Cerezo v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL CEREZO, 

Petitioner, No. 05-74688

v.

 Agency No.

A17-169-048

MICHAEL B. MUKASEY, Attorney

General,

Respondent.



ANGEL CEREZO, 

Petitioner, No. 05-75213

v.

 Agency No.

A17-169-048

MICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 4, 2007*

Pasadena, California

Filed January 14, 2008

Before: Marsha S. Berzon and Sandra S. Ikuta,

Circuit Judges, and James K. Singleton,**

Senior District Judge.

*The panel unanimously find this case suitable for decision without oral

argument. Fed. R. App. P. 34(a)(2).

**The Honorable James K. Singleton, United States Senior District

Judge for the District of Alaska, sitting by designation.

413

414 CEREZO v. MUKASEY

Opinion by Judge Ikuta

CEREZO v. MUKASEY 415

COUNSEL

Lucas Guttentag, Monica M. Ramirez, ACLU Foundation

Immigrants’ Rights Project, Oakland, California, and Peter J.

Eliasberg, Ahilan T. Arulanantham, ACLU Foundation of

Southern California, Los Angeles, California, for the peti-

tioner.

Jennifer J. Keeney, Department of Justice, Washington, D.C.,

for the respondent.

416 CEREZO v. MUKASEY

OPINION

IKUTA, Circuit Judge:

In this case we consider whether a violation of California

Vehicle Code § 20001(a) (leaving the scene of an accident

resulting in bodily injury or death) is categorically a crime

involving moral turpitude for purposes of 8 U.S.C.

§ 1227(a)(2)(A)(ii). We hold it is not.

I

Angel Cerezo is a native and citizen of Spain who entered

the United States in 1966 and was granted immigrant status

in 1973. On January 16, 1998, Cerezo was convicted in Cali-

fornia state court of inflicting corporal injury on a spouse or

cohabitant, in violation of California Penal Code § 273.5. Fol-

lowing this conviction, removal proceedings were initiated

against Cerezo, but he was granted cancellation of removal.

According to his abstract of judgment, on November 5,

2001, Cerezo was convicted in California state court of driv-

ing under the influence, in violation of California Vehicle

Code § 23153, and leaving the scene of an accident resulting

in bodily injury or death, in violation of California Vehicle

Code § 20001(a).1 The government again initiated removal

proceedings against Cerezo under 8 U.S.C. § 1227(a)(2)

(A)(ii), which provides that aliens who have been convicted

of two crimes involving moral turpitude not arising out of a

single scheme of criminal conduct are deportable.2 On Febru-

1

Cerezo argues that the government did not prove by clear and convinc-

ing evidence that he had been convicted of violating § 20001(a). Because

we hold that the statute does not categorically describe a crime involving

moral turpitude, we need not reach this contention.

2

8 U.S.C. § 1227(a)(2)(A)(ii) states:

Any alien who at any time after admission is convicted of two or

more crimes involving moral turpitude, not arising out of a single

scheme of criminal misconduct, regardless of whether confined

therefor and regardless of whether the convictions were in a sin-

gle trial, is deportable.

CEREZO v. MUKASEY 417

ary 17, 2005, an Immigration Judge (IJ) held that Cerezo’s

1998 conviction for domestic abuse and his 2001 conviction

for leaving the scene of an accident were both crimes of moral

turpitude. The IJ then sustained the charge of removability

against Cerezo and ordered him removed to Spain.

On March 30, 2005, Cerezo filed a motion to reopen, con-

tending that his conviction under California Vehicle Code

§ 20001(a) was not a crime involving moral turpitude. The IJ

rejected this argument and denied the motion, noting that the

elements of a § 20001(a) violation include leaving the scene

of an accident knowing that the accident resulted in, or was

likely to result in, an injury.

Cerezo then filed two notices of appeal with the Board of

Immigration Appeals (BIA), both received by the BIA on

May 9, 2005. On July 7, 2005, the BIA dismissed as untimely

the appeal challenging the IJ’s removal order, because it was

filed more than thirty days after the IJ’s February 17, 2005

removal order. See 8 C.F.R. § 1003.38(b), (c).

The second notice of appeal sought review of the IJ’s

denial of Cerezo’s motion to reopen. In his brief, Cerezo

argued that leaving the scene of an accident resulting in bod-

ily injury or death was not a crime involving moral turpitude.3

The BIA disagreed, and dismissed Cerezo’s appeal on August

15, 2005.

Cerezo timely petitioned this court for review of both BIA

decisions. We consolidated Cerezo’s two petitions for review

on October 18, 2005. Cerezo has not further pursued his chal-

lenge to the BIA’s decision of July 7, 2005, and we deem the

argument abandoned. See Acosta-Huerta v. Estelle, 7 F.3d

139, 144 (9th Cir. 1993). Therefore, the only issue before us

3

Cerezo also argued that his domestic violence offense was not a crime

involving moral turpitude. The BIA rejected this argument and Cerezo

does not raise it on appeal to this court.

418 CEREZO v. MUKASEY

is whether the BIA erred in dismissing Cerezo’s appeal from

the denial of his motion to reopen.4 Cerezo raises two argu-

ments in his appeal from the denial of his motion to reopen.

First, he argues that his violation of § 20001(a) did not

involve moral turpitude. Second, Cerezo contends that the

government failed to prove that he pleaded guilty to a viola-

tion of § 20001(a) by clear and convincing evidence.5

We have “jurisdiction over the affirmance of a denial of a

motion to reopen under 8 U.S.C. § 1252(a)(1).” Lin v. Gon-

zales, 473 F.3d 979, 981 (9th Cir. 2007). We review the

BIA’s dismissal of such a motion for an abuse of discretion.

Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005). The

BIA abuses its discretion when it makes an error of law.

Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002). We

review questions of law de novo. United States v. Chu Kong

Yin, 935 F.2d 990, 1003 (9th Cir. 1991). Whether a “convic-

tion is a crime involving moral turpitude is a question of law.”

Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir.

2007) (en banc).

4

Under the applicable regulations, Cerezo was required to raise his legal

claim that violations of § 20001(a) are not crimes involving moral turpi-

tude in a motion to reconsider, not a motion to reopen. See 8 C.F.R.

§ 1003.23. However, the BIA reached Cerezo’s claim on the merits and

dismissed it only after concluding that violations of § 20001(a) involve

moral turpitude. The BIA did not reach the question whether a motion to

reopen was an inappropriate method for Cerezo to bring his legal claim.

Accordingly, we need not address it here. See Azanor v. Ashcroft, 364

F.3d 1013, 1021 (9th Cir. 2004) (“we must decide to grant or deny the

petition for review based on the Board’s reasoning rather than our own

independent analysis of the record.”).

5

In his supplemental brief, Cerezo argues that the generic definition of

crimes involving moral turpitude is unconstitutionally vague when applied

to California Vehicle Code § 20001(a). Cerezo’s opening brief does not

raise this issue, and it is therefore waived. Armentero v. INS, 412 F.3d

1088, 1095 (9th Cir. 2005).

CEREZO v. MUKASEY 419

II

[1] We first consider whether a violation of California

Vehicle Code § 20001(a) is categorically a crime involving

moral turpitude. “To determine whether a specific crime falls

within a particular category of grounds for removability, we

apply the categorical and modified categorical approaches set

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

Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.

2007) (quoting Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,

1017 (9th Cir. 2005)). Under the categorical approach, we

“compare the elements of the statute of conviction with a fed-

eral definition of the crime to determine whether conduct pro-

scribed by the statute is broader than the generic federal

definition.” Id.

[2] Looking first at the federal definition of the crime at

issue, we have held that crimes of moral turpitude are of basi-

cally two types, “those involving fraud and those involving

grave acts of baseness or depravity.” Carty v. Ashcroft, 395

F.3d 1081, 1083 (9th Cir. 2005). We have defined the second

type as involving “conduct that (1) is base, vile, or depraved

and (2) violates accepted moral standards.” Navarro-Lopez,

503 F.3d at 1068. Because a “crime involving moral turpi-

tude” is not a separate crime at common law but rather a clas-

sification of other crimes, see 1 WAYNE R. LAFAVE,

SUBSTANTIVE CRIMINAL LAW, § 1.6 (2d ed. 2003), we must also

compare the crime of conviction with “crimes we have previ-

ously determined to be base, vile, and depraved — crimes

such as murder, rape, and incest.” Navarro-Lopez, 503 F.3d

at 1075 (opinion of Reinhardt, J., writing for the majority).

We have held that such crimes necessarily include willfulness

or evil intent. Quintero-Salazar, 506 F.3d at 693.6

6

In determining the generic federal definition of a crime in the Immigra-

tion and Naturalization Act, we defer to the BIA if the statute is silent or

ambiguous and if the BIA’s interpretation is set forth in a precedential

decision or regulation and is based on a permissible construction of the

420 CEREZO v. MUKASEY

After defining the generic federal crime at issue, we turn to

the state statute of conviction. “[T]he issue is whether the full

range of conduct encompassed by the statute constitutes a

crime of moral turpitude.” Id. at 692. The state crime at issue

here is defined by California Vehicle Code § 20001(a). That

section, entitled “Duty to stop at scene of injury accident,”

provides:

The driver of any vehicle involved in an accident

resulting in injury to any person, other than himself

or herself, or in the death of any person shall imme-

diately stop the vehicle at the scene of the accident

and shall fulfill the requirements of Sections 20003

and 20004.

Section 20003, entitled “Duty upon injury or death,” provides:

(a) The driver of any vehicle involved in an acci-

dent resulting in injury to or death of any person

shall also give his or her name, current residence

address, the names and current residence addresses

of any occupant of the driver’s vehicle injured in the

accident, the registration number of the vehicle he or

she is driving, and the name and current residence

address of the owner to the person struck or the

driver or occupants of any vehicle collided with, and

shall give the information to any traffic or police

officer at the scene of the accident. The driver also

shall render to any person injured in the accident rea-

sonable assistance, including transporting, or making

arrangements for transporting, any injured person to

statute. Kharana v. Gonzales, 487 F.3d 1280, 1283 n.4 (9th Cir. 2007);

Parilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005) (quoting INS v.

Aguirre-Aguirre, 526 U.S. 415 (1999)). We have previously noted that the

BIA employs the same definition of “crimes of moral turpitude” as do the

federal courts. Navarro-Lopez, 503 F.3d at 1068.

CEREZO v. MUKASEY 421

a physician, surgeon, or hospital for medical or sur-

gical treatment if it is apparent that treatment is nec-

essary or if that transportation is requested by any

injured person.

(b) Any driver or injured occupant of a driver’s

vehicle subject to the provisions of subdivision (a)

shall also, upon being requested, exhibit his or her

driver’s license, if available, or, in the case of an

injured occupant, any other available identification,

to the person struck or to the driver or occupants of

any vehicle collided with, and to any traffic or police

officer at the scene of the accident.

Section 20004, entitled “Duty upon death,” provides:

“In the event of death of any person resulting from

an accident, the driver of any vehicle involved after

fulfilling the requirements of this division, and if

there be no traffic or police officer at the scene of the

accident to whom to give the information required

by Section 20003, shall, without delay, report the

accident to the nearest office of the Department of

the California Highway Patrol or office of a duly

authorized police authority and submit with the

report the information required by Section 20003.

[3] Reading § 20001(a) literally, a driver in an accident

resulting in injury who stops and provides identification, but

fails to provide a vehicle registration number, has violated the

statute. The failure to provide a vehicle registration number

under such circumstances is not base, vile and depraved; nor

does it necessarily evince any willfulness or evil intent, a req-

uisite element of crimes of moral turpitude. Quintero-Salazar,

506 F.3d at 693.

The government contends that such a literal application of

the statute is not realistic and argues that there must be “a

422 CEREZO v. MUKASEY

realistic probability, not a theoretical possibility, that the State

would apply its statute to conduct that falls outside the generic

definition of a crime.” Gonzales v. Duenas-Alvarez, 127 S. Ct.

815, 822 (2007). We cannot, however, ignore the plain lan-

guage of § 20001(a). Duenas-Alvarez does caution us against

“conjur[ing] up some scenario, however improbable, whereby

a defendant might be convicted under the statute in question

even though he did not commit an act encompassed by the

federal provision.” United States v. Carson, 486 F.3d 618,

620 (9th Cir. 2007) (per curiam). But where, as here, the state

statute plainly and specifically criminalizes conduct outside

the contours of the federal definition, we do not engage in

judicial prestidigitation by concluding that the statute “creates

a crime outside the generic definition of a listed crime.”

Duenas-Alvarez, 127 S. Ct. at 822.

That said, we must still consider whether California courts

have interpreted the scope of § 20001(a) more narrowly so as

to make it applicable only to conduct which involves moral

turpitude. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559,

577 (1996) (“[O]nly state courts may authoritatively construe

state statutes.”) The government points to several long-

standing state court decisions indicating that § 20001(a) is to

be construed realistically, and that its affirmative reporting

requirements should be interpreted as a more general obliga-

tion for a driver to provide identification after an accident. See

People v. Rallo, 119 Cal. App. 393, 402 (Cal. Dist. Ct. App.

1931); People v. Scofield, 203 Cal. 703, 708 (1928) (“[I]t is

obvious that criminal liability should not attach in all cases

where a literal application of the language of the statute might

be made.”)

More recently, a California appellate court interpreted

§ 20001(a) as constituting a crime of moral turpitude for pur-

poses of California evidence law because it “more than like-

ly” involves an evil intent. People v. Bautista, 217 Cal. App.

3d 1, 7 (Cal. Ct. App. 1990). In Bautista, the court rejected

appellant’s argument that § 20001(a) was not a crime of moral

CEREZO v. MUKASEY 423

turpitude because failing to give one’s name “could simply be

the result of neglect without evil intent.” Id. at 6. Such a sce-

nario, the court held, was merely the appellant’s imagination

of “a set of circumstances under which a penal statute can be

violated without moral fault.” Id. The state court emphasized

the purpose of the statute, which was “to prevent the driver of

a car involved in an accident from leaving the scene without

furnishing information as to his identity and to prevent him

from escaping liability.” Id. at 7. Noting it was “more than

likely that one who is involved in an injury-accident and

leaves the scene before giving the required identifying infor-

mation is seeking to evade civil or criminal prosecution,” the

court concluded that “[o]ne can certainly infer that such a

mental state indicates a ‘general readiness to do evil’ or moral

turpitude.” Id. However, the court stopped short of providing

a binding interpretation of the statute that would preclude a

conviction under § 20001(a) for mere negligence in failing to

provide one type of identifying information required by the

statute.

By contrast, other California appellate courts have inter-

preted § 20001(a) as requiring drivers to complete each of the

incorporated reporting requirements of § 20003 and § 20004.

‘The various requirements of the statute are set forth

in the conjunctive and omission to perform any one

of the acts required constitutes an offense.’ . . . This

statement was made . . . to illustrate that, even

though the defendant there did stop at the scene of

the crime, he nevertheless was guilty of a violation

of the statute by failing to comply with the other

requirements.

People v. Newton, 155 Cal. App. 4th 1000, 1003-1004 (Cal.

Ct. App. 2007) (quoting Bailey v. Superior Court, 4 Cal. App.

3d 513, 519 (Cal. Ct. App. 1970)); see also People v. Limon,

252 Cal. App. 2d 575, 578 (Cal. Ct. App. 1967) (“Omission

to perform any one of the acts required by section 20001 . . .

424 CEREZO v. MUKASEY

constitutes the offense.”); People v. Jordan, 214 Cal. App. 2d

400, 403 (Cal. Dist. Ct. App. 1963) (“[The defendant’s] fail-

ure to perform any of the acts required by the statute consti-

tutes a violation thereof.”).

[4] Although the issue is close, because the plain language

of the statute criminalizes failure to provide all required forms

of identification, and because some California courts have

held that “[t]he various requirements of [§ 20001] are set forth

in the conjunctive and omission to perform any one of the acts

required constitutes an offense,” Newton, 155 Cal. App. 4th

at 1003 (internal quotation marks omitted), we cannot con-

clude that the elements of § 20001(a) “are of the type that

would justify its inclusion” within the federal definition of

crimes involving moral turpitude. James v. United States, 127

S. Ct. 1586, 1594 (2007). Our conclusion on this issue is con-

sistent with the Fifth Circuit’s decision in Garcia-Maldonado

v. Gonzales, 491 F.3d 284, 288-89 (5th Cir. 2007), holding

that a conviction under § 550.021 of the Texas Transportation

Code, which could be violated both by reprehensible conduct

(leaving the scene of an accident) and by conduct that was not

morally culpable (failing to affirmatively report identifying

information), was not categorically a crime involving moral

turpitude.

III

[5] Having concluded that § 20001(a) does not categori-

cally involve moral turpitude, and because the statute “is

divisible into several crimes, some of which may involve

moral turpitude and some of which may not,” Navarro-Lopez,

503 F.3d at 1073, we would ordinarily turn to the modified

categorical approach. Under that approach we examine certain

judicial records to determine whether a defendant was neces-

sarily convicted of the elements of the federal generic crime.

See Shepard v. United States, 544 U.S. 13, 20-21 (2005).

Here, however, the record contains only the abstract of judg-

ment, which simply states that Cerezo pleaded guilty to a vio-

CEREZO v. MUKASEY 425

lation of § 20001(a). Therefore, the modified categorical

approach does not alter our analysis.7 See Quintero-Salazar,

506 F.3d at 694.

IV

In sum, based on the plain language of the statute as cur-

rently interpreted by California courts, California Vehicle

Code § 20001(a) is not categorically a crime involving moral

turpitude. Because the modified categorical approach does not

alter our analysis, we must conclude on the basis of this

record that the government has not met its burden of proving

that Cerezo committed a crime involving moral turpitude. See

Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194-95 (9th Cir.

2006) (discussing the government’s burden).

PETITION GRANTED

7

We therefore neither consider nor decide whether any of the ways in

which § 20001(a) could be violated would be crimes involving moral tur-

pitude under the modified categorical approach.