Robles-Urrea v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARCO ANTONIO ROBLES-URREA, 
Petitioner,
No. 06-71935
v.
 Agency No.
ERIC H. HOLDER Jr., Attorney A037-805-968
General,
Respondent.


MARCO ANTONIO ROBLES-URREA, 
Petitioner, No. 06-74826
v.
 Agency No.
A037-805-968
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 12, 2009—San Francisco, California
Submission Vacated March 9, 2010
Resubmitted August 16, 2011

Filed April 23, 2012

4299
4300 ROBLES-URREA v. HOLDER
Before: Mary M. Schroeder and Stephen Reinhardt,
Circuit Judges, and Louis H. Pollak,* Senior District Judge.

Opinion by Judge Reinhardt

*The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
4302 ROBLES-URREA v. HOLDER

COUNSEL

Holly S. Cooper (argued), Cooper & White, Davis, California,
for the petitioner.

Gregory G. Katsas, Assistant Attorney General; Bryan S.
Beier, Senior Litigation Counsel, Office of Immigration Liti-
gation; Anh-Thu P. Mai-Windle (argued), Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent.

OPINION

REINHARDT, Circuit Judge:

Marco Antonio Robles-Urrea, a lawful permanent resident
of the United States, petitions for review of a precedential
decision of the Board of Immigration Appeals (“BIA”), hold-
ing that his conviction for misprision of a felony is categori-
cally a crime involving moral turpitude under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). We have jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D) to review constitutional and legal questions
raised by aliens found removable on the basis of criminal
activity. Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1056-
57 (9th Cir. 2006). We grant the petition for review in No. 06-
74826 and deny as moot the petition for review in No. 06-
71935.

A crime involving moral turpitude is either one that
involves fraud or one that involves grave acts of baseness or
depravity, such that its commission “offend[s] the most fun-
damental values of society.” Navarro-Lopez v. Gonzales, 503
 ROBLES-URREA v. HOLDER 4303
F.3d 1063, 1074-75 (9th Cir. 2007) (en banc) (Reinhardt, J.,
concurring for the majority), overruled on other grounds by
United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th
Cir. 2011) (en banc). That an offense contravenes “societal
duties” is not enough to make it a crime involving moral tur-
pitude; otherwise, every crime would involve moral turpitude.
Id. at 1070 (majority opinion). Because the BIA relied on this
flawed rationale in concluding that misprision of a felony is
a crime involving moral turpitude, we cannot defer to its
interpretation of the Immigration and Nationality Act
(“INA”). Instead, we hold that misprision of a felony is not
categorically a crime involving moral turpitude.

We remand, however, to allow the BIA to conduct a modi-
fied categorical analysis of Robles-Urrea’s conviction, see
INS v. Ventura, 537 U.S. 12 (2002), and to consider whether
Robles-Urrea is alternatively removable under 8 U.S.C.
§ 1182(a)(2)(C)(i), as an alien who “has been an illicit traf-
ficker in any controlled substance.” On remand, the agency
may also consider Robles-Urrea’s eligibility for relief from
removal.

I

In 2002, Robles-Urrea pleaded guilty to misprision of a fel-
ony under 18 U.S.C. § 4, which states that any person who,

having knowledge of the actual commission of a fel-
ony cognizable by a court of the United States, con-
ceals and does not as soon as possible make known
the same to some judge or other person in civil or
military authority under the United States, shall be
fined under this title or imprisoned not more than
three years, or both.

The felony that Robles-Urrea allegedly concealed was con-
spiracy to distribute marijuana and cocaine.
4304 ROBLES-URREA v. HOLDER
In 2005, having served his sentence for misprision, Robles-
Urrea was stopped at the Arizona border as he was returning
to the United States from Mexico.1 The Department of Home-
land Security (“DHS”) served him with a Notice to Appear,
charging him with removability under 8 U.S.C.
§ 1182(a)(2)(C) as a drug trafficker. DHS subsequently
charged him with an additional ground of removability under
8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of
a crime involving moral turpitude.

Robles-Urrea contested both charges and applied for can-
cellation of removal. The Immigration Judge (“IJ”) found him
removable but did not specify on which ground.2 The IJ also
found him ineligible for cancellation of removal under 8
U.S.C. § 1229b because his conviction for misprision of a fel-
ony had prevented him from accruing the requisite five years
of permanent residency and seven years of lawful residency
in the United States.

Robles-Urrea appealed, arguing that he is not inadmissible
under either § 1182(a)(2)(A)(i)(I) or § 1182(a)(2)(C) and that
he is eligible for cancellation of removal. On April 10, 2006,
the BIA dismissed the appeal, finding “that one who knows
a felony has been committed and takes affirmative steps to
conceal the crime or to prevent its discovery by the authorities
has committed a crime involving moral turpitude.” The BIA
also held that Robles-Urrea’s commission of this offense,
which could not fall under the petty offense exception, inter-
rupted the requisite seven-year residency under the “stop-time
rule,” 8 U.S.C. § 1229b(d)(1). It did not decide whether
1
Robles-Urrea was stopped under 8 U.S.C. § 1101(a)(13), as a returning
resident alien applying for admission with a prior criminal conviction.
2
From the transcript of the hearing, it seems that the IJ sustained the
charge of inadmissibility based on the conviction for misprision of a fel-
ony, which would be the moral turpitude ground. The IJ may have been
confused about the nature of the conviction, however, as his order refers
to the offense as “administration of a felony.”
 ROBLES-URREA v. HOLDER 4305
Robles-Urrea was removable for drug trafficking under 8
U.S.C. § 1182(a)(2)(C). Robles-Urrea filed a timely petition
for review, docketed as No. 06-71935, from this order.

Robles-Urrea also filed with the BIA a motion to recon-
sider, arguing that the BIA’s decision conflicted with Matter
of Sloan, 12 I. & N. Dec. 840 (A.G. 1968, BIA 1966), which
had held that misprision of a felony is not a crime involving
moral turpitude and that the stop-time rule does not apply
retroactively. The BIA granted the motion to reconsider and
issued a precedential decision on September 27, 2006, over-
ruling Matter of Sloan and holding that misprision of a felony
is a crime involving moral turpitude. Matter of Robles-Urrea,
24 I. & N. Dec. 22 (BIA 2006). The BIA also concluded that
the stop-time rule could apply retroactively. Id. The BIA thus
reaffirmed its dismissal of Robles-Urrea’s appeal. Robles-
Urrea filed a timely petition for review, docketed as No. 06-
74826, from this second BIA decision. That petition has been
consolidated with his original petition for review.

We have jurisdiction to decide the question of law that
Robles-Urrea raises: whether misprision of a felony qualifies
as a crime involving moral turpitude. See 8 U.S.C.
§ 1252(a)(2)(D); Galeana-Mendoza, 465 F.3d at 1056-57.
The BIA’s grant of the motion for reconsideration does not
divest us of jurisdiction over the petition for review of its ini-
tial order, because the analysis and the result reached by the
BIA after reconsideration were substantially the same as in
the previous order. See Plasencia-Ayala v. Mukasey, 516 F.3d
738, 744-46 (9th Cir. 2008), overruled on other grounds by
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009)
(en banc). Because the precedential decision that the BIA
issued upon granting the motion to reconsider effectively
supersedes its initial, non-precedential opinion, however, the
petition for review of that initial decision is moot.

II

We begin by reviewing the BIA’s determination that mis-
prision of a felony is categorically a crime involving moral
4306 ROBLES-URREA v. HOLDER
turpitude. To determine whether a given offense constitutes a
crime involving moral turpitude, we apply the categorical and
modified categorical approaches set forth in Taylor v. United
States, 495 U.S. 575 (1990). Marmolejo-Campos, 558 F.3d at
912. Under the categorical approach, which begins our
inquiry, we “compare the elements of the crime to the generic
definition of moral turpitude and decide whether the conduct
proscribed in the statute is broader than, and so does not cate-
gorically fall within, this generic definition.” Nunez v. Holder,
594 F.3d 1124, 1129 (9th Cir. 2010) (internal quotation marks
omitted). In order to hold that the statute of conviction is
overbroad, we must determine that there is a “realistic proba-
bility” of its application to conduct that falls beyond the scope
of the generic federal offense. Gonzales v. Duenas-Alvarez,
549 U.S. 183, 822 (2007).

When the elements of a given offense of conviction are
clear, as they are here, “our review of the BIA’s determination
that such offense constitutes a ‘crime of moral turpitude’ is
governed by the same traditional principles of administrative
deference we apply to the Board’s interpretation of other
ambiguous terms in the INA.” Marmolejo-Campos, 558 F.3d
at 911. Under those traditional principles, we first ask
“whether Congress has directly spoken to the precise question
at issue.” Chevron USA Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842 (1984). If the statute is
unclear, then we ask “whether the agency’s answer is based
on a permissible construction of the statute.” Id. at 843.

Because Congress has not spoken directly to the question
at issue, we consider whether the BIA has permissibly inter-
preted the statute. We conclude that the BIA’s interpretation
of the INA is impermissible. Instead, we hold that misprision
of a felony is not categorically a crime involving moral turpi-
tude.

A

[1] Although the INA does not define “crime involving
moral turpitude,” courts and the BIA have generally defined
 ROBLES-URREA v. HOLDER 4307
this term as comprising crimes that are “inherently base, vile,
or depraved, and contrary to the accepted rules of morality
and the duties owed between persons or to society in general.”
Robles-Urrea, 24 I. & N Dec. at 25; see also Navarro-Lopez,
503 F.3d at 1068 (using almost identical language). Such
crimes are of two types: those involving fraud and those
involving grave acts of baseness or depravity. See id. at 1074
(Reinhardt, J., concurring for the majority).

[2] As this definition makes clear, and as we explained in
Navarro-Lopez, not all offenses against the accepted rules of
social conduct qualify as crimes involving moral turpitude.
For that matter, not all offenses against the accepted rules of
social conduct qualify as crimes at all. “[O]ffenses that are so
base, vile, and depraved that they qualify as crimes of moral
turpitude ‘even though they have no element of fraud’ ” typi-
cally “involve ‘rather grave acts of baseness or depravity’
such as murder, rape, and incest.” Id. (quoting Rodriguez-
Herrera v. INS, 52 F.3d 238, 240 (9th Cir.1995)). The
Navarro-Lopez majority further explained:

Not all serious crimes meet this standard . . . .
Indeed, we have determined, for example, that bur-
glary, 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 consid-
ered a crime of moral turpitude, a crime other than
fraud must be more than serious; it must offend the
most fundamental 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)).

Id. at 1074-75 (alteration in original). Only truly unconsciona-
ble conduct surpasses the threshold of moral turpitude.3 We
3
In Matter of Silva-Trevino, 24 I. & N. Dec. 687 (BIA 2008), the Attor-
ney General purported to “establish a uniform framework for ensuring that
4308 ROBLES-URREA v. HOLDER
must determine whether misprision of a felony is categori-
cally so base, vile, or depraved as to be morally turpitudinous.

B

[3] We begin that inquiry by reviewing the BIA’s reason-
ing. Although the BIA properly recites the definition of a
crime involving moral turpitude—noting that such a crime
must be “inherently base, vile, or depraved” as well as “con-
trary to the accepted rules of morality and the duties owed
between persons or to society in general,” 24 I. & N Dec. at
25—it entirely fails to explain why misprision of a felony is
“inherently base, vile, or depraved.” The BIA relies almost
wholly on a rationale introduced by the Eleventh Circuit in
Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), and
embraced by our then-precedential panel decision in Navarro-
Lopez v. Gonzales, 455 F.3d 1055 (9th Cir. 2006), reh’g en
banc granted by 469 F.3d 800 (9th Cir. 2006). This rationale
is that because misprision of a felony involves “both knowl-
edge of a crime and some affirmative act of concealment or
participation,” Branzburg v. Hayes, 408 U.S. 665, 696 n.36
(1972) (citation omitted), and such “behavior . . . runs con-
trary to accepted social duties,” Itani, 298 F.3d at 1216, it
must be morally turpitudinous.4

the Act’s moral turpitude provisions are fairly and accurately applied.” Id.
at 688. “[W]e have been hesitant to defer to such general statements,”
however, because the agency’s “general understanding of the term ‘moral
turpitude’ is not the result of ‘any insights that it might have obtained from
adjudicating immigration cases,’ but simply a recitation of the definition
found in the criminal law.” Marmolejo-Campos, 558 F.3d at 910 (quoting
Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir. 2004)). We therefore “rel[y]
on our own generalized definition of ‘moral turpitude,’ although we have
noted that our understanding does not differ materially from the Board’s.”
Id. (citations omitted).
4
Our order granting rehearing en banc in Navarro-Lopez (and rendering
the panel opinion non-precedential) was not available to the BIA and was
not filed until November 8, 2006, over a month after the BIA rendered its
opinion in this matter.
 ROBLES-URREA v. HOLDER 4309
The problem with this reasoning is that it “omit[s] the sec-
ond crucial element of the definition of a crime involving
moral turpitude: that the crime involve some level of deprav-
ity or baseness ‘so far contrary to the moral law’ that it gives
rise to moral outrage.” Navarro-Lopez, 503 F.3d at 1071.5 As
we have explained, the

commission of any crime, by definition, runs con-
trary to some duty owed to society. If this were the
sole benchmark for a crime involving moral turpi-
tude, every crime would involve moral turpitude. We
certainly owe a duty to society not to destroy anoth-
er’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.

Id. at 1070-71; see also id. at 1077 (Reinhardt, J., concurring
for the majority). The Itani rationale is contrary to the statu-
tory scheme: “[i]f Congress had intended any conviction to
make an alien ineligible for cancellation of removal,” then it
would not have “designate[d] specific categories of crimes” to
have this effect. Id. at 1071 (majority opinion).

[4] Having recapitulated the flawed reasoning of Itani and
of the no longer precedential panel decision in Navarro-
Lopez, the BIA’s opinion pronounces in a conclusory fashion
that misprision of a felony “is inherently base or vile.” 24 I.
& N. Dec. at 26. This ipse dixit lacks any reasoned founda-
5
The quotation comes from Justice Jackson’s dissent in Jordan v.
DeGeorge, 341 U.S. 223 (1951). That dissent cites “an opinion on a
deportation proceeding decided by the Board June 26, 1944, and approved
by the Attorney General July 12, 1944,” which “quoted with approval” a
statement that “ ‘[a] crime involving moral turpitude . . . is so far contrary
to the moral law, as interpreted by the general moral sense of the commu-
nity, that the offender is brought to public disgrace, is no longer generally
respected, or is deprived of social recognition by good living persons.’ ”
Id. at 236 n.9.
4310 ROBLES-URREA v. HOLDER
tion. So does the BIA’s argument that misprision of a felony
must be morally turpitudinous because “evil intent” is “im-
plicit in the statutory requirement that the actor take an affir-
mative step to conceal a felony from the proper authorities.”
Robles-Urrea, 24 I. & N. Dec. at 27 (citing Notash v. Gon-
zales, 427 F.3d 693, 698 (9th Cir. 2005); Gonzalez-Alvarado
v. INS, 39 F.3d 245, 246 (9th Cir. 1994)). While Notash and
Gonzales-Alvarado say that intent may inhere in the nature of
a crime, they do not support the proposition that concealing
a felony itself involves evil intent. In short, nothing in the
BIA’s reasoning supports the conclusion that it reaches.6 We
therefore conclude that the BIA’s analysis is an impermissible
construction of the INA, and we decline to defer to it.

C

[5] Our de novo review of the issue lends no more support
to the result that the BIA reaches. The government argues that
misprision of a felony is base, vile, and depraved because it
has been historically condemned. Gov’t Br. 32-33. There is no
question that “gross indifference to the duty to report known
criminal behavior remains a badge of irresponsible citizen-
ship.” Roberts v. United States, 445 U.S. 552, 558 (1980).
6
In rejecting the BIA’s reasoning, we do not rely on the fact that the
BIA changed course, reversing its earlier decision in Matter of Sloan.
“Un-explained inconsistency is . . . a reason for holding an interpretation
to be arbitrary and capricious change from agency practice under the
Administrative Procedure Act.” Nat’l Cable & Telecomms. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 981 (2005); see also Motor Veh. Mfrs.
Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42
(1983) (“[A]n agency changing its course by rescinding a rule is obligated
to supply a reasoned analysis for the change beyond that which may be
required when an agency does not act in the first instance.”). “This rule
. . . is reserved for rare instances,” however, “such as when an agency pro-
vides no explanation at all for a change in policy, or when its explanation
is so unclear or contradictory that we are left in doubt as to the reason for
the change in direction.” Morales-Izquierdo v. Gonzales, 486 F.3d 484,
493 (9th Cir. 2007) (en banc). Even the BIA’s sparse reasoning here sur-
passes this minimal threshold.
 ROBLES-URREA v. HOLDER 4311
That only explains, however, why we choose to criminalize
misprision of a felony in the first place. It says nothing about
whether misprision of a felony is worse than any other crime
—whether it is “more than serious,” or whether it “offend[s]
the most fundamental values of society,” Navarro-Lopez, 503
F.3d at 1074-75 (Reinhardt, J., concurring for the majority).
The point of the Court’s statement in Roberts was simply to
explain why a trial court could permissibly “consider[ ], as
one factor in imposing sentence,” a defendant’s “refusal to
cooperate with officials investigating a criminal conspiracy in
which he was a confessed participant.” Id. at 553.

[6] Misprision of a felony differs from other crimes of con-
cealment that have been found to involve moral turpitude,
because it requires not a specific intent to conceal or obstruct
justice, but only knowledge of the felony. Cf. Padilla v. Gon-
zales, 397 F.3d 1016 (7th Cir. 2005), overruled on other
grounds by Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008)
(holding that obstruction of justice is a crime involving moral
turpitude because it entails “an intent to conceal criminal
activity”); Smalley v. Ashcroft, 354 F.3d 332, 339 (5th Cir.
2003) (holding that money laundering is a crime involving
moral turpitude because it requires that the defendant inten-
tionally conceal the proceeds of illegal drug sales); Matter of
Rivens, 25 I. & N. Dec. 623 (BIA 2011) (“[A]n accessory[-
after-the-fact] conviction is . . . one for a crime involving
moral turpitude when the aid is knowingly provided to help
the principal escape prosecution or punishment for a base or
vile crime.” (emphasis added)). As the BIA has recognized,
in holding that misprision of a felony is not an offense relat-
ing to obstruction of justice under 8 U.S.C. § 1101(a)(43)(S),
this offense “lacks the critical element of an affirmative and
intentional attempt, motivated by a specific intent, to interfere
with the process of justice.” Matter of Espinoza-Gonzalez, 22
I. & N. Dec. 889, 894 (BIA 1999). Nothing in the statute pro-
hibiting misprision of a felony “references the specific pur-
pose for which the concealment must be undertaken.” Id.; see
United States v. Dadanno, 432 F.2d 1119, 1129 (7th Cir.
4312 ROBLES-URREA v. HOLDER
1970) (comparing accessory-after-the-fact liability and mis-
prision of a felony and noting that “misprision does not
require an intent to benefit the principal offender”).

The BIA’s holding would result in a peculiar rule: even
where a principal offender has not committed a crime involv-
ing moral turpitude, a person who conceals that crime—and
who thereby commits misprision of a felony—might be con-
sidered to have done so. In Navarro-Lopez, we pointed out the
“absurd result” that if any “conviction for accessory-after-the-
fact is necessarily a crime of moral turpitude,” then even
when “a principal who commits a crime may not have
undertaken a morally turpitudinous act, . . . the person who
gave the principal food and shelter” may be deemed necessar-
ily to have done so. 503 F.3d at 1071. The same is true here.7

[7] We therefore find a “a realistic probability, not [just] a
theoretical possibility,” Gonzales, 549 U.S. at 822, that the
misprision of a felony statute will encompass conduct that is
not morally turpitudinous. As Navarro-Lopez explained, the
relevant question “is not whether in some cases violators of”
the misprision statute “have been involved in a crime of moral
turpitude. The issue is whether everyone prosecuted under
that [statute] has necessarily committed a crime involving
moral turpitude.” 503 F.3d at 1072. The en banc court in
Navarro-Lopez found that there was “nothing inherent in the
crime of accessory after the fact that makes it a crime involv-
ing moral turpitude in all cases.” Id. We conclude that the
same is true here. We therefore hold, contrary to the BIA’s
conclusion, that misprision of a felony is not categorically a
crime involving moral turpitude.8
7
In a later case, Matter of Tejwani, 24 I. & N. Dec. 97 (BIA 2007), the
BIA explained that such a result is permissible because the affirmative
concealment of a crime involves fraudulent behavior, regardless of the
underlying crime. Id. at 99. The BIA’s opinion here, however, does not
offer this rationale or rely on a finding of fraudulent behavior.
8
The BIA did not consider whether misprision of a felony is a crime
involving moral turpitude because it is an “offense involving fraud,”
 ROBLES-URREA v. HOLDER 4313
III

[8] Because the offense of misprision of a felony “is cate-
gorically broader than the generic definition of a crime”
involving moral turpitude, we must proceed to the modified
categorical approach, examining whether the particular cir-
cumstances of Robles-Urrea’s conviction rendered it morally
turpitudinous. Navarro-Lopez, 503 F.3d at 1073. We would
formerly have found it unnecessary to consider the modified
categorical approach, because misprision of a felony lacks the
requisite element of depravity or fraud necessary to fulfill the
generic definition of a crime involving moral turpitude. See
id. (holding that the modified categorical analysis “only
applies when the particular elements of the crime of convic-
tion are broader than the generic crime”). Such a course is no
longer available, however, after United States v. Aguila-
Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc),
which overruled the missing-element rule. As interpreted by
Aguila-Montes de Oca, “the modified categorical approach

except to the extent that it relied on the Eleventh Circuit’s decision in
Itani, which had employed a fraud-based analysis. We need not decide
whether misprision of a felony is an offense involving fraud, because “this
court cannot affirm the BIA on a ground upon which it did not rely.”
Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000).
If we were required to reach the issue, however, we would conclude that
misprision of a felony does not involve fraud. “A crime involves fraudu-
lent conduct, and thus is a crime involving moral turpitude, if intent to
defraud is explicit in the statutory definition of the crime or implicit in the
nature of the crime.” Blanco v. Mukasey, 518 F.3d 714, 719 (9th Cir.
2008) (internal quotation marks omitted). Intent to defraud is implicit in
the nature of the crime only when “the individual makes false statements
in order to procure something of value, either monetary or non-monetary.”
Id.; accord Navarro-Lopez, 503 F.3d at 1076 (Reinhardt, J., concurring for
the majority); Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993). Mispri-
sion of a felony does not explicitly contain an element of intent to defraud
and does not require that the individual have acted in order to procure any-
thing. See Navarro-Lopez, 503 F.3d at 1077 (Reinhardt, J. concurring for
the majority) (“Depriving the government of evidence or information does
not . . . rise to the level of fraud.”); Goldeshtein, 8 F.3d at 649 (same).
4314 ROBLES-URREA v. HOLDER
asks what facts the conviction ‘necessarily rested’ on in light
of the [prosecutorial] theory of the case as revealed in the rel-
evant [judicially noticeable] documents, and whether these
facts satisfy the elements of the generic offense.” Id. at 937.9

[9] Robles-Urrea argues that even under Aguila-Montes de
Oca, the modified categorical approach is inappropriate here,
because “under no realistic prosecutorial theory would the
non-element of depravity have been unnecessary to obtain a
conviction for misprision of a felony.” Supp. Br. at 5. Robles-
Urrea misunderstands the rationale of Aguila-Montes de Oca.
That opinion explained by way of example why it is appropri-
ate to apply the modified categorical approach to determine
whether a defendant has been convicted of an assault using a
gun, even where the use of a gun is not an element of the
defendant’s crime of conviction. If the judicially noticeable
“documents establish that the factfinder necessarily found that
the defendant satisfied the ‘harmful contact’ element [of a
hypothetical statute] by inflicting harmful contact with a
gun,” the majority wrote, “then the conviction ‘necessarily
rested’ on this fact.” 655 F.3d at 937. Similarly, Aguila-
Montes de Oca requires a determination whether the facts on
which Robles-Urrea’s conviction necessarily rested, as estab-
lished by the judicially noticeable documents in the record of
conviction, make his conviction one involving moral turpi-
tude. See id. at 940 (“Under the modified categorical
approach, we determine, in light of the facts in the judicially
noticeable documents, (1) what facts the conviction necessar-
ily rested on (that is, what facts the trier of fact was actually
required to find); and (2) whether these facts satisfy the ele-
ments of the generic offense.”). Robles-Urrea could be found
9
We disagree with Robles-Urrea’s argument that Aguila-Montes de Oca
should not apply retroactively to his case. Robles-Urrea entered his guilty
plea in 2002, and his conviction became final in 2003. He therefore cannot
have relied on our 2007 decision in Navarro-Lopez, which Aguila-Montes
de Oca overruled. Cf. Nunez-Reyes v. Holder, 646 F.3d 684, 692-95 (9th
Cir. 2011) (en banc) (citing reliance concerns in applying its rule only pro-
spectively).
 ROBLES-URREA v. HOLDER 4315
to have been convicted of a crime involving moral turpitude
even though the statute of his conviction lacks baseness or
depravity as an element, so long as the particular facts of his
conviction, as reflected by the limited record of conviction,
were base or depraved.

[10] The only question that remains is whether we must
remand for the agency to conduct the modified categorical
analysis. We have severe doubts as to the merits of each of
the government’s arguments as to why the agency could con-
clude that, even if misprision of a felony is not categorically
a crime involving moral turpitude, Robles-Urrea’s conviction
was for a morally turpitudinous crime. Nonetheless, we recog-
nize that the BIA is entitled to conduct the analysis in the first
instance. See Ventura, 537 U.S. at 16 (“Generally speaking,
a court of appeals should remand a case to an agency for deci-
sion of a matter that statutes place primarily in agency
hands.”). We therefore remand so that it may do so.

IV

Because the BIA impermissibly interpreted the INA in
holding that misprision of a felony is categorically a crime
involving moral turpitude, we grant Robles-Urrea’s second
petition for review, we deny the first as moot, and we remand
for the agency to apply the modified categorical approach. On
remand, the BIA may also consider whether Robles-Urrea is
removable under 8 U.S.C. § 1182(a)(2)(C)(i), as an alien who
“has been an illicit trafficker in any controlled substance,” and
whether he may be entitled to any form of relief from
removal. If it concludes that he is removable under
§ 1182(a)(2)(C)(i) and not entitled to relief, it need not reach
the question whether his conviction was for a crime involving
moral turpitude.

No. 06-71935: DISMISSED AS MOOT.

No. 06-74826: GRANTED and REMANDED.