FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISA DE JESUS MENENDEZ, No. 14-72730
Petitioner,
Agency No.
v. A075-594-042
MATTHEW WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 8, 2018
Pasadena, California
2 MENENDEZ V. WHITAKER
HECTOR MARTIN RODRIGUEZ- No. 16-70365
CASTELLON,
Petitioner, Agency No.
A035-215-035
v.
MATTHEW WHITAKER, Acting OPINION
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2018*
Pasadena, California
Filed November 8, 2018
Before: William A. Fletcher, Consuelo M. Callahan,
and John B. Owens, Circuit Judges.
Opinion by Judge W. Fletcher;
Concurrence by Judge Callahan
*
The panel unanimously concludes that Rodriguez-Castellon v.
Whitaker is suitable for decision without oral argument. See Fed. R. App.
P. 34(a)(2).
MENENDEZ V. WHITAKER 3
SUMMARY**
Immigration
The panel granted separate petitions for review filed by
Elisa de Jesus Menendez and Hector Rodriguez-Castellon
from decisions of the Board of Immigration Appeals, and
held that California Penal Code § 288(c)(1), which prohibits
lewd or lascivious acts when a victim is a child of 14 or
15 years and the defendant is at least 10 years older than the
child, is neither a crime involving moral turpitude nor
categorically a “crime of child abuse.”
Menendez, a lawful permanent resident, was placed in
removal proceedings after her conviction under § 288(c)(1).
Menendez conceded removability under 8 U.S.C.
§ 1227(a)(2)(E)(i), as a noncitizen convicted of a crime of
child abuse, and applied for cancellation of removal.
However, the Immigration Judge and BIA found Menendez
ineligible for cancellation of removal on the ground that her
conviction under § 288(c)(1) was categorically a crime of
moral turpitude that triggered the stop-time rule, cutting off
her accrual of the period of continuous residence she required
for cancellation.
Rodriguez-Castellon, also a lawful permanent resident,
was initially found removable on the ground that his
conviction under § 288(c)(1) was a crime of violence under
18 U.S.C. § 16(b) and therefore an aggravated felony. After
this court held in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 MENENDEZ V. WHITAKER
2015), that 18 U.S.C. § 16(b) is unconstitutionally vague,
Rodriguez-Castellon filed a motion to reconsider with the
BIA. The BIA acknowledged that the motion was untimely,
but noted that a fundamental change in law may warrant sua
sponte reopening. However, the BIA declined to exercise its
sua sponte authority after holding that Rodriguez was
removable under U.S.C. § 1227(a)(2)(E)(i), as a noncitizen
convicted of a crime of child abuse, even if he was no longer
removable as an aggravated felon.
In deciding Menendez’s petition, the panel held that Cal.
Penal Code § 288(c)(1) is not categorically a crime involving
moral turpitude, explaining that, because the offense requires
only sexual intent, and because a good-faith reasonable
mistake of age is not a defense, a defendant is not required to
have evil or malicious intent. Thus, the panel concluded that
the statute lacks the corrupt scienter requirement that is the
touchstone of moral turpitude. The panel also concluded that
§ 288(c)(1) does not require intent to injure or actual injury,
noting that any touching can violate the statute.
Acknowledging that § 288(c)(1) does involve a protected
class of persons, the panel observed that not all criminal
statutes intended to protect minors establish crimes involving
moral turpitude and that the elements of § 288(c)(1) create a
realistic probability of a conviction based on conduct that
does not involve moral turpitude.
The panel further held that § 288(c)(1) contains a single,
indivisible set of elements such that the modified categorical
approach does not apply. Accordingly, the panel concluded
that the BIA erred in concluding that Menendez’s conviction
triggered the stop-time rule and rendered her ineligible for
cancellation. The panel also noted that, on remand, the BIA
should consider whether binding Menendez to her concession
MENENDEZ V. WHITAKER 5
of removability under 8 U.S.C. § 1227(a)(2)(E)(1), as a
noncitizen convicted of a crime of child abuse, would
produce an unjust result in light of the panel’s holding in the
next section of the opinion that a conviction under § 288(c)(1)
is not a crime of child abuse.
In deciding Rodriguez-Castellon’s petition, the panel held
that § 288(c)(1) is not categorically a crime of child abuse
under 8 U.S.C. § 1227(a)(2)(E)(1), concluding that
§ 288(c)(1) is broader than the generic definition of a crime
of child abuse in two ways. First, the generic definition
requires that a defendant act with a mens rea of at least
criminal negligence, but § 288(c)(1) has no such requirement;
§ 288(c)(1) requires a defendant to have acted willfully, but
this requirement applies only to the commission of the act
and does not require any intent to violate law, injure another,
or acquire any advantage. In this respect, the panel also noted
the fact that a reasonable and good-faith mistake of age is not
a defense to § 288(c)(1). Second, unlike the generic
definition, § 288(c)(1) does not require proof of actual injury,
or a sufficiently high risk of harm as an element of the
offense; instead, § 288(c)(1) applies irrespective of whether
the touching is outwardly innocuous, or whether the minor is
aware of the nature of the contact at all. Accordingly, the
panel concluded that the BIA did not rely on an appropriate
ground when it refused to reopen sua sponte on the ground
that Rodriguez-Castellon’s § 288(c)(1) conviction was a
crime of child abuse that made him removable.
Concurring, Judge Callahan, joined by Judge Owens,
expressed the concern that, here, immigration consequences
and, in other settings, sentences turn on a determination in the
abstract of the breadth of the underlying state statute rather
than the person’s actual offense. Judge Callahan wrote that
6 MENENDEZ V. WHITAKER
the present system forces courts to parse state statutes for
determinations that no state legislator ever considered, and
leads to uneven results, as the immigration consequences to
individuals who committed basically the same offenses turn
on the fortuity of the breadth of the state statute, which in
most instances has nothing to do with the individual’s actual
criminal conviction. Noting that if Congress will not, or
cannot act, Judge Callahan expressed the hope that the
Supreme Court will devise a more straight-forward approach
to this area of law.
COUNSEL
Sarah V. Perez (argued), Law Offices of Sarah V. Day, Los
Angeles, California, for Petitioner.
Colin J. Tucker (argued) and Jane T. Schaffner, Trial
Attorneys; Papu Sandhu, Senior Litigation Counsel; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
W. FLETCHER, Circuit Judge:
We deal with two separate petitions for review.
Petitioners Elisa de Jesus Menendez and Hector Rodriguez-
Castellon are both subject to removal for their respective
convictions under Cal. Penal Code § 288(c)(1). In
Menendez’s case, No. 14-72730, the BIA determined that
§ 288(c)(1) is categorically a crime involving moral turpitude
under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Because the
MENENDEZ V. WHITAKER 7
commission of such a crime stops the accrual of continuous
residence, the BIA held that Menendez failed to accrue the
seven years of residence required for cancellation of removal.
In Rodriguez’s case, No. 16-70365, the BIA determined that
Cal. Penal Code § 288(c)(1) is categorically a crime of child
abuse under 8 U.S.C. § 1227(a)(2)(E)(i). On that basis, the
BIA denied sua sponte reopening of the case.
We hold that § 288(c)(1) is neither categorically a crime
involving moral turpitude nor categorically a “crime of child
abuse.” We grant Menendez’s and Rodriguez’s petitions for
review. We remand both cases to the BIA for further
proceedings consistent with this opinion.
I. Background
A. Menendez
Elisa de Jesus Menendez is a native and citizen of El
Salvador. She entered the United States without inspection
at an unspecified time and place. After entering, she
remained in the United States, married, and had three
children. On August 17, 2004, Menendez successfully
adjusted her status to lawful permanent resident pursuant to
the Nicaraguan Adjustment and Central American Relief Act
of 1997.
On February 23, 2010, Menendez was convicted of
committing a “lewd or lascivious act” in violation of
§ 288(c)(1) of the California Penal Code. Section 288(c)(1)
prohibits the commission of such an act when “the victim is
a child of 14 or 15 years, and [the defendant] is at least
10 years older than the child.” A conviction under
§ 288(c)(1) is punishable by imprisonment in state prison for
8 MENENDEZ V. WHITAKER
one to three years, or “imprisonment in a county jail for not
more than one year.” Cal. Penal Code § 288(c)(1).
Menendez entered a nolo contendere plea and was sentenced
to 180 days in county jail and five years of probation.
In October 2013, the Department of Homeland Security
initiated removal proceedings by filing a Notice to Appear
(“NTA”). The NTA charged Menendez with removability
under 8 U.S.C. § 1227(a)(2)(E)(i), which makes removable
any noncitizen convicted of, among other crimes, a “crime of
child abuse.” Menendez admitted the charge through
counsel, but argued that she was eligible for cancellation of
removal under 8 U.S.C. § 1229b(a).
The Immigration Judge (“IJ”) found Menendez ineligible
for cancellation of removal. For lawful permanent residents,
eligibility for cancellation of removal requires a person to
have established seven years of continuous residence in the
United States “after [admission] in any status.” 8 U.S.C.
§ 1229b(a)(2). Under the stop-time rule, the commission of
a disqualifying offense, including any crime involving moral
turpitude, cuts off the accrual of continuous residence. Id.
§ 1229b(d)(1) (incorporating 8 U.S.C. § 1182(a)(2)). The IJ
held that Menendez’s conviction under Cal. Penal Code
§ 288(c)(1) was categorically for a crime involving moral
turpitude, and that the stop-time rule therefore applied.
Menendez was admitted into the United States on August 17,
2004. The felony complaint charged her with violating
§ 288(c)(1) “on or about” October 14, 2009, resulting in not
quite five years and two months of continuous residence.
The IJ denied cancellation of removal and voluntary
departure, and ordered Menendez removed to El Salvador.
MENENDEZ V. WHITAKER 9
The BIA affirmed the Immigration Judge on all grounds and
dismissed Menendez’s appeal.
B. Rodriguez-Castellon
Hector Rodriguez-Castellon is a native and citizen of
Mexico. He was admitted to the United States as a lawful
permanent resident on June 16, 1975.
On June 2, 2009, the Department of Homeland Security
initiated removal proceedings by serving Rodriguez with an
NTA. The NTA charged that on June 7, 2005, Rodriguez
entered a nolo contendere plea for a violation of Cal. Penal.
Code. § 288(c)(1). An amended NTA brought three charges
of removal against Rodriguez: (1) removal due to his alleged
status as an aggravated felon, under a statutory subsection
defining “aggravated felony” as including “sexual abuse of a
minor,” 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii);
(2) removal under a different aggravated felony subsection
that applies to noncitizens convicted of a “crime of
violence,” id. § 1101(a)(43)(F); and (3) removal under
§ 1227(a)(2)(E)(i), which applies to noncitizens convicted of
a “crime of child abuse.” The IJ sustained all three charges
and ordered Rodriguez removed to Mexico.
On appeal, the BIA rejected the IJ’s determination that
Cal. Penal Code § 288(c)(1) constitutes sexual abuse of a
minor, citing this court’s decision in United States v. Castro,
607 F.3d 566 (9th Cir. 2010). The BIA, however, upheld the
IJ’s ruling on an alternative ground, holding that § 288(c)(1)
categorically constitutes a crime of violence. It noted that the
statutory definition for “crime of violence,” 8 U.S.C.
§ 1101(a)(43)(F), cross-references 18 U.S.C. § 16(b), which
in turn, defines the term as including felony offenses that “by
10 MENENDEZ V. WHITAKER
[their] nature, involve[ ] a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.” The BIA reasoned that
the age differential required by § 288(c)(1) creates a risk that
physical force would be used and that Rodriguez was
therefore removable as an aggravated felon. The BIA did not
reach the question whether Rodriguez was also removable
under 8 U.S.C. § 1227(a)(2)(E)(i) (noncitizen convicted of
child abuse).
In October 2013, we denied Rodriguez’s petition for
review in a published opinion, holding that a conviction under
§ 288(c)(1) is categorically a crime of violence because it
“raises a substantial risk of the use of force in the ordinary
case.” Rodriguez-Castellon v. Holder, 733 F.3d 847, 860 (9th
Cir. 2013). Two years later, in Dimaya v. Lynch, 803 F.3d
1110, 1120 (9th Cir. 2015), we held that 18 U.S.C. § 16(b) is
unconstitutionally vague. The Supreme Court affirmed that
decision in Sessions v. Dimaya, 138 S. Ct. 1204, 1216 (2018).
In November 2015, in light of our decision in Dimaya,
Rodriguez filed a motion to reconsider his removal
proceedings. He argued that the BIA’s order of removal was
premised on its conclusion that § 288(c)(1) was categorically
a crime of violence under § 16(b), and that because Dimaya
had held § 16(b) void for vagueness the conclusion could not
stand.
The BIA denied Rodriguez’s motion. It acknowledged
that Rodriguez’s motion was untimely, but noted that “a
fundamental change in law may warrant sua sponte reopening
notwithstanding otherwise applicable time and number
limitations on motions.” The BIA declined to exercise its sua
sponte authority to reopen after holding that Rodriguez was
removable under § 1227(a)(2)(E)(i) as a noncitizen convicted
MENENDEZ V. WHITAKER 11
of a crime of child abuse, even if he was no longer removable
as an aggravated felon.
II. Jurisdiction and Standard of Review
We generally lack jurisdiction to review the BIA’s
decision not to invoke its sua sponte authority to reopen
proceedings. Ekimian v. INS, 303 F.3d 1153, 1159–60 (9th
Cir. 2002). However, we have jurisdiction to review the
reasoning behind the BIA’s sua sponte denial of reopening
“for the limited purpose of reviewing the reasoning behind
the decisions for legal or constitutional error.” Bonilla v.
Lynch, 840 F.3d 575, 588 (9th Cir. 2016). If the BIA “relied
on an incorrect legal premise,” we “remand to the BIA so it
may exercise its authority against the correct legal
background.” Id. (internal quotation marks omitted).
We review de novo whether a state conviction is a
removable offense, “except to the extent that deference is
owed to the BIA’s interpretation of the statutes and
regulations it is charged with administering.” Fregozo v.
Holder, 576 F.3d 1030, 1034 (9th Cir. 2009). “As the BIA
has no statutory expertise in . . . state law matters, we review
de novo its determination of the elements of the offense for
which the petitioner was convicted.” Id. at 1034.
III. Discussion
To determine whether a state statute describes a
removable offense, we apply the categorical approach set
forth in Taylor v. United States, 495 U.S. 575 (1990).
Marmolejo-Campos v. Holder, 558 F.3d 903, 912 (9th Cir.
2009) (en banc). The first step is to identify the elements of
the state statute of conviction—here, Cal. Penal Code
12 MENENDEZ V. WHITAKER
§ 288(c)(1). Castrijon-Garcia v. Holder, 704 F.3d 1205,
1208 (9th Cir. 2013). The second step is to compare those
elements to the elements of the generic federal crime. Id.
We address these steps in turn.
A. Section 288(c)(1)
Menendez and Rodriguez-Castellon were both convicted
of lewd or lascivious conduct in violation of Cal. Penal Code
§ 288(c)(1). Section 288(a), referenced in (c)(1), provides:
[A]ny person who willfully and lewdly
commits any lewd or lascivious act, . . . upon
or with the body, or any part or member
thereof, of a child . . . with the intent of
arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or
the child, is guilty of a felony.
Section 288(c)(1) provides:
Any person who commits an act described in
subdivision (a) with the intent described in
that subdivision, and the victim is a child of
14 or 15 years, and that person is at least
10 years older than the child, is guilty of a
public offense and shall be punished by
imprisonment in the state prison for one, two,
or three years, or by imprisonment in a county
jail for not more than one year.
Reading these two provisions together, a crime under
§ 288(c)(1) contains five elements: “(1) willfully and lewdly;
(2) committing any lewd or lascivious act; (3) on a child ages
MENENDEZ V. WHITAKER 13
14 or 15; (4) with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of the
defendant or the child; and (5) the defendant must be at least
ten years older than the child.” United States v. Castro,
607 F.3d at 568.
California courts have expansively construed the actus
reus requirement of § 288(c)(1). The “lewd or lascivious”
element of the crime focuses on the defendant’s sexual intent,
rather than the act performed. If the defendant has the
required intent, then “[a]ny touching . . . violates [§ 288],
even if the touching is outwardly innocuous and inoffensive.”
People v. Lopez, 965 P.2d 713, 717 (Cal. 1998) (emphasis in
original). “Physical affection among relatives, generally
considered acceptable conduct, nonetheless could satisfy the
‘any touching’ aspect of section 288[.]” Id. at 718; see also
People v. Mullens, 14 Cal. Rptr. 3d 534, 543–44 (Ct. App.
2004) (finding sufficient evidence for § 288 offense premised
on touching of minor’s thigh and “close hugging”); People v.
Olsen, 685 P.2d 52, 56 (Cal. 1984) (en banc) (noting that
consensual touching may violate § 288).
Even “constructive” touching can violate § 288(c)(1).
People v. Villagran, 210 Cal. Rptr. 3d 426, 436 (Ct. App.
2016); People v. Lopez, 111 Cal. Rptr. 3d 232, 238 (Ct. App.
2010) (“[A] defendant need not touch the victim in order to
violate section 288.”). If the minor touches himself, that act
is “imputable to [the defendant] as if the touching had been
actually done by his own hands.” Villagran, 210 Cal. Rptr.
3d at 437 (quoting People v. Meacham, 199 Cal. Rptr. 586,
594 (Ct. App. 1984), abrogated on other grounds by People
v. Brown, 883 P.2d 949, 959 (Cal. 1994)). A person may
violate § 288(c)(1) by making sexual requests over the
telephone, or through text messages. See id.
14 MENENDEZ V. WHITAKER
The mens rea requirement of § 288(c)(1) has also been
expansively construed. Section 288(c)(1) requires that the
defendant act “with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires” of himself or
of the minor. Cal. Penal Code § 288(a). But the statute does
not require that the defendant know that the minor is
underage. Under California law, a good faith and reasonable
mistake of age is a defense to statutory rape, People v.
Hernandez, 393 P.2d 673, 676–78 (Cal. 1964), but it is not a
defense to a charge under § 288(c)(1). Olsen, 685 P.2d at
58–59 (declining to extend Hernandez to § 288(a)); People v.
Paz, 95 Cal. Rptr. 2d 166, 169 (Ct. App. 2000) (declining to
extend Hernandez to § 288(c)(1)).
In applying the categorical approach, we “must presume
that the conviction ‘rested upon nothing more than the least
of the acts’ criminalized, and then determine whether even
those acts are encompassed by the generic federal offense.”
Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (quoting
Johnson v. United States, 559 U.S. 133, 137 (2010)
(alterations omitted)). A statute is overbroad if “there is a
‘realistic probability’ of its application to conduct that falls
beyond the scope of the generic federal offense.” Castrijon-
Garcia, 704 F.3d at 1212 (quoting Nunez v. Holder, 594 F.3d
1124, 1129 (9th Cir. 2010)).
B. Generic Federal Crimes
1. Moral Turpitude
In Menendez’s case, we begin with the generic federal
definition of a “crime involving moral turpitude.” As we
have recognized, “[t]he meaning of the term falls well short
of clarity.” Marmolejo-Campos, 558 F.3d at 909. We have
MENENDEZ V. WHITAKER 15
traditionally identified two different types of crimes involving
moral turpitude: “those involving fraud and those involving
grave acts of baseness or depravity.” Carty v. Ashcroft,
395 F.3d 1081, 1083 (9th Cir. 2005). Although we have not
articulated “a consistent or easily applied set of criteria” to
determine when a state offense involves moral turpitude, past
precedents provide a few guideposts. Nicanor-Romero v.
Mukasey, 523 F.3d 992, 998 (9th Cir. 2008), partially
overruled on other grounds by Marmolejo-Campos, 558 F.3d
at 911. We have observed that “the essence of moral
turpitude is an evil or malicious intent.” Gonzalez-Cervantes
v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013) (internal
quotation marks omitted). In addition, crimes of moral
turpitude “almost always involve an intent to injure someone,
an actual injury, or a protected class of victims.” Turijan v.
Holder, 744 F.3d 617, 621 (9th Cir. 2014).
Because § 288(c)(1) requires only sexual intent, and
because a good-faith reasonable mistake of age is not a
defense, a defendant is not required to have “evil or malicious
intent.” See, e.g., People v. Serna, No. C070258, 2013 WL
1316518, at *1, 9 (Cal. Ct. App. Apr. 2, 2013) (unpublished)
(upholding conviction under § 288(c)(1) where minor
represented her age as nineteen and presented defendant with
a fake identification card that stated that she was nineteen
years old). Section 288(c)(1) thus lacks the corrupt scienter
requirement that is “the touchstone of moral turpitude.”
Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165–66 (9th
Cir. 2006) (quoting Michel v. INS, 206 F.3d 253, 263 (2d Cir.
2000)); Quintero-Salazar v. Keisler, 506 F.3d 688, 694 (9th
Cir. 2007) (holding that statute criminalizing unlawful sexual
intercourse with minor under 16 did not categorically involve
moral turpitude; statute lacked scienter requirement and
therefore “lack[ed] the requisite element of willfulness or evil
16 MENENDEZ V. WHITAKER
intent”). Nor does § 288(c)(1) require “intent to injure” or
“actual injury.” Any touching, even if consensual,
“outwardly innocuous and inoffensive,” and “innocently and
warmly received,” can violate § 288(c)(1). Lopez, 965 P.2d
at 717–18.
Section 288(c)(1) does involve a protected class of
persons—minors aged 14 or 15. But not all criminal statutes
intended to protect minors establish crimes involving moral
turpitude. In Nicanor-Romero v. Mukasey, we held that Cal.
Penal Code § 647.6(a) is not categorically a crime involving
moral turpitude. Section 647.6(a) is similar to § 288(c)(1).
The conduct element of § 647.6(a) can be satisfied by
“relatively minor conduct,” including a “brief touching of a
child’s shoulder.” Nicanor-Romero, 523 F.3d at 1000.
Section 647.6(a) requires “unnatural or abnormal sexual
interest or intent,” but this can be established “merely by
showing that the subject of an otherwise natural sexual
interest was under eighteen.” Id. at 1000–01 (quoting In re
Gladys R., 464 P.2d 127, 137 (Cal. 1970)). Finally,
§ 647.6(a) permits a limited mistake of age defense, but a
defendant “with a good faith but ‘unreasonable’ mistaken
belief that the victim is eighteen or older still satisfies the
mens rea requirement of § 647.6(a).” Id. at 1001. We
concluded in Nicanor-Romero that these elements created a
“realistic probability” of a conviction based on conduct that
did not involve moral turpitude. Id. at 1007. So too here.
Nor is § 288(c)(1) similar to other crimes involving moral
turpitude. Previous sex-related crimes deemed categorically
to involve moral turpitude include incest, Gonzales-Alvarado
v. INS, 39 F.3d 245, 246 (9th Cir. 1994); knowing possession
of child pornography, United States v. Santacruz, 563 F.3d
894, 897 (9th Cir. 2009) (per curiam); and communication
MENENDEZ V. WHITAKER 17
with a minor for immoral purposes, Morales v. Gonzales,
478 F.3d 972, 978 (9th Cir. 2007), abrogated on other
grounds by Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir.
2010). The last crime is the most similar to a crime under
§ 288(c)(1), but the Washington statute considered in
Morales is narrower, reaching a significantly smaller range of
conduct than § 288(c)(1). The Washington statute
criminalizes only communications with minors “for the
predatory purpose of promoting their exposure to and
involvement in sexual misconduct.” State v. McNallie,
846 P.2d 1358, 1364 (Wash. 1993) (en banc); State v.
Schimmelpfennig, 594 P.2d 442, 446 (Wash. 1979) (en banc).
Washington also provides a statutory defense for defendants
who can prove, by a preponderance of the evidence, that he
or she made a “reasonable bona fide attempt to ascertain the
true age of the minor.” Rev. Code Wash. § 9.68A.110(3).
We hold that § 288(c)(1) is not categorically a crime
involving moral turpitude. Because the statute contains a
single, indivisible set of elements, the modified categorical
approach does not apply. Descamps v. United States,
570 U.S. 254, 258 (2013). The BIA therefore erred in
concluding that Menendez’s § 288(c)(1) conviction triggered
the stop-time rule and rendered her ineligible for cancellation
of removal.
We note that Menendez, when she was before the IJ,
conceded removability under § 1227(a)(2)(E)(i) as a
noncitizen convicted of a crime of child abuse. We hold in
the next section of this opinion that a conviction under
§ 288(c)(1) is not a crime of child abuse. Menendez’s
concession of removability was thus in error, but the validity
of her concession is not presently before us. We have held
that concessions in removal proceedings are binding except
18 MENENDEZ V. WHITAKER
in “egregious circumstances,” such as when binding the
respondent would produce an “unjust result.” Santiago-
Rodriguez v. Holder, 657 F.3d 820, 831–32 (9th Cir. 2011)
(internal quotation marks omitted). On remand, the BIA
should consider whether binding Menendez to her concession
would produce an “unjust result.”
2. Child Abuse
In Rodriguez’s case, as in Menendez’s, we begin with the
generic federal definition. We defer to the BIA’s definition
of “crime of child abuse,” as set out in Matter of Velazquez-
Herrera, 24 I. & N. Dec. 503 (BIA 2008) and Matter of
Soram, 25 I. & N. Dec. 378 (BIA 2010). Martinez-Cedillo v.
Sessions, No. 14-71742, 2018 WL 3520402, at *11 (9th Cir.
July 23, 2018). The BIA defines “crime of child abuse, child
neglect, or child abandonment” as a “unitary concept” that
encompasses “any offense involving an intentional, knowing,
reckless, or criminally negligent act or omission that
constitutes maltreatment of a child or that impairs a child’s
physical or mental well-being, including sexual abuse or
exploitation.” Velazquez-Herrera, 24 I. & N. Dec. at 512;
Soram, 25 I. & N. Dec. at 381. The “maltreatment” element
requires either proof of actual injury or proof of a
“sufficiently high risk of harm to a child.” Martinez, 2018
WL 3520402, at *7; Soram, 25 I. & N. Dec. at 381–86.
Soram left for future case-by-case analysis the precise
formulation of what constitutes a sufficiently high risk of
harm. Martinez, 2018 WL 3520402, at *6; Soram, 25 I. & N.
Dec. at 383. Read together, Velazquez-Herrera and Soram
require (1) a mens rea that rises at least to the level of
criminal negligence; and (2) “maltreatment” that results in
either actual injury to a child, or a “sufficiently high risk of
harm” to a child.
MENENDEZ V. WHITAKER 19
Section 288(c)(1) is broader than the generic definition of
a “crime of child abuse” in two ways. First, the generic
definition requires that a defendant act with a mens rea of at
least criminal negligence. Velazquez-Herrera, 24 I. & N.
Dec. at 512. Section 288(c)(1) has no such requirement. It
requires a defendant to have acted “willfully,” but this
requirement applies only to the defendant’s commission of
the act. Section 288(c)(1) requires only that a defendant did
not act accidentally; it does not “require any intent to violate
law, or to injure another, or to acquire any advantage.” Cal.
Penal Code § 7(1). Further, as discussed above, a reasonable
and good-faith mistake of age is not a defense to § 288(c)(1).
See Paz, 95 Cal. Rptr. 2d at 169.
Second, § 288(c)(1) does not require proof of actual
injury, or a “sufficiently high risk of harm,” as an element of
the offense. Section 288(c)(1) applies irrespective of whether
the touching is outwardly innocuous, or whether the minor is
aware of the nature of the contact at all. Lopez, 965 P.2d at
717–18. For essentially this reason, we held in Castro that a
conviction under § 288(c)(1) is not categorically a conviction
for “sexual abuse of a minor” under 8 U.S.C.
§ 1101(a)(43)(A). See Castro, 607 F.3d at 569 (noting that
§ 288(c)(1) “criminalizes conduct that does not necessarily
constitute abuse,” and “does not address conduct that is per
se abusive”). While § 288(c)(1) may reflect a legislative
judgment that such conduct often presents a risk of harm to
the minor, under the categorical approach, our inquiry is
limited to “the constituent parts of a crime’s legal
definition—the things the prosecution must prove to sustain
a conviction.” Mathis v. United States, 136 S. Ct. 2243, 2248
(2016) (internal quotation marks omitted).
20 MENENDEZ V. WHITAKER
We hold that Cal. Penal Code § 288(c)(1) is not
categorically a “crime of child abuse” under 8 U.S.C.
§ 1227(a)(2)(E)(i). The BIA therefore did not rely on an
appropriate ground in refusing to reopen Rodriguez’s case.
Conclusion
We GRANT Menendez’s and Rodriguez-Castellon’s
petitions for review, and REMAND both cases to the BIA for
further proceedings consistent with this opinion.
CALLAHAN, Circuit Judge, joined by Owens, Circuit Judge,
concurring:
Because the opinion applies the categorical and modified
categorical approach as set forth in controlling case law, we
concur. However, we remain troubled that, here, immigration
consequences and, in other settings, sentences should turn on
a determination in the abstract of the breadth of the
underlying state statute rather than the person’s actual
offense. The present system forces courts to parse state
statutes for determinations that no state legislator ever
considered, and leads to uneven results, as the immigration
consequences to individuals who committed basically the
same offenses turn on the fortuity of the breadth of the state
statute, which in most instances has nothing to do with the
individual’s actual criminal conviction. If Congress will not,
or cannot act (see Almanza-Arenas v. Lynch, 815 F.3d 469,
483 (9th Cir. 2016) (en banc) (Judge Owens concurring,
joined by Judges Tallman, Bybee, and Callahan)), we can
only hope that the Supreme Court will devise a more straight-
forward approach to this area of the law.