Felipe Betansos v. William Barr (2019)

Betansos, 928 F.3d at 1142 (“Reasonable minds can differ when deciding whether certain crimes are morally turpitudinous.

Reyes v. Garland, 11 F.4th 985 , 992 (9th Cir. 2021); Betansos v. Barr, 928 F.3d 1133, 1143 (9th Cir. 2019).

Betansos v. Barr, 928 F.3d 1133, 1137 (9th Cir. 2019). 2 With the exception of his application for cancellation of removal under 8 U.S.C. § 1229b, Contreras filed his applications for relief before the passage of the REAL ID Act.

Second, we “compare the elements of the statute of conviction to the generic definition of a [CIMT] and decide whether the conviction meets that definition.” Betansos v. Barr, 928 F.3d 1133, 1137 (9th Cir. 2019) (internal quotation marks omitted).

Although we generally apply Chevron1 deference where the BIA relies on its own precedential decision, “[w]e have hesitated to defer to the BIA’s general understanding of the term ‘moral turpitude’ because the BIA’s ‘general definition of moral turpitude fails to particularize the term in any meaningful way.’” Betansos v. Barr, 928 F.3d 1133, 1139 (9th Cir. 2019) (quoting Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009) (en banc)).

Although we generally apply Chevron1 deference where the BIA relies on its own precedential decision, “[w]e have hesitated to defer to the BIA’s general understanding of the term ‘moral turpitude’ because the BIA’s ‘general definition of moral turpitude fails to particularize the term in any meaningful way.’” Betansos v. Barr, 928 F.3d 1133, 1139 (9th Cir. 2019) (quoting Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009) (en banc)).

Betansos v. Barr, 928 F.3d 1133, 1137 (9th Cir. 2019); see also Ortega-Lopez v. Barr, 978 F.3d 680, 684 (9th Cir. 2020).

We have defined a CIMT as involving “either fraud or base, vile, and depraved conduct that shocks the public conscience.” Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010) (internal quotation marks and brackets omitted), superseded in other part as stated by, Betansos v. Barr, 928 F.3d 1133, 1142 (9th Cir. 2019).

The INA does not define the term “crime involving moral turpitude.” As we have noted before, both the Board of Immigration Appeals (BIA) and our court have been unable “to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.” Nunez v. Holder, 594 F.3d 1124, 1130 (9th Cir. 2010), superseded in other part as stated by Betansos v. Barr, 928 F.3d 1133, 1142 (9th Cir. 2019).

This approach “‘requires us to 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 categorically fall within, this generic definition.’” Turijan, 744 F.3d at 620 (quoting Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010), superseded in part as stated by Betansos v. Barr, 928 F.3d 1133, 1142 (9th Cir. 2019)).

See id. at 1131 n.4 (“We do not suggest that every crime that has been held by us to involve moral turpitude falls within this grouping.

See id. at 1131 n.4 (“We do not suggest that every crime that has been held by us to involve moral turpitude falls within this grouping.

See Betansos v. Barr, 928 F.3d 1133, 1138 (9th Cir. 2019) (relying on pattern jury instructions to determine the elements of a California crime).

See Betansos v. Barr, 928 F.3d 1133, 1136 (9th Cir. 2019); Campos-Hernandez, 889 F.3d at 568–69; Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053 , 1063–64 (9th Cir. 2018); Garfias-Rodriguez v. Holder, 702 F.3d 504, 516 (9th Cir. 2012) (en banc); Gonzales v. DHS, 508 F.3d 1227 , 1237–39 (9th Cir. 2007); Metrophones Telecomm., Inc. v. Glob.

See Betansos v. Barr, 928 F.3d 1133 , 1141–42 (9th Cir. 2019) (citing Nat’l Cable & Telecomms.

We are unpersuaded by this argument. “[T]he absence of an intent to injure, an injury to persons, or a protected class of victims is not determinative.” 6 Matter of Ortega-Lopez, 27 I&N Dec. 382, 387 (BIA 2018), aff’d, 978 F.3d 680 (9th Cir. 2020); see also Betansos v. Barr, 928 F.3d 1133 , 1140–42 (9th Cir. 2019) (deferring to the Board’s decision in Matter of Cortes Medina, 26 I&N Dec. at 84, which rejected the requirement that a crime involving moral turpitude involve int…

We are unpersuaded by this argument. “[T]he absence of an intent to injure, an injury to persons, or a protected class of victims is not determinative.” 6 Matter of Ortega-Lopez, 27 I&N Dec. 382, 387 (BIA 2018), aff’d, 978 F.3d 680 (9th Cir. 2020); see also Betansos v. Barr, 928 F.3d 1133 , 1140–42 (9th Cir. 2019) (deferring to the Board’s decision in Matter of Cortes Medina, 26 I&N Dec. at 84, which rejected the requirement that a crime involving moral turpitude involve int…

In this regard, at least one circuit has indicated that agency “rules . . . should be presumed prospective in operation unless Congress has clearly authorized retroactive application.” De Niz Robles v. Lynch, 803 F.3d 1165, 1172 (10th Cir. 2015) (emphasis added); see also Betansos v. Barr, 928 F.3d 1133 , 1143–46 (9th Cir. 2019) (noting that a retroactivity analysis “should be conducted with ‘the presumption of prospectivity’” where the court has given deference to our decis…