CA9 on CIMT, False Imprisonment: Turijan v. Holder

CA9 on CIMT, False Imprisonment: Turijan v. Holder

"Rodrigo Montiel Turijan petitions for review of a final decision of the Board of Immigration Appeals (“BIA”). The issue on appeal is whether felony false imprisonment under California Penal Code (“CPC”) §§ 236 and 237 is a categorical crime involving moral turpitude (“CIMT”) for purposes of the Immigration and Nationality Act (“INA”). As this court has recognized, non-fraudulent crimes of moral turpitude “almost always” involve the intent to injure, actual injury, or a protected class of victim. See Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010). Because felony false imprisonment in California does not require any of these elements—and because courts in California have applied the statute to conduct that is not morally turpitudinous—we conclude that the offense is not a categorical CIMT. This  conclusion also logically flows from (and is required by) Castrijon-Garcia v. Holder, 704 F.3d 1205, 1218 (9th Cir. 2013) (holding that simple kidnapping under CPC § 207(a) is not a categorical CIMT). ... Accordingly, the petition is  GRANTED, and the BIA’s final order of removal is VACATED.  [fn7: Ordinarily, if an offense is not a CIMT under the categorical approach, we would apply a modified categorical approach and look to documents in the record to see if the facts of the offense involved moral turpitude. See Nunez, 594 F.3d at 1129–30. The modified categorical approach is not available here, however, since the record is undeveloped and does not include any details of the conviction. Thus, we are not in the position to undertake the modified categorical analysis. See id. at 1130 (concluding same). Nor will we remand to the BIA for further development of the record as the government has not requested such relief on appeal.]" - Turijan v. Holder, Mar. 10, 2014.  [Hats off to Keli Reynolds!]