In a surprising published decision, the BIA held that sexual intercourse with a minor (statutory rape), Cal. Penal Code § 261.5(d), does not categorically constitute a crime involving moral turpitude. Matter of Guevara Alfaro, 25 I&N Dec. 417 (BIA 2011) (Pauley, Greer, and Wendtland, Board Members). Board member Wendtland wrote the BIA’s opinion.
This should have been a straightforward decision given that, as the BIA acknowledges, the Ninth Circuit, from which this case arose, held just two years ago that § 261.5(d) is not categorically a CIMT. See Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007). Quintero-Salazar, however, was decided before Attorney General Mukasey announced in Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), that the Board should use a different analysis for determining whether an offense constitutes a CIMT.
In Silva-Treviño, the Attorney General announced a three-part framework:
“First, a categorical approach must be employed under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a “realistic probability” of being prosecuted under that statute. … Second, if the issue cannot be resolved under the categorical approach, a modified categorical approach should be undertaken, which requires inspection of specific documents comprising the alien’s record of conviction (such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript) to discern the nature of the underlying conviction. Finally, if the record of conviction is inconclusive, the Attorney General has held that because moral turpitude is not an element of the crime, probative evidence beyond the record of conviction (such as an admission by the alien or testimony before the Immigration Judge) may be considered when evaluating whether an alien’s offense constitutes a crime involving moral turpitude.”
Matter of Guevara Alfaro, 25 I&N Dec. at 421 (internal citations omitted).
Because the Ninth Circuit’s earlier decision interpreting California’s sexual intercourse with a minor offense used the traditional categorical approach rather than the Silva-Treviño approach, the Board concluded that the earlier Ninth Circuit decision is not binding. Matter of Guevara Alfaro, 25 I&N Dec. at 421. Instead, the Board “h[e]ld that the AttorneyGeneral’s substantive ruling in Silva-Trevino is binding in this case and mustbe applied in lieu of Quintero-Salazar to the extent that the two cases conflict.” Matter of Guevara Alfaro, 25 I&N Dec. at 421 (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980-82 (2005)).
Despite refusing to follow the Ninth Circuit’s earlier decision, the Board reached the same result regarding the first prong of Silva-Treviño. The California statute, it noted, “does not require a perpetrator to have engaged in intentional sexual contact with someone he or she knew or should have known to be a child….” Matter of Guevara Alfaro, 25 I&N Dec. at 424. As such, the statute fails the categorical approach that, as announced in Silva-Treviño, counsels that an offense is not a CIMT if there is a “realistic probability” that non-morally turpitudinous conduct would be criminally prosecuted under that statute. Matter of Guevara Alfaro, 25 I&N Dec. at 424. In California, the Board concluded, “there is a realistic probability it could be applied to conduct that does not involve moral turpitude.” Matter of Guevara Alfaro, 25 I&N Dec. at 424.
The Board then turned to Silva-Treviño’s second prong—the modified categorical approach in which the IJ can examine the record of conviction to determine whether moral turpitude is present. The BIA found “that there are no documents in the record of conviction establishing that the respondent knew or should have known that his victim was a child.” Matter of Guevara Alfaro, 25 I&N Dec. at 424.
Lastly, turning to Silva-Treviño’s third prong—which I describe as the “anything goes” prong because it allows an IJ to consider what seems to be a limitless array of evidence beyond the statute or record of conviction—the Board noted that the noncitizen “did not deny knowledge of his victim’s age.” Matter of Guevara Alfaro, 25 I&N Dec. at 424. The IJ, however, did not make any findings regarding whether the noncitizen knew or should have known the victim’s age, therefore the Board remanded the case so that the IJ could make appropriate findings. Matter of Guevara Alfaro, 25 I&N Dec. at 424. The implication, of course, is that on remand this may prove to be a CIMT thanks to the anything goes prong.