FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO EDUARDO SAAVEDRA-
FIGUEROA,
No. 05-75210
Petitioner,
v. Agency No.
A030-036-877
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 15, 2010—San Francisco, California
Filed November 5, 2010
Before: Alex Kozinski, Chief Judge, Glenn L. Archer, Jr.,
Senior Circuit Judge,* and Consuelo M. Callahan,
Circuit Judge.
Opinion by Judge Callahan
*The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
18277
SAAVEDRA-FIGUEROA v. HOLDER 18279
COUNSEL
Michael K. Mehr (argued) and Rachael E. Keast, Law Office
of Michael K. Mehr, Santa Cruz, California, for the petitioner.
Tony West, Assistant Attorney General, Civil Division, Bryan
S. Beier (argued), Senior Litigation Counsel, and Alison R.
18280 SAAVEDRA-FIGUEROA v. HOLDER
Drucker, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Wash-
ington, D.C., for the respondent.
OPINION
CALLAHAN, Circuit Judge:
Mario Saavedra-Figueroa (“Saavedra-Figueroa”) is a native
and citizen of Chile who has been a United States lawful per-
manent resident since 1970. The Board of Immigration
Appeals (“BIA”) determined that Saavedra-Figueroa was
removable because he had been convicted of an aggravated
felony and two crimes of moral turpitude (“CIMTs”) after
admission, pursuant to the Immigration and Nationality Act
(“INA”) § 237(a)(2)(A)(ii)-(iii), 8 U.S.C. § 1227(a)(2)(A)(ii)-
(iii). The aggravated felony conviction was subsequently
vacated. Saavedra-Figueroa now petitions for review of the
BIA’s decision, contending that the remaining two convic-
tions the BIA alleged—for misdemeanor false imprisonment
under California Penal Code § 236—are not categorical
CIMTs. We agree and grant the petition for review.
I.
In 2005, Saavedra-Figueroa was served with a Notice to
Appear (“NTA”) that asserted he was removable under (1)
INA § 237(a)(2)(A)(iii) for conviction of an aggravated fel-
ony as defined in INA § 101(a)(43)(A) (sexual abuse of a
minor); and (2) INA § 237(a)(2)(A)(ii) for conviction of two
CIMTs not part of the same criminal scheme. The NTA
alleged he had been convicted of gross sexual imposition of
a minor in violation of North Dakota Century Code § 12.1-20-
03(2), and twice convicted of misdemeanor false imprison-
ment under California Penal Code § 236.
SAAVEDRA-FIGUEROA v. HOLDER 18281
At a hearing before an immigration judge (“IJ”), Saavedra-
Figueroa admitted all three allegations. The IJ, finding that
Saavedra-Figueroa’s North Dakota conviction was an aggra-
vated felony and his two California convictions were CIMTs,
sustained both charges of removability, and ordered him
removed to Chile. The BIA affirmed in a per curium order.
Saavedra-Figueroa filed a timely petition for review in this
court.1 While his appeal was pending, he filed an application
for post-conviction relief in a North Dakota state court, seek-
ing to have his guilty plea to the gross sexual imposition
charge withdrawn. The state court granted the application and
vacated the conviction.
The government then filed in this court an unopposed
motion to remand to the BIA for it to determine how the
vacated North Dakota conviction affected Saavedra-
Figueroa’s case. The motion requested that we direct the BIA
to “return the case” to us if it determined that Saavedra-
Figueroa was removable. We remanded the case to the BIA
without indicating whether we would resume control follow-
ing the BIA’s decision.
In March 2007, the BIA ruled that Saavedra-Figueroa’s
North Dakota conviction was no longer valid for immigration
purposes. The BIA vacated its August 2005 decision and
remanded the case to the IJ.
Saavedra-Figueroa then filed a motion for reconsideration
with the BIA, contending that our remand order required that
his case be returned to us. In June 2007, the BIA granted his
motion to reconsider, but explained that it could not “return
a record of proceedings to [our] court.” Instead, it vacated its
March 2007 order insofar as that order remanded proceedings
1
Saavedra-Figueroa’s removal from the United States does not divest us
of jurisdiction over his petition for review. See Mendez-Alcaraz v. Gon-
zales, 464 F.3d 842, 844 (9th Cir. 2006).
18282 SAAVEDRA-FIGUEROA v. HOLDER
to the IJ. It stated that because its March 2007 order had not
revisited Saavedra-Figueroa’s removability for his CIMT con-
victions, its August 2005 determination of removability for
those convictions was “a final administrative order of removal
from which [Saavedra-Figueroa could] continue to pursue fur-
ther relief before the Ninth Circuit.”
II.
We determine the existence of our own jurisdiction de
novo. Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000).
Saavedra-Figueroa contends that we have jurisdiction over his
petition because the BIA’s June 2007 order affirmed that its
August 2005 decision remains a final, appealable order of
removal. The government responds that the BIA’s March
2007 order irreversibly vitiated our jurisdiction by rendering
the BIA’s August 2005 decision non-final.
We lack jurisdiction over a petition for review when the
BIA reopens an alien’s removal proceedings. See Lopez-Ruiz
v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (the BIA’s
reopening of the case divested us of jurisdiction); Timbreza v.
Gonzales, 410 F.3d 1082, 1083 (9th Cir. 2005) (same);
accord Yuan Gao v. Gonzales, 464 F.3d 728, 730 (7th Cir.
2006) (where the BIA reconsiders a final order of removal,
“there is nothing [for the appellate court] to retain jurisdiction
of”). As we explained in Cordes v. Mukasey, “The remand for
further proceedings is what caused us to lose jurisdiction.
Otherwise, this court and the IJ would both have been consid-
ering the same thing at the same time: [petitioner’s] removal.”
517 F.3d 1094, 1095 (9th Cir. 2008).
We conclude that we have jurisdiction over Saavedra-
Figueroa’s petition for review. When Saavedra-Figueroa filed
his petition, the BIA’s August 2005 decision was a final order
of removal. See 8 U.S.C. § 1101(a)(47)(B); Noriega-Lopez v.
Ashcroft, 335 F.3d 874, 882-83 (9th Cir. 2003). Because the
BIA in June 2007 granted reconsideration of its March 2007
SAAVEDRA-FIGUEROA v. HOLDER 18283
order and affirmed the August 2005 decision with respect to
Saavedra-Figueroa’s CIMT convictions, that part of the
August 2005 decision remains a final order of removal. Cf.
Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745 (9th Cir.
2008) (“Where the BIA’s decision granting a motion for
reconsideration expressly affirms the BIA’s prior decision and
its analysis does not significantly differ . . . . federal court
jurisdiction is divested only where the BIA subsequently
vacates or materially changes the decision under review.”),
overruled on other grounds by Marmolejo-Campos v. Holder,
558 F.3d 903 (9th Cir. 2009) (en banc); Jaggernauth v. U.S.
Att’y Gen., 432 F.3d 1346, 1351-52 (11th Cir. 2005) (court
retains jurisdiction when the BIA reconsiders an earlier deci-
sion and “explicitly upholds” it).
Unlike the situations presented in Lopez-Ruiz, Timbreza,
and Cordes, we are the sole tribunal considering Saavedra-
Figueroa’s removability. See Lopez-Ruiz, 298 F.3d at 887;
Timbreza, 410 F.3d at 1083; Cordes, 517 F.3d at 1095. In
addition, the petitioners in those three cases could seek review
before an IJ. Saavedra-Figueroa cannot, so a decision that we
lack jurisdiction would strip him of his right to obtain review
of the BIA’s determination that he is removable.2
III.
Saavedra-Figueroa contends that a misdemeanor violation
2
Because we hold that the BIA’s August 2005 decision remains a final,
appealable order of removal, we need not address the government’s sug-
gestion that we use our “inherent authority” to remand the case to the BIA.
But we do note that inherent authority is a “source[ ] of jurisdiction,” not
an alternative to it. In re North, 383 F.3d 871, 875 (9th Cir. 2004). The
government’s argument appears to be that we have just enough jurisdic-
tion to grant its desired relief but not enough to grant Saavedra-Figueroa
the relief he requests. Such an arbitrary limit on our jurisdiction would be
neither equitable nor consistent with our duty to exercise our inherent
authority to “protect the integrity of the judicial process.” Dixon v.
Comm’r, 316 F.3d 1041, 1046 (9th Cir. 2003).
18284 SAAVEDRA-FIGUEROA v. HOLDER
of California Penal Code § 236 is not a categorical CIMT
because conduct that would potentially be morally turpitudi-
nous (such as false imprisonment “effected by violence, men-
ace, fraud, or deceit”) is felony false imprisonment, not
misdemeanor false imprisonment. The government declined
to brief this issue, preferring to rely entirely on its jurisdic-
tional argument. We assume, however, that the government
would have disagreed with Saavedra-Figueroa’s contention.3
A. Legal Standard
The BIA must conduct a two-step analysis to determine
whether an alien has been convicted of a categorical CIMT.
First, it must interpret the statute and, in certain cases, exam-
ine the record of conviction to “determine what offense the
[alien] has been convicted of committing.” Marmolejo-
Campos, 558 F.3d at 907. We review the BIA’s determination
of this issue de novo. Id. at 907-08. Second, the BIA must
“determine whether the [alien’s] conduct meets” the federal
generic definition of a CIMT. Id. at 907. If the BIA issues or
relies on a precedential determination to conclude that a par-
ticular crime is a CIMT, we accord it Chevron deference; oth-
erwise, we defer to the BIA’s determination only to the extent
that it has power to persuade (Skidmore deference). Id. at 910-
11 (discussing Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984), and Skidmore v. Swift &
Co., 323 U.S. 134 (1944)).
B. Decisions Below
The IJ concluded that California Penal Code § 236 was a
categorical CIMT because:
This Court believes that the people of the state of
California find the personal liberty of their citizens
3
Before the IJ, the government conceded it had no authority holding that
misdemeanor false imprisonment under California law is a CIMT.
SAAVEDRA-FIGUEROA v. HOLDER 18285
to be of paramount importance. The willful and
unlawful violation of that personal liberty for any
reason, even perhaps a good faith belief that he was
engaging in a citizen’s arrest, is of such consequence
that an individual acting in that capacity, willfully
and unlawfully, enters into a realm in which his
actions are considered to be of such substantial
moment that the personal liberty of another would be
violated, and the Court finds that therefore, this is a
crime that is considered vile and heinous by the peo-
ple of the state of California and any violation of
Section 236 is such a crime.
The BIA summarily affirmed the IJ’s conclusion.
C. Elements of the Offense
[1] California Penal Code § 236 defines false imprison-
ment as “the unlawful violation of the personal liberty of
another.” It is a general intent crime, because its definition
“includes only a description of the particular act without any
reference to an intent to do a further act or achieve a further
consequence.” People v. Fernandez, 26 Cal. App. 4th 710,
717 (1994). It “may be committed by acts or by words, or
both, and by merely operating upon the will of the individual
or by personal violence, or both.” Id. “The conduct may
involve merely the simple act of announcing without probable
cause the making of a citizen’s arrest, the natural consequence
of which is to cause the police to take the victim into custo-
dy.” People v. Henderson, 19 Cal. 3d 86, 93 (1977), overruled
on other grounds by People v. Flood, 18 Cal. 4th 470 (1998).
Felony false imprisonment is “effected by violence, men-
ace, fraud, or deceit.” Cal. Penal Code § 237; see also Fer-
nandez, 26 Cal. App. 4th at 717. A false imprisonment is
“effected by violence” where the defendant uses greater force
than reasonably necessary to effect the restraint. People v.
Castro, 138 Cal. App. 4th 137, 143 (2006) (defendant who
18286 SAAVEDRA-FIGUEROA v. HOLDER
pulled victim towards his car committed felony false impris-
onment by using more force than necessary to restrain her).
False imprisonment using menacing words is also a felony.
See People v. Aispuro, 157 Cal. App. 4th 1509, 1513 (2007)
(defendant was guilty of felony false imprisonment when he
ordered two minor children to sit in the middle of the street,
threatened to harm them if they did not, and did not respond
to their pleas not to hurt them).
[2] Because of these differences between misdemeanor and
felony false imprisonment, we determine that a section 236
misdemeanor conviction has only two elements: (1) the viola-
tion of another’s personal liberty and (2) the unlawfulness of
that violation. People v. Agnew, 16 Cal. 2d 655, 664 (1940).
It does not require an intent to harm the victim.
D. Categorical Analysis
We have held that the federal generic definition of a CIMT
is a crime involving fraud or conduct that (1) is vile, base, or
depraved and (2) violates accepted moral standards. Morales-
Garcia v. Holder, 567 F.3d 1058, 1062 & n.2 (9th Cir. 2009).
Non-fraudulent CIMTs “almost always involve an intent to
harm someone.” Nunez v. Holder, 594 F.3d 1124, 1131 & n.4
(9th Cir. 2010).4
To determine whether a non-fraudulent crime is a CIMT,
the “most useful guidance often comes from comparing the
crime with others that we have previously deemed morally
4
An intent to harm is not always necessary. Nunez, 594 F.3d at 1131
n.4; see also Matter of Franklin, 20 I. & N. Dec. 867, 869 (BIA 1994)
(acts that cause serious harm to people, such as involuntary manslaughter,
can be categorical CIMTs even if the harm was not specifically intended);
Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir. 2007) (where a protected
class of victims, such as minors, is involved, certain unintentional acts that
only threaten harm may be categorical CIMTs). These exceptions do not
apply to section 236, which does not proscribe conduct that categorically
causes serious harm or is directed against a protected class of persons.
SAAVEDRA-FIGUEROA v. HOLDER 18287
turpitudinous.” Id at 1131. Where we have not resolved
whether a particular crime is a categorical CIMT, we look to
other federal and state courts for guidance. See United States
v. Santacruz, 563 F.3d 894, 896 n.3 (9th Cir. 2009).
[3] Whether a California Penal Code § 236 misdemeanor
violation is a categorical CIMT is a question of first impres-
sion in this circuit. We determine that it is not, because sec-
tion 236 does not require the defendant to have had the intent
to harm necessary for the crime to be “base, vile, or
depraved.” Under California law, false imprisonment commit-
ted with an intent to harm—i.e. “[intentional] violence, men-
ace, fraud, or deceit”—is a felony, not a misdemeanor. Cal.
Penal Code § 237.5
Our determination that a section 236 misdemeanor viola-
tion is not a categorical CIMT is supported by our precedent.
We have held that misdemeanor simple assault is not a CIMT
where the relevant statute criminalizes willful, intentional,
and reckless acts. Fernandez-Ruiz v. Gonzales, 468 F.3d
1159, 1165-66 (9th Cir. 2006). We also explained the impor-
tance of intent when discussing the BIA’s holding that simple
DUI is not a CIMT:
Although the dangers of drunk driving are well
established, the Board’s unwillingness to classify it
as a crime of moral turpitude is, perhaps, not surpris-
ing because statutes that prohibit driving under the
influence typically do not require intent, but rather
“are, or are most nearly comparable to, crimes that
impose strict liability.”
Marmolejo-Campos, 558 F.3d at 913; cf. Leocal v. Ashcroft,
543 U.S. 1, 11 (2004). Our holding is shared by the California
courts, which require “the addition of [violence, menace,
5
We express no opinion on whether a conviction for felony false impris-
onment under California law is a categorical CIMT.
18288 SAAVEDRA-FIGUEROA v. HOLDER
fraud, or deceit] to the simple violation of personal liberty of
another [to] make[ ] the crime one involving moral turpitude.”
People v. Cornelio, 207 Cal. App. 3d 1580, 1584 (1989).
[4] The BIA’s contrary determination is not entitled to
Chevron deference, because the BIA did not issue or rely on
a precedential decision. See Marmolejo-Campos, 558 F.3d at
908-09. Nor is it entitled to Skidmore deference. See Uppal v.
Holder, 605 F.3d 712, 715 (9th Cir. 2010). The BIA adopted
the IJ’s decision as its own, and that decision was “neither
thoroughly reasoned nor consistent with prior . . . case law.”
Id. The IJ erroneously assumed that all section 236 violations
required the “willful and unlawful violation” of another’s per-
sonal liberty, but as discussed supra, misdemeanor convic-
tions do not require willfulness. The IJ speculated that the
“willful and unlawful violation of [another’s] personal liberty
. . . is considered heinous by the people of the state of Califor-
nia” without any analysis. His reasoning that such a violation
of “personal liberty” is morally turpitudinous, even when the
defendant has a good-faith belief that he was engaging in a
citizen’s arrest, is irreconcilable with the BIA’s understanding
of the intent necessary for an offense to be a CIMT. See
Nunez, 594 F.3d at 1131 n.4. Such a decision has no persua-
sive authority.
E. Effect of Silva-Trevino
After the BIA entered its June 2007 order, the Attorney
General issued In re Silva-Trevino to “establish[ ] an adminis-
trative framework for determining whether an alien has been
convicted of a crime involving moral turpitude.” 24 I. & N.
Dec. 687, 689 (2008). Even assuming that Silva-Trevino
applies retroactively, it does not change our conclusion that a
misdemeanor conviction under California Penal Code § 236 is
not categorically a CIMT.6
6
Since a section 236 misdemeanor conviction does not meet the Silva-
Trevino criteria, we do not decide whether Silva-Trevino may be applied
retroactively.
SAAVEDRA-FIGUEROA v. HOLDER 18289
Silva-Trevino provides that to qualify as a CIMT, a crime
must involve (a) reprehensible conduct and (b) “some degree
of scienter, whether specific intent, deliberateness, willful-
ness, or recklessness.” Id. at 689 n.1. A misdemeanor convic-
tion under section 236 does not meet these criteria. Even if an
“unlawful violation of the personal liberty of another” is rep-
rehensible conduct, a misdemeanor conviction does not
require any degree of scienter.
For a crime to be categorically broader than the definition
of a CIMT, Silva-Trevino requires that there be a “realistic
probability, not a theoretical possibility” that the statute of
conviction will be applied to non-morally turpitudinous con-
duct. Id. at 689-90. We hold that People v. Agnew satisfies
this requirement: It affirmed the section 236 conviction of a
defendant who announced without probable cause that he was
making a citizen’s arrest for perjury, causing the police to
arrest the victim. 16 Cal. 2d at 659-60. Agnew demonstrates
a “reasonable probability” that section 236 applies to
non-morally turpitudinous conduct. See Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007). Accordingly, Silva-
Trevino does not alter our categorical analysis.
IV.
[5] In the absence of a categorical match, we generally
apply a modified categorical analysis, in which we consider
whether record documents or judicially noticeable facts estab-
lish that the alien’s prior conviction satisfies the generic
offense. See Kepilino v. Gonzales, 454 F.3d 1057, 1062 (9th
Cir. 2006). Regardless of whether we may apply this
approach in this case in light of our holding that misdemeanor
false imprisonment lacks an element of the generic crime —
see Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.
2007) (en banc) — the application of the modified categorical
approach would make no difference. Although Saavedra-
Figueroa admitted both section 236 misdemeanor convictions,
there is no record evidence of the factual allegations underly-
18290 SAAVEDRA-FIGUEROA v. HOLDER
ing his second conviction. Accordingly, we cannot determine
that the second conviction was based on a judicial determina-
tion of facts that fall within the federal generic definition of
a CIMT. See Taylor v. United States, 495 U.S. 575, 599-602
(1990). Saavedra-Figueroa is therefore not removable under
INA § 237(a)(2)(A)(ii).
V.
We now consider whether a remand to the BIA is appropri-
ate. The government contends that an unrestricted remand is
appropriate so that it can allege that Saavedra is removable on
additional grounds and introduce additional, unspecified evi-
dence.
We have declined to remand cases for the government to
introduce further evidence where (1) the current record of
conviction does not support a determination of removability
and (2) all relevant documents of conviction became available
before DHS initiated removal proceedings. See Fernandez-
Ruiz v. Gonzales, 466 F.3d 1121, 1132-35 (9th Cir. 2006) (en
banc); see also Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1079-
80 (9th Cir. 2007).
[6] Fernandez-Ruiz controls our case. As we explained,
Saavedra-Figueroa’s convictions cannot support the BIA’s
finding of removability under either the categorical approach
or modified-categorical approach because misdemeanor false
imprisonment lacks a necessary element of a CIMT—an
intent to harm. Even if record evidence could narrow
Saavedra-Figueroa’s convictions to CIMTs, the record here
contains no facts allowing us to do so, and the government
hasn’t identified any new facts it would introduce on remand.
The government does not claim that any additional documents
of conviction became available after DHS initiated removal
proceedings. We decline to remand this case simply to allow
the government to go on a fishing expedition.
SAAVEDRA-FIGUEROA v. HOLDER 18291
The government also seeks remand in order to add a new
allegation—that Saavedra-Figueroa is removable based on a
possible 2005 conviction for violating California Penal Code
§ 136.1(b)(1), which prohibits witness intimidation. We
decline this request for three reasons. First, as the government
concedes, this conviction is not properly before us because it
was neither alleged nor found to be a basis for removability
below.7 Second, although the supposed section 136.1(b)(1)
conviction predates the NTA, the government has not
explained why the NTA didn’t allege it. Finally, even assum-
ing that a conviction under section 136.1(b)(1) is a CIMT, the
government at most would establish that Saavedra-Figueroa
committed one of the two CIMTs that the government must
prove for Saavedra-Figueroa to be removable under INA
§ 237(a)(2)(A)(ii). Remand would therefore serve no purpose.
VI.
We determine that we have jurisdiction over Saavedra-
Figueroa’s petition for review, and we conclude that (1) a
misdemeanor violation of California Penal Code § 236 is not
a categorical CIMT; (2) Saavedra-Figueroa is not removable
under INA § 237(a)(2)(A)(ii); and (3) the government has not
shown that remand to the BIA for further proceedings is war-
ranted. Accordingly, Saavedra-Figueroa’s petition for review
is GRANTED, and the BIA’s final order of removal is
VACATED.
7
The government raised this conviction for the first time in its answer-
ing brief to this court.