise the ‘hue and cry’ and report felonies

to the authorities”); id. at 697 (“[Concealment of a crime]

deserves no encomium.”). The universal disdain for the con-

cealment of a crime “was an established tenet of Anglo-Saxon

law at least as early as the 13th century,” making it no sur-

prise that our first Congress enacted a statute criminalizing

such behavior. Roberts, 445 U.S. at 557-58. As the Roberts

Court acknowledged, “gross indifference to the duty to report

known criminal behavior remains a badge of irresponsible cit-

izenship.” Id. at 558. This principle is as true today as it was

in the 1200s.7

V

A conviction under section 32 of the California Penal Code

qualifies categorically as a crime involving moral turpitude

under the fraud analysis of Goldeshtein. Holding otherwise

creates an unnecessary tension between us and our sister cir-

6

The majority cites to a nonbinding Department of State Foreign Affairs

Manual to support its argument that an accessory after the fact conviction

cannot involve moral turpitude where the underlying offense was not mor-

ally turpitudinous. Maj. op. at 12577. However, the majority overlooks

another provision of the same manual, which states that “[c]rimes commit-

ted against governmental authority which fall within the definition of

moral turpitude include . . . [h]arboring a fugitive from justice (with guilty

knowledge).” 9 U.S. Dep’t of State Foreign Affairs Manual 40.21(a) n.2.3-

2(a)(6).

7

The majority’s citation to California convictions under section 32

involving firearms, assault, and burglary offenses is therefore unpersua-

sive. See Maj. op. at 12579-80. These crimes are still quite serious, and

they certainly do not reflect the majority’s concern that in California there

is a “realistic probability,” see Duenas-Alvarez, 127 S. Ct. at 822, that an

individual will be convicted under section 32 for particularly benign or

charitable acts.

NAVARRO-LOPEZ v. GONZALES 12601

cuits that have recognized the morally turpitudinous nature of

convictions involving the concealment of crime. Because the

court reaches the opposite conclusion based on dubious

reasoning—adding only more confusion to our jurisprudence

on crimes of moral turpitude—I respectfully dissent.

BEA, Circuit Judge, dissenting, with whom Judge

O’SCANNLAIN joins:

Navarro-Lopez was convicted of a crime, being an acces-

sory after the fact in violation of California Penal Code sec-

tion 32. To determine whether this section 32 conviction is a

crime involving moral turpitude so as to render Navarro-

Lopez inadmissible to this country, a federal court must “look

to the manner in which the term ‘moral turpitude’ has been

applied by judicial decision.” Jordan v. De George, 341 U.S.

223, 227 (1951).1

The question whether a state crime qualifies as a “crime

involving moral turpitude” within the meaning of 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) cannot be answered, as the majority

attempts to do, by turning to the categorical approach of Tay-

lor v. United States, 495 U.S. 575 (1990). The categorical

approach of Taylor asks whether the definition of the state

crime proscribes any set of acts with a realistic probability of

prosecution by the state that fall outside the “generic,” or fed-

eral, definition of the crime. See Gonzales v. Duenas-Alvarez,

127 S. Ct. 815, 822 (2007); Taylor, 495 U.S. at 598. To

answer that question requires first a determination of what are

the elements of the federal crime. For example, in Fernandez-

Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc), a

federal statute supplied the answer: “crime of violence” in an

immigration removal statute was defined elsewhere in the

1

I concur in the research and result reached in Part II of Judge Tall-

man’s dissenting opinion.

12602 NAVARRO-LOPEZ v. GONZALES

U.S. Code to require “as an element the use, attempted use,

or threatened use of physical force against the person or prop-

erty of another.” Id. at 1126 (quoting 18 U.S.C. § 16(a)).

But here there is no federal crime to define. Much less is

there one to compare to a state crime. We are not asked, for

instance, to define the elements of misprision of a felony, 18

U.S.C. § 4, and compare it to harboring a felon, Cal. Penal

Code § 32. Rather, we are asked to determine whether a state

crime falls within the federal term “crime involving moral tur-

pitude.” That term is not itself a crime. There is no generic

federal crime of moral turpitude with elements similar to, or

different from, a state crime of moral turpitude for the simple

reason there is no state crime of moral turpitude. One has to

have a crime, such as burglary, to use the Taylor categorical

analysis. Furthermore, the term crime of moral turpitude is

not defined in a federal statute nor in Supreme Court case law,

with respect of harboring a felon.

Instead of a binding federal definition of “crime involving

moral turpitude,” what we have is a binding Supreme Court

case telling us what to look to in order to determine whether

a state crime fits the federal appellation “crime involving

moral turpitude.” Jordan, 341 U.S. 223. De George was an

alien twice found guilty of conspiring to defraud the United

States of tax on alcoholic beverages and was ordered deported

for twice having committed a “crime involving moral turpi-

tude,” each carrying a sentence of imprisonment of over one

year. Id. at 224-25. He filed a federal habeas petition, claim-

ing the crimes did not involve moral turpitude. Id. at 226. The

district court denied the petition. Id. The Court of Appeals for

the Seventh Circuit reversed, finding—much as does the

majority here with respect of harboring a criminal—that intent

to evade tax did not involve actions characteristic of moral

turpitude such as violence, baseness, vileness, or depravity,

and was therefore not a crime involving moral turpitude. Id.

at 226. The Supreme Court reversed. It stated:

NAVARRO-LOPEZ v. GONZALES 12603

In deciding the case before the Court, we look to the

manner in which the term “moral turpitude” has

been applied by judicial decision. Without excep-

tion, federal and state courts have held that a crime

in which fraud is an ingredient involves moral turpi-

tude.

Id. at 227 (emphasis added). The Court surveyed federal and

state decisions, which had unanimously held that crimes of

fraud were crimes involving moral turpitude. Id. at 227-29.

The Court concluded: “It is therefore clear, under an unbroken

course of judicial decisions, that the crime of conspiring to

defraud the United States is a ‘crime involving moral turpi-

tude.’ ” Id. at 229.2

If we follow the method mandated in Jordan, it is clear that

harboring a felon with intent to frustrate just prosecution will

prove to be a crime involving moral turpitude. As discussed

in Part II of Judge Tallman’s dissent, all federal circuits to

consider the question have held that statutes similar to section

32, involving concealing a felon or a felony, are crimes

involving moral turpitude. Significantly, the California

Supreme Court has held violation of section 32 to be a crime

involving moral turpitude. In re Young, 776 P.2d 1021, 1024

(Cal. 1989). No case to the contrary has been cited by the par-

ties nor, indeed, by the majority. Given the seemingly unani-

mous status of federal and state “judicial decision,” we must

conclude Navarro-Lopez’s crime involves moral turpitude

under the Supreme Court’s mandate. There is no permissible

basis—no “judicial decision”—to conclude it does not

involve moral turpitude. Jordan, 341 U.S. at 227-29.

We need not—and should not, under Jordan—resort to the

secondary, indirect reasoning used by the majority: an attempt

2

It was against the backdrop of Jordan that Congress enacted sec-

tion 1182 the following year. See Immigration and Nationality Act, Pub.

L. No. 414, § 212, 66 Stat. 163, 182 (1952).

12604 NAVARRO-LOPEZ v. GONZALES

to find conduct, other than harboring a felon, which courts

have found “vile,” “base,” or “depraved,” and have labeled

crimes involving moral turpitude, and then muse whether har-

boring a felon is similarly “vile,” “base,” or “depraved.” Such

a task ineluctably calls on our court to state its subjective

evaluation. That is precisely what the majority does here. It

tests the various sorts of “harborings of felons” against its

own, unarticulated standards of what is “moral” and what is

“turpitudinous.” Of course, if the question asked were

whether the crime involved baseness or depravity, perhaps

evolving standards of decency might trump mere prior judi-

cial decisions. But judges and “Justices are not platonic

guardians appointed to wield authority according to their per-

sonal moral predilections.”3 Jordan tells judges to determine

whether a crime involves moral turpitude not from the philos-

opher’s seat, but from a less elevated location: by sitting in

the law library and reading the cases.

I respectfully dissent.

3

William J. Brennan, Jr., The Constitution of the United States: Contem-

porary Ratification, in Interpreting the Constitution 25 (Jack N. Rakove

ed., 1990) (reprint of Address to the Text and Teaching Symposium,

Georgetown University (Oct. 12, 1985)).