Cite as 26 I&N Dec. 79 (BIA 2013) Interim Decision #3775
1 On April 12, 2011, we requested supplemental briefing to obtain clarification from the
parties about their positions regarding the application of Matter of Silva-Trevino, 24 I&N
Dec. 687 (A.G. 2008), and Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), to this case.
Both parties submitted supplemental briefs.
79
Matter of Alfonso CORTES MEDINA, Respondent
Decided January 8, 2013
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of indecent exposure in violation of section 314(1) of the California Penal
Code, which includes the element of lewd intent, is categorically a crime involving moral
turpitude.
FOR RESPONDENT: Tucker H. Sandler, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ingrid Abrash, Senior Attorney
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MALPHRUS, Board Member:
In a decision dated June 30, 2010, an Immigration Judge granted the
respondent’s motion to terminate the proceedings. The Department of
Homeland Security (“DHS”) has appealed from that decision. Through
counsel, the respondent has filed a response in opposition to the appeal.1 The
DHS’s appeal will be sustained, the proceedings will be reinstated, and the
record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the
United States as a lawful permanent resident on August 2, 1980. On June 12,
1996, he was convicted of indecent exposure in violation of section 314(1) of
the California Penal Code. He was placed on probation for 3 years and was
ordered to attend sex counseling. When the respondent violated probation in
1997, it was revoked and he was sentenced on May 21, 1998, to serve 180 days
in jail. On February 11, 1998, the respondent was again convicted of indecentCite as 26 I&N Dec. 79 (BIA 2013) Interim Decision #3775
2 The respondent was also charged under section 237(a)(2)(E)(i) of the Act as an alien who
has been convicted of child abuse. The DHS has not challenged the Immigration Judge’s
finding that this charge was not sustained.
80
exposure in violation of section 314(1) and was placed on probation for
3 years, including 180 days in jail.
In 2001, the respondent pled guilty to annoying or molesting a child under
the age of 18 in violation of section 647.6(a) of the California Penal Code,
although he originally was charged with another violation of section 314(1).
He was placed on 5 years of probation, including 270 days in jail. On
October 25, 2007, he was convicted on a nolo contendere plea of indecent
exposure with priors in violation of section 314(1), and he was sentenced to
16 months in prison.
In July 2008, the DHS filed a notice to appear charging that the respondent
is removable under section 237(a)(2)(A)(ii) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2006), as an alien who at any time after
entry has been convicted of two or more crimes involving moral turpitude. On
November 3, 2008, the Immigration Judge sustained the factual allegations and
the charge of removability, finding that the respondent had been convicted of
multiple crimes involving moral turpitude.2
At a subsequent hearing, the Immigration Judge considered the intervening
decision of the United States Court of Appeals for the Ninth Circuit in Nunez
v. Holder, 594 F.3d 1124 (9th Cir. 2010), which held that indecent exposure
under section 314(1) of the California Penal Code is not categorically a crime
involving moral turpitude. Based on that decision, the Immigration Judge
found that the DHS had not established that the respondent’s convictions for
indecent exposure were for crimes involving moral turpitude under the
categorical approach. The Immigration Judge then determined that the record
of conviction did not illuminate the facts that formed the basis of the
respondent’s guilty plea. He therefore concluded that the respondent’s
convictions were not for crimes involving moral turpitude under the modified
categorical approach, and he did not proceed to the third step of the analysis
outlined in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). The
Immigration Judge granted the respondent’s motion to terminate, and the DHS
has appealed.
We need not consider the DHS’s initial argument challenging the
Immigration Judge’s application of Matter of Silva-Trevino because we agree
with its alternative argument that the offense of indecent exposure under
section 314(1) of the California Penal Code is categorically a crime involving
moral turpitude. In reaching this conclusion, we reject the respondent’s
argument that because of the Ninth Circuit’s decision in Nunez v. Holder, weCite as 26 I&N Dec. 79 (BIA 2013) Interim Decision #3775
3
In reaching this conclusion we recognize that the boundaries for invoking Brand X are not
necessarily settled. We also understand that the unpublished Board decision the Nunez court
reviewed was not entitled to Chevron deference, and we therefore remedy that deficiency
by issuing this decision.
81
do not have authority to consider whether indecent exposure under California
law is categorically a crime involving moral turpitude.
II. ANALYSIS
The Supreme Court has held that where a statute is silent or ambiguous,
an agency’s interpretation should be given deference if it is based on a
permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984). The Court has emphasized that the
Chevron principle of deference must be applied to an agency’s interpretation
of ambiguous statutory provisions, even where a court has previously issued
a contrary decision and believes that its construction is the better one, provided
that the agency’s interpretation is reasonable. Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior
judicial construction of a statute trumps an agency construction otherwise
entitled to Chevron deference only if the prior court decision holds that its
construction follows from the unambiguous terms of the statute and thus
leaves no room for agency discretion.”).
The Ninth Circuit has described the phrase “crime involving moral
turpitude” as quintessentially ambiguous and has expressly held that it is
appropriate to accord Chevron deference to our precedent decisions on
whether a particular offense falls within the definition of that term.
Marmolejo-Campos v. Holder, 558 F.3d 903, 909-12 (9th Cir. 2009) (en banc);
accord Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012). In Nunez
v. Holder, 594 F.3d at 1130, the court recognized that the question whether a
violation of section 314(1) of the California Penal Code constitutes a crime
involving moral turpitude concerned the application of an inherently
ambiguous term within the Act. However, because the Board decision that the
Nunez court reviewed was an unpublished opinion “that [did] not rely on prior
precedential decisions,” our holding was only afforded deference under
Skidmore v. Swift & Co., 323 U.S. 134 (1944). Id. at 1133. Therefore, we now
further address this question and respectfully conclude that based on the
foregoing rulings of the Supreme Court and the Ninth Circuit, we have the
authority under Chevron to determine whether a violation of section 314(1)
categorically constitutes a crime involving moral turpitude, and we hold that
it does.3Cite as 26 I&N Dec. 79 (BIA 2013) Interim Decision #3775
82
“Under the categorical approach, we compare the statute of conviction to
the generic definition of moral turpitude. If the statute bans only actions that
involve moral turpitude, then it is categorically a crime involving moral
turpitude.” Rohit v. Holder, 670 F.3d 1085, 1088 (9th Cir. 2012) (citation
omitted). To determine that a statute describes conduct that is not
categorically turpitudinous, there must be “a realistic probability, not a
theoretical possibility” that the State would apply the statute to prosecute
conduct that falls outside the definition of moral turpitude. Id. at 1089
(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (stating that
to demonstrate that a statute criminalizes unintentional conduct, the alien
“must at least point to his own case or other cases in which the state courts in
fact did apply the statute” to conduct falling outside the generic definition))
(internal quotation marks omitted); see also Matter of Silva-Trevino, 24 I&N
Dec. at 689-90.
Under long-standing case law, an offense must have two essential elements
to constitute a crime involving moral turpitude: a culpable mental state and
reprehensible conduct. See Matter of Louissant, 24 I&N Dec. 754, 756-57
(BIA 2009) (stating that a “crime involving moral turpitude involves
reprehensible conduct committed with some degree of scienter, either specific
intent, deliberateness, willfulness, or recklessness”). “Moral turpitude refers
generally to conduct which is inherently base, vile, or depraved, and contrary
to the accepted rules of morality and the duties owed between persons or to
society in general.” Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999).
Beyond these parameters, there is not a single comprehensive definition of
a crime involving moral turpitude. In our view, a definition that would
encompass all crimes that involve moral turpitude and exclude those that do
not is unrealistic given the nature of this broad legal term and the myriad
Federal and State statutes potentially at issue. However, we agree that it is
important for the Board to clarify when criminal conduct involving indecent
exposure is properly classified as turpitudinous.
In cases involving questions of moral turpitude, including those dealing
with indecent exposure and lewd behavior, we have analyzed the underlying
conduct prohibited by the statute of conviction. We have long held that
indecent exposure is not inherently turpitudinous in the absence of lewd or
lascivious intent. The word “lewd” is defined as “obscene or indecent.”
Black’s Law Dictionary 927 (8th ed. 2004).
In Matter of P-, 2 I&N Dec. 117, 121 (BIA 1944), we concluded that the
alien’s indecent exposure of his person to children did not involve moral
turpitude because there was no indication whether the exposure was “to arouse
the sexual desires of the parties concerned or with a lewd or lascivious intent,
or whether it was because of a negligent disregard of the children’s presenceCite as 26 I&N Dec. 79 (BIA 2013) Interim Decision #3775
83
occasioned by physical necessity.” Similarly, in Matter of Mueller, 11 I&N
Dec. 268, 270 (BIA 1965), the indecent exposure statute under which the alien
was convicted required only a knowing exposure of a sex organ, so the mere
exposure was unlawful, “regardless of the actor’s intention.” Because the
offense did not require “any intent whatsoever,” it was not a crime involving
moral turpitude. Id.; see also Matter of H-, 7 I&N Dec. 301 (BIA 1956).
Shortly after Mueller, we decided that renting a room with knowledge that it
would be used for prostitution or lewdness in violation of Florida law was a
crime involving moral turpitude. Matter of Lambert, 11 I&N Dec. 340 (BIA
1965).
The key difference between cases like Matter of P- and Matter of Mueller
on the one hand and Matter of Lambert on the other is lewdness. In our view,
lewd intent brings the offense of indecent exposure within the definition of a
crime involving moral turpitude. See People v. Ballard, 16 Cal. Rptr. 2d 624,
630 (Cal. Ct. App. 1993) (“Th[e] intentional and lewd desire to corrupt or
offend others, for purposes of one’s own sexual desires, may aptly be
described as a state of moral turpitude.”). This is what makes it “base, vile, or
depraved, and contrary to the accepted rules of morality.” Matter of Ajami,
22 I&N Dec. at 950. We therefore hold that for the offense of indecent
exposure to be considered a crime involving moral turpitude under the
immigration laws, the statute prohibiting the conduct must require not only the
willful exposure of private parts but also a lewd intent. See Matter of Lambert,
11 I&N Dec. at 342; Matter of Mueller, 11 I&N Dec. at 270; Matter of P-,
2 I&N Dec. at 121.
With this background in mind, we turn to section 314(1) of the California
Penal Code, which provides that “[e]very person who willfully and lewdly . . .
[e]xposes his person, or the private parts thereof, in any public place, or in any
place where there are present other persons to be offended or annoyed
thereby . . . is guilty of a misdemeanor.” (Emphasis added.) To be convicted
under this statute, therefore, a defendant must intentionally expose himself
“lewdly” to others who are likely to be offended or annoyed. People
v. Carbajal, 8 Cal. Rptr. 3d 206, 208 (Cal. Ct. App. 2003).
California courts have affirmed convictions under section 314(1), not based
solely on exposure, but because the defendant had the requisite obscene
or indecent intent at the time of the offense. In re Smith, 497 P.2d 807, 809,
810 (Cal. 1972) (“The separate requirement that the intent of the actor be
‘lewd’ is an essential element of the offense . . . .”); see also, e.g., People
v. Rehmeyer, 24 Cal. Rptr. 2d 321 (Cal. Ct. App. 1993) (upholding the
conviction of a nude, aroused male who was standing over the bed of
16-year-old girl); People v. Ballard, 16 Cal. Rptr. 2d at 630 (holding that a
conviction for indecent exposure involving masturbation near women in movie
theater was for a crime involving moral turpitude). Mere nudity, such as nudeCite as 26 I&N Dec. 79 (BIA 2013) Interim Decision #3775
4 Notably, other States have drawn a similar distinction and found that public exposure of
private parts is insufficient for an indecent exposure conviction, which also requires a lewd
or indecent intent. For example, as explained in Polk v. State, 865 S.W.2d 627, 630 (Tex.
Ct. App. 1993), which interpreted section 21.08 of the Texas Penal Code Annotated, “Nude
swimmers and pranksters may offend others by their nudity with no intent to sexually arouse
either themselves or their observers.” Such individuals are not guilty of indecent exposure
because an essential element for a conviction is the “intent to arouse or gratify sexual
desire.” Id.
84
sunbathing, involves exposure alone and therefore does not meet this lewdness
requirement. In re Smith, 497 P.2d at 810 (“[A] person does not expose his
private parts ‘lewdly’ within the meaning of [the statute] unless his conduct is
sexually motivated.”). Accordingly, the conviction of a juvenile who engaged
in “mooning” (exposing his bare buttocks) to oncoming traffic to annoy and
affront others, but not for purposes of sexual gratification, was overturned
because he did not act with lewd intent. In re Dallas W, 102 Cal. Rptr. 2d 493
(Cal. Ct. App. 2000).4
We conclude that a person convicted of indecent exposure in violation of
section 314(1) has committed a crime involving moral turpitude because a
finding of lewdness is necessary for a conviction. See People v. Ballard,
16 Cal. Rptr. 2d at 630 (“This requirement of lewdness, which is needed for
a conviction of indecent exposure in California, supplies the assurance that a
conviction for indecent exposure is one which necessarily involves moral
turpitude.”). In this regard we note that the Ninth Circuit recently held that
disorderly conduct involving solicitation of prostitution under section 647(b)
of the California Penal Code, which states that prostitution includes “any lewd
act between persons for money,” involves conduct that is within the definition
of a crime involving moral turpitude. Rohit v. Holder, 670 F.3d at 1088-90
(applying Skidmore deference to conclude that violation of section 647(b) is
categorically a crime involving moral turpitude).
The court inNunez v. Holderstated that indecent exposure under California
law was not the type of crime normally considered to involve moral turpitude
because it could “be committed without any intention of harming anyone, . . .
need not result in actual harm, and . . . does not necessarily involve a protected
class of victim.” 594 F.3d at 1135. We respectfully consider this definition
of moral turpitude to be too narrow. As noted in Nunez, there are two types of
cases prosecuted under section 314(1) that merit discussion in assessing
whether a violation of the statute is categorically a crime involving moral
turpitude.
In the first category, which concerns cases involving “sexual affront,”
is People v. Archer, 119 Cal. Rptr. 2d 783 (Cal. Ct. App. 2002). That case
involved a road rage incident where a male driver angrily lifted himself up inCite as 26 I&N Dec. 79 (BIA 2013) Interim Decision #3775
5 Nunez also referenced an unpublished decision that upheld an indecent exposure
conviction of a 12-year-old boy in juvenile court after he approached two young female
classmates, gained their attention, and then exposed himself. People v. Lionel M., No.
H031030, 2007 WL 2924052 (Cal. Ct. App. Oct. 9, 2007). The California appellate court
explained that under the circumstances of that case, where the offender targeted his two
classmates, he had engaged in lewd conduct.
85
his vehicle to expose himself to a frightened female driver while shouting a
sexual expletive at her. The California appellate court determined that the
defendant’s conduct supported an indecent exposure conviction because it
involved lewd intent. Contrary to Nunez v. Holder, 594 F.3d at 1138, we do
not consider such an offense to be a mere “tasteless prank[].”5 The manner
and circumstances in which the defendant in Archer exposed himself clearly
involved lewdness, which under our definition is a crime involving moral
turpitude. See In re Smith, 497 P.2d at 810 (“[A] conviction [for indecent
exposure] requires proof beyond a reasonable doubt that the actor not only
meant to expose himself, but intended by his conduct to direct public attention
to his genitals for purposes of sexual arousal, gratification, or affront.”).
The second category of cases involves “nude dancing.” In People
v. Conway, 162 Cal. Rptr. 877 (Cal. App. Dep’t Super. Ct. 1979), a California
appellate court affirmed a conviction under section 314(1) for nude dancing
in a bar. The precise facts of the case are not well developed, but there is no
indication that the court undermined the lewdness requirement of section
314(1) in making its decision.
As discussed above, there is a difference between simple public nudity and
indecent exposure with a lewd intent. In this regard, we find instructive the
California Supreme Court’s narrow interpretation of lewd behavior in a case
involving a defendant who fell asleep at a public beach. In re Smith, 497 P.2d
807. The court stated there that “[a]bsent additional conduct intentionally
directing attention to his genitals for sexual purposes, a person, as here, who
simply sunbathes in the nude on an isolated beach does not ‘lewdly’ expose his
private parts within the meaning of § 314.” Id. at 810; see also People
v. Massicot, 118 Cal. Rptr. 2d 705 (Cal. Ct. App. 2002) (reversing a conviction
for indecent exposure because the defendant did not display his entire
unclothed body); In re Dallas, 102 Cal. Rptr. 2d 493 (holding that “mooning”
oncoming traffic without lewd intent was not prohibited by section 314(1)).
Putting aside the question whether there is a realistic probabilityof prosecution
for nude dancing under section 314(1), we conclude that only a conviction that
includes lewd behavior as defined by the California Supreme Court would
involve moral turpitude under our definition.
In regard to a realistic probability of prosecution under section 314(1),
we note that People v. Conway was expressly disapproved of by theCite as 26 I&N Dec. 79 (BIA 2013) Interim Decision #3775
6
In explaining the limitations of relying on Conway to establish a realistic probability of
prosecution under section 314(1) for nude dancing in California, the dissenting judge in
Nunez noted that there was no indication of any conviction for nude dancing pursuant to that
statute in the three decades since Morris was decided, and he explained that California law
currently permits and regulates nude dancing. Nunez v. Holder, 594 F.3d at 1145-47
(Bybee, J., dissenting).
7 We need not reach any of the respondent’s other arguments regarding the application
of Matter of Silva-Trevino, 24 I&N Dec. 687, because we do not proceed beyond the
categorical approach to resolve this case and therefore do not apply the Silva-Trevino
framework.
86
California Supreme Court in 1982 in Morris v. Municipal Court, 652 P.2d 51,
59 n.13 (Cal. 1982).6
In addition, the respondent has not cited any published
or unpublished California decision issued since Nunez that has applied
section 314(1) to nude dancing or to any other conduct that is not morally
turpitudinous, and we are not aware of any. Nor has the respondent presented
any evidence that California applied the statute to him in such a manner. See
Gonzales v. Duenas-Alvarez, 549 U.S. at 193.
In summary, we see no “realistic probability” of a conviction in California
under section 314(1) for nude dancing or other conduct that does not involve
moral turpitude. In the case before us, the respondent has not met his burden
of establishing that under current law a realistic probability exists that
California would apply the statute, either in his case or generically, to conduct
that would not involve moral turpitude. See Gonzales v. Duenas-Alvarez,
549 U.S. 183. Accordingly, we respectfully invoke the authority of Brand X
and conclude that a violation of section 314(1) of the California Penal
Code is categorically a crime involving moral turpitude for purposes of the
immigration laws. See Marmolejo-Campos v. Holder, 558 F.3d at 909-12;
see also Garfias-Rodriguez v. Holder, No. 09-72603, 2012 WL 5077137 (9th
Cir. Oct. 19, 2012) (en banc) (adopting the Board’s subsequent interpretation
of an ambiguous immigration statute as reasonable, even though it was
inconsistent with prior circuit authority).7
The respondent also argues that the DHS waived any challenge to the
Immigration Judge’s decision, which applied Nunez v. Holder to his case,
because the DHS did not raise this issue at the hearing. However, only the
Board, not the Immigration Judge, has the authority to invoke Brand X, so
there was no reason for this issue to be raised below. When we asked the
parties to clarify their positions regarding the application of Matter of
Silva-Trevino and Nunez v. Holder through supplemental briefing, the DHS
encouraged us to apply Brand X to the respondent’s indecent exposure
conviction.Cite as 26 I&N Dec. 79 (BIA 2013) Interim Decision #3775
87
III. CONCLUSION
For the reasons discussed above, we conclude that the respondent has been
convicted of two crimes involving moral turpitude based on his multiple
convictions for violations of section 314(1) of the California Penal Code and
that he is therefore removable under section 237(a)(2)(A)(ii) of the Act.
Accordingly, the DHS’s appeal will be sustained. The record will be
remanded to the Immigration Judge to permit the respondent to pursue any
form of relief for which he may be eligible.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.