NAVARRO-LOPEZ v. GONZALES
The Ninth Circuit Court of Appeals today released an en banc opinion in NAVARRO-LOPEZ v. GONZALES, No. 04-70345, an administrative appeal. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Harry Pregerson, Stephen Reinhardt, Alex Kozinski, Diarmuid F. O’Scannlain, Michael Daly Hawkins, Sidney R. Thomas, Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.
PREGERSON, Circuit Judge:
Armando Navarro-Lopez petitions for review of a final order of removal, arguing that the Board of Immigration Appeals (”BIA”) erred in summarily affirming the immigration judge’s (”IJ”) determination that Navarro-Lopez’s conviction under California Penal Code section 32 for accessory after the fact was a conviction for a crime involving moral turpitude. Based on Navarro-Lopez’s conviction, the IJ concluded he was inadmissible and ineligible for cancellation of removal. We have jurisdiction pursuant to 28 U.S.C. § 1252(a)(1), and we grant the petition. . . .
REINHARDT, Circuit Judge, Concurring, joined by Chief Judge SCHROEDER and Judges KOZINSKI, HAWKINS, THOMAS, WARDLAW, W. FLETCHER, and PAEZ: I join Judge Pregerson’s opinion except for Section A(2). Although I agree that accessory after the fact is not a crime of moral turpitude, I cannot agree that offenses involving fraud are subject to the same test as other crimes when we determine which offenses fall within that classification. Generally, crimes are deemed to be offenses of moral turpitude if they are base, vile, or depraved — if they offend society’s most fundamental values, or shock society’s conscience. Fraudulent offenses, however, are so classified simply by virtue of their fraudulent nature. Such has been the clearly established rule with respect to fraud since at least 1951. Jordan v. De George, 341 U.S. 223, 227-32 (1951). Nevertheless, Judge Pregerson is correct that “accessory after the fact” is not a crime of moral turpitude. I. Judge Pregerson’s opinion states that “crimes involving fraud are not a per se category of crimes involving moral turpitude,” but rather fraud is “an example of conduct that may fall under the umbrella of inherently base and vile conduct that shocks the conscience.” According to the Judge Pregerson, courts should evaluate crimes involving fraud the same way that they evaluate other crimes, by determining whether they are base, vile, or depraved. Doing so would, however, directly contradict what the Supreme Court stated unequivocally in Jordan to be the universal rule: “Without exception . . . a crime in which fraud is an ingredient involves moral turpitude.” 341 U.S. at 227. It would also directly contradict what we reiterated only two years ago in Carty v. Ashcroft: “Crimes of moral turpitude are of basically two types, those involving fraud and those involving grave acts of baseness or depravity.” 395 F.3d 1081, 1083 (9th Cir. 2005). There was, in fact, nothing new in Carty, as far as this circuit is con. . .
TALLMAN, Circuit Judge, with whom Circuit Judges O’SCANNLAIN, RAWLINSON, CLIFTON, and BYBEE join, dissenting:
We took this case en banc to clarify our jurisprudence regarding crimes of moral turpitude. The fractured decision we announce today only compounds the uncertainty attending this arcane subject of criminal opprobrium. Navarro-Lopez’s petition for review of his final order of removal should be denied because the crime of being an accessory after the fact in violation of California Penal Code section 32 is a crime involving moral turpitude under the categorical approach established in Taylor v. United States, 495 U.S. 575 (1990). In reaching the opposite conclusion, the majority employs dubious reasoning and ignores relevant case law from our sister circuits, creating yet another unnecessary circuit split. I respectfully dissent. I The opinion authored by Judge Pregerson offers various definitions for “moral turpitude,” some quite vivid, before concluding that a conviction under California Penal Code section 32 does not, categorically, fit within the appropriate definition. See Maj. op. at 12570-71. For reasons outlined in Part. . .
BEA, Circuit Judge, dissenting, with whom Judge O’SCANNLAIN joins:
Navarro-Lopez was convicted of a crime, being an accessory after the fact in violation of California Penal Code section 32. To determine whether this section 32 conviction is a crime involving moral turpitude so as to render NavarroLopez inadmissible to this country, a federal court must “look to the manner in which the term `moral turpitude’ has been applied by judicial decision.” Jordan v. De George, 341 U.S. 223, 227 (1951). The question whether a state crime qualifies as a “crime involving moral turpitude” within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I) cannot be answered, as the majority attempts to do, by turning to the categorical approach of Taylor v. United States, 495 U.S. 575 (1990). The categorical approach of Taylor asks whether the definition of the state crime proscribes any set of acts with a realistic probability of prosecution by the state that fall outside the “generic,” or federal, definition of the crime. See Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007); Taylor, 495 U.S. at 598. To answer that question requires first a determination of what are the elements of the federal crime. For example, in FernandezRuiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc), a federal statute supplied the answer: “crime of violence” in an immigration removal statute was defined elsewhere in the. . .