Gonzalez-Cervantes v. Holder

There is no “realistic probability” that California courts would apply Cal. Penal Code § 243.4(e) to conduct that does not meet the generic federal definition of “moral turpitude.”

In reviewing the Board of Immigration Appeals’ decision that “there is ‘no realistic probability’ that California would apply Cal. Penal Code § 243.4(e), misdemeanor sexual battery, to conduct that is not morally turpitudinous,” the Court looked to see if § 243.4(e) fit the generic federal definition of a crime of moral turpitude. Noting that the essence of moral turpitude is an “evil or malicious intent” and such a crime is “vile, base, or depraved,” the Court reasoned that misdemeanor sexual battery was a crime of moral turpitude because it is similar to the kind of “base, vile, or depraved” sexual offenses that have been found to involve moral turpitude. In order to violate § 243.4(e)(1), a person “must touch, without consent, another’s intimate parts with the specific intent to insult, humiliate or intimidate the victim.” The Court found this type of intent to be “evil or malicious.” Gonzalez-Cervantes cited three cases in which he claimed that California had applied § 243.4(e) in a manner outside the generic federal definition of a crime of moral turpitude. The Court distinguished these cases because the defendant in each case had specifically intended psychological harm to the victim, which placed the defendant’s conduct within § 243.4(e). Since § 243.4(e) fit within the generic federal definition of a crime of moral turpitude and Gonzalez-Cervantes failed to cite a case where § 243.3(e) was applied outside of that definition, the Court held that “there is no ‘realistic probability’ that California courts would apply § 243.3(e) to conduct falling outside the generic federal definition of moral turpitude.” PETITIONS DENIED.