FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ENRIQUE MENDOZA,
Petitioner, No. 06-72865
v.
Agency No.
A076-612-890
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 5, 2010*
San Francisco, California
Filed October 27, 2010
Before: Pamela Ann Rymer and N. Randy Smith,
Circuit Judges, and Ronald B. Leighton, District Judge.**
Opinion by Judge N.R. Smith
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.
17869
MENDOZA v. HOLDER 17871
COUNSEL
John M. Pope, Stender and Pope, P.C., Phoenix, Arizona, for
the petitioner.
Joseph D. Hardy, Office of Immigration Litigation, Washing-
ton, D.C., for the respondent.
OPINION
N.R. SMITH, Circuit Judge:
Robbery under California Penal Code section 211 is a
crime involving moral turpitude (CIMT) for the purposes of
Immigration and Nationality Act (INA) § 212(a)(2)(A)(i)(I).
Therefore, the robbery conviction of Luis Enrique Mendoza,
a native and citizen of Mexico, renders him inadmissible and
ineligible for adjustment of status. We must then deny the
petition for review.
17872 MENDOZA v. HOLDER
Facts and Procedural History
Mendoza entered the United States without inspection on or
about December 2, 1983. On April 5, 2005, he was convicted
of robbery under California Penal Code section 211 in the
Superior Court of California and sentenced to 365 days
imprisonment. Based on this conviction, the Department of
Homeland Security issued a Notice to Appear (NTA) on
October 3, 2005. The NTA charged that Mendoza was subject
to removal because (1) Mendoza was present in the United
States without being admitted or paroled (INA
§ 212(a)(6)(A)(i)), and (2) he had been convicted of a CIMT1
(INA § 212(a)(2)(A)(i)(I)).2
At the master calender hearing on November 28, 2005, the
immigration judge (IJ) determined that Mendoza had been
convicted of a CIMT (as charged in the NTA) when he was
convicted for robbery in 2005, because robbery was both a
crime of theft and a crime of violence. He also determined
that Mendoza was present in the United States without being
admitted. After receiving Mendoza’s application for adjust-
ment of status, he then set an individual hearing to address
whether Mendoza qualified for a waiver of inadmissibility
under 8 U.S.C. § 1182(h) (“212(h) waiver”).3
1
The original NTA incorrectly alleged that Mendoza was convicted of
First Degree Residential Burglary under section 211. A revised NTA dated
October 24, 2005, properly stated that his conviction was for First Degree
Residential Robbery.
2
Although the agency opinions cite the INA, further citations will be to
the corresponding United States Code sections, 8 U.S.C. § 1182(a)(6)
(A)(i) and 8 U.S.C. § 1182(a)(2)(A)(i)(I).
3
A 212(h) waiver was required to allow Mendoza to adjust status
(become a lawful permanent resident) by waiving his ground of
inadmissibility—conviction for a CIMT. See 8 U.S.C. § 1182(h).
To receive a 212(h) waiver, Mendoza had to show that (1) he is the son
of a United States citizen or lawful permanent resident and (2) denial of
his admission would “result in extreme hardship” to his parents. 8 U.S.C.
§ 1182(h)(1)(B). If he made such a showing, the attorney general (repre-
sented by the IJ) could still, in his discretion, refuse to allow Mendoza to
adjust status and remain in the United States lawfully. § 1182(h).
MENDOZA v. HOLDER 17873
At the individual hearing on February 8, 2006, the IJ again
found that Mendoza was removable under both 8 U.S.C.
§ 1182(a)(6)(A)(i) (present without admission) and 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (having been convicted of a CIMT). He
also determined that robbery was both a crime of violence and
an aggravated felony, making Mendoza ineligible for most
forms of relief. Regarding the 212(h) waiver, the IJ found that
Mendoza had not shown that his removal would result in
extreme hardship to his parents. Further, even if Mendoza had
shown such hardship, the IJ determined that Mendoza did not
warrant a favorable exercise of discretion in light of Mendo-
za’s criminal record. Lastly, the IJ denied (1) the motion to
terminate proceedings, (2) the 212(h) waiver, (3) adjustment
of status, and (4) voluntary departure. Mendoza was then
ordered removed to Mexico based on the allegations in the
NTA.
Mendoza timely appealed to the Board of Immigration
Appeals (BIA). The BIA found “no error in the Immigration
Judge’s conclusion that the respondent is removable for com-
mission of a crime involving moral turpitude.” The BIA
incorrectly stated that Mendoza argued that “his conviction
for burglary does not constitute a [CIMT].” The BIA cited De
La Cruz v. INS, 951 F.2d 226, 228 (9th Cir. 1991) (which
mentions that burglary is a CIMT) and Matter of De La Nues,
18 I. & N. Dec. 140, 145 (BIA 1981) (“Burglary and theft or
larceny, whether grand or petty, are crimes involving moral
turpitude.”) to uphold the IJ’s determination that Mendoza
was removable for a conviction for a CIMT.4 The BIA did not
4
Mendoza did not appeal the BIA’s erroneous reference to burglary in
his petition for review. The BIA relied on De La Nues’s holding that bur-
glary and theft offenses are CIMTs. This court has held that when the
underlying crime in a burglary is theft (a CIMT), burglary is also a CIMT.
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1020 (9th Cir. 2005). Where
the BIA’s analysis is “a simple statement of a conclusion, [the court] also
look[s] to the IJ’s oral decision as a guide to what lay behind the BIA’s
conclusion.” See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010)
(quotation marks and citation omitted). Therefore, we may look directly
to the IJ’s decision, which correctly stated that Mendoza was convicted for
robbery.
17874 MENDOZA v. HOLDER
specifically address the IJ’s denial of Mendoza’s 212(h)
waiver, stating only that Mendoza “d[id] not meaningfully
identify any error in the Immigration Judge’s conclusion that
the respondent is ineligible for relief from removal and any
such arguments have been waived.”
Mendoza petitions for review of the BIA’s determination
that he was convicted of a CIMT and therefore was inadmissi-
ble under 8 U.S.C. § 1182(a)(2)(A)(i)(I). He also petitions for
review of the IJ’s discretionary denial of a 212(h) waiver that
would allow him to adjust status.
Jurisdiction
8 U.S.C. § 1252(a)(2)(C) generally precludes judicial
review of orders against aliens removable on the criminal
grounds enumerated in 8 U.S.C. § 1182(a)(2). However, we
may review “constitutional claims [and] questions of law.” 8
U.S.C. § 1252(a)(2)(D). Whether a crime involves moral tur-
pitude is such a question of law. Navarro-Lopez v. Gonzales,
503 F.3d 1063, 1067 (9th Cir. 2007) (en banc). In this appeal,
we therefore review only “whether [Mendoza] is an alien who
has committed an act that constitutes the essential elements of
a crime involving moral turpitude.” Morales v. Gonzales, 478
F.3d 972, 978 (9th Cir. 2007). We lack jurisdiction to review
the IJ’s exercise of discretion in denying the 212(h) waiver5
and summarily deny Mendoza’s petition as to that issue. 8
U.S.C. § 1252(a)(2)(B)(i).
5
Mendoza also failed to raise this issue in his brief to the BIA, and the
BIA did not address it. Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.
2009) (en banc) (per curiam) (“Petitioner will therefore be deemed to have
exhausted only those issues he raised and argued in his brief before the
BIA.”). We do not have jurisdiction over unexhausted claims. 8 U.S.C.
§ 1252(d)(1).
MENDOZA v. HOLDER 17875
Standard of Review
We review the BIA’s interpretation of the conduct pro-
scribed by a state statutory crime de novo. Marmolejo-
Campos v. Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en
banc), cert. denied, 130 S. Ct. 1011 (2009). However, the
court applies Chevron deference to the BIA’s precedential
determination that the specified conduct constitutes a CIMT.
Id. at 908-11.
Analysis
[1] This court has not previously decided whether robbery
under California Penal Code section 211 is a CIMT, although
both this court and petitioners have previously assumed that
it is. See, e.g., Wood v. Hoy, 266 F.2d 825, 826 (9th Cir.
1959) (challenging only whether the two robbery counts
under section 211 arose from a single scheme); Aguilar-
Ramos v. Holder, 594 F.3d 701, 703 (9th Cir. 2010) (not dis-
puting second degree robbery is a CIMT); Delgadillo v. Car-
michael, 332 U.S. 388, 389-90 (1947) (not disputing that a
California robbery conviction is a CIMT). We therefore
directly address this issue for the first time.
[2] A CIMT is not defined in immigration law. We have
previously held that “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.” Navarro-Lopez, 503 F.3d at 1074 (Reinhardt, J.,
concurring for the majority). Therefore, in general, such
offenses are those that are intrinsically wrong (malum in se)
or require evil intent. See Uppal v. Holder, 605 F.3d 712, 716
n.2 (9th Cir. 2010). In addition, “a crime in which fraud is an
ingredient involves moral turpitude.” Jordan v. De George,
341 U.S. 223, 227 (1951).
[3] “To determine whether a specific crime [qualifies as a
crime involving moral turpitude], we apply the categorical
17876 MENDOZA v. HOLDER
and modified categorical approaches set forth in Taylor v.
United States, 495 U.S. 575 (1990).” Cuevas-Gaspar, 430
F.3d at 1017. “Under the categorical approach, we ask
whether the full range of conduct encompassed by the crimi-
nal statute constitutes a crime of moral turpitude.” Morales,
478 F.3d at 978 (internal quotation marks, alteration, and cita-
tion omitted). Because 8 U.S.C. § 1182(a)(2)(A)(i)(I) does not
specifically define moral turpitude and does not specify rules
for determining whether a crime involves moral turpitude,6 we
determine whether a state crime involves moral turpitude by
comparing it with crimes that have previously been found to
involve moral turpitude. Nunez v. Holder, 594 F.3d 1124,
1131 & n.4 (9th Cir. 2010). This involves comparing the ele-
ments of the state crime with the elements of crimes already
determined to involve moral turpitude.7 See Cuevas-Gaspar,
430 F.3d at 1018-19 (comparing Washington burglary statute
requiring proof of “intent to commit any crime” with BIA
determination that burglary is only a CIMT “if accompanied
by the intent to commit a morally turpitudinous act after
entry.”). “[I]n determining the categorical reach of a state
crime, we consider not only the language of the state statute,
but also the interpretation of that language in judicial opin-
6
For example, malicious mischief, involving the destruction of “as little
as $250.00 of another’s property” is not categorically a CIMT, Rodriquez-
Herrera v. INS, 52 F.3d 238, 240 (9th Cir. 1995), nor is domestic battery,
Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1061 (9th Cir. 2006), but
petty theft is, United States v. Esparza-Ponce, 193 F.3d 1133, 1136-37
(9th Cir. 1999).
7
This comparison can also be made to more than one crime. For exam-
ple, in Nunez, because there was no BIA precedent directly on point, the
court compared California’s indecent exposure statute with other sexual
offenses found to involve moral turpitude. The court determined that the
crucial element of a CIMT in this context was whether there was (1) actual
harm or (2) a protected class of victim by examining the elements of other
sexual CIMTs (rape, incest, child pornography, and lewd and lascivious
conduct toward a child). Nunez, 594 F.3d at 1132. Then, the court deter-
mined that neither actual harm nor a protected class of victim was a
required element of indecent exposure, and therefore found that it was not
categorically a CIMT. Id. at 1135, 1138.
MENDOZA v. HOLDER 17877
ions.” Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th
Cir. 2006). If the statute proscribes only conduct that involves
moral turpitude, we do not proceed to the modified categori-
cal approach. See Marmolejo-Campos, 558 F.3d at 912. Gen-
erally, “once the conduct proscribed by the petitioner’s statute
of conviction is identified (e.g., fraud), the question whether
such conduct involves ‘moral turpitude’ is not in doubt and
thus merits little or no analysis from the court.” Id. at 908 n.7.
Also, because Congress’s intent is not clear regarding the
definition of moral turpitude, we apply Chevron deference to
the BIA’s precedential case-by-case adjudications determin-
ing which crimes involve moral turpitude. Id. at 908-09. The
BIA’s interpretation is entitled to deference so long as it is “a
permissible construction of the statute.” Id. at 909 (quoting
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 843 (1984)). See also Chevron, 467 U.S. at 845
(The question is whether the agency’s view “is a reasonable
one.”)
[4] California defines robbery as “the felonious taking of
personal property in the possession of another, from his per-
son or immediate presence, and against his will, accomplished
by means of force or fear.” Cal. Penal Code § 211. The BIA
has already specifically determined that robbery under section
211 is a crime involving moral turpitude. Matter of G-R-, 2
I. & N. Dec. 733, 734 (BIA 1946); Matter of Kim, 17 I. & N.
Dec. 144, 145 (BIA 1979). Therefore, under the categorical
approach, because the specific crime has already been deter-
mined to be a CIMT, we can conclude that all conduct pro-
scribed by section 211 involves moral turpitude. Our inquiry
then is limited to whether the BIA’s determination is reason-
able and entitled to deference. We find that it is.
[5] The BIA’s position that robbery under section 211 is a
CIMT has been consistent since 1946. Matter of G-R-, 2 I. &
N. Dec. at 734; Matter of Kim, 17 I. & N. Dec. at 145. The
BIA’s determination that robbery is a CIMT is also a logical
17878 MENDOZA v. HOLDER
outgrowth of its holding that theft offenses are CIMTs. See
Matter of V-T-, 2 I. & N. Dec. 213, 214 (BIA 1944) (“This
offense [grand theft] is manifestly one involving moral turpi-
tude.”); Matter of De La Nues, 18 I. & N. Dec. at 145. The
BIA’s determination is consistent with precedent in this and
other circuits8 that theft crimes are CIMTs. Esparza-Ponce,
193 F.3d at 1136. Indeed, the California Supreme Court has
also held that “[t]heft is a lesser and necessarily included
offense in robbery.” People v. Ramkeesoon, 702 P.2d 613,
616 (Cal. 1985), abrogated on other grounds by People v.
Breverman, 960 P.2d 1094 (Cal. 1998). Thus, robbery would
also be a CIMT. As such, we hold that the BIA’s determina-
tion that robbery is a CIMT is reasonable9 and entitled to defer-
ence.10
PETITION DENIED.
8
Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929); United States ex
rel. Ventura v. Shaughnessy, 219 F.2d 249, 251 (2d Cir. 1955) (“That theft
involves moral turpitude cannot be doubted.”); Quilodran-Brau v. Hol-
land, 232 F.2d 183, 184 (3d Cir. 1956); Soetarto v. INS, 516 F.2d 778, 780
(7th Cir. 1975) (“Theft has always been held to involve moral turpitude,
regardless of the sentence imposed or the amount stolen.”); Bartos v. U.S.
Dist. Court, 19 F.2d 722, 724 (8th Cir. 1927) (“[T]heft, whether it be
grand or petit larceny[,] involves moral turpitude.”); Ablett v. Brownell,
240 F.2d 625, 630 (D.C. Cir. 1957) (“[P]etty theft [is] a crime which does
involve moral turpitude within the meaning of the immigration laws.”).
9
Other circuits also generally assume robbery is a CIMT. See, e.g., Fitz-
gerald ex rel. Miceli v. Landon, 238 F.2d 864, 865-66 (1st Cir. 1956)
(implying that robbery that included criminal battery would be two
CIMTs); Garcia-Padron v. Holder, 558 F.3d 196, 198 (2d Cir. 2009)
(conceding that attempted robbery is CIMT); Tassari v. Schmucker, 53
F.2d 570, 572-73 (4th Cir. 1931) (“Robbery, larceny, and crimes involving
fraud have been held to be crimes of moral turpitude . . . .”); Cina v. INS,
989 F.2d 498 (6th Cir. 1993) (unpublished); United States v. Martinez-
Gonzales, 916 F.2d 715 (7th Cir. 1990) (unpublished) (“Robbery is a
crime involving moral turpitude. . . . .”); Costello v. Ramsey, 88 F.2d 622,
623 (8th Cir. 1937) (conceding removal for CIMTs (larceny and robbery)
was lawful); Camacho-Salinas v. U.S. Attorney Gen., 460 F.3d 1343, 1345
(11th Cir. 2006) (petitioner did not contest that robbery was CIMT).
10
Mendoza argues that robbery cannot be a CIMT, because under Cali-
fornia law one can be convicted of robbery as an aider and abettor. Men-
doza’s argument is precluded by the Supreme Court’s holding that aiding
and abetting is within the generic definition of a theft crime, specifically
referencing California’s abetting law. Gonzales v. Duenas-Alvarez, 549
U.S. 183, 189-90 (2007).