Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Islas-Veloz v. Whitaker

United States Court of Appeals, Ninth Circuit

February 4, 2019

Antonio Islas-Veloz, AKA Antonio Islas, Petitioner,
v.
Matthew G. Whitaker, Acting Attorney General, Respondent.

          Submitted August 27, 2018 [*]

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A060-299-672

          Manuel Rios, Rios & Cruz P.S., Seattle, Washington, for Petitioner.

          Laura M.L. Maroldy, Trial Attorney; John S. Hogan, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Michael Daly Hawkins, M. Margaret McKeown, and William A. Fletcher, Circuit Judges.

         SUMMARY[**]

         Immigration

         Denying Antonio Islas-Veloz's petition for review of a decision of the Board of Immigration Appeals, the panel held that Supreme Court and circuit precedent required rejecting Islas-Veloz's contentions that: 1) the phrase "crime involving moral turpitude" was unconstitutionally vague; and 2) his conviction for communication with a minor for immoral purposes in violation of Revised Code of Washington § 9.68A.090 is not categorically a crime of moral turpitude.

         The panel concluded that, in assessing the constitutional status of the phrase "crime involving moral turpitude," it remains bound by the Supreme Court's decision in Jordan v. De George, 341 U.S. 223 (1951), in which the Court held that the phrase "crime involving moral turpitude" was not unconstitutionally vague. The panel also explained that Court's more recent decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018), did not reopen inquiry into the constitutionality of the phrase. The panel further observed that this court has repeatedly echoed the holding in De George, noting that the court recently held in Martinez-De Ryan v. Sessions, 895 F.3d 1191 (9th Cir. 2018), that the phrase is not unconstitutionally vague.

         The panel also concluded that this court's precedent foreclosed Islas-Veloz's alternate claim that his conviction for communicating with a minor for immoral purposes is not a crime of moral turpitude.

         Concurring, Judge W. Fletcher wrote that the Supreme Court's recent decisions in Johnson and Dimaya should lead the panel, were it not bound by this court's precedent in Martinez-De Ryan, to conclude that the phrase "crime of moral turpitude" is unconstitutionally vague when used as a basis for the removal of a noncitizen. Observing that this circuit acknowledges a distinction between fraud and non-fraud crimes involving moral turpitude, Judge W. Fletcher wrote that non-fraud cases comprise the great bulk of crimes involving moral turpitude today and that the definition of non-fraud crimes involving moral turpitude is hopelessly and irredeemably vague.

          OPINION

          KEOWN, CIRCUIT JUDGE:

         Antonio Islas-Veloz petitions for review of a final order of removal following the dismissal of his appeal by the Board of Immigration Appeals ("BIA"). We conclude that Supreme Court and circuit precedents require us to deny the petition.

         Islas-Veloz was convicted of communication with a minor for immoral purposes in violation of Revised Code of Washington ("RCW") § 9.68A.090. An immigration judge found that Islas-Veloz's conviction constituted a crime involving moral turpitude committed within five years of admission to the United States and found him removable on that basis. See 8 U.S.C. § 1227(a)(2)(A)(i). The BIA dismissed Islas-Veloz's appeal, ruling that communication with a minor for immoral purposes in violation of RCW § 9.68A.090 was categorically a crime involving moral turpitude.

         Islas-Veloz argues that the phrase "crime involving moral turpitude" is unconstitutionally vague in light of the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018). In the alternative, he claims that the crime of "communication with [a] minor for immoral purposes" in violation of RCW § 9.68A.090 is not categorically a crime of moral turpitude, and hence that his final order of removal is invalid.

         In assessing the constitutional status of the phrase "crime involving moral turpitude," we remain bound by the Supreme Court's decision in Jordan v. De George, 341 U.S. 223 (1951). In De George, the Court held that the phrase "crime involving moral turpitude" was not unconstitutionally vague. Id. at 231-32. The Court's more recent decisions in Johnson and Dimaya did not reopen inquiry into the constitutionality of the phrase. Notably, Dimaya acknowledged that the Court in De George had "ultimately uph[e]ld" the phrase "crime involving moral turpitude" against an unconstitutional vagueness attack. Dimaya, 138 S.Ct. at 1213.

         We have repeatedly echoed the holding that the Supreme Court laid down in De George. In Tseung Chu v. Cornell, we cited De George in ruling that the phrase "crime involving moral turpitude" was constitutional. 247 F.2d 929, 938-39 (9th Cir. 1957). More recently, in Martinez-De Ryan v. Sessions, we again held that the phrase is not unconstitutionally vague. 895 F.3d 1191, 1194 (9th Cir. 2018); see also Olivas-Motta v. Whitaker, 910 F.3d 1271, 1281 (9th Cir. 2018). De Ryan explicitly addressed Sessions v. Dimaya, explaining that the Supreme Court's opinion in that case did not change the constitutional status of the phrase. See 895 F.3d at 1193-94. As the concurrence acknowledges, our precedent cannot be read differently.

         Islas-Veloz's alternate claim that communicating with a minor for immoral purposes is not a crime of moral turpitude is foreclosed by our decision in Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007), abrogated on other grounds in Anaya-Ortiz v. Holder, 594 F.3d 673, 677-78 (9th Cir. 2010). In Morales, we "conclude[d] that [a] conviction for communication with a minor for immoral purposes" constitutes a crime of moral turpitude. Id. at 978. We elaborated: "The full range of conduct prohibited by section 9.68A.090 of the Revised Code of Washington categorically constitutes a crime involving moral turpitude." Id.

         Apart from any ongoing debate about the degree of ambiguity inherent in the phrase "crime involving moral turpitude," these precedents are directly on point, bind us here, and foreclose Islas-Veloz's arguments.

         PETITION DENIED.

          W. FLETCHER, Circuit Judge, concurring:

         We are bound by our court's precedent in Martinez-De Ryan v. Whitaker, 909 F.3d 247 (9th Cir. 2018), and I therefore concur in the panel's opinion. However, I write separately because the Supreme Court's recent decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018), should lead us, were we not bound, to conclude that the phrase "crime of moral turpitude" is unconstitutionally vague when used as the basis for removal of a noncitizen. See 8 U.S.C. § 1227(a)(2)(A)(i)-(ii).

         I. "Moral Turpitude" in Immigration Law

         The Immigration and Nationality Act ("INA") imposes severe penalties on noncitizens convicted of a "crime involving moral turpitude" ("CIMT"). See 8 U.S.C. §§ 1182(a)(2)(A) (inadmissibility), 1227(a)(2)(A)(i)-(ii) (removal), 1229b(b)(1)(C) (ineligibility for cancellation of removal and adjustment of status). Section 1227(a)(2)(A)(i)-(ii) renders removable any noncitizen who is (a) convicted of a "crime involving moral turpitude" within five years of entry for which a sentence of one year or more is imposed or, (b) convicted of any two "crimes involving moral turpitude" at any time after entry, regardless of sentence length or type. The noncitizen is also ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(C). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.