On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A037-805-968 Agency No. A037-805-968
The opinion of the court was delivered by: Reinhardt, Circuit Judge:
Argued and Submitted May 12, 2009-San Francisco, California
Submission Vacated March 9, 2010
Resubmitted August 16, 2011
Before: Mary M. Schroeder and Stephen Reinhardt, Circuit Judges, and Louis H. Pollak,*fn1 Senior District Judge.
Opinion by Judge Reinhardt
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"), holding that his conviction for misprision of a felony is categorically 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 fundamental values of society." Navarro-Lopez v. Gonzales, 503 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 turpitude; 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 modified 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 trafficker in any controlled substance." On remand, the agency may also consider Robles-Urrea's eligibility for relief from removal.
In 2002, Robles-Urrea pleaded guilty to misprision of a felony under 18 U.S.C. § 4, which states that any person who, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the ...