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Hernandez-Gonzalez v. Holder

United States Court of Appeals, Ninth Circuit

February 13, 2015

JUAN CARLOS HERNANDEZ-GONZALEZ, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued and Submitted, Pasadena, California June 3, 2014.

Page 794

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On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A078-051-071.

SUMMARY[*]

Immigration

The panel granted Juan Carlos Hernandez-Gonzalez's petition for review from the Board of Immigration Appeals' decision finding that his conviction for weapons possession, when enhanced for sentencing purposes by a gang activity conviction, constituted a categorical crime involving moral turpitude.

The panel held that the BIA erred in finding that Hernandez-Gonzalez's felony conviction for possession of a billy club, when enhanced under California Penal Code § 186.22(b)(1) " for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members," constituted a crime involving moral turpitude. The panel did not defer to the BIA's conclusion in its subsequently published decision, Matter of E. E. Hernandez, 26 I. & N. Dec. 397 (BIA 2014), that a gang enhancement can render a non-turpitudinous crime a CIMT. The panel rather held that the determination must be based on the underlying crime of conviction to which the enhancement is attached at sentencing.

Deanna L. Kwong (argued), Covington & Burling LLP, Redwood Shores, California, for Petitioner.

Lynda Anh Do (argued), Attorney; Tony West, Assistant Attorney General; Emily Anne Radford, Assistant Director; Sarah L. Vuong and Stephen Elliott, Attorneys; Joyce R. Branda, Acting Assistant Attorney General; Stephen J. Flynn, Assistant Director, United States Department of Justice, Washington, D.C. for Respondent.

Before: Stephen Reinhardt, Raymond C. Fisher, and Mary H. Murguia, Circuit Judges. Opinion by Judge Reinhardt.

OPINION

Page 797

REINHARDT, Circuit Judge:

Does a conviction for a felony " for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members" constitute a crime involving moral turpitude? We hold that the answer is no.

I

Juan Carlos Hernandez-Gonzalez is a native and citizen of Mexico who entered the United States without inspection in 1989 around the age of three. On November 5, 2003, he adjusted his status to lawful permanent resident. He is married to a United States citizen and has one United States citizen daughter. He has two separate state criminal convictions. First, on June 25, 2007, he was convicted of a violation of California Penal Code § 1320(b) for failing to appear to answer a charge for the transportation of a controlled substance.[1] Second, on January 24, 2008, he pleaded nolo contendere to a violation of California Penal Code § 12020(a)(1) for possession of a billy club. He also admitted to an enhancement for that crime under California Penal Code § 186.22(b)(1), which provides an additional penalty, here, an additional two-year sentence, for " any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Cal. Penal Code § 186.22(b)(1).

Hernandez-Gonzalez was served a Notice to Appear in March 2010, and ultimately charged[2] as removable on four grounds: for having been convicted of (1) a crime involving moral turpitude within five years after the date of admission for which a sentence of one year or longer may be imposed, 8 U.S.C. § 1227(a)(2)(A)(i); (2) two crimes of moral turpitude any time after admission, 8 U.S.C. § 1227(a)(2)(A)(ii); (3) an aggravated felony, under 8 U.S.C. § 1227(a)(2)(A)(iii), namely, a crime of violence as specified in 8 U.S.C. § 1101(a)(43)(F); and (4) an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), namely, as defined in 8 U.S.C. § 1101(a)(43)(T), " an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed[.]"

The IJ found Hernandez-Gonzalez to be removable as charged on all of the grounds of removability except charge (2), which alleged that he had been convicted of two or more crimes involving moral turpitude. The IJ found that the weapons possession conviction coupled with the " specific intent to further gang activity of a criminal nature" was a conviction both for a crime involving moral turpitude and a crime of violence, and found that the conviction for failure to appear was an aggravated felony.

Page 798

The BIA affirmed the IJ's determination as to charge (1) that Hernandez-Gonzalez's " conviction for weapons possession, enhanced for sentencing purposes for gang activity," constituted a crime of moral turpitude. It held that " engaging in any of the conduct criminalized under California Penal Code § 12020(a)(1) for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members in violation of § 186.22(b)(1), is categorically a crime involving moral turpitude." The BIA reasoned that " [a]cting with the specific intent to promote, further, or assist in criminal gang activity is inherently base, vile, and depraved, and such activity is contrary to accepted rules of morality and duties owed to society in general." It asserted, further: " We are unaware of any application of § 186.22(b)(1) to conduct that does not involve moral turpitude, and have no reason to believe there exists a realistic probability that the statute would be so applied."

Because Hernandez-Gonzalez entered the United States without inspection or admission, the date of his adjustment of status serves as a date of admission that triggers the five-year clock under 8 U.S.C. § 1227(a)(2)(A)(i).[3] United States v. Hernandez-Arias, 757 F.3d 874, 880 (9th Cir. 2014) (" Certain events, such as adjustment to [legal permanent resident] status . .., qualify as 'admission' for immigration purposes." ); see also Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134-35 (9th Cir. 2001) (deeming alien who entered without inspection admitted upon adjustment to lawful permanent resident status). Here, Hernandez-Gonzalez adjusted his status to lawful permanent resident on November 5, 2003, and was convicted of this crime on January 24, 2008. Consequently, the crime falls within the five-year period for deportable offenses under § 1227(a)(2)(A)(i), and thus within the period specified in the first ground of removal.

The BIA made no determination with respect to grounds (3) and (4), but rejected Hernandez-Gonzalez's argument that the removal order was invalid because he did not receive a copy. Hernandez-Gonzalez did not appeal the BIA's ruling on the latter issue to this court, and so we do not address that part of its decision.

II

Determining whether a conviction under a state statute is categorically a conviction for a " crime involving moral turpitude" under 8 U.S.C. § 1227(a)(2)(A)(i) is a two-step process. Ceron v. Holder, ...


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