Hernandez-Gonzalez v. Holder

A conviction for weapons possession with a gang enhancement under California law does not constitute a crime involving moral turpitude per se; rather, such a “determination must be based on the underlying crime of conviction to which the enhancement is attached at sentencing.”

Juan Carlos Hernandez-Gonzalez, a lawful permanent resident, violated California Penal Code §12020(a)(1) for possession of a billy club. Hernandez-Gonzalez also admitted to an enhancement under California Penal Code §186.22(b)(1), which is an additional two-year sentence for association with gang-related activity. After being served a Notice to Appear, the Immigration Judge (“IJ”) deemed Hernandez-Gonzalez removable for having been convicted of a crime involving moral turpitude (“CIMT”). Hernandez-Gonzalez appealed, and the Board of Immigration Appeals (“BIA”) upheld the IJ’s determination that Hernandez-Gonzalez was removable because his conviction, “enhanced for purposes of gang activity,” constituted a CIMT. On appeal, the Ninth Circuit granted Hernandez-Gonzalez’s petition and determined that the BIA’s reasoning—that acting with intent to promote or further gang activity is inherently base, vile, and depraved, and runs against accepted rules of morality and duties owed to society—was conclusory, echoing the “agency’s definition of moral turpitude.” The panel determined that the elements of Hernandez-Gonzalez’s weapons possession, without the gang enhancement, met the definition of moral turpitude under immigration law. The panel further concluded that possession of one of the many weapons that violate California law alone was not categorically a CIMT. The panel also examined California case law, which revealed that there was more than a “realistic probability” that a gang enhancement would be applied to conduct not involving moral turpitude. The panel reasoned that because the intent element of the gang enhancement can be satisfied by intent to assist any criminal gang activity, whether turpitudinous or not, the gang enhancement statute is not directed solely at turpitudinous conduct. Thus, a conviction under California’s gang enhancement statute does not transform Hernandez-Gonzalez’s predicate offense into a CIMT. GRANTED AND REMANDED.