Tuesday, August 01, 2006

Navarro_lopez v. Gonzales, No. 04-70345 (7-31-06). "Moral turpitude" has been defined by the 9th as "an act of baseness or depravity contrary to accepted moral standards." Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993). Here, the 9th (Leavy) adds to this list of despicable crimes the California Penal Code 32 offense for accessory after the fact. In so doing, the 9th compares the stealthful hiding of a felon or aid, and makes the concealment or aid far worse than the offense itself. The 9th seems to focus on the specific intent nature to hinder prosecution. Dissenting with anger, Pregerson stresses that the BIA itself considers moral turpitude to be an "act of baseness, vileness, or depravity, in the private and social duties which a man owes to his fellow man and society." (8527). Pregerson goes on to note that a parent who provides aid to her child who may be a minor felon would fall into this category. The dissent finds that the legal analysis that would equate accessory after the fact it moral turpitude is faulty because the act itself may not be base or depraved to the extent that it falls away from moral law. If the legal argument isn't enough, Pregerson continues, the record of conviction doesn't meet the needs for a modified categorical approach. Finally, the equities are such, given the minor offense and the fact that the petitioner has lived here since 1984, has two US children and is married to a US citizen, that Pregerson finds it hard to believe that Congress intended to make this person ineligible for cancellation of removable.

Salviejo-Fernandez v. Gonzales, No. 04-76383 (7-31-06). The same line up as above (Pregerson, Leavy and a district court judge, Beistline) split the same, with Leavy writing and Pregerson filing a spirited dissent. This time the issues are the completeness of the Notice of removal and whether Cal. health and Safety Code 11366 for opening or maintaining a place to selling a controlled substance is an agg felony. The petitioner had been convicted of operating a drug house and of possession of drugs. The Notice he got only was for possession, and his counsel got the judge to state that the decision was only for possession. The judge ordered him removed on the basis of possession, but the BIA reversed. The second time, the gov't brought up the drug house. The petitioner was ordered removed. On appeal, the 9th said "so what" to the due process challenge, joining the 2nd and 5th Circuits in holding that the Notice only has to be removability, and does not have to include grounds for denial of relief. The 9th also holds that operating a drug house is an agg felony. "Hold on", Pregerson argues in dissent, the petitioner should know what the gov't is alleging to be grounds to remove him from the country where he has lived close to 40 years. It is not to much to ask the gov't to state the acts or conduct that violate the law that will get the petitioner kicked out rather than engaging in an artificial distinction of conduct that triggers removal (poss does not) and conduct that bars affirmative relief (drug house). As for the drug house, the state statute does not contain a mens rea element, and it is too broad. While the federal statute regarding a drug house requires knowingly open a place for the purpose of selling drugs, the state statute is much broader, and laxer, and could sweep in an owner whose renter opens a drug house if the owner is found to be reckless or negligent.


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