Navarro-Lopez v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARMANDO NAVARRO-LOPEZ, 
Petitioner, No. 04-70345
v.
 Agency No.
A92-283-781
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
December 13, 2006—San Francisco, California

Filed September 19, 2007

Before: 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.

Opinion by Judge Pregerson;1
Concurrence by Judge Reinhardt;
Dissent by Judge Tallman;
Dissent by Judge Bea
1
This opinion serves as the opinion of the majority of the court save for
the four paragraphs that comprise section A.2. That section is to be viewed
as Judge Pregerson’s special concurrence.

12563
12566 NAVARRO-LOPEZ v. GONZALES

COUNSEL

James Robert Patterson, Law Office of Lilia S. Velasquez,
San Diego, California, for the petitioner.

Francis W. Fraser, Department of Justice, Washington, D.C.,
for the respondent.

OPINION

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 immigra-
tion judge’s (“IJ”) determination that Navarro-Lopez’s con-
viction 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 con-
cluded 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.
 NAVARRO-LOPEZ v. GONZALES 12567
FACTS AND PRIOR PROCEEDINGS

Navarro-Lopez is a native and citizen of Mexico. He is
married to a U.S. citizen and has applied for permanent resi-
dency through his wife. He has two U.S. citizen children, ages
thirteen and sixteen, and a twenty-four-year-old child who is
a legal permanent resident. He has been working in the United
States for over twenty years, and he and his wife own their
own home.

Navarro-Lopez entered the United States in June 1984. On
August 9, 1999, Navarro-Lopez pled guilty to one count of
California Penal Code section 32, accessory after the fact. He
was sentenced to 270 days in jail and three years probation.
In February 2001, Navarro-Lopez traveled to Tijuana, Mexico
to visit his mother who was gravely ill. On February 11, 2001,
Navarro-Lopez tried to re-enter the United States at the San
Ysidro point of entry. When he presented his employment
authorization card, the border patrol denied him entry and
detained him. The Immigration and Naturalization Service
(“INS”)2 thereafter commenced removal proceedings.

The INS charged Navarro-Lopez with being inadmissible
because he did not have valid entry documents under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) and because he had been convicted of a
crime involving moral turpitude under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). At his merits hearing, Navarro-Lopez
conceded inadmissibility under 8 U.S.C. § 1182(a)(7)(A)
(i)(I), but argued that he had not been convicted of a crime of
moral turpitude. Although Navarro-Lopez admitted having
been convicted under California Penal Code section 32 for
accessory after the fact, he disputed the INS’s categorization
of that crime as one involving moral turpitude.
2
On March 1, 2003, the INS was dissolved as an independent agency
within the United States Department of Justice, and its functions were
transferred to the Department of Homeland Security. Homeland Security
Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135.
12568 NAVARRO-LOPEZ v. GONZALES
The IJ nonetheless held that Navarro-Lopez’s accessory
after the fact conviction constituted a crime involving moral
turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ, there-
fore, held Navarro-Lopez removable. The IJ also denied
Navarro-Lopez’s application for cancellation of removal on
the grounds that Navarro-Lopez had been convicted of a
crime involving moral turpitude. Further, the IJ held that
because Navarro-Lopez had been convicted of a crime involv-
ing moral turpitude, Navarro-Lopez did not have the requisite
good moral character to be eligible for cancellation of
removal. Thus, the IJ’s characterization of California Penal
Code section 32 as a crime involving moral turpitude served
to bar Navarro-Lopez’s application in two ways: (1) a convic-
tion for a crime involving moral turpitude renders someone
ineligible for cancellation or removal and (2) a conviction for
a crime involving moral turpitude demonstrates a lack of the
requisite good moral character necessary to qualify for cancel-
lation of removal.

The IJ ordered Navarro-Lopez removed to Mexico.
Navarro-Lopez timely appealed to the BIA, which summarily
affirmed the IJ on December 24, 2003. Navarro-Lopez timely
filed this petition for review on January 22, 2004.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the petition under 8 U.S.C.
§ 1252 as amended by section 106(a) of the REAL ID Act of
2005, Pub. L. No. 109-13, Div. B., § 106(a)(1)(A)(iii), 119
Stat. 231, 310 (codified as amended at 8 U.S.C.
§ 1252(a)(2)(D)). See Notash v. Gonzales, 427 F.3d 693, 695-
96 (9th Cir. 2005). While we do not normally have jurisdic-
tion to review “any final order of removal against an alien
who is removable by reason of having committed [certain
criminal offenses],” 8 U.S.C. § 1252(a)(2)(C), including
crimes involving moral turpitude,3 we are not barred from
3
See 8 U.S.C. §§ 1252(a)(2)(C), 1182(a)(2), & 1227(a)(2)(A). This case
involves only a single alleged crime of moral turpitude, which alone
 NAVARRO-LOPEZ v. GONZALES 12569
hearing the constitutional claims or questions of law raised in
a petition. 8 U.S.C. § 1252(a)(2)(D). Whether Navarro-
Lopez’s conviction is a crime involving moral turpitude is a
question of law, which we have jurisdiction to reach. See
Notash, 427 F.3d at 696.

We review de novo “whether a state statutory crime consti-
tutes a crime involving moral turpitude.” Cuevas-Gaspar v.
Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005). “Where the
BIA affirms an IJ’s order without opinion, we review the IJ’s
decision as the final agency action.” Khup v. Ashcroft, 376
F.3d 898, 902 (9th Cir. 2004).

ANALYSIS

Navarro-Lopez asserts that the IJ erred in deciding that a
conviction for accessory after the fact under California Penal
Code section 32 constitutes a crime involving moral turpitude.
Navarro-Lopez asks that we remand his petition to the BIA
for a grant of cancellation of removal. To qualify for cancella-
tion of removal, an alien must demonstrate, inter alia, that he
has not been convicted of a crime of moral turpitude and that
he has maintained good moral character for the ten years
immediately preceding the date of his application. 8 U.S.C.
§ 1229b(b)(1). Under 8 U.S.C. § 1101(f)(3), no person may
be found to have good moral character who has been con-
victed of a crime listed in 8 U.S.C. § 1182(a)(2)(A), which
includes a crime involving moral turpitude. 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). The IJ did not rely on facts other than
Navarro-Lopez’s conviction when he determined that
Navarro-Lopez lacked good moral character. Thus, Navarro-
Lopez’s eligibility for cancellation of removal turns on

would not fall within the jurisdictional limitations of § 1252(a)(2)(C).
However, because the crime rendered Navarro-Lopez inadmissible and
occurred before his re-entry into the United States, it falls within the scope
of § 1182(a)(2)(A)(i), and accordingly, § 1252(a)(2)(C).
12570 NAVARRO-LOPEZ v. GONZALES
whether a conviction under California Penal Code section 32
constitutes a crime of moral turpitude.

To determine whether a conviction is for a crime involving
moral turpitude, we apply the categorical and modified cate-
gorical approaches established by the Supreme Court in Tay-
lor v. United States, 495 U.S. 575, 599-602 (1990).4 Cuevas-
Gaspar, 430 F.3d at 1017.

A. The Categorical Approach

1.

The categorical approach requires us to “make a categorical
comparison of the elements of the statute of conviction to the
generic definition [of the crime], and decide whether the con-
duct proscribed by [the statute] is broader than, and so does
not categorically fall within, this generic definition.” Huerta-
Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003).
Therefore, we begin the categorical approach by determining
the generic elements of a crime involving moral turpitude for
the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I). See Taylor,
495 U.S. at 580-81.

[1] A difficulty arises here as there are no statutorily-
established elements for a crime involving moral turpitude.
Courts, however, have consistently defined “moral turpitude”
4
In his dissent, Judge Bea argues that we should not apply the Taylor
categorical approach when determining whether a crime involves moral
turpitude. This plainly conflicts with our precedent. See, e.g., Fernandez-
Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir. 2006); Kepilino v. Gon-
zales, 454 F.3d 1057, 1060-62 (9th Cir. 2006); Cuevas-Gaspar, 430 F.3d
at 1017. Instead, Judge Bea urges us to look at the manner in which moral
turpitude has been applied in judicial decisions. Bea Dissent at 12603.
This is in essence how we begin the categorical approach for crimes
involving moral turpitude. As explained below, moral turpitude lacks a
statutory definition and instead we look to common law (i.e. “judicial
decisions”) to determine the generic definition of the crime.
 NAVARRO-LOPEZ v. GONZALES 12571
as involving conduct that is inherently base, vile, or depraved,
and contrary to the private and social duties man owes to his
fellow men or to society in general. See, e.g., Morales v. Gon-
zales, 478 F.3d 972, 978 (9th Cir. 2007). This is the definition
employed by the BIA, see, e.g., Matter of E—, 2 I&N Dec.
134, 140 (BIA 1944), and the definition is relatively consis-
tent throughout the federal courts, see, e.g., Sosa-Martinez v.
U.S. Att’y Gen., 420 F.3d 1338, 1341-42 (11th Cir. 2005);
Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005)
(also asking whether the act involved arouses “serious” indig-
nation in the law-abiding public); Omagah v. Ashcroft, 288
F.3d 254, 259-60 (5th Cir. 2002) (further adding that morally
turpitudinous acts are “per se morally reprehensible and
intrinsically wrong”); Medina v. United States, 259 F.3d 220,
227 (4th Cir. 2001) (adding that morally turpitudinous con-
duct “shocks the public conscience”).

This widespread judicial consistency is supported by basic
notions of moral turpitude. Moral turpitude involves “immoral
or depraved” conduct. Random House Dictionary of English
Usage Unabridged 930 (1973). Crimes of moral turpitude
“involv[e] grave infringement of the moral sentiment of the
community.” Webster’s New International Dictionary
Unabridged 1593 (2d ed. 1940). Thus, the generic definition
of a crime involving moral turpitude is a crime involving con-
duct that (1) is base, vile, or depraved and (2) violates
accepted moral standards.5
5
In his oral decision, the IJ set forth a slightly different definition of
moral turpitude, stating that “[a] crime involving moral turpitude generally
refers to conduct which is inherently base, vile, or depraved, or is contrary
to the accepted rules of morality and to the duties owed between men in
society.” (emphasis added). The IJ’s definition differs from the generic
definition of moral turpitude in one key respect. The IJ stated that moral
turpitude involves conduct that is either (1) inherently base, vile, or
depraved or (2) contrary to the accepted duties owed between man and
society. This definition is incorrect because crimes of moral turpitude
involve both elements.
12572 NAVARRO-LOPEZ v. GONZALES
2.
In his dissent, Judge Tallman states that all crimes involv-
ing morally turpitudinous conduct fall into one of two catego-
ries: those involving fraud and those involving grave acts of
baseness or depravity. Tallman Dissent at 12591; accord
Reinhardt Conc. at 12582. The dissent draws this formulation
from Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005),
wherein we stated: “Crimes of moral turpitude are of basi-
cally two types, those involving fraud and those involving
grave acts of baseness or depravity.” Id. at 1083 (emphasis
added). Although Carty can be read to stand for the proposi-
tion that crimes involving moral turpitude generally fall into
these two categories, these two categories do not define moral
turpitude. As explained above, crimes involving moral turpi-
tude involve base, vile, and depraved conduct that shocks the
conscience and is contrary to the societal duties we owe each
other.
[2] Crimes involving fraud are not a per se category of
crimes involving moral turpitude. Crimes involving fraud,
depending on the circumstances, merely present examples of
conduct that may fall under the umbrella of inherently base
and vile conduct that shocks the conscience. Indeed, some
crimes involving the intent to defraud (especially in the dis-
sent’s broad definition, which encompasses any crime involv-
ing “dishonesty”) are not necessarily crimes involving moral
turpitude.6

The IJ cited Matter of Flores, 17 I&N Dec. 225 (BIA 1980), for his def-
inition, but the IJ appears to have misread that case. Matter of Flores set
forth the correct definition of moral turpitude: “Moral turpitude is a nebu-
lous concept which refers generally to conduct which is inherently base,
vile, or depraved, contrary to the accepted rules of morality and the duties
owed between man and man, either one’s fellow man or society in gener-
al.” Matter of Flores, 17 I&N Dec. at 227. Thus, Matter of Flores does
not support the definition of moral turpitude used by the IJ.
6
In section III of his concurrence, Judge Reinhardt states that my
approach dilutes the meaning of moral turpitude and would broaden the
 NAVARRO-LOPEZ v. GONZALES 12573
[3] Crimes “involving fraud” encompasses such a broad
category of possible offenses, that it is not proper simply to
label all such crimes morally turpitudinous. There may be
crimes involving fraud that do involve moral turpitude. For
example, someone perpetrating a vast fraud to deprive wid-
ows of pension benefits or employees of ERISA benefits
would qualify as base, vile, depraved, and shocking society’s
conscience. On the other hand, some actions involving fraud
may not qualify as base, vile, and depraved. Take the example
of a welfare mother who falsely endorses and then cashes a
social security check mistakenly issued to her deceased father.
The woman knows that she does not have the right to the
money. She forges her father’s signature. But, she needs
money to feed her hungry children. Although such conduct is
illegal, it is not base, vile, or depraved. Both of these crimes
involve fraud, but they present very different circumstances.
Because such a large swath of crimes involve fraud, we
should conduct an individualized analysis for offenses involv-
ing fraud — not immediately label them as involving moral
turpitude.

[4] As this circuit and the BIA have consistently held, we
must engage in an individualized analysis of each challenged
statute to determine whether it falls under the rubric of crimes
involving moral turpitude. See, e.g., Morales, 578 F.3d at 978;
Cuevas-Gaspar, 430 F.3d at 1017. As the majority of crimes
involve some element of dishonesty — from Enron executives
operating massive fraud on the public to a twenty-year-old

category of crimes involving moral turpitude. Reinhardt Conc. at 12585.
My approach does exactly the opposite. Although prior case law describes
fraud as a category of crimes involving moral turpitude, crimes involving
fraud can be crimes of moral turpitude but are not necessarily crimes
involving moral turpitude. Judge Reinhardt interprets this as “compelling”
us to label all crimes involving fraud as base, vile, and depraved. Rein-
hardt Conc. at 12583. I specifically hold that crimes involving fraud do not
compel such a holding. A crime involving moral turpitude must be one
that is base, vile, or depraved and shocks society’s conscience. Where a
crime includes an element of fraud, this same standard must be met.
12574 NAVARRO-LOPEZ v. GONZALES
using his older brother’s ID to buy a beer — classifying all
such crimes as involving moral turpitude would rob the
phrase “moral turpitude” of any distinct meaning. Thus, while
Judge Tallman’s dissent and Judge Reinhardt’s concurrence
inquire into whether accessory after the fact is a crime involv-
ing fraud, the real question is whether accessory after the fact
is a crime that is inherently base, vile, or depraved and contra-
dicts accepted moral standards.7

3.

After determining the generic elements of a crime, the next
step of the categorical approach is to compare those elements
with the state statute in question. Cuevas-Gaspar, 430 F.3d at
1017. Here, we assess whether accessory after the fact under
California Penal Code section 32 is a crime involving moral
turpitude. Whether a crime involves moral turpitude “is deter-
mined by the statutory definition or by the nature of the crime
[and] not by the specific conduct that resulted in the convic-
tion.” McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)
(per curiam). We may not consider the circumstances under
which the crime was committed.

California Penal Code section 32 provides:

Every person who, after a felony has been commit-
ted, harbors, conceals or aids a principal in such fel-
7
Even if we were to hold that crimes involving fraud are always crimes
involving moral turpitude, accessory after the fact pursuant to California
Penal Code section 32 is not a crime necessarily involving fraud. It is not
enough that an offense involve some sort of sneaky or dishonest behavior
— we look for intent to defraud. See Carty, 395 F.3d at 1084 (holding that
a statute prohibiting conduct with “specific intent to evade a tax” did not
contain, as an essential element of the offense: an intent to defraud); see
also Goldeshtein v. INS, 8 F.3d 645, 647-48 (9th Cir. 1993). A review of
the statutory language of California Penal Code section 32 demonstrates
that intent to defraud is not an essential element of a conviction under the
statute.
 NAVARRO-LOPEZ v. GONZALES 12575
ony, with the intent that said principal may avoid or
escape from arrest, trial, conviction or punishment,
having knowledge that said principal has committed
such felony or has been charged with such felony or
convicted thereof, is an accessory to such felony.

[5] Under California law, the crime of accessory after the
fact has the following essential elements:

(1) someone other than the person charged as an
accessory, that is to say, a principal, must have com-
mitted a specific completed felony; (2) the accused
must have harbored, concealed or aided the principal
(3) with knowledge that the principal committed a
felony; and (4) further, the hiding, concealing or har-
boring must be with the specific intent that the prin-
cipal may escape from arrest and trial.

People v. Prado, 136 Cal. Rptr. 521, 523 (Ct. App. 1977).
Thus, a conviction under section 32 requires knowing inter-
ference with the enforcement of the law with the specific
intent to help a principal avoid arrest or trial.

The IJ applied his incorrect definition of moral turpitude8
and then held that a conviction under California Penal Code
section 32 necessarily implicates a crime of moral turpitude
in all circumstances. He explained:

It is a crime involving moral turpitude because a
conviction under this provision does show conduct
contrary to the duty owed to society in general. His
conviction was in contradiction of the enforcement
of a state law relating to a felony. Furthermore, it
involves knowledge that the individual that the
respondent is harboring or aiding has committed
such a felony, given the fact that it involves the
8
See supra n.4.
12576 NAVARRO-LOPEZ v. GONZALES
knowledge that the principal has committed the fel-
ony and the individual is [under]taking conduct,
whether that be harboring or aiding. Such assistance
to one known to have committed a felony is clearly
contrary to the accepted rules owed between mem-
bers of society.

The IJ based his holding on the fact that an accessory vio-
lates a duty owed to society to obey the law and not to impede
the investigation of crimes. However, commission of any
crime, by definition, runs contrary to some duty owed to soci-
ety. If this were the sole benchmark for a crime involving
moral turpitude, every crime would involve moral turpitude.
We certainly owe a duty to society not to destroy another’s
property, not to assault another, and not to break and enter
private property. Yet, we have held that convictions for these
acts do not categorically involve moral turpitude. E.g.,
Cuevas-Gaspar, 430 F.3d at 1020 (burglary with intent to
commit a crime within the residence); Carr v. INS, 86 F.3d
949, 950-51 (9th Cir. 1996) (assault with a deadly weapon);
Rodriguez-Herrera v. INS, 52 F.3d 238, 239-40 (9th Cir.
1995) (“knowingly and maliciously . . . caus[ing] physical
damage to property of another”).

It is apparent that the IJ’s definition of moral turpitude is
overbroad because under his definition, all crimes would be
crimes of moral turpitude. Such a reading of the statute is
untenable. If Congress had intended any conviction to make
an alien ineligible for cancellation of removal, it would have
said so. There would be no reason to designate specific cate-
gories of crimes. For example, 8 U.S.C. § 1182(a)(2)(A)(i)
states that aliens are inadmissible where they have committed
a crime involving moral turpitude or a crime relating to a con-
trolled substance. If all conduct “contrary to the duty owed to
society in general” rendered an individual inadmissible under
the prohibition on crimes involving moral turpitude, the sec-
ond category of crimes relating to controlled substances
would be mere surplusage.
 NAVARRO-LOPEZ v. GONZALES 12577
[6] The IJ omitted the second crucial element of the defini-
tion of a crime involving moral turpitude: that the crime
involve some level of depravity or baseness “so far contrary
to the moral law” that it gives rise to moral outrage. Jordan
v. DeGeorge, 341 U.S. 223, 236 n.9 (1951) (Jackson, J., dis-
senting). The crime of accessory after the fact need not
involve grave acts of baseness or depravity. Determining
whether a crime is base or depraved is a subjective decision
about societal values. The broad range of acts proscribed
under California Penal Code section 32 do not all give rise to
moral outrage. “Any kind of overt or affirmative assistance to
a known felon” can be the basis of a conviction under section
32. People v. Duty, 74 Cal. Rptr. 606, 609 (Ct. App. 1969)
(emphasis added). The act of harboring a felon can be as sim-
ple as providing food or shelter to someone who has commit-
ted a felony — even where that person is a family member.
See United States v. Hill, 279 F.3d 731, 736 (9th Cir. 2002).
Yet such conduct hardly entails baseness or depravity.

Actions that are more harmful than the conduct underlying
an accessory after the fact conviction have been deemed not
to categorically involve moral turpitude. To hold that a con-
viction for accessory after the fact is necessarily a crime of
moral turpitude leads to an absurd result where a principal
who commits a crime may not have undertaken a morally tur-
pitudinous act, but the person who gave the principal food and
shelter necessarily did. See 9 U.S. Dep’t of State Foreign
Affairs Manual 40.21(a) n.2.4(b) (“[W]here an alien has been
convicted of . . . accessory before or after the fact . . . and the
underlying crime is not deemed to involve moral turpitude,
then [8 U.S.C. § 1182](a)(2)(A)(i)(I) would not be applica-
ble.”); cf. Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th Cir.
1993) (“[C]onspiracy to commit an offense involves moral
turpitude only when the underlying substantive offense is a
crime involving moral turpitude.”)

The motivation underlying accessory crimes is often pro-
tection of a friend or of a family member during a time of
12578 NAVARRO-LOPEZ v. GONZALES
trouble, and such actions, while criminal, do not necessarily
evidence moral depravity. Many states, including one in this
circuit, have recognized the difficult choices facing the family
members of an escaping felon and have exempted family
members from accessory after the fact liability. See Nev. Rev.
Stat. § 195.030. California, however, has no such explicit
exception. Thus, in California, a wife could be convicted of
harboring her husband, or a father or mother of harboring a
son or daughter. It would be illogical to conclude that society
in general would call the action of harboring one’s son or
daughter a crime that is inherently base or depraved when
many states do not even consider such conduct criminal.

The Supreme Court recently examined the Taylor categori-
cal approach and cautioned against employing “legal imagina-
tion” when determining whether a state statute falls under the
generic definition of a crime. Gonzales v. Duenas-Alvarez,
127 S. Ct. 815, 822 (2007). Specifically, the court stated that
to find that a state statute falls outside of a generic definition,
there must be a “realistic probability, not a theoretical possi-
bility, that the State would apply its statute to conduct that
falls outside the generic definition of a crime.” Id.

[7] The Supreme Court was indicating that we should not
simply hypothesize unusual cases that would fall outside the
generic definition of a crime. See James v. United States, 127
S. Ct. 1586, 1597 (2007). Indeed, the Court has explained that
we should look to the “nature” of the offense at issue. Id.
Thus, the question before us is whether California Penal Code
section 32 describes a crime that by its nature involves moral
turpitude. It clearly does not. Accessory after the fact is not
a crime whose very nature is base, vile, or depraved; nor is it
a crime necessarily contradicting moral standards.

Judge Tallman’s dissent argues that Duenas-Alvarez
requires us to provide specific examples of California prose-
cuting people under Penal Code section 32 for acts that would
fall outside the generic definition for crimes involving moral
 NAVARRO-LOPEZ v. GONZALES 12579
turpitude. Tallman Dissent at 12598. He presents a list of
cases where defendants were prosecuted under section 32 for
acting as accessories to serious crimes. This list misses the
point. The issue is not whether in some cases violators of sec-
tion 32 have been involved in a crime of moral turpitude. The
issue is whether everyone prosecuted under that section has
necessarily committed a crime involving moral turpitude.
There is nothing inherent in the crime of accessory after the
fact that makes it a crime involving moral turpitude in all
cases.

A few examples illustrate this point. In a recent case, Cali-
fornia prosecuted Malcolm, a juvenile, for accessory after the
fact where the principal was charged with possession of an
assault weapon. In re Malcolm M., 54 Cal. Rptr. 3d 74 (Ct.
App. 2007). Although the California Court of Appeal held
that Malcolm was responsible for aiding and abetting instead
of acting as an accessory after the fact, id. at 84, his case dem-
onstrates that in California one can be charged and convicted
with accessory after the fact for crimes that do not involve
moral turpitude. No court has ever found possession of a
weapon to be a crime involving moral turpitude. Cf. Carr, 86
F.3d at 950-51 (holding that assault with a deadly weapon
was not a crime involving moral turpitude). Moreover, Mal-
colm’s efforts to conceal a weapon by placing it under his
feet, see In re Malcom M., 54 Cal. Rptr. 3d at 77, do not dem-
onstrate conduct that is by its nature base, depraved, or vile.

Additionally, people are regularly convicted under Califor-
nia Penal Code section 32 in California for harboring or con-
cealing principals who have committed assault or burglaries.
See, e.g., Shortridge v. Mun. Ct., 198 Cal. Rptr. 749 (Ct. App.
1984) (accessory to burglary of a trailer home); People v.
Luna, 295 P.2d 457 (Cal. Ct. App. 1956) (accessory to
assault); Ex Parte Goldman, 88 P. 819 (Cal. Ct. App. 1906)
(accessory to theft of personal property). Such actions do not
rise to the level of offending societal conscience. They do not
constitute grave acts of immorality any more than any viola-
12580 NAVARRO-LOPEZ v. GONZALES
tion of the law does.9 We have held that neither burglary nor
assault with a deadly weapon constitute crimes of moral turpi-
tude. Cuevas-Gaspar, 430 F.3d at 1020 (burglary with intent
to commit a crime within the residence); Carr, 86 F.3d at
950-51 (assault with a deadly weapon). Aiding and abetting
such crimes would not demonstrate conduct involving moral
turpitude. Acting as an accessory after the fact to such crimes
should not necessarily do so either.

[8] Conduct underlying an accessory after the fact convic-
tion does not necessarily involve conduct that involves base-
ness or depravity. Thus, California Penal Code section 32
refers to a potential set of crimes broader than the generic def-
inition of a “crime involving moral turpitude.” Under the Tay-
lor categorical approach, Navarro-Lopez’s conviction for
accessory after the fact does not fall under the generic defini-
tion and was not for a crime involving moral turpitude.

B. The Modified Categorical Approach

In the Ninth Circuit, we have held that where a state statute
is categorically broader than the generic definition of a crime,
we employ a modified categorical approach. Kepilino v. Gon-
zales, 454 F.3d 1057, 1062 (9th Cir. 2006). In Carty, we
explained that a modified categorical approach is proper when
a statute is divisible into several crimes, some of which may
involve moral turpitude and some of which may not. Carty,
395 F.3d at 1084.

The modified categorical approach, however, only applies
when the particular elements in the crime of conviction are
broader than the generic crime. When the crime of conviction
is missing an element of the generic crime altogether, we can
9
As noted earlier, at some level all illegal acts violate societal norms
and values — that is why the acts are illegal. However, “crimes involving
moral turpitude” is a limited category of crimes and does not extend to
cover all conduct that violates the law.
 NAVARRO-LOPEZ v. GONZALES 12581
never find that “a jury was actually required to find all the ele-
ments of” the generic crime. See Li v. Ashcroft, 389 F.3d 892,
899-901 (9th Cir. 2004) (Kozinski, J., concurring) (providing
examples).

[9] Accessory after the fact under California Penal Code
section 32 lacks an element of the generic crime — i.e., the
moral turpitude, the requisite depravity. The crime of convic-
tion can never be narrowed to conform to the generic crime
because the jury is not required — as Taylor mandates — to
find all the elements of the generic crime.10 Even if Navarro-
Lopez had admitted to depraved acts, those admissions could
not be used to modify the crime because they were not neces-
sary for a conviction. See Shepard v. United States, 544 U.S.
13, 24 (2005) (holding that government must show that “a
prior conviction ‘necessarily’ involved (and a prior plea nec-
essarily admitted) facts equating to generic burglary”). The
modified categorical approach thus cannot be used to conform
Navarro-Lopez’s accessory after the fact conviction to the
generic definition of crimes involving moral turpitude.

CONCLUSION

[10] A crime involving moral turpitude must be a crime
that (1) is vile, base or depraved and (2) violates societal
moral standards. Accessory after the fact under California
Penal Code section 32 does not fall under this definition. The
categorical and modified categorical approaches outlined in
Taylor support this conclusion. Therefore, we grant the peti-
tion and remand to the BIA for full consideration of Navarro-
Lopez’s application for cancellation of removal.

PETITION GRANTED and REMANDED.
10
This same analysis applies in cases, as the one currently before us,
where courts review plea agreements instead of jury verdicts.
12582 NAVARRO-LOPEZ v. GONZALES
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. Gen-
erally, 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 vir-
tue of their fraudulent nature. Such has been the clearly estab-
lished 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 tur-
pitude,” 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 Preger-
son, 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 unequivo-
cally in Jordan to be the universal rule: “Without exception
. . . a crime in which fraud is an ingredient involves moral tur-
pitude.” 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-
 NAVARRO-LOPEZ v. GONZALES 12583
cerned. Almost thirty years earlier, we said in Winestock v.
INS: “A crime having as an element the intent to defraud is
clearly a crime involving moral turpitude.” 576 F.2d 234, 235
(9th Cir. 1978); see also McNaughton v. INS, 612 F.2d 457,
459 (9th Cir. 1980).

There are other offenses that are so base, vile, and depraved
that they qualify as crimes of moral turpitude “even though
they have no element of fraud.” Rodriguez-Herrera v. INS, 52
F.3d 238, 240 (9th Cir. 1995). These offenses involve “rather
grave acts of baseness or depravity” such as murder, rape, and
incest. Id. Not all serious crimes meet this standard, however.
Indeed, we have determined, for example, that burglary,
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1020 (9th Cir.
2005), and assault with a deadly weapon, Carr v. INS, 86 F.3d
949, 951 (9th Cir. 1996), do not involve moral turpitude. To
be considered a crime of moral turpitude, a crime other than
fraud must be more than serious; it must offend the most fun-
damental moral values of society, or as some would say,
“shock[ ] the public conscience.” Medina v. United States,
259 F.3d 220, 227 (4th Cir. 2001) (quoting Matter of Danesh,
19 I. & N. Dec. 669, 670 (BIA 1988)).

II.

For the reasons explained earlier, we are not free to follow
Judge Pregerson’s suggestion that we treat crimes involving
fraud like all other crimes, under the base, vile, and depraved
standard. Moreover, to do so in the face of controlling law
would render our doctrine totally incoherent. We would be
compelled to label all crimes involving fraud as base, vile and
depraved, and thus to deem all instances of fraud more offen-
sive to society than the numerous serious and even violent fel-
onies that are punishable by lengthy sentences but that we
deem not turpitudinous.

Not only would Judge Pregerson’s approach render our
existing doctrine incoherent, it would also dilute the meaning
12584 NAVARRO-LOPEZ v. GONZALES
of moral turpitude. Terms like “base,” “vile,” and “depraved”
are subjective and nebulous, so we rely on comparisons with
other morally turpitudinous crimes when considering whether
a crime fits that description. Under our current test for moral
turpitude, we compare a crime’s depravity with that of crimes
we have previously determined to be base, vile, and depraved
— crimes such as murder, rape, and incest. See, e.g.,
Rodriguez-Herrera, 52 F.3d at 240. Judge Pregerson’s
approach would, in addition, require us to compare the
depravity of a crime with that of minor fraud offenses, such
as providing false information on a passport application. See
Bisaillon v. Hogan, 257 F.2d 435, 437-38 (9th Cir. 1958).
Sweeping all fraud cases within the category of the most
immoral offenses would lower the bar for what we deem to
be base, vile, and depraved, with the likely result that all felo-
nies would soon be included and the definition of morally
offensive crimes would be expanded beyond recognition.

The term “crimes involving moral turpitude” is already at
risk of losing its meaning. As Judge Pregerson points out in
his opinion, an overly-broad definition of crimes of moral tur-
pitude would leave nothing to distinguish those offenses from
all other crimes or felonies — an “untenable” result. We must
exercise care in defining the limits of special categories of
offenses or the categories will disappear. The Immigration
Code does not purport to require the deportation of all aliens
convicted of a serious crime. Instead, Congress used the term
“crime of moral turpitude” to apply to two categories of
crimes: 1) fraudulent offenses; and 2) crimes of an especially
morally offensive character. Maintaining the distinction
between fraud offenses and offenses that are base, vile, and
depraved helps preserve the integrity of the classification of
“crimes involving moral turpitude.” If we do not adhere to our
precedents limiting the scope of the term, the category will
sooner or later come to mean simply “crimes.” This not only
would dilute our language, it would also contravene Con-
gress’s intent.
 NAVARRO-LOPEZ v. GONZALES 12585
III.

The term “moral turpitude” is not an isolated example of
words that lose their meaning through expansive interpreta-
tion. The term “aggravated felony,” defined in 8 U.S.C.
§1101(a)(43), now includes crimes that are actually misde-
meanors. United States v. Gonzalez-Tamariz, 310 F.3d 1168,
1170-71 (9th Cir. 2002) (“An offense classified as a misde-
meanor under state law may . . . be considered an aggravated
felony . . . .”). One would think that the category of “aggra-
vated felony” would include only the most serious of felonies,
but it actually includes crimes that are not even felonies at all.
Likewise, the word “violence” has been expanded beyond
recognition. Various courts have held that pickpocketing,
United States v. Mobley, 40 F.3d 688, 696 (4th Cir. 1994);
tampering by unlawful operation of a vehicle, United States
v. Johnson, 417 F.3d 990, 995-99 (8th Cir. 2005); and escape,
United States v. Mathias, 482 F.3d 743, 747 (4th Cir. 2007),
are “violent” crimes.

Expanding these categories beyond recognition at the
expense of depriving common words like “felony” and “vio-
lence” of their ordinary meaning does a disservice to the law.
In order for judges to apply laws and for citizens to obey
them, words must have meanings that are consistent and pre-
dictable. Precision in language is necessary not only for effec-
tive communication, but also for a well-functioning legal
system. As guardians of the rule of law, we should be careful
not to contribute to the deterioration of the English language,
with the loss of respect for the law that inevitably results.

IV.

Judge Pregerson’s opinion persuasively dispenses with the
claim that accessory after the fact is base, vile, and depraved.1
1
Judge Tallman’s reliance on the California Supreme Court’s holding in
In re Young, 776 P.2d 1021 (Cal. 1989), that Penal Code § 32 is a crime
12586 NAVARRO-LOPEZ v. GONZALES
I will address at greater length, however, the dissenters’ argu-
ment that fraud is inherent in the crime of accessory after the
fact.

When we analyze a statute to determine whether the con-
duct it criminalizes is fraudulent, and thus whether the offense
qualifies as a crime of moral turpitude, we consider whether
the statute meets either of two conditions: that intentional
fraud is an element of the offense; or that the nature of the
crime is inherently fraudulent. See Goldeshtein v. INS, 8 F.3d
645, 647-50 (9th Cir. 1993); McNaughton, 612 F.2d at 459.
As Judge Pregerson’s opinion states, it is clear that Califor-
nia’s accessory after the fact statute does not, on its face,
require fraud for conviction. Thus, it is necessary to determine
whether fraud is “implicit in the nature of the crime.” Wine-
stock, 576 F.2d at 235.

Our cases hold that in order to be inherently fraudulent, a
crime must involve knowingly false representations made in
order to gain something of value. See Goldeshtein, 8 F.3d at
649.2 Accessory after the fact does not necessarily involve

of moral turpitude for the purposes of California Business and Professions
Code § 6106 is misplaced. The term “moral turpitude” encompasses far
more conduct in California state bar disciplinary proceedings than it does
in the federal immigration context. The California Supreme Court has
explained that “[a]ny crime or misconduct reflecting dishonesty, particu-
larly when committed in the course of his practice, is clearly relevant to
the fitness of an attorney to continue to practice law, and thus is conduct
involving moral turpitude for purposes of State Bar disciplinary proceed-
ings.” Baker v. State Bar, 781 P.2d 1344, 1350 n.3 (Cal. 1989). Indeed,
a lawyer’s conduct need not even amount to a crime to be considered mor-
ally turpitudinous under § 6106. See Martin v. State Bar, 575 P.2d 757,
758 (Cal. 1978) (“Habitual neglect of client interests, constituting wilful
or grossly negligent conduct, involves moral turpitude under Business and
Professions Code section 6106.”).
2
Judge Tallman claims in his dissent that Goldeshtein does not hold that
establishing fraud requires that a defendant have made false representa-
tions in order to obtain something. Instead, he contends that Goldeshtein
merely found such factors to be “instructive.” Id. This reading is errone-
 NAVARRO-LOPEZ v. GONZALES 12587
false representations, nor does it necessarily result in personal
gain. While a conviction under California Penal Code § 32
could result from making false representations to authorities,
see, e.g., People v. Plengsangtip, 148 Cal. App. 4th 825, 836
(Ct. App. 2007) (“It is clear that certain lies or ‘affirmative
falsehoods’ to authorities, when made with the requisite
knowledge and intent, will constitute the aid or concealment
contemplated by section 32.”), such conduct is not a prerequi-
site. Many accessory after the fact convictions result from
concealment or assistance in evading the authorities and do
not involve false representations or affirmative deceit. See
People v. Riley, 20 Cal. App. 4th 1808, 1816-17 (Ct. App.
1993) (stating that attempting to dispose of the murder
weapon constitutes accessory after the fact); People v. Gunn,
197 Cal. App. 3d 408, 415-16 (Ct. App. 1987) (holding that
driving the principal from the crime scene and assisting in
concealing the weapon could amount to accessory after the
fact); People v. Scott, 170 Cal. App. 3d 267, 269-70 (Ct. App.
1985) (holding that the driver of a getaway car can be con-
victed of accessory after the fact). Depriving the government
of evidence or information does not, however, rise to the level
of fraud. Goldeshtein, 8 F.3d at 649.

Even when an accessory after the fact conviction does
involve false representations to the authorities, the defendant
will often not gain something of value. The type of benefit at
issue in fraud cases is not the evasion of criminal penalties,
but rather something more tangible, such as money,

ous. In Goldeshtein, we distinguished the statute in question from other
statutes solely on the basis that the latter all involved falsification in order
to obtain some tangible benefit. 8 F.3d at 649 (“Unlike the alien in Flores,
however, Goldeshtein did not obtain anything from the government by
deceit, graft, trickery, or dishonest means. . . . The other cases upon which
the INS and the BIA rely are subject to the same distinction . . . .”). It is
plain from our opinion that in order to establish that fraud is inherent in
an offense, the criminalized conduct must necessarily involve false repre-
sentations or deceit for the purpose of gaining something of value.
12588 NAVARRO-LOPEZ v. GONZALES
McNaughton, 612 F.2d at 459, a passport, Bisaillon, 257 F.2d
at 437, naturalization papers, United States ex rel. Popoff v.
Reimer, 79 F.2d 513, 515 (2d Cir. 1935), or an occupational
deferment from military service, Matter of R-, 5 I. & N. Dec.
29, 38 (BIA 1952). Helping another evade criminal penalties
involves preventing a loss of liberty, not securing a gain of
something of tangible value.

Judge Tallman’s dissent cites Itani v. Ashcroft, 298 F.3d
1213 (11th Cir. 2002), and Padilla v. Gonzales, 397 F.3d
1016 (7th Cir. 2005), as support for its argument that acces-
sory after the fact is an inherently fraudulent offense. Neither
case is persuasive. In Itani, the court found that misprision of
felony was a crime of moral turpitude because “it necessarily
involves an affirmative act of concealment or participation in
a felony, behavior that runs contrary to accepted societal
duties and involves dishonest or fraudulent activity.” 298 F.3d
at 1216. All crimes “run contrary to accepted societal duties.”
Thus, the court’s statement that misprision does so serves at
most to justify the classification of that act as a crime, not as
a crime of moral turpitude. The court offers no explanation at
all for its pronouncement that misprision involves dishonest
or fraudulent activity. It simply offers that bare conclusion.
Further, the court wrongly equates dishonest behavior with
fraud. Padilla uses the same faulty reasoning in concluding
that obstruction of justice is a crime of moral turpitude
because it “specifically entails dishonesty.” 397 F.3d at 1020.
Most crimes involve dishonesty of some kind, but our prece-
dents require more for an offense to be considered fraudulent.
See, e.g., Carty, 395 F.3d at 1084; Goldeshtein, 8 F.3d at 649.
“Fraud” is a term with a specific meaning in the law — it is
not synonymous with “dishonesty.” A construction of moral
turpitude that includes all acts of dishonesty, when coupled
with the expansive construction the dissent would undoubt-
edly give to the other prong of moral turpitude, would
undoubtedly result in the inclusion of almost all criminal
offenses in a category that was intended to single out certain
types of crimes as particularly offensive to society’s values.
 NAVARRO-LOPEZ v. GONZALES 12589
If, as the logic of the dissent suggests, the term “moral turpi-
tude” applies to the offense of assisting any person who has
committed a crime — whether that underlying crime is a
crime of moral turpitude or not, whether, indeed, the underly-
ing crime is only a misdemeanor — simply because that
offense is “dishonest,” then the difference between criminal
conduct and crimes of moral turpitude has truly been elimi-
nated and all crimes have finally become equally turpitudi-
nous.

Conclusion

Judge Pregerson’s opinion combines the two prongs of our
moral turpitude doctrine by applying the same standard both
to offenses involving fraud and to offenses involving deprav-
ity, contrary to controlling Supreme Court and Ninth Circuit
law. Moreover, that method of analysis would have the effect
of rendering the term “crimes of moral turpitude” even more
difficult to apply than it already is. We would be required to
compare crimes that are entirely different in kind, and the
inevitable result would be even greater incoherence in our
decisions. Furthermore, such an approach lacks clear limits
and could lead to the expansion of the definition of crimes of
moral turpitude to the point of including nearly every criminal
offense. Our current analytical method, under which fraud is
deemed turpitudinous under a different standard than is appli-
cable to other crimes, has a limiting effect on the scope of
offenses that may be deemed base, vile, or depraved. Given
that we are not free to eliminate fraud from the set of crimes
considered to be turpitudinous, we must retain the distinction
between the two classes of offenses in order to keep the con-
cept of moral turpitude within its historic bounds.

Under our two-pronged approach, accessory after the fact
under California Penal Code § 32 is neither a crime of fraud
nor a crime of depravity. Accordingly, I agree that it is not a
crime involving moral turpitude.
12590 NAVARRO-LOPEZ v. GONZALES
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 sis-
ter 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,1 before
concluding that a conviction under California Penal Code sec-
tion 32 does not, categorically, fit within the appropriate defini-
tion.2 See Maj. op. at 12570-71. For reasons outlined in Part
1
The majority is even content to cite to a dissent in order to support its
characterization of moral turpitude. See Maj. op. at 12577 (quoting Jordan
v. De George, 341 U.S. 223, 237 n.9 (1951) (Jackson, J., dissenting)).
Indeed, in its zeal to set a high bar for a finding of moral turpitude, the
majority refers to morally turpitudinous conduct as that which is “so far
contrary to the moral law” that it gives rise to “moral outrage.” Maj. op.
at 12577. Not surprisingly, the phrase “moral outrage” (in so far as it per-
tains to moral turpitude) appears only once in all of federal law—in the
dissent to the now-vacated panel decision in this case. See Navarro-Lopez
v. Gonzales, 455 F.3d 1055, 1060 (9th Cir. 2006) (Pregerson, J., dissent-
ing).
2
Judge Pregerson’s citation to definitions from multiple circuits and dic-
tionaries illustrates a problem our court recognized over fifty years ago—
 NAVARRO-LOPEZ v. GONZALES 12591
I of Judge Reinhardt’s concurrence, see pp. 12582-83, and
which I will not belabor here, there is a fundamental problem
with the majority’s approach to defining moral turpitude—it
fails to recognize an important distinction in both Ninth Cir-
cuit and Supreme Court jurisprudence. Our case law plainly
establishes two broad and wholly distinct categories of crimes
involving moral turpitude: those “involving fraud and those
involving grave acts of baseness or depravity.” Carty v. Ash-
croft, 395 F.3d 1081, 1083 (9th Cir. 2005) (citing Rodriguez-
Herrera v. INS, 52 F.3d 238, 240 (9th Cir. 1995)); see also
Jordan v. De George, 341 U.S. 223, 229 (1951) (“[F]raud has
consistently been regarded as such a contaminating compo-
nent in any crime that American courts have, without excep-
tion, included such crimes within the scope of moral
turpitude.”). Thus, I cannot agree with the attempt to shoehorn
fraud crimes within a larger umbrella category of crimes that
are base or depraved. Recognizing the two categories as ana-
lytically distinct, I would hold that a conviction under section
32 of the California Penal Code qualifies as a crime involving
moral turpitude under the prong addressing fraudulent con-
duct.

namely, that strict definitions of “moral turpitude” are not very helpful. In
Tseung Chu v. Cornell, 247 F.2d 929, 933 (9th Cir. 1957), we observed
that we were not unmindful of the “myriad decisions sponsoring various
concepts of moral turpitude,” but that none of them offered any “well set-
tled criteria” which would help us in making this determination. By cob-
bling together its own definition of the term, the court’s opinion today
amounts to saying little more than it knows moral turpitude when it sees
it, and California Penal Code section 32 isn’t it. The opinion does nothing
to clarify the criteria one should employ in determining which fraud
crimes are “base, vile, or depraved,” see, e.g., Maj. op. at 12574, and
which are not. It concludes, contrary to the opinion of the Supreme Court
of California, that Penal Code section 32 can never be a crime of moral
turpitude. Compare In re Young, 776 P.2d 1021, 1024 (Cal. 1989), with
Maj. op. at 12581.
12592 NAVARRO-LOPEZ v. GONZALES
II

Determining whether section 32 qualifies as a crime of
moral turpitude warrants an examination of judicial decisions
addressing similar statutes. See Jordan, 341 U.S. at 227 (stat-
ing that courts must “look to the manner in which the term
‘moral turpitude’ has been applied by judicial decision”).
Indeed, the few circuits that have addressed this issue have all
determined that moral turpitude attaches to convictions under
statutes criminalizing concealment of crime.3

In Itani v. Ashcroft, the Eleventh Circuit determined that a
conviction under the federal misprision of felony statute, 18
U.S.C. § 4, qualified as a crime of moral turpitude. 298 F.3d
1213, 1216 (11th Cir. 2002). Like a conviction under section
32 of the California Penal Code, a federal conviction for mis-
prision of felony requires a showing that the accused has
knowledge of a felony and “conceals and does not as soon as
possible make known the same to [civil authorities].” 18
U.S.C. § 4. Highlighting the fact that the misprision statute
requires an affirmative act of concealment, the Itani court
concluded that a conviction under the statute is a crime of
moral turpitude because it involves “behavior that runs con-
trary to accepted societal duties and involves dishonesty or
fraudulent activity.” 298 F.3d at 1216.

Similarly, in Padilla v. Gonzales, the Seventh Circuit deter-
mined that a conviction under Illinois’s obstruction of justice
statute was a crime involving moral turpitude. 397 F.3d 1016,
1021 (7th Cir. 2005). Under Illinois law, a defendant is guilty
of obstruction if he “knowingly furnish[es] false information
3
Though the question of whether a crime involves moral turpitude for
federal immigration purposes requires an analysis of federal law, it is per-
suasive that the California Supreme Court has held that a conviction under
Penal Code section 32 necessarily involves moral turpitude. See Young,
776 P.2d at 1024 (upholding an attorney’s section 32 conviction and
declaring that “[t]his crime necessarily involves moral turpitude since it
requires that a party has a specific intent to impede justice with knowledge
that his actions permit a fugitive of the law to remain at large”).
 NAVARRO-LOPEZ v. GONZALES 12593
‘with intent to prevent the apprehension or obstruct the prose-
cution or defense of any person.’ ” Id. at 1019 (quoting 720
Ill. Comp. Stat. 5/31-4(a)). Focusing on the statute’s specific
intent requirement, our sister circuit noted that a conviction
under the statute could be characterized as malum in se—a
designation generally associated with crimes involving moral
turpitude. Id. at 1020 (“Specific intent is inconsistent with a
crime that is malum prohibitum.”).

The Seventh Circuit then addressed two elements of the
Illinois statute: knowingly making false statements and inten-
tionally concealing criminal activity. As to the former, the
court noted that “[s]ome courts have read ‘fraudulent intent,’
and thus moral turpitude, into conduct ‘the likely effect of
which would be to mislead or conceal.’ ” Id. (quoting Smalley
v. Ashcroft, 354 F.3d 332, 337-38 (5th Cir. 2003)); see also
Itani, 298 F.3d at 1215 (“Generally, a crime involving dishon-
esty or false statement is considered to be one involving moral
turpitude.” (internal quotation marks omitted)). As a result,
the appellate court concluded that “Padilla was convicted of
. . . a crime that specifically entails dishonesty and thus impli-
cates moral turpitude.” Padilla, 397 F.3d at 1020. As to the
second element, intent to conceal a crime, the court cited Itani
with approval and held that concealment “likewise involves
moral turpitude.” Id. at 1021; see also Cabral v. INS, 15 F.3d
193, 197 (1st Cir. 1994) (holding that an alien convicted of
accessory after the fact to murder committed a crime involv-
ing moral turpitude because he intentionally assisted the prin-
cipal in evading authorities).

Section 32 of the California Penal Code punishes essen-
tially the same behavior addressed by the federal misprision
of felony statute and Illinois’s obstruction of justice law. Each
statute contains a specific intent element, and each addresses
the concealment or protection of a criminal or his crime. It
makes little sense to treat the same conduct with different
punishments: in the Eleventh Circuit, an alien is removable
for actively concealing a known felon, but under the majori-
12594 NAVARRO-LOPEZ v. GONZALES
ty’s reading, in the Ninth Circuit a friend who harbors the
same criminal in California is not. Moreover, I find persua-
sive the reasoning cited with approval in Padilla, equating
fraudulent intent with conduct intended to mislead or conceal,
because, by its very nature, an act in furtherance of evasion
from prosecution entails some form of deceit. Cf. Smalley,
354 F.3d at 338. Therefore, I would follow the California
Supreme Court’s decision in Young and our sister circuits and
hold that a conviction under California’s accessory after the
fact statute necessarily involves moral turpitude, rendering
Navarro-Lopez removable from this country.

III

The reasoning employed in Young, Itani, and Padilla is
consistent with our prior definition of moral turpitude as a
crime involving fraud. Under the test set forth in Goldeshtein
v. INS, 8 F.3d 645 (9th Cir. 1993), and in conformance with
these extracircuit precedents, I would hold that a conviction
as an accessory after the fact qualifies categorically as a crime
involving moral turpitude.

In Goldeshtein, we determined that a conviction under fed-
eral law for structuring financial institutions to avoid currency
reports did not constitute a crime involving moral turpitude.
Id. at 647-48. In reaching this conclusion, we acknowledged
that fraud crimes involved moral turpitude if intent to defraud
is (1) an essential element of the crime or (2) “if such intent
is ‘implicit in the nature of the crime.’ ” Id. at 648 (quoting
Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978)); see also
McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (not-
ing that courts may look to “the statutory definition or . . . the
nature of the crime”); Matter of Flores, 17 I. & N. Dec. 225,
228 (BIA 1980) (“[W]here fraud is inherent in an offense, it
is not necessary that the statute prohibiting it include the usual
phraseology concerning fraud in order for it to involve moral
turpitude.”). Because “[t]he offense of structuring financial
transactions to avoid currency reports . . . does not involve the
 NAVARRO-LOPEZ v. GONZALES 12595
use of false statements or counterfeit documents, [ ]or [the
obtaining of] anything from the government,” we concluded
that “fraud is not inherent in the nature of this offense.”
Goldeshtein, 8 F.3d at 649.

Notably, in Goldeshtein we did not hold that providing
false statements or obtaining something from the government
for one’s own benefit was required to establish that fraud is
inherent in a particular crime; our holding may be read fairly
as identifying such conduct as sufficient but not necessary in
light of the facts of that particular case. Nevertheless, holding
that moral turpitude attaches to a conviction under Califor-
nia’s accessory after the fact statute is consistent with this rea-
soning.

Goldeshtein suggested that pecuniary gain is not necessary.
See id. at 649 & n.9. Nor need the gain be tangible. See id.
at 649 (citing Matter of R-, 5 I. & N. Dec. 29, 38 (BIA 1952)
(finding that fraud is inherent where an alien made a false
statement to obtain an occupational deferment to which he
was not entitled)). Furthermore, we stopped short of holding
that the benefit must accrue to the individual, as opposed to
a third party. See id. (citing United States ex rel. Popoff v.
Reimer, 79 F.2d 513, 515 (2d Cir. 1935) (holding that fraud
is inherent where an individual makes false statements on
behalf of an alien to aid the alien in obtaining naturalization)).

Thus, while an accessory after the fact under California law
may not personally gain something of value, he certainly pro-
cures a benefit for the principal in the form of prolonged free-
dom from detection or apprehension. This assistance after the
commission of a felony may allow evidence to disappear or
become stale, give the principal the opportunity to flee the
country, or worse, enable him to commit another crime.
Regardless of the exact benefit to the principal, however, the
help of an accessory impedes the swift administration of jus-
tice, a result which is morally reprehensible.
12596 NAVARRO-LOPEZ v. GONZALES
Section 32 punishes a host of acts intended to assist the
principal in evading capture. At base, however, the statute
punishes deception, regardless of whether it comes in the
form of false statements or some other act of concealment or
aid. The intent to assist a felon in evading detection and pros-
ecution remains the same. Indeed, California cases have made
clear that a conviction under section 32 is proper only if the
accessory engaged in “overt or affirmative assistance.” People
v. Duty, 74 Cal. Rptr. 606, 609 (Ct. App. 1969); see also Peo-
ple v. Elliott, 18 Cal. Rptr. 2d 426, 430 (Ct. App. 1993) (reit-
erating that a conviction under section 32 must be for
something “more than mere encouragement or incitement”).
Therefore, simply failing to disclose the location of a felon
does not violate the statute; section 32 requires some form of
actual assistance intended to aid the principal in avoiding
detection by authorities. In many cases, this assistance invari-
ably will manifest itself as false statements. However, as long
as the net effect is one of deception to help cover up the crime
or delay apprehension of its perpetrator,4 I see no reason to
limit narrowly the overt act to statements in order to conclude
that fraud is inherent in a conviction under California’s acces-
sory statute.

Thus, in light of the holdings of our sister circuits and the
fraud analysis we articulated in Goldeshtein, I would follow
the California Supreme Court’s authoritative interpretation of
its own laws and hold that a conviction under section 32 of
the California Penal Code qualifies as a crime involving
moral turpitude.
4
Judge Reinhardt cites a handful of California cases to support the argu-
ment that a conviction under section 32 does not necessarily involve “false
representations or affirmative deceit.” Reinhardt conc. at 12587. However,
I cannot see how disposing of a weapon, see People v. Riley, 20 Cal. App.
4th 1808, 1816-17 (Ct. App. 1993), or driving a getaway car, see People
v. Scott, 170 Cal. App. 3d 267, 271 (Ct. App. 1985), “with the intent that
the principal may escape from arrest and trial,” People v. Prado, 136 Cal.
Rptr. 521, 523 (Ct. App. 1977), is anything other than an overt act, the
effect of which is to mislead or otherwise confound the efforts of law
enforcement.
 NAVARRO-LOPEZ v. GONZALES 12597
IV

The majority opinion does little to undermine the analysis
of extracircuit precedent or Goldeshtein. Instead, the majority
proceeds on several faulty and somewhat misleading prem-
ises. As an initial matter, the majority is misguided in its
attempt to look to “the broad range of acts” punishable under
the accessory after the fact statute as support for its conclu-
sion that “providing food or shelter to one who has committed
a felony” does not fall within the definition of moral turpi-
tude. Maj. op. at 12577. I fail to see the benevolence of pro-
viding shelter to a known felon, at least in the manner
prohibited by California’s accessory law. Let us be clear here:
the statute does not punish those who merely provide food
and shelter to a felon; it punishes those who do so with the
specific intent that the felon escape arrest or trial. See Prado,
136 Cal. Rptr. at 523. The majority’s citation to our decision
in United States v. Hill, 279 F.3d 731, 736 (9th Cir. 2002); see
Maj. op. at 12577, is unavailing because in Hill we empha-
sized that culpability attached under Oregon’s accessory stat-
ute only upon a showing that the provision of food or shelter
was for the purpose of helping a known felon escape detec-
tion. Id. at 738 (“Hill provided [her husband] with food and
shelter in northern Mexico so that he would not have to go
back to the United States to retrieve their belongings himself
and she did so after she knew there was a felony warrant for
his arrest.” (emphasis added)).

Moreover, the majority’s analogy to the provision of food
and shelter (or any other example intended to evoke sympa-
thy, such as the classic example of a priest offering sanctuary)
is misplaced for another reason: this is exactly the type of cre-
ative hypothesizing in Taylor categorical cases that the
Supreme Court recently condemned. In Gonzales v. Duenas-
Alvarez, the Supreme Court reversed us and held that a con-
viction under section 10851(a) of the California Vehicle Code
for aiding and abetting a vehicle theft falls within the scope
of the generic theft definition under federal law. 127 S. Ct.
12598 NAVARRO-LOPEZ v. GONZALES
815, 818 (2007). Rejecting Duenas-Alvarez’s argument that
the wording of the California law might lead to punishment
for acts outside the relevant federal definition, the Court made
clear that

to find that a state statute creates a crime outside the
generic definition of a listed crime in a federal stat-
ute requires more than the application of a legal
imagination to a state statute’s language. It requires
a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that
falls outside the generic definition of a crime. To
show that realistic possibility, an offender, of course,
may show that the statute was so applied in his own
case. But he must at least point to his own case or
other cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner for
which he argues.5

Id. at 822; see also James v. United States, 127 S. Ct. 1586,
1597 (2007) (reiterating the Duenas-Alvarez reasoning).

The majority’s treatment of Duenas-Alvarez is unpersua-
sive, and it fails to identify any cases in which an individual
has been prosecuted under section 32 for the particularly
benign acts of providing food or shelter to a loved one “dur-
ing a time of trouble.” See Maj. op. at 12577-78. Indeed, find-
ing such a helpful example might prove quite difficult as a
brief survey of cases involving the accessory statute demon-
strates that the state has not chosen to prosecute those whose
5
I agree with the majority that the charging documents in this case do
not provide sufficient detail from which to glean the factual basis for
Navarro-Lopez’s conviction under the California accessory after the fact
statute. See Maj. op. at 12581. However, because I believe a conviction
under section 32 is categorically a crime of moral turpitude, the lack of
specific information is irrelevant since we need not employ the modified
categorical approach. See Taylor, 495 U.S. at 600; United States v.
Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002).
 NAVARRO-LOPEZ v. GONZALES 12599
actions are easily defensible on moral grounds. See, e.g., Peo-
ple v. Nguyen, 26 Cal. Rptr. 2d 323, 328 (Ct. App. 1993)
(accessory to genital penetration); People v. Wilson, 21 Cal.
Rptr. 2d 420, 421-23 (Ct. App. 1993) (accessory to attempted
voluntary manslaughter and assault with a firearm); Prado,
136 Cal. Rptr. at 522-23 (accessory to armed robbery); Duty,
74 Cal. Rptr. at 607 (accessory to arson); People v. Allsip, 74
Cal. Rptr. 550, 550 (Ct. App. 1969) (accessory to rape); Peo-
ple v. Kloss, 19 P.2d 822, 822-23 (Cal. Ct. App. 1933), over-
ruled in part on other grounds, People v. McCoy, 24 P.3d
1210 (Cal. 2001) (accessory to murder).

In addition, the fact that one state within our circuit
expressly exempts family members from accessory liability,
see Nev. Rev. Stat. § 195.030, has no bearing on whether a
conviction under California’s statute is a crime involving
moral turpitude. One state’s legislative prerogative to exempt
family members is no more important than the other eight
states’ individual decisions not to exempt them. Moreover, I
cannot say that exempting family members from accessory
liability makes much sense as a practical matter because flee-
ing felons are often most likely to seek assistance from family
before anyone else. Indeed, in at least one case, California’s
decision to make family members liable illustrates the wis-
dom of the statutory inclusion. See, e.g., Wilson, 21 Cal. Rptr.
2d at 422-23 (noting that a wife could be charged as an acces-
sory where, knowing her husband had committed a felony,
she complied with his request to locate and hide a firearm that
he had used during a car chase in which he wounded one of
the two men he was pursuing).

Finally, by focusing on the categorization of the underlying
felony, the majority completely ignores the analytically dis-
tinct and morally reprehensible nature of a conviction under
section 32 of the California Penal Code. The principal’s con-
duct should be irrelevant to the analysis because any attempt
to assist in the evasion of the due administration of justice
12600 NAVARRO-LOPEZ v. GONZALES
merits society’s reprobation.6 The Supreme Court has
reminded us that “[c]oncealment of crime has been con-
demned throughout our history.” See Roberts v. United States,
445 U.S. 552, 557 (1980); see also Branzburg v. Hayes, 408
U.S. 665, 696 (1972) (emphasizing that each citizen bears the
responsibility to “raise the ‘hue and cry’ and report felonies
to the authorities”); id. at 697 (“[Concealment of a crime]
deserves no encomium.”). The universal disdain for the con-
cealment of a crime “was an established tenet of Anglo-Saxon
law at least as early as the 13th century,” making it no sur-
prise that our first Congress enacted a statute criminalizing
such behavior. Roberts, 445 U.S. at 557-58. As the Roberts
Court acknowledged, “gross indifference to the duty to report
known criminal behavior remains a badge of irresponsible cit-
izenship.” Id. at 558. This principle is as true today as it was
in the 1200s.7

V

A conviction under section 32 of the California Penal Code
qualifies categorically as a crime involving moral turpitude
under the fraud analysis of Goldeshtein. Holding otherwise
creates an unnecessary tension between us and our sister cir-
6
The majority cites to a nonbinding Department of State Foreign Affairs
Manual to support its argument that an accessory after the fact conviction
cannot involve moral turpitude where the underlying offense was not mor-
ally turpitudinous. Maj. op. at 12577. However, the majority overlooks
another provision of the same manual, which states that “[c]rimes commit-
ted against governmental authority which fall within the definition of
moral turpitude include . . . [h]arboring a fugitive from justice (with guilty
knowledge).” 9 U.S. Dep’t of State Foreign Affairs Manual 40.21(a) n.2.3-
2(a)(6).
7
The majority’s citation to California convictions under section 32
involving firearms, assault, and burglary offenses is therefore unpersua-
sive. See Maj. op. at 12579-80. These crimes are still quite serious, and
they certainly do not reflect the majority’s concern that in California there
is a “realistic probability,” see Duenas-Alvarez, 127 S. Ct. at 822, that an
individual will be convicted under section 32 for particularly benign or
charitable acts.
 NAVARRO-LOPEZ v. GONZALES 12601
cuits that have recognized the morally turpitudinous nature of
convictions involving the concealment of crime. Because the
court reaches the opposite conclusion based on dubious
reasoning—adding only more confusion to our jurisprudence
on crimes of moral turpitude—I respectfully dissent.

BEA, Circuit Judge, dissenting, with whom Judge
O’SCANNLAIN joins:

Navarro-Lopez was convicted of a crime, being an acces-
sory after the fact in violation of California Penal Code sec-
tion 32. To determine whether this section 32 conviction is a
crime involving moral turpitude so as to render Navarro-
Lopez 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).1

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 Tay-
lor 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 fed-
eral, 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 Fernandez-
Ruiz 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
1
I concur in the research and result reached in Part II of Judge Tall-
man’s dissenting opinion.
12602 NAVARRO-LOPEZ v. GONZALES
U.S. Code to require “as an element the use, attempted use,
or threatened use of physical force against the person or prop-
erty of another.” Id. at 1126 (quoting 18 U.S.C. § 16(a)).

But here there is no federal crime to define. Much less is
there one to compare to a state crime. We are not asked, for
instance, to define the elements of misprision of a felony, 18
U.S.C. § 4, and compare it to harboring a felon, Cal. Penal
Code § 32. Rather, we are asked to determine whether a state
crime falls within the federal term “crime involving moral tur-
pitude.” That term is not itself a crime. There is no generic
federal crime of moral turpitude with elements similar to, or
different from, a state crime of moral turpitude for the simple
reason there is no state crime of moral turpitude. One has to
have a crime, such as burglary, to use the Taylor categorical
analysis. Furthermore, the term crime of moral turpitude is
not defined in a federal statute nor in Supreme Court case law,
with respect of harboring a felon.

Instead of a binding federal definition of “crime involving
moral turpitude,” what we have is a binding Supreme Court
case telling us what to look to in order to determine whether
a state crime fits the federal appellation “crime involving
moral turpitude.” Jordan, 341 U.S. 223. De George was an
alien twice found guilty of conspiring to defraud the United
States of tax on alcoholic beverages and was ordered deported
for twice having committed a “crime involving moral turpi-
tude,” each carrying a sentence of imprisonment of over one
year. Id. at 224-25. He filed a federal habeas petition, claim-
ing the crimes did not involve moral turpitude. Id. at 226. The
district court denied the petition. Id. The Court of Appeals for
the Seventh Circuit reversed, finding—much as does the
majority here with respect of harboring a criminal—that intent
to evade tax did not involve actions characteristic of moral
turpitude such as violence, baseness, vileness, or depravity,
and was therefore not a crime involving moral turpitude. Id.
at 226. The Supreme Court reversed. It stated:
 NAVARRO-LOPEZ v. GONZALES 12603
In deciding the case before the Court, we look to the
manner in which the term “moral turpitude” has
been applied by judicial decision. Without excep-
tion, federal and state courts have held that a crime
in which fraud is an ingredient involves moral turpi-
tude.

Id. at 227 (emphasis added). The Court surveyed federal and
state decisions, which had unanimously held that crimes of
fraud were crimes involving moral turpitude. Id. at 227-29.
The Court concluded: “It is therefore clear, under an unbroken
course of judicial decisions, that the crime of conspiring to
defraud the United States is a ‘crime involving moral turpi-
tude.’ ” Id. at 229.2

If we follow the method mandated in Jordan, it is clear that
harboring a felon with intent to frustrate just prosecution will
prove to be a crime involving moral turpitude. As discussed
in Part II of Judge Tallman’s dissent, all federal circuits to
consider the question have held that statutes similar to section
32, involving concealing a felon or a felony, are crimes
involving moral turpitude. Significantly, the California
Supreme Court has held violation of section 32 to be a crime
involving moral turpitude. In re Young, 776 P.2d 1021, 1024
(Cal. 1989). No case to the contrary has been cited by the par-
ties nor, indeed, by the majority. Given the seemingly unani-
mous status of federal and state “judicial decision,” we must
conclude Navarro-Lopez’s crime involves moral turpitude
under the Supreme Court’s mandate. There is no permissible
basis—no “judicial decision”—to conclude it does not
involve moral turpitude. Jordan, 341 U.S. at 227-29.

We need not—and should not, under Jordan—resort to the
secondary, indirect reasoning used by the majority: an attempt
2
It was against the backdrop of Jordan that Congress enacted sec-
tion 1182 the following year. See Immigration and Nationality Act, Pub.
L. No. 414, § 212, 66 Stat. 163, 182 (1952).
12604 NAVARRO-LOPEZ v. GONZALES
to find conduct, other than harboring a felon, which courts
have found “vile,” “base,” or “depraved,” and have labeled
crimes involving moral turpitude, and then muse whether har-
boring a felon is similarly “vile,” “base,” or “depraved.” Such
a task ineluctably calls on our court to state its subjective
evaluation. That is precisely what the majority does here. It
tests the various sorts of “harborings of felons” against its
own, unarticulated standards of what is “moral” and what is
“turpitudinous.” Of course, if the question asked were
whether the crime involved baseness or depravity, perhaps
evolving standards of decency might trump mere prior judi-
cial decisions. But judges and “Justices are not platonic
guardians appointed to wield authority according to their per-
sonal moral predilections.”3 Jordan tells judges to determine
whether a crime involves moral turpitude not from the philos-
opher’s seat, but from a less elevated location: by sitting in
the law library and reading the cases.

I respectfully dissent.

3
William J. Brennan, Jr., The Constitution of the United States: Contem-
porary Ratification, in Interpreting the Constitution 25 (Jack N. Rakove
ed., 1990) (reprint of Address to the Text and Teaching Symposium,
Georgetown University (Oct. 12, 1985)).