Navarro-Lopez v. Gonzales

BEA, Circuit Judge,

dissenting,

with whom Judge O’SCANNLAIN joins:

Navarro-Lopez was convicted of a crime, being an accessory after the fact in violation of California Penal Code section 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 *1085term ‘moral turpitude’ has been applied by judicial decision.” Jordan v. De George, 341 U.S. 223, 227, 71 S.Ct. 703, 95 L.Ed. 886 (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 Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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 federal, definition of the crime. See Gonzales v. Duenas-Alvarez, — U.S. —, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007); Taylor, 495 U.S. at 598, 110 S.Ct. 2143. 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 U.S. Code to require “as an element the use, attempted use, or threatened use of physical force against the person or property 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, CaLPenal Code § 32. Rather, we are asked to determine whether a state crime falls within the federal term “crime involving moral turpitude.” 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, 71 S.Ct. 703, 95 L.Ed. 886. 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 turpitude,” each carrying a sentence of imprisonment of over one year. Id. at 224-25, 71 S.Ct. 703. He filed a federal habeas petition, claiming the crimes did not involve moral turpitude. Id. at 226, 71 S.Ct. 703. 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, 71 S.Ct. 703. The Supreme Court reversed. It stated:

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 exception, federal and state courts have held that a *1086crime in which fraud is an ingredient involves moral turpitude.

Id. at 227, 71 S.Ct. 703 (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, 71 S.Ct. 703. 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 turpitude.’ ” Id. at 229, 71 S.Ct. 703.2

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, 49 Cal.3d 257, 261 Cal.Rptr. 59, 776 P.2d 1021, 1024 (1989). No case to the contrary has been cited by the parties nor, indeed, by the majority. Given the seemingly unanimous 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, 71 S.Ct. 703.

We need not — and should not, under Jordan — resort to the secondary, indirect reasoning used by the majority: an attempt 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 harboring 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 “turpitudi-nous.” Of course, if the question asked were whether the crime involved baseness or depravity, perhaps evolving standards of decency might trump mere prior judicial decisions. But judges and “Justices are not platonic guardians appointed to wield authority according to their personal moral predilections.”3 Jordan tells judges to determine whether a crime involves moral turpitude not from the philosopher’s seat, but from a less elevated location: by sitting in the law library and reading the cases.

I respectfully dissent.

. I concur in the research and result reached in Part II of Judge Tallman's dissenting opinion.

. It was against the backdrop of Jordan that Congress enacted section 1182 the following year. See Immigration and Nationality Act, Pub.L. No. 414, § 212, 66 Stat. 163, 182 (1952).

. William J. Brennan, Jr., The Constitution of the United States: Contemporary 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)).