Rosales Rivera v. Lynch

The two-step framework for determining if a crime involves moral turpitude includes first identifying the elements of the conviction statute, and secondly, comparing those elements to the generic definition of crime involving moral turpitude.

Milton Bladimir Rosales Rivera is originally from El Salvador and came to the United States without inspection in 2001. Rosales Rivera was charged under California Penal Code § 118 for perjury on a driver’s license application, which he pled no contest. The Department of Homeland Security (“DHS”) subsequently initiated removal proceedings and the Immigration Judge (“IJ”) ordered Rosales Rivera removed because a § 118 conviction “is clearly a crime involving moral turpitude [(“CIMT”)],” which bars canceling the removal. The Board of Immigration Appeals affirmed the IJ’s decision, concluding in part that crimes involving fraud as an element are categorically CIMTs. On appeal, the Ninth Circuit applied the two-step framework established in Marmolejo-Campos v. Holder to evaluate whether a conviction is categorically a crime involving moral turpitude. First, the elements of the statute of conviction must be identified, and second, the elements must be compared to the generic definition of a CIMT. The panel found that the elements of §118 apply to both written and oral perjury, and included “a willful statement, under oath, of any material matter which the witness knows to be false.” Comparing the elements to the generic definition, the panel found that § 118 goes beyond common law perjury and does not involve “fraud nor grave acts of baseness or depravity.” The panel concluded that § 118 is not a crime involving moral turpitude, and therefore granted Rosales Rivera’s petition. Petition GRANTED and REMANDED.