Jose Gonzalez-Cervantes v. Eric Holder, Jr.

Jose Crisanto Gonzalez-Cervantes petitions for review of the Board of Immigration Appeals’ (“BIA”) decision holding that there is no “realistic probability” that California would apply California Penal Code § 243.4(e) (“ § 243.4(e)”) to conduct that is not morally turpitudinous and the BIA’s decision denying his motion to reconsider. We have jurisdiction pursuant to 28 U.S.C. § 1252 (a)(2)(D), and we deny the petitions.

I. STANDARD OF REVIEW

We review de novo the BIA’s interpretation of the statute of conviction and where, as here, the BIA does not issue a published decision in coming to its conclusion, the Court defers to the BIA’s determination that the statute of conviction constitutes a “crime of moral turpitude” to the extent that the BIA’s decision has the “power to persuade.” Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir.2010) (internal quotation marks omitted) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 , 65 S.Ct. 161 , 89 L.Ed. 124 (1944)); see also Rohit v. Holder, 670 F.3d 1085,1088 (9th Cir.2012).

II. ANALYSIS

Under the categorical approach, the Court looks to the statutory definition of the state offense, and not to the particular facts underlying…

dissenting:

I would hold that the BIA erred when it held that there was no “realistic probability” that California would apply Penal Code § 243.4(e) to conduct that is not morally turpitudinous. In fact, California has done just that in cases the BIA did not consider. I therefore dissent.

In In re Carlos C., 2012 WL 925029 (Cal.Ct.App.2012), California applied § 243.4(e) to a middle school student, who slapped his classmate-victim “with an open hand in her crotch area.” Id. at *1. The *1271 defendant claimed that his friends had told him to. Id. The victim was “mad, embarrassed, and ‘kind of scared.” Id. She chased the defendant, who “ran away laughing.” Id. The court explained that it was reasonable to conclude that the defendant “understood that his action would embarrass and humiliate” the victim. Id. at *3.

In re Carlos C followed the reasoning of In re Shannon T., 144 Cal.App.4th 618 , 50 Cal.Rptr.3d 564 (2006), in which California interpreted § 243.4(e) to not require that the defendant be shown to have acted for the purpose of sexual arousal or gratification. Id. at 566. See also In re A.B., 2011 WL 193402 (Cal.Ct.App.2011) (holding that touching “an intimate part of…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE CRISANTO GONZALEZ- No. 10-72781 CERVANTES, AKA Jose Crisanto Gonzalez, Agency No. Petitioner, A078-468-051

v.

ERIC H. HOLDER, JR., Attorney General, Respondent.

JOSE CRISANTO GONZALEZ- No. 10-73789 CERVANTES, AKA Jose Crisanto Gonzalez, Agency No. Petitioner, A078-468-051

v.

OPINION

ERIC H. HOLDER, JR., Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals GONZALEZ-CERVANTES V . HOLDER

Argued and Submitted December 4, 2012—San Francisco, California

Filed March 8, 2013

Before: Dorothy W. Nelson, A. Wallace Tashima, and Mary H. Murguia, Circuit Judges.

Opinion by Judge D.W. Nelson; Dissent by Judge Tashima

SUMMARY*

Immigration

The panel denied Jose Gonzalez-Cervantes’ petitions for review of the Board of Immigration Appeals’ decision holding that there was no “realistic probability” that California would apply California Penal Code § 243.4(e), misdemeanor sexual battery, to conduct that is not morally turpitudinous, and the…