                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 RODRIGO MONTIEL TURIJAN,                              No. 10-72027
                       Petitioner,
                                                        Agency No.
                       v.                              A077-089-449

 ERIC H. HOLDER, JR., Attorney
 General,                                                OPINION
                         Respondent.


           On Petition for Review of an Order of the
               Board of Immigration Appeals

                    Argued and Submitted
            February 6, 2014—Pasadena, California

                        Filed March 10, 2014

    Before: Barry G. Silverman and Andrew D. Hurwitz,
    Circuit Judges, and C. Roger Vinson, Senior District
                           Judge.*

                     Opinion by Judge Vinson




  *
    The Honorable C. Roger Vinson, Senior District Judge for the U.S.
District Court for the Northern District of Florida, sitting by designation.
2                       TURIJAN V. HOLDER

                           SUMMARY**


                            Immigration

    The panel granted Rodrigo Montiel Turijan’s petition for
review of the Board of Immigration Appeals’ decision finding
that his conviction for felony false imprisonment, in violation
of California Penal Code §§ 236 and 237, is a categorical
crime involving moral turpitude.

    The panel held that felony false imprisonment under
California law is not a categorical CIMT, because it does not
require the intent to injure, actual injury, or a protected class
of victim, and because courts in California have applied the
statute to conduct that is not morally turpitudinous. The
panel also found that, where this court held in
Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013),
that simple kidnapping under CPC § 207(a) is not a
categorical CIMT, the lesser included offense to which
petitioner pled guilty and which requires an even lesser mens
rea is not a categorical CIMT either.

    The panel wrote that it was not in the position to
undertake a modified categorical analysis because the record
was undeveloped and included no details of the conviction.
The panel also wrote that it would not remand to the BIA for
further development of the record because the government
did not request such relief.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    TURIJAN V. HOLDER                       3

                        COUNSEL

Keli M. Reynolds (argued), Olmos & Reynolds Law Group,
LLP, Los Angeles, California; Andres Z. Bustamante, Law
Offices of Andres Z. Bustamante, Los Angeles, California,
for Petitioner.

Jesse L. Busen (argued) and Gregory M. Kelch, Office of
Immigration Litigation, United States Department of Justice,
Washington, D.C., for Respondent.


                         OPINION

VINSON, Senior District Judge:

    Rodrigo Montiel Turijan petitions for review of a final
decision of the Board of Immigration Appeals (“BIA”). The
issue on appeal is whether felony false imprisonment under
California Penal Code (“CPC”) §§ 236 and 237 is a
categorical crime involving moral turpitude (“CIMT”) for
purposes of the Immigration and Nationality Act (“INA”). As
this court has recognized, non-fraudulent crimes of moral
turpitude “almost always” involve the intent to injure, actual
injury, or a protected class of victim. See Nunez v. Holder,
594 F.3d 1124, 1131 (9th Cir. 2010). Because felony false
imprisonment in California does not require any of these
elements—and because courts in California have applied the
statute to conduct that is not morally turpitudinous—we
conclude that the offense is not a categorical CIMT. This
4                    TURIJAN V. HOLDER

conclusion also logically flows from (and is required by)
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1218 (9th Cir.
2013) (holding that simple kidnapping under CPC § 207(a) is
not a categorical CIMT).

                               I.

    The petitioner is a native and citizen of Mexico, who was
admitted into the United States as a lawful permanent resident
in 2000. Less than five years later, he was charged in
California state court with simple kidnapping in violation of
CPC § 207(a). The petitioner later pled guilty to a lesser
included offense of false imprisonment under CPC § 236.
See, e.g., People v. Gibbs, 90 Cal. Rptr. 866, 879 (Ct. App.
1970) (false imprisonment is “necessarily” a lesser included
offense of kidnapping). The record contains limited
information regarding the circumstances of Turijan’s crime
and the details of his plea, but we know that he was sentenced
to three years in state prison. This means that his crime was
a felony “effected by violence, menace, fraud, or deceit . . . .”
See CPC § 237(a) (false imprisonment is a misdemeanor
unless it involves one or more of those aggravating factors, in
which case it is a felony and carries more than one year
incarceration).

    After his conviction, the Department of Homeland
Security (“government”) served Turijan with a Notice to
Appear, charging him with removability pursuant to INA
§ 237(a)(2)(A)(iii), for being an alien who had been convicted
of an aggravated felony. At a hearing before an Immigration
Judge (“IJ”) in December 2005, he was granted a continuance
                    TURIJAN V. HOLDER                      5

because the government had not provided his attorney with
the conviction documents.

    At his second hearing in March 2006, the government
filed the conviction documents and, importantly for this
appeal, amended the Notice to Appear to charge Turijan with
removability under INA § 237(a)(2)(A)(i), for having been
convicted of a CIMT within five years of his admission into
the United States. Because the petitioner needed additional
time to evaluate the new charge and to review the just-filed
conviction documents, the IJ continued the matter to June
2006, after stating that “if the government had just mailed
these, we wouldn’t [have to continue the hearing], a colossal
waste of everybody’s time.”

    At his third hearing, the IJ declined to rule on the CIMT
issue because the government attorney was not prepared, so
the hearing was continued once again. Finally, at his fourth
hearing in September 2006, the government requested yet
another continuance because it was again not prepared. The
IJ denied the request, noting that the hearing had been
continued three times during which “[s]omeone could have
looked up a case or something.” The IJ then proceeded to
issue an oral ruling. He observed that the California false
imprisonment statute was very broad and appeared to be
malum prohibitum, and not malum in se. The IJ concluded
that the government failed to carry its burden and provide
“guidance as to why this is a crime involving moral
turpitude”, so he terminated the case in Turijan’s favor.

    The government appealed to the BIA, which reversed in
an unpublished order. The BIA concluded that one or more of
6                       TURIJAN V. HOLDER

the statutorily-required elements of violence, menace, fraud,
and deceit “necessarily indicate a state of mind that falls
within the definition of a crime involving moral turpitude.” In
re Rodrigo Montiel Turijan, 2008 WL 5025230 (BIA Oct. 24,
2008) (unpublished). For its conclusion, the BIA relied solely
on People v. Cornelio, 255 Cal. Rptr. 775 (Ct. App. 1989),
which held that felony false imprisonment is a CIMT for
purposes of California evidence law.1 The BIA subsequently
entered a final order of removal to Mexico, and the petitioner
now appeals.

                                   II.

    We only need to consider Turijan’s argument that felony
false imprisonment under California law is not a CIMT. As
this court has observed, moral turpitude is “perhaps the
quintessential example of an ambiguous phrase.” Marmolejo-
Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en
banc). The analytical process to determine if an offense
qualifies as a CIMT in the Ninth Circuit is as follows:

         To determine if a crime involves moral
         turpitude, we first apply the categorical
         approach. This requires us to compare the
         elements of the crime to the generic definition
         of moral turpitude and decide whether the
         conduct proscribed in the statute is broader
         than, and so does not categorically fall within,
         this generic definition. In making this
         determination, we must find a realistic


    1
   The issue in Cornelio was whether the defendant’s prior conviction for
false imprisonment was a CIMT for the purpose of being used as
impeachment evidence in his trial for drug possession.
                     TURIJAN V. HOLDER                        7

       probability, not a theoretical possibility, that
       the State would apply its statute to conduct
       that falls outside the generic definition of
       moral turpitude. This realistic probability can
       be established by showing that, in at least one
       other case, the state courts in fact did apply
       the statute in the special (nongeneric) manner
       ....

Nunez, 594 F.3d at 1129 (citations and quotation marks
omitted). Thus, we must compare the elements of felony false
imprisonment in California to the generic definition of a
CIMT—and look to cases where the statute has been
applied—to determine if all the proscribed conduct can be
said to involve moral turpitude. If the statute has been applied
in at least one previous case to conduct that does not satisfy
the generic definition, then the offense is not a categorical
CIMT. See, e.g., Castrijon-Garcia, 704 F.3d at 1214–15.

    The three elements of felony false imprisonment in
California are: (1) a person intentionally and unlawfully
restrained, confined, or detained another person, compelling
him to stay or go somewhere; (2) that other person did not
consent; and (3) the restraint, confinement, or detention was
accomplished by violence or menace. Cal. Jury Instructions,
Criminal 9.60 (Fall 2006 Revision); see also People v.
Fernandez, 31 Cal. Rptr. 2d 677, 680–81 & n.4 (Ct. App.
1994). “Violence” means the use of physical force to restrain
beyond the force necessary to effect the restraint; “menace”
8                       TURIJAN V. HOLDER

is the threat of harm express or implied by word or act. See
Fernandez, 31 Cal. Rptr. 2d at 680 n.4.2

     As to the generic definition of a CIMT, circuit precedent
tells us that non-fraudulent crimes of moral turpitude
generally involve “base, vile, and depraved” conduct that
“shock[s] the public conscience.” Nunez, 594 F.3d at 1131
(quotation marks omitted). They are “contrary to the rules of
morality and the duties owed between man and man,”
Marmolejo-Campos, 558 F.3d at 910 (quotation marks
omitted), and they involve at least some “evil intent.”
Castrijon-Garcia, 704 F.3d at 1213 (quotation marks
omitted); accord Fernandez-Ruiz v. Gonzales, 468 F.3d 1159,
1165–66 (9th Cir. 2006). Not every offense that runs against
“accepted rules of social conduct” will qualify as a CIMT,
however. Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th Cir.
2012). Rather, “[o]nly truly unconscionable conduct
surpasses the threshold of moral turpitude.” Id. Non-
fraudulent CIMTs will almost always involve an intent to
injure someone, an actual injury, or a protected class of
victims. See, e.g., Nunez, 594 F.3d at 1131.

    Upon review, we conclude that felony false imprisonment
under California law does not qualify as a categorical CIMT
for two reasons.3 First, the crime does not require any of the


        2
        As previously noted, the statute provides that felony false
imprisonment can also be accomplished by fraud or deceit. Because it is
clear that fraud-based crimes are morally turpitudinous, see, e.g., Nunez,
594 F.3d at 1131, our focus is limited to whether false imprisonment by
violence or menace qualifies.
    3
   In reaching this conclusion, we are unpersuaded by the BIA’s reliance
on Cornelio, 255 Cal. Rptr. at 775, which involved an evidentiary issue
(namely, the impeachment of a defendant) under California law. As this
                         TURIJAN V. HOLDER                                 9

three factors set forth above, and the statute has been applied
by California courts in a non-generic manner. See People v.
Islas, 147 Cal. Rptr. 3d 872, 875–82 (Ct. App. 2012) (two
gang members convicted of false imprisonment by menace
after hiding from police for about 15 minutes in an apartment
rented by a mother and her children; conviction upheld even
though the defendants did not brandish a weapon, did not act
in a hostile manner, did not touch the woman or her family,
did not issue any verbal threats, and, in fact, expressly told
her that “they were not going to harm her or her children”)
(emphasis in original).4 Other cases are analogous. See, e.g.,
People v. Wardell, 77 Cal. Rptr. 3d 77 (Ct. App. 2008).
California courts, therefore, have interpreted the felony false
imprisonment statute to reach conduct that, while meeting the
definition of menace under state law, falls short of the generic
definition of “moral turpitude,” as the term has been defined
in this circuit’s case law. Because “the full range of conduct
prohibited by the statute” does not fall within the definition


court explained while confronting the exact same situation in Castrijon-
Garcia: “The BIA’s unreasoned reliance on a state court decision . . . is
not of great weight because it relates to the very different issue of whether
a crime is morally turpitudinous for purposes of California evidence law,
lacks power to persuade and thus is not entitled to deference.” See
704 F.3d at 1211 (quotation marks omitted); see also id. at n.6 (further
noting that “this is not the first time we have held a crime not to be a
categorical crime of moral turpitude . . . even though California courts
have held the contrary under their evidentiary standard for purposes of
impeachment of a defendant”) (emphasis in original).
 4
   While the situation was clearly (and quite understandably) frightening
for the family, what the defendants actually did in that case cannot be
fairly described as “truly unconscionable” conduct demonstrating “evil
intent” or involving “base, vile, and depraved” behavior which “shock[s]
the public conscience.” Nor did the case involve an intent to injure, actual
injury, or a protected class of victim.
10                       TURIJAN V. HOLDER

of that term, see Nunez, 594 F.3d at 1133, felony false
imprisonment under California law is not a categorical CIMT.

    In addition and more conclusively, a panel of this court
has held that simple kidnapping under CPC § 207(a) is not a
categorical CIMT. See Castrijon-Garcia, 704 F.3d at 1218.
Obviously, if the crime with which the petitioner was
originally charged is not a categorical CIMT, a fortiori, the
lesser included offense to which he later pled guilty—which
requires, if anything, an even lesser mens rea —is not a
categorical CIMT either.5

                                    III.

    In Saavedra-Figueroa v. Holder, this court held that
misdemeanor false imprisonment is not a categorical CIMT
under California law, but left for another day whether felony
false imprisonment might be. See 625 F.3d 621, 622–28 &
626 n.5 (9th Cir. 2010). We hold today, consistent with
Castrijon-Garcia, that it is not.6 Accordingly, the petition is



  5
    The elements of the two offenses are similar. Compare Fernandez,
31 Cal. Rptr. 2d at 680–81 & n.4 (setting forth the elements of felony false
imprisonment) with People v. Burney, 212 P.3d 639, 666 (Cal. 2009)
(setting forth the elements of simple kidnapping). The main difference
between the two is false imprisonment requires “violence or menace” in
the detention, while kidnapping requires the use of “force or fear.” Since
simple kidnapping does not qualify as a categorical CIMT under
Castrijon-Garcia, the same result necessarily follows for the lesser
included offense of felony false imprisonment.
  6
    Because we grant Turijan’s petition on statutory grounds, we do not
resolve his due process claim. We also need not consider whether he was
removable for being an alien who had been convicted of an aggravated
felony because the government has abandoned that claim.
                         TURIJAN V. HOLDER                                11

GRANTED, and the BIA’s final order of removal is
VACATED.7




  7
    Ordinarily, if an offense is not a CIMT under the categorical approach,
we would apply a modified categorical approach and look to documents
in the record to see if the facts of the offense involved moral turpitude. See
Nunez, 594 F.3d at 1129–30. The modified categorical approach is not
available here, however, since the record is undeveloped and does not
include any details of the conviction. Thus, we are not in the position to
undertake the modified categorical analysis. See id. at 1130 (concluding
same). Nor will we remand to the BIA for further development of the
record as the government has not requested such relief on appeal.
