UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 23, 2012
MARCO ANTONIO ROBLES-URREA, PETITIONER,
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT. MARCO ANTONIO ROBLES-URREA, PETITIONER,
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.
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 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 conspiracy to distribute marijuana and cocaine.
In 2005, having served his sentence for misprision, RoblesUrrea was stopped at the Arizona border as he was returning to the United States from Mexico.*fn2 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 cancellation of removal. The Immigration Judge ("IJ") found him removable but did not specify on which ground.*fn3 The IJ also found him ineligible for cancellation of removal under 8 U.S.C. § 1229b because his conviction for misprision of a felony 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, interrupted the requisite seven-year residency under the "stop-time rule," 8 U.S.C. § 1229b(d)(1). It did not decide whether
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 reconsider, 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, overruling 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. RoblesUrrea 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 initial 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.
We begin by reviewing the BIA's determination that misprision of a felony is categorically a crime involving moral 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 categorically 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 probability" 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 interpreted 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 turpitude.
 Although the INA does not define "crime involving moral turpitude," courts and the BIA have generally defined 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).
 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' " typically "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 burglary, 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 considered 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 unconscionable conduct surpasses the threshold of moral turpitude.*fn4 We must determine whether misprision of a felony is categorically so base, vile, or depraved as to be morally turpitudinous.
 We begin that inquiry by reviewing the BIA's reasoning. 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 "contrary 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 knowledge 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 contrary to accepted social duties," Itani, 298 F.3d at 1216, it must be morally turpitudinous.*fn5
The problem with this reasoning is that it "omit[s] the second crucial element of the definition of a crime involving moral turpitude: that the crime involve some level of depravity or baseness 'so far contrary to the moral law' that it gives rise to moral outrage." Navarro-Lopez, 503 F.3d at 1071.*fn6 As we have explained, the commission of any crime, by definition, runs contrary to some duty owed to society. If this were the sole benchmark for a crime involving moral turpitude, every crime would involve moral turpitude. We certainly owe a duty to society not to destroy another'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 statutory 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).
 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-tion. So does the BIA's argument that misprision of a felony must be morally turpitudinous because "evil intent" is "implicit in the statutory requirement that the actor take an affirmative step to conceal a felony from the proper authorities." Robles-Urrea, 24 I. & N. Dec. at 27 (citing Notash v. Gonzales, 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.*fn7 We therefore conclude that the BIA's analysis is an impermissible construction of the INA, and we decline to defer to it.
 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 citizenship." Roberts v. United States, 445 U.S. 552, 558 (1980).
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.
 Misprision of a felony differs from other crimes of concealment 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. Gonzales, 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 intentionally 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 relating 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 prohibiting misprision of a felony "references the specific purpose for which the concealment must be undertaken." Id.; see United States v. Dadanno, 432 F.2d 1119, 1129 (7th Cir. 1970) (comparing accessory-after-the-fact liability and misprision 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 involving moral turpitude, a person who conceals that crime-and who thereby commits misprision of a felony-might be considered 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 necessarily to have done so. 503 F.3d at 1071. The same is true here.*fn8
 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 involving 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.*fn9
 Because the offense of misprision of a felony "is categorically broader than the generic definition of a crime" involving moral turpitude, we must proceed to the modified categorical approach, examining whether the particular circumstances 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 conviction are broader than the generic crime"). Such a course is no longer available, however, after United States v. AguilaMontes 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 asks what facts the conviction 'necessarily rested' on in light of the [prosecutorial] theory of the case as revealed in the relevant [judicially noticeable] documents, and whether these facts satisfy the elements of the generic offense." Id. at 937.*fn10
 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. RoblesUrrea misunderstands the rationale of Aguila-Montes de Oca. That opinion explained by way of example why it is appropriate 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, AguilaMontes de Oca requires a determination whether the facts on which Robles-Urrea's conviction necessarily rested, as established by the judicially noticeable documents in the record of conviction, make his conviction one involving moral turpitude. 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 necessarily rested on (that is, what facts the trier of fact was actually required to find); and (2) whether these facts satisfy the elements of the generic offense."). Robles-Urrea could be found 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.
 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 conclude 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 recognize 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 decision of a matter that statutes place primarily in agency hands."). We therefore remand so that it may do so.
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.