Ninth Circuit finds that CA Indecent Exposure Conviction is a CIMT

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) determination in Matter of Cortes Medina that a California conviction for indecent exposure is a crime involving moral turpitude (CIMT), overturning its prior precedent in Nunez v. Holder. Thus, the defining characteristic of a CIMT in the indecent exposure context is whether the offense conduct includes “lewd intent.” In assessing the retroactive application of the new definition of an indecent exposure CIMT, the court noted that Cortes Medina was a drastic departure from the published precedent in Nunez. “Nunez was well-settled policy in this Circuit from February 10, 2010, the date on which Nunez was decided, until January 8, 2013, the date on which Cortes Medina was decided.” However, the court found that the petitioner could not have relied on Nunez when he pleaded guilty in 2002 because Nunez had not yet been decided. The petitioner not assert that he paid fees during his immigration proceedings in reliance on Nunez,. nor did he assert that he made strategic decisions or chose not to apply for other forms of relief because he relied on the availability of cancellation of removal under Nunez. Though the court applied the Cortes Medina definition retroactively to the petitioner, it clearly left open the possibility that someone else could demonstrate sufficient reliance on Nunez to prohibit the retractive application of Cortes Medina.

The full text of Betansos v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/05/15-72347.pdf

Ninth Circuit finds that WA Indecent Exposure Convictions are not CIMTs

The Ninth Circuit has determined that Washington’s indecent exposure statutes are overbroad and indivisible with respect to the definition of a crime involving moral turpitude. The court noted that the Washington Supreme Court recently affirmed that nothing in the statute or these definitions of obscene and lascivious inherently requires that an exposure be committed with a sexual motive. Thus, it encompasses conduct that falls outside the Board of Immigration Appeals’ decision in Matter of Cortes Medina.

The court also found that a conviction for indecent exposure to a minor under 14, even though it involved a protected class of victims (i.e., children). “[W[e have often—although not always—concluded that crimes directed towards a protected class of victims, such as children, are categorically crimes of moral turpitude. At times, however, we will encounter a statute that is simply written too broadly to capture only depraved conduct that shocks the public conscience. This is one such statute. Wash. Rev. Code § 9A.88.010(2)(b) is unusually broad: it appears that a defendant can be convicted of indecent exposure to a person under the age of fourteen even if no one witnessed the exposure, so long as the exposure took place in the presence of a child. Nor, for that matter, need the exposure have been sexually motivated.

The full text of Barrera Lima v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/24/13-73022.pdf