BIA: Cal indecent exposure is CIMT; rejects 9Cir reasoning
The BIA held that California’s indecent exposure offense is a crime involving moral turpitude. Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013) (Grant, Malphrus, and Mullane, Board members). In the process, the Board rejected the Ninth Circuit’s holding that the same crime is not a CIMT. Board member Malphrus wrote the panel’s decision.
This case involved an LPR convicted of indecent exposure in California, Cal. Penal Code § 314(1), on several occasions. DHS claimed that Cortes Medina was removable because he was convicted of multiple crimes involving moral turpitude. INA § 237(a)(2)(A)(ii). Relying on the Ninth Circuit’s decision in Nuñez v. Holder, 594 F.3d 1124 (9th Cir. 2010), the IJ determined that this offense isn’t one involving moral turpitude. Matter of Cortes Medina, 26 I&N Dec. at 80.
On appeal, the BIA rejected the reasoning in Nuñez. Under the administrative law principle of statutory interpretation announced in Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., “[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.” 545 U.S. 967, 982 (2005).
In effect, this means that the BIA doesn’t have to follow the Ninth Circuit’s reasoning and holding if the Ninth Circuit was interpreting an ambiguous statute. According to the BIA, the Ninth Circuit has determined that the CIMT basis of removal is “quintessentially ambiguous.” Matter of Cortes Medina, 26 I&N Dec. at 81. So long as it adopts a reasonable interpretation of this ambiguous provision, therefore, the BIA can reject the Ninth Circuit’s interpretation.
And that’s exactly what it did. California’s indecent exposure offense, the Board explained, includes both “essential elements” of a CIMT: “a culpable mental state and reprehensible conduct.” Matter of Cortes Medina, 26 I&N Dec. at 82. Specifically, the California offense involves exposure (the reprehensible conduct) and lewd intent (the culpable mental state). Matter of Cortes Medina, 26 I&N Dec. at 83.
Despite the possibility that a person can be convicted of California indecent exposure for nude dancing, the Board concluded that lewdness is necessary for a conviction because the California Supreme “expressly disapproved of” nude dancing convictions in a 1982 decision. Matter of Cortes Medina, 26 I&N Dec. at 85. This—plus the fact that Cortes Medina did not identify any recent cases in which California has punished nude dancing through its indecent exposure offense—is significant because, to the BIA, it means that there is “no ‘realistic probability’ of a conviction in California…for nude dancing or other conduct that does not involve moral turpitude.” Matter of Cortes Medina, 26 I&N Dec. at 86.
As such, the Board rejected the Ninth Circuit’s position, held that California’s indecent exposure offense is a CIMT, and concluded that Cortes-Medina has been convicted of multiple CIMTs, thus rendering him removable. Matter of Cortes Medina, 26 I&N Dec. at 87.
