Syed v. Barr

969 F.3d 1012

Nabil Ahmed SYED, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 17-71727

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 2020 Pasadena, California

Filed August 12, 2020

David M. Sturman (argued) and Jonathan S. Sturman, Law Office of David M. Sturman P.C., Encino, California, for Petitioner.

Christina P. Greer (argued), Trial Attorney; Greg D. Mack, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX5-110

Before: John B. Owens and Patrick J. Bumatay, Circuit Judges, and Donald W. Molloy,^* District Judge.

BUMATAY, Circuit Judge:

Nabil Ahmed Syed was ordered removed as an alien convicted of a crime involving moral turpitude within five years of admission. See 8 U.S.C. § 1227(a)(2)(A)(i). Syed challenges whether his conviction under California Penal Code § 288.3(a) qualifies as such a crime. On an issue of first impression, we decide whether, under California law, attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child categorically constitutes a crime involving moral turpitude. We hold that it does and deny this petition.

I.

Syed, a native of India, was admitted into the United States as a lawful permanent resident in February 2011. Less than three years later, in October 2013, Syed was charged with three counts of attempted illicit conduct with a child. Syed eventually pleaded guilty to a single count—Count 2 of the Information—attempting to contact a child with the intent to commit a sexual offense under California Penal Code § 288.3(a).¹

Under that law,

Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 287, 288, 288.2, 289, 311.1, 311.2, 311.4 or 311.11, or former section 288a, involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.

§ 288.3(a). Accordingly, § 288.3(a) prohibits communication with a minor only if it is "motivated by a specific intent to commit [one of 15] enumerated ... crime[s]." People v. Keister , 198 Cal.App.4th 442, 129 Cal. Rptr. 3d 566, 572 (2011). The enumerated offenses include kidnapping, rape, and oral copulation with a minor. See §§ 288.3(a), 207, 261, 287.

Count 2 of the Information charging Syed accused him of violating § 288.3(a) "with the intent to commit an offense specified in Penal Code section 288, Lewd Act Upon a Child." Section 288 criminalizes certain lewd or lascivious acts upon a child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child. See also People v. Martinez , 11 Cal.4th 434, 45 Cal.Rptr.2d 905, 903 P.2d 1037, 1048 (1995). Subsections (a) and (b) of § 288 pertain to a child under the age of 14, while subsection (c) prohibits such acts on a child aged 14 or 15 years old. No subsection of § 288 was specified in Count 2.

In his guilty plea, Syed acknowledged his plea to Count 2 and, as a factual basis, admitted that he "committed a violation of § 288.3(a) of the Penal Code, a felony, whereby, [he] unlawfully contacted and communicated with a minor, Jane Doe, with the required intent, and [he] knew or should have reasonably known the person was a minor."

Syed was charged as removable under 8 U.S.C. § 1227(a)(2)(A)(i) —an alien convicted of a crime involving moral turpitude within five years of admission. Syed challenged his removability, arguing that the conviction record was insufficient to demonstrate which specific-intent offense supported his § 288.3(a) conviction. Syed claimed that the factual basis in his plea intentionally left his specific-intent offense vague as part of a careful strategy to avoid the immigration consequences of his conviction. Syed noted his plea agreement only referenced a "required intent" rather than an enumerated sex crime.

The immigration judge rejected Syed's argument. The IJ found that the documents in the record—Syed's Information, guilty plea, and the minutes of his criminal proceedings—sufficiently showed that Syed was convicted of Count 2 of the Information, which expressly denoted the § 288 specific intent for the § 288.3(a) conviction. The IJ also determined that Syed's conviction was categorically a crime involving moral turpitude.

Syed appealed, and the Board of Immigration Appeals summarily affirmed the IJ's removal order. After filing a petition for review in this court, the government filed an unopposed motion to remand Syed's petition to the Board for further consideration. We granted the motion and asked the Board to determine whether a conviction for § 288.3(a), based on an intent to commit a § 288 offense, describes a categorical crime involving moral turpitude.

On remand from this court, the Board answered our question affirmatively. In doing so, the Board found similarities between § 288.3(a) and Washington State's offense of "communication with [a] minor for immoral purposes," under Washington Revised Code § 9.68A.090, which this court has found to be a categorical crime involving moral turpitude. See Morales v. Gonzales , 478 F.3d 972, 978 (9th Cir. 2007), abrogated on other grounds by Anaya-Ortiz v. Holder , 594 F.3d 673, 677–78 (9th Cir. 2010).

Syed now files a second petition for review. In this appeal, Syed again argues that his conviction record does not support his removal under either the categorical or modified categorical approach.

II.

A.

The Board determined that a conviction under § 288.3(a), with a specific intent to commit a § 288 offense, constitutes a categorical crime involving moral turpitude. We agree.²

To determine whether a state conviction constitutes a removable offense, we first apply the categorical approach, and, if necessary, the modified categorical approach. See Marmolejo-Campos v. Holder , 558 F.3d 903, 912 (9th Cir. 2009) (en banc). The categorical approach is best understood as a task of statutory matching—we ask whether the statutory elements of the crime of conviction match the elements of the generic offense which serves as the basis for removal. See Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). If the elements of the crime of conviction match (or are narrower than) the elements of the generic offense, then the analysis can stop: the crime of conviction qualifies as a predicate for removal. Id.

If the elements of the statute are overbroad, we may continue on with the analysis if the criminal statute is, as they say, "divisible." Id . at 2249. A divisible statute is one that lists elements in the alternative—thereby creating multiple, distinct crimes within a single statute. Id . Under this test, called the modified categorical approach, we compare the elements of the "specific statutory provision that formed the basis for the conviction," as determined by a limited class of conviction documents, to the elements of the generic offense. Altayar v. Barr , 947 F.3d 544, 549 (9th Cir. 2020). Once again, if there is a match, the conviction may serve as the removal predicate. Id. If a statute is not divisible or if there is no match under the modified approach, the conviction will not serve as a basis of removal.

Here, we must compare the elements of § 288.3(a) to the generic federal definition of a crime involving moral turpitude. Accordingly, we determine whether violation of § 288.3(a) matches a crime that is "vile, base, or depraved and violates accepted moral standards." Ramirez-Contreras v. Sessions , 858 F.3d 1298, 1304 (9th Cir. 2017) (simplified) (setting forth the generic federal definition of a crime involving moral turpitude).

Section 288.3(a) includes the following elements: (1) the defendant communicated with or attempted to communicate with a minor; (2) the defendant intended to commit one of 15 enumerated offenses involving that minor; and (3) the defendant knew or reasonably should have known that person was a minor. San Nicolas v. Harris, 7 Cal.App.5th 41, 212 Cal. Rptr. 3d 279, 283 (2016) (citing Judicial Council of California Criminal Jury Instructions 1124 (2013) (" CALCRIM No. 1124")). Since there is nothing morally turpitudinous about communicating with a child, whether § 288.3(a) qualifies as a basis for removal turns on the intent motivating the communication. If a person seeks to communicate with a child for a "vile, based, or depraved" purpose, in contravention of "accepted moral standards," then a § 288.3(a) conviction constitutes a crime involving moral turpitude. Ramirez-Contreras , 858 F.3d at 1304.

Not all of § 288.3(a) ’s enumerated intent offenses involve moral turpitude. For example, California's simple kidnapping statute, § 207(a), which is a § 288.3(a) enumerated offense, is not categorically a crime involving moral turpitude. See Castrijon-Garcia v. Holder , 704 F.3d 1205, 1217–18 (9th Cir. 2013) overruled on other grounds by Ceron v. Holder , 747 F.3d 773, 782 n.2 (9th Cir. 2014) (en banc) (holding that § 207(a) does not categorically involve moral turpitude because the offense does not require an intent to cause harm or that harm actually occur). Accordingly, under the test explained above, § 288.3(a) by itself would not categorically serve as a basis to remove Syed.

In this case, however, the analysis may continue since the government asserts that Syed's § 288.3(a) conviction was predicated on a specific intent to commit a violation of § 288.³ Accordingly, we must determine whether communicating or attempting to communicate with a child for the purpose of committing a lewd or lascivious act on the child constitutes a crime involving moral turpitude. We agree with the Board that...