Navarro-Lopez v. Gonzales

503 F.3d 1063, 2007 U.S. App. LEXIS 22312, 2007 WL 2713211

Opinions

Opinion by PREGERSON;¹ Concurrence by Judge REINHARDT; Dissent by Judge TALLMAN; Dissent by Judge BEA.

PREGERSON, Circuit Judge:

Armando Navarro-Lopez petitions for review of a final order of removal, arguing that the Board of Immigration Appeals (“BIA”) erred in summarily affirming the immigration judge’s (“IJ”) determination that Navarro-Lopez’s conviction under California Penal Code section 32 for accessory after the fact was a conviction for a crime involving moral turpitude. Based on Navarro-Lopez’s conviction, the IJ concluded he was inadmissible and ineligible for cancellation of removal. We have jurisdiction pursuant to 28 U.S.C. § 1252(a)(1), and we grant the petition.

FACTS AND PRIOR PROCEEDINGS

Navarro-Lopez is a native and citizen of Mexico. He is married to a U.S. citizen and has applied for permanent residency-through his wife. He has two U.S. citizen children, ages thirteen and sixteen, and a twenty-four-year-old child who is a legal permanent resident. He has been working in the United States for over twenty years, and he and his wife own their own home.

Navarro-Lopez entered the United States in June 1984. On August 9, 1999, Navarro-Lopez pled guilty to one count of California Penal Code section 32, accessory after the fact. He was sentenced to 270 days in jail and three years probation. In February 2001, Navarro-Lopez traveled to Tijuana, Mexico to visit his mother who was gravely ill. On February 11, 2001, Navarro-Lopez tried to re-enter the United States at the San Ysidro point of entry. When he presented his employment authorization card, the border patrol denied him entry and detained him. The Immigration and Naturalization Service (“INS”)² thereafter commenced removal proceedings.

The INS charged Navarro-Lopez with being inadmissible because he did not have valid entry documents under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and because he had been convicted of a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). At his merits hearing, Navarro-Lopez conceded inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I), but argued that he had not been convicted of a crime of moral turpitude. Although Navarro-Lopez admitted having been convicted under California Penal Code section 32 for accessory after the fact, he disputed the INS’s categorization of that crime as one involving moral turpitude.

The IJ nonetheless held that Navarro-Lopez’s accessory after the fact conviction constituted a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ, therefore, held Navarro-Lopez removable. The IJ also denied Navarro-Lopez’s application for cancellation of removal on the grounds that Navarro-Lopez had been convicted of a crime involving moral turpitude. Further, the IJ held that because Navarro-Lopez had been convicted of a crime involving moral turpitude, Navarro-Lopez did not have the requisite good moral character to be eligible for cancellation of removal. Thus, the IJ’s characterization of California Penal Code section 32 as a crime involving moral turpitude served to bar Navarro-Lopez’s application in two ways: (1) a conviction for a crime involving moral turpitude renders someone ineligible for cancellation or removal and (2) a conviction for a crime involving moral turpitude demonstrates a lack of the requisite good moral character necessary to qualify for cancellation of removal.

The IJ ordered Navarro-Lopez removed to Mexico. Navarro-Lopez timely appealed to the BIA, which summarily affirmed the IJ on December 24, 2003. Navarro-Lopez timely filed this petition for review on January 22, 2004.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the petition under 8 U.S.C. § 1252 as amended by section 106(a) of the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B., § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (codified as amended at 8 U.S.C. § 1252(a)(2)(D)). See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir.2005). While we do not normally have jurisdiction to review “any final order of removal against an alien who is removable by reason of having committed [certain criminal offenses],” 8 U.S.C. § 1252(a)(2)(C), including crimes involving moral turpitude,³ we are not barred from hearing the constitutional claims or questions of law raised in a petition. 8 U.S.C. § 1252(a)(2)(D). Whether Navarro-Lopez’s conviction is a crime involving moral turpitude is a question of law, which we have jurisdiction to reach. See Notash, 427 F.3d at 696.

We review de novo “whether a state statutory crime constitutes a crime involving moral turpitude.” Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005). “Where the BIA affirms an IJ’s order without opinion, we review the IJ’s decision as the final agency action.” Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004).

ANALYSIS

Navarro-Lopez asserts that the IJ erred in deciding that a conviction for accessory after the fact under California Penal Code section 32 constitutes a crime involving moral turpitude. Navarro-Lopez asks that we remand his petition to the BIA for a grant of cancellation of removal. To qualify for cancellation of removal, an alien must demonstrate, inter alia, that he has not been convicted of a crime of moral turpitude and that he has maintained good moral character for the ten years immediately preceding the date of his application. 8 U.S.C. § 1229b(b)(1). Under 8 U.S.C. § 1101(f)(3), no person may be found to have good moral character who has been convicted of a crime listed in 8 U.S.C. § 1182(a)(2)(A), which includes a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ did not rely on facts other than Navarro-Lopez’s conviction when he determined that Navarro-Lopez lacked good moral character. Thus, Navarro-Lopez’s eligibility for cancellation of removal turns on whether a conviction under California Penal Code section 32 constitutes a crime of moral turpitude.

To determine whether a conviction is for a crime involving moral turpitude, we apply the categorical and modified categorical approaches established by the Supreme Court in Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).⁴ Cuevas-Gaspar, 430 F.3d at 1017.

A. The Categorical Approach

1.

The categorical approach requires us to “make a categorical comparison of the elements of the statute of conviction to the generic definition [of the crime], and decide whether the conduct proscribed by [the statute] is broader than, and so does not categorically fall within, this generic definition.” Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir.2003). Therefore, we begin the categorical approach by determining the generic elements of a crime involving moral turpitude for the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I). See Taylor, 495 U.S. at 580-81, 110 S.Ct. 2143.

A difficulty arises here as there are no statutorily established elements for a crime involving moral turpitude. Courts, however, have consistently defined “moral turpitude” as involving conduct that is inherently base, vile, or depraved, and contrary to the private and social duties man owes to his fellow men or to society in general. See, e.g., Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir.2007). This is the definition employed by the BIA, see, e.g., Matter of E—, 2 I & N Dec. 134, 140 (BIA 1944), and the definition is relatively consistent throughout the federal courts, see, e.g., Sosa Martinez v. U.S. Att’y Gen., 420 F.3d 1338, 1341-42 (11th Cir.2005); Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir.2005) (also asking whether the act involved arouses “serious” indignation in the law-abiding public); Omagah v. Ashcroft, 288 F.3d 254, 259-60 (5th Cir.2002) (further adding that morally turpitudinous acts are “per se morally reprehensible and intrinsically wrong”); Medina v. United States, 259 F.3d 220, 227 (4th Cir.2001) (adding that morally turpitudinous conduct “shocks the public conscience”).

This widespread judicial consistency is supported by basic notions of moral turpitude. Moral turpitude involves “immoral or depraved” conduct. Random House Dictionary of English Usage Unabridged 930 (1973). Crimes of moral turpitude “involv[e] grave infringement of the moral sentiment of the community.” Webster’s New International Dictionary Unabridged 1593 (2d ed.1940). Thus, the generic definition of a crime involving moral turpitude is a crime involving conduct that (1) is base, vile, or depraved and (2) violates accepted moral standards.⁵

2.

In his dissent, Judge Tallman states that all crimes involving morally turpitudinous conduct fall into one of two categories: those involving fraud and those involving grave acts of baseness or depravity. Tallman Dissent at 1078-79; accord Reinhardt Cone, at 1074. The dissent draws this formulation from Carty v. Ashcroft, 395 F.3d 1081 (9th Cir.2005), wherein we stated: “Crimes of moral turpitude are of basically two types, those involving fraud and those involving grave acts of baseness or depravity.” Id. at 1083 (emphasis added). Although Carty can be read to stand for the proposition that crimes involving moral turpitude generally fall into these two categories, these two categories do not define moral turpitude. As explained above, crimes involving moral turpitude involve base, vile, and depraved conduct that shocks the conscience and is contrary to the societal duties we owe each other.

Crimes involving fraud are not a per se category of crimes involving moral turpitude. Crimes involving fraud, depending on the circumstances, merely present examples of conduct that may fall under the umbrella of inherently base and vile conduct that shocks the conscience. Indeed, some crimes involving the intent to defraud (especially in the dissent’s broad definition, which encompasses any crime involving “dishonesty”) are not necessarily crimes involving moral turpitude.⁶

Crimes “involving fraud” encompasses such a broad category of possible offenses, that it is not proper simply to label all such crimes morally turpitudinous. There may be crimes involving fraud that do involve moral turpitude. For example,- someone perpetrating a vast fraud to deprive widows of pension benefits or employees of ERISA benefits would qualify as base, vile, depraved, and shocking society’s conscience. On the other hand, some actions involving fraud may not qualify as base, vile, and depraved. Take the example of a welfare mother who falsely endorses and then cashes a social security check mistakenly issued to her deceased father. The woman knows that she does not have the right to the money. She forges her father’s signature. But, she needs money to feed her hungry children. Although such conduct is illegal, it is not base, vile, or depraved. Both of these crimes involve fraud, but they present very different circumstances. Because such a large swath of crimes involve fraud, we should conduct an individualized analysis for offenses involving fraud — not immediately label them as involving moral turpitude.

As this circuit and the BIA have consistently held, we must engage in an individualized analysis of each challenged statute to determine whether it falls under the rubric of crimes involving moral turpitude. See, e.g., Morales, 478 F.3d at 978; Cuevas-Gaspar, 430 F.3d at 1017. As the majority of crimes involve some element of dishonesty — from Enron executives operating massive fraud on the public to a twenty-year-old using his older brother’s ID to buy a beer — classifying all such crimes as involving moral turpitude would rob the phrase “moral turpitude” of any distinct meaning. Thus, while Judge Tail-man’s dissent and Judge Reinhardt’s concurrence inquire into whether accessory after the fact is a crime involving fraud, the real question is whether accessory after the fact is a crime that is inherently base, vile, or depraved and contradicts accepted moral standards.⁷

3.

After determining the generic elements of a crime, the next step of the categorical approach is to compare those elements with the state statute in question. Cuevas-Gaspar, 430 F.3d at 1017. Here, we assess whether accessory after the fact under California Penal Code section 32 is a crime involving moral turpitude. Whether a crime involves moral turpitude “is determined by the statutory definition or by the nature of the crime [and] not by the specific conduct that resulted in the conviction.” McNaughton v. INS, 612 F.2d 457, 459 (9th Cir.1980) (per curiam). We may not consider the circumstances under which the crime was committed.

California Penal Code section 32 provides:

Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.

Under California law, the crime of accessory after the fact has the following essential elements:

(1) someone other than the person charged as an accessory, that is to say, a principal, must have committed a specific completed felony; (2) the accused must have harbored, concealed or aided the principal (3) with knowledge that the principal committed a felony; and (4) further, the hiding, concealing or harboring must be with the specific intent that the principal may escape from arrest and trial.

People v. Prado, 67 Cal.App.3d 267, 136 Cal.Rptr. 521, 523 (1977). Thus, a conviction under section 32 requires knowing interference with the enforcement of the law with the specific intent to help a principal avoid arrest or trial.

The IJ applied his incorrect definition of moral turpitude⁸ and then held that a conviction under California Penal Code section 32 necessarily implicates a crime of moral turpitude in all circumstances. He explained:

It is a crime involving moral turpitude because a conviction under this provision does show conduct contrary to the duty owed to society in general. His conviction was in contradiction of the enforcement of a state law relating to a felony. Furthermore, it involves knowledge that the individual that the respondent is harboring or aiding has committed such a felony, given the fact that it involves the knowledge that the principal has committed the felony and the individual is [undertaking conduct, whether that be harboring or aiding. Such assistance to one known to have committed a felony is clearly contrary to the accepted rules owed between members of society.

The IJ based his holding on the fact that an accessory violates a duty owed to society to obey the law and not to impede the investigation of crimes. However, commission of any crime, by definition, runs contrary to some duty owed to society. If this were the sole benchmark for a crime involving moral turpitude, every crime would involve moral turpitude. We certainly owe a duty to society not to destroy another’s property, not to assault another, and not to break and enter private property. Yet, we have held that convictions for these acts do not categorically involve moral turpitude. E.g., Cuevas-Gaspar, 430 F.3d at 1020 (burglary with intent to commit a crime within the residence); Carr v. INS, 86 F.3d 949, 950-51 (9th Cir.1996) (assault with a deadly weapon); Rodriguez-Herrera v. INS, 52 F.3d 238, 239-40 (9th Cir.1995) (“knowingly and maliciously ... causing] physical damage to property of another”).

It is apparent that the IJ’s definition of moral turpitude is overbroad because under his definition, all crimes would be crimes of moral turpitude. Such a reading of the statute is untenable. If Congress had intended any conviction to make an alien ineligible for cancellation of removal, it would have said so. There would be no reason to designate specific categories of crimes. For example, 8 U.S.C. § 1182(a)(2)(A)(i) states that aliens are inadmissible where they have committed a crime involving moral turpitude or a crime relating to a controlled substance. If all conduct “contrary to the duty owed to society in general” rendered an individual inadmissible under the prohibition on crimes involving moral turpitude, the second category of crimes relating to controlled substances would be mere surplus-age.

The IJ omitted the second crucial element of the definition of a crime involving moral turpitude: that the crime involve some level of depravity or baseness “so far contrary to the moral law” that it gives rise to moral outrage. Jordan v. DeGeorge, 341 U.S. 223, 236 n. 9, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (Jackson, J., dissenting). The crime of accessory after the fact need not involve grave acts of baseness or depravity. Determining whether a crime is base or depraved is a subjective decision about societal values. The broad range of acts proscribed under California Penal Code section 32 do not all give rise to moral outrage. “Any kind of overt or affirmative assistance to a known felon” can be the basis of a conviction under section 32. People v. Duty, 269 Cal.App.2d 97, 74 Cal.Rptr. 606, 609 (1969) (emphasis added). The act of harboring a felon can be as simple as providing food or shelter to someone who has committed a felony — even where that person is a family member. See United States v. Hill, 279 F.3d 731, 736 (9th Cir.2002). Yet such conduct hardly entails baseness or depravity.

Actions that are more harmful than the conduct underlying an accessory after the fact conviction have been deemed not to categorically involve moral turpitude. To hold that a conviction for accessory after the fact is necessarily a crime of moral turpitude leads to an absurd result where a principal who commits a crime may not have undertaken a morally turpitudinous act, but the person who gave the principal food and shelter necessarily did. See 9 U.S. Dep’t of State Foreign Affairs Manual 40.21(a) n. 2.4(b) (“[W]here an alien has been convicted of ... accessory before or after the fact ... and the underlying crime is not deemed to involve moral turpitude, then [8 U.S.C. § 1182](a)(2)(A)(i)(I) would not be applicable.”); cf. Goldeshtein v. INS, 8 F.3d 645, 647 n. 6 (9th Cir.1993) (“[CJonspiracy to commit an offense involves moral turpitude only when the underlying substantive offense is a crime involving moral turpitude.”)

The motivation underlying accessory crimes is often protection of a friend or of a family member during a time of trouble, and such actions, while criminal, do not necessarily evidence moral depravity. Many states, including one in this circuit, have recognized the difficult choices facing the family members of an escaping felon and have exempted family members from accessory after the fact liability. See Nev. Rev.Stat. § 195.030. California, however, has no such explicit exception. Thus, in California, a wife could be convicted of harboring her husband, or a father or mother of harboring a son or daughter. It would be illogical to conclude that society in general would call the action of harboring one’s son or daughter a crime that is inherently base or depraved when many states do not even consider such conduct criminal.

The Supreme Court recently examined the Taylor categorical approach and cautioned against employing “legal imagination” when determining whether a state statute falls under the generic definition of a crime. Gonzales v. Duenas-Alvarez, — U.S. —, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007). Specifically, the court stated that to find that a state statute falls outside of a generic definition, there must be a “realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Id.

The Supreme Court was indicating that we should not simply hypothesize unusual cases that would fall outside the generic definition of a crime. See James v. United States, — U.S. —, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007). Indeed, the Court has explained that we should look to the “nature” of the offense at issue. Id. Thus, the question before us is whether California Penal Code section 32 describes a crime that by its nature involves moral turpitude. It clearly does not. Accessory after the fact is not a crime whose very nature is base, vile, or depraved; nor is it a crime necessarily contradicting moral standards.

Judge Tallmaris dissent argues that Duenas-Alvarez requires us to provide specific examples of California prosecuting people under Penal Code section 32 for acts that would fall outside the generic definition for crimes involving moral turpitude. Tallman Dissent at 12598. He presents a list of cases where defendants were prosecuted under section 32 for acting as accessories to serious crimes. This list misses the point. The issue is not whether in some cases violators of section 32 have been involved in a crime of moral turpitude. The issue is whether everyone prosecuted under that section has necessarily committed a crime involving moral turpitude. There is nothing inherent in the crime of accessory after the fact that makes it a crime involving moral turpitude in all cases.

A few examples illustrate this point. In a recent case, California prosecuted Malcolm, a juvenile, for accessory after the fact where the principal was charged with possession of an assault weapon. In re Malcolm M., 147 Cal.App.4th 157, 54 Cal.Rptr.3d 74 (2007). Although the California Court of Appeal held that Malcolm was responsible for aiding and abetting instead of acting as an accessory after the fact, id. at 84, his case demonstrates that in California one can be charged and convicted with accessory after the fact for crimes that do not involve moral turpitude. No court has ever found possession of a weapon to be a crime involving moral turpitude. Cf. Carr, 86 F.3d at 950-51 (holding that assault with a deadly weapon was not a crime involving moral turpitude). Moreover, Malcolm’s efforts to conceal a weapon by placing it under his feet, see In re Malcom M., 54 Cal.Rptr.3d at 77, do not demonstrate conduct that is by its nature base, depraved, or vile.

Additionally, people are regularly convicted under California Penal Code section 32 in California for harboring or concealing principals who have committed assault or burglaries. See, e.g., Shortridge v. Mun. Ct., 151 Cal.App.3d 611, 198 Cal.Rptr. 749 (1984) (accessory to burglary of a trailer home); People v. Luna, 140 Cal.App.2d 662, 295 P.2d 457 (1956) (accessory to assault); Ex Parte Goldman, 88 P. 819 (Cal.Ct.App.1906) (accessory to theft of personal property). Such actions do not rise to the level of offending societal conscience. They do not constitute grave acts of immorality any more than any violation of the law does.⁹ We have held that neither burglary nor assault with a deadly weapon constitute crimes of moral turpitude. Cuevas-Gaspar, 430 F.3d at 1020 (burglary with intent to commit a crime within the residence); Carr, 86 F.3d at 950-51 (assault with a deadly weapon). Aiding and abetting such crimes would not demonstrate conduct involving moral turpitude. Acting as an accessory after the fact to such crimes should not necessarily do so either.

Conduct underlying an accessory after the fact conviction does not necessarily involve conduct that involves baseness or depravity. Thus, California Penal Code section 32 refers to a potential set of crimes broader than the generic definition of a “crime involving moral turpitude.” Under the Taylor categorical approach, Navarro-Lopez’s conviction for accessory after the fact does not fall under the generic definition and was not for a crime involving moral turpitude.

B. The Modified Categorical Approach

In the Ninth Circuit, we have held that where a state statute is categorically broader than the generic definition of a crime, we employ a modified categorical approach. Kepilino v. Gonzales, 454 F.3d 1057, 1062 (9th Cir.2006). In Carty, we explained that a modified categorical approach is proper when a statute is divisible into several crimes, some of which may involve moral turpitude and some of which may not. Carty, 395 F.3d at 1084.

The modified categorical approach, however, only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that “a jury was actually required to find all the elements of’ the generic crime. See Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir.2004) (Kozinski, J., concurring) (providing examples).

Accessory after the fact under California Penal Code section 32 lacks an element of the generic crime — i.e., the moral turpitude, the requisite depravity. The crime of conviction can never be narrowed to conform to the generic crime because the jury is not required — as Taylor mandates — to find all the elements of the generic crime.¹⁰ Even if Navarro-Lopez had admitted to depraved acts, those admissions could not be used to modify the crime because they were not necessary for a conviction. See Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (holding that government must show that “a prior conviction ‘necessarily’ involved (and a prior plea necessarily admitted) facts equating to generic burglary”). The modified categorical approach thus cannot be used to conform Navarro-Lopez’s accessory after the fact conviction to the generic definition of crimes involving moral turpitude.

CONCLUSION

A crime involving moral turpitude must be a crime that (1) is vile, base or depraved and (2) violates societal moral standards. Accessory after the fact under California Penal Code section 32 does not fall under this definition. The categorical and modified categorical approaches outlined in Taylor support this conclusion. Therefore, we grant the petition and remand to the BIA for full consideration of Navarro-Lopez’s application for cancellation of removal.

PETITION GRANTED and REMANDED.

1 . This opinion serves as the opinion of the majority of the court save for the four paragraphs that comprise section A.2. That section is to be viewed as Judge Pregerson’s special concurrence.

2 . On March 1, 2003, the INS was dissolved as an independent agency within the United States Department of Justice, and its functions were transferred to the Department of Homeland Security. Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135.

3 . See 8 U.S.C. §§ 1252(a)(2)(C), 1182(a)(2), & 1227(a)(2)(A). This case involves only a single alleged crime of moral turpitude, which alone would not fall within the jurisdictional limitations of § 1252(a)(2)(C). However, because the crime rendered Navarro-Lopez inadmissible and occurred before his re-entry into the United States, it falls within the scope of § 1182(a)(2)(A)(i), and accordingly, § 1252(a)(2)(C).

4 . In his dissent, Judge Bea argues that we should not apply the Taylor categorical approach when determining whether a crime involves moral turpitude. This plainly conflicts with our precedent. See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006); Kepilino v. Gonzales, 454 F.3d 1057, 1060-62 (9th Cir.2006); Cuevas-Gaspar, 430 F.3d at 1017. Instead, Judge Bea urges us to look at the manner in which moral turpitude has been applied in judicial decisions. Bea Dissent at 1086. This is in essence how we begin the categorical approach for crimes involving moral turpitude. As explained below, moral turpitude lacks a statutory definition and instead we look to common law (i.e. "judicial decisions") to determine the generic definition of the crime.

5 . In his oral decision, the IJ set forth a slightly different definition of moral turpitude, stating that "[a] crime involving moral turpitude generally refers to conduct which is inherently base, vile, or depraved, or is contrary to the accepted rules of morality and to the duties owed between men in society.” (emphasis added). The IJ’s definition differs from the generic definition of moral turpitude in one key respect. The IJ stated that moral turpitude involves conduct that is either (1) inherently base, vile, or depraved or (2) contrary to the accepted duties owed between man and society. This definition is incorrect because crimes of moral turpitude involve both elements.

The IJ cited Matter of Flores, 17 I & N Dec. 225 (BIA 1980), for his definition, but the IJ appears to have misread that case. Matter of Flores set forth the correct definition of moral turpitude: "Moral turpitude is a nebulous concept which refers generally to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” Matter of Flores, 17 I & N Dec. at 227. Thus, Matter of Flores does not support the definition of moral turpitude used by the IJ.

6 . In section III of his concurrence, Judge Reinhardt states that my approach dilutes the meaning of moral turpitude and would broaden the category of crimes involving moral turpitude. Reinhardt Cone, at 1075-76. My approach does exactly the opposite. Although prior case law describes fraud as a category of crimes involving moral turpitude, crimes involving fraud can be crimes of moral turpitude but are not necessarily crimes involving moral turpitude. Judge Reinhardt interprets this as “compelling” us to label all crimes involving fraud as base, vile, and depraved. Reinhardt Cone, at 1074. I specifically hold that crimes involving fraud do not compel such a holding. A crime involving moral turpitude must be one that is base, vile, or depraved and shocks society's conscience. Where a crime includes an element of fraud, this same standard must be met.

7 . Even if we were to hold that crimes involving fraud are always crimes involving moral turpitude, accessory after the fact pursuant to California Penal Code section 32 is not a crime necessarily involving fraud. It is not enough that an offense involve some sort of sneaky or dishonest behavior — we look for intent to defraud. See Carty, 395 F.3d at 1084 (holding that a statute prohibiting conduct with "specific intent to evade a tax” did not contain, as an essential element of the offense: an intent to defraud); see also Goldeshtein v. INS, 8 F.3d 645, 647-48 (9th Cir.1993).

A review of the statutory language of California Penal Code section 32 demonstrates that intent to defraud is not an essential element of a conviction under the statute.

8 . See supra n. 4.

9 . As noted earlier, at some level all illegal acts violate societal norms and values — that is why the acts are illegal. However, "crimes involving moral turpitude” is a limited category of crimes and does not extend to cover all conduct that violates the law.

10 . This same analysis applies in cases, as the one currently before us, where courts review plea agreements instead of jury verdicts.