                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 NABIL AHMED SYED,                               No. 17-71727
                               Petitioner,
                                                 Agency No.
                     v.                         A061-375-110

 WILLIAM P. BARR, Attorney General,
                        Respondent.                OPINION

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

             Argued and Submitted June 4, 2020
                   Pasadena, California

                    Filed August 12, 2020

  Before: John B. Owens and Patrick J. Bumatay, Circuit
     Judges, and Donald W. Molloy, * District Judge.

                  Opinion by Judge Bumatay




     *
       The Honorable Donald W. Molloy, United States District Judge
for the District of Montana, sitting by designation.
2                          SYED V. BARR

                          SUMMARY **


                           Immigration

    Denying Nabil Ahmed Syed’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that Syed’s conviction under California Penal Code
§ 288.3(a), for attempting to communicate with a child with
the intent to commit lewd or lascivious acts upon that child,
was categorically a crime involving moral turpitude that
made him removable.

    Applying the categorical approach, the panel first
observed that § 288.3(a) includes the following elements:
(1) the defendant communicated with or attempted to
communicate with a minor; (2) the defendant intended to
commit one of 15 enumerated offenses involving that minor;
and (3) the defendant knew or reasonably should have
known that person was a minor. Because not all of
§ 288.3(a)’s enumerated offenses involve moral turpitude,
the panel explained that the statute is not categorically a
crime involving moral turpitude.

    However, the panel concluded that the statute is divisible
and explained that the government asserted that Syed’s
§ 288.3(a) conviction was based on a specific intent to
commit a violation of California Penal Code § 288, which
criminalizes certain lewd or lascivious acts upon a child
accomplished with the intent of arousing the sexual desires
of either the perpetrator or the child.


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

    The panel held that the full range of conduct proscribed
by § 288.3(a) with a specific intent of violating § 288 is a
crime involving moral turpitude. First, the panel explained
that the California statute is substantially similar to a
Washington statute the court had found to be a crime
involving moral turpitude. Second, the panel explained that
§ 288.3(a) and § 288, together, prohibit communicating with
a child, while knowing or having reason to be believe the
victim is a child, for the purpose of committing a lewd or
lascivious act on the child. The panel concluded that a
conviction under those statutes evinces an offense that is so
“inherently wrong” and so “contrary to the accepted rules of
morality” that it is a crime involving moral turpitude.

    The panel addressed Menendez v. Whitaker, 908 F.3d
467 (9th Cir. 2018), which held that § 288(c)(1) is not a
crime involving moral turpitude. Menendez focused on the
offense’s lack of a “good-faith reasonable mistake of age”
defense because a defendant could be convicted of
§ 288(c)(1) without knowing the victim was a child. As a
result, Menendez reasoned that the offense did not
necessarily include the “evil or malicious intent” that is the
touchstone of moral turpitude. In light of this lack of evil or
malicious intent, Menendez also noted that § 288(c)(1) was
not morally turpitudinous because the touching reached by
the statute could be “outwardly innocuous and inoffensive.”

    Distinguishing Menendez, the panel explained that a
conviction for § 288.3(a) requires that the defendant “knows
or reasonably should know” that the victim was a minor at
the time of the offense and, as a result, some form of a “good-
faith reasonable mistake of age” defense is available.
Observing that this court has held that the greater the
requisite state of mind, the less serious the resulting harm
has to be in order for the crime to be one involving moral
4                     SYED V. BARR

turpitude, the panel further concluded that even a non-
injurious touching of a child with knowledge of the victim’s
age—as required by conviction under § 288.3(a) based on
the specific intent to commit a § 288 offense—is inherently
depraved if done with a sexual intent.

    Finally, the panel concluded that Syed’s conviction
documents established that he pleaded guilty to § 288.3(a)
with a specific intent to violate § 288. Accordingly, the
panel concluded that the Board correctly held that his
offense was a categorical crime of moral turpitude that
rendered him removable.


                       COUNSEL

David M. Sturman (argued) and Jonathan S. Sturman, Law
Office of David M. Sturman P.C., Encino, California, for
Petitioner.

Christina P. Greer (argued), Trial Attorney; Greg D. Mack,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.


                        OPINION

BUMATAY, Circuit Judge:

   Nabil Ahmed Syed was ordered removed as an alien
convicted of a crime involving moral turpitude within five
years of admission. See 8 U.S.C. § 1227(a)(2)(A)(i). Syed
challenges whether his conviction under California Penal
Code § 288.3(a) qualifies as such a crime. On an issue of
                           SYED V. BARR                              5

first impression, we decide whether, under California law,
attempting to communicate with a child with the intent to
commit lewd or lascivious acts upon that child categorically
constitutes a crime involving moral turpitude. We hold that
it does and deny this petition.

                                  I.

    Syed, a native of India, was admitted into the United
States as a lawful permanent resident in February 2011. Less
than three years later, in October 2013, Syed was charged
with three counts of attempted illicit conduct with a child.
Syed eventually pleaded guilty to a single count—Count 2
of the Information—attempting to contact a child with the
intent to commit a sexual offense under California Penal
Code § 288.3(a). 1

    Under that law,

        Every person who contacts or communicates
        with a minor, or attempts to contact or
        communicate with a minor, who knows or
        reasonably should know that the person is a
        minor, with intent to commit an offense
        specified in Section 207, 209, 261, 264.1,
        273a, 286, 287, 288, 288.2, 289, 311.1,
        311.2, 311.4 or 311.11, or former section
        288a, involving the minor shall be punished
        by imprisonment in the state prison for the
        term prescribed for an attempt to commit the
        intended offense.


    1
      Unless otherwise noted, all section (§) references pertain to the
California Penal Code.
6                        SYED V. BARR

§ 288.3(a).         Accordingly,     § 288.3(a)     prohibits
communication with a minor only if it is “motivated by a
specific intent to commit [one of 15] enumerated . . .
crime[s].” People v. Keister, 129 Cal. Rptr. 3d 566, 572 (Ct.
App. 2011). The enumerated offenses include kidnapping,
rape, and oral copulation with a minor. See §§ 288.3(a), 207,
261, 287.

    Count 2 of the Information charging Syed accused him
of violating § 288.3(a) “with the intent to commit an offense
specified in Penal Code section 288, Lewd Act Upon a
Child.” Section 288 criminalizes certain lewd or lascivious
acts upon a child accomplished with the intent of arousing
the sexual desires of either the perpetrator or the child. See
also People v. Martinez, 903 P.2d 1037, 1048 (Cal. 1995).
Subsections (a) and (b) of § 288 pertain to a child under the
age of 14, while subsection (c) prohibits such acts on a child
aged 14 or 15 years old. No subsection of § 288 was
specified in Count 2.

    In his guilty plea, Syed acknowledged his plea to
Count 2 and, as a factual basis, admitted that he “committed
a violation of § 288.3(a) of the Penal Code, a felony,
whereby, [he] unlawfully contacted and communicated with
a minor, Jane Doe, with the required intent, and [he] knew
or should have reasonably known the person was a minor.”

    Syed was charged as removable under 8 U.S.C.
§ 1227(a)(2)(A)(i)—an alien convicted of a crime involving
moral turpitude within five years of admission. Syed
challenged his removability, arguing that the conviction
record was insufficient to demonstrate which specific-intent
offense supported his § 288.3(a) conviction. Syed claimed
that the factual basis in his plea intentionally left his specific-
intent offense vague as part of a careful strategy to avoid the
immigration consequences of his conviction. Syed noted his
                       SYED V. BARR                        7

plea agreement only referenced a “required intent” rather
than an enumerated sex crime.

    The immigration judge rejected Syed’s argument. The
IJ found that the documents in the record—Syed’s
Information, guilty plea, and the minutes of his criminal
proceedings—sufficiently showed that Syed was convicted
of Count 2 of the Information, which expressly denoted the
§ 288 specific intent for the § 288.3(a) conviction. The IJ
also determined that Syed’s conviction was categorically a
crime involving moral turpitude.

    Syed appealed, and the Board of Immigration Appeals
summarily affirmed the IJ’s removal order. After filing a
petition for review in this court, the government filed an
unopposed motion to remand Syed’s petition to the Board
for further consideration. We granted the motion and asked
the Board to determine whether a conviction for § 288.3(a),
based on an intent to commit a § 288 offense, describes a
categorical crime involving moral turpitude.

    On remand from this court, the Board answered our
question affirmatively. In doing so, the Board found
similarities between § 288.3(a) and Washington State’s
offense of “communication with [a] minor for immoral
purposes,” under Washington Revised Code § 9.68A.090,
which this court has found to be a categorical crime
involving moral turpitude. See Morales v. Gonzales,
478 F.3d 972, 978 (9th Cir. 2007), abrogated on other
grounds by Anaya-Ortiz v. Holder, 594 F.3d 673, 677–78
(9th Cir. 2010).

    Syed now files a second petition for review. In this
appeal, Syed again argues that his conviction record does not
support his removal under either the categorical or modified
categorical approach.
8                           SYED V. BARR

                                   II.

                                   A.

   The Board determined that a conviction under
§ 288.3(a), with a specific intent to commit a § 288 offense,
constitutes a categorical crime involving moral turpitude.
We agree. 2

    To determine whether a state conviction constitutes a
removable offense, we first apply the categorical approach,
and, if necessary, the modified categorical approach. See
Marmolejo-Campos v. Holder, 558 F.3d 903, 912 (9th Cir.
2009) (en banc).       The categorical approach is best
understood as a task of statutory matching—we ask whether
the statutory elements of the crime of conviction match the
elements of the generic offense which serves as the basis for
removal. See Mathis v. United States, 136 S. Ct. 2243, 2248
(2016). If the elements of the crime of conviction match (or
are narrower than) the elements of the generic offense, then
the analysis can stop: the crime of conviction qualifies as a
predicate for removal. Id.



    2
      Syed did not specifically challenge the Board’s classification of a
§ 288.3(a) conviction predicated on a § 288 specific intent as a
categorical crime involving moral turpitude in his opening brief.
Generally, issues not raised in an opening brief are waived. United States
v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). Nevertheless, both parties
adequately addressed this issue in post-briefing filings and at oral
argument, and intervening caselaw, such as Menendez v. Whitaker,
908 F.3d 467 (9th Cir. 2018), may have undermined the Board’s
reasoning on this issue. Accordingly, we find an exception to our normal
waiver rule. See Ullah, 976 F.2d at 514 (detailing exceptions to waiver,
including good cause shown and a lack of prejudice to opposing party’s
defense).
                        SYED V. BARR                           9

     If the elements of the statute are overbroad, we may
continue on with the analysis if the criminal statute is, as they
say, “divisible.” Id. at 2249. A divisible statute is one that
lists elements in the alternative—thereby creating multiple,
distinct crimes within a single statute. Id. Under this test,
called the modified categorical approach, we compare the
elements of the “specific statutory provision that formed the
basis for the conviction,” as determined by a limited class of
conviction documents, to the elements of the generic
offense. Altayar v. Barr, 947 F.3d 544, 549 (9th Cir. 2020).
Once again, if there is a match, the conviction may serve as
the removal predicate. Id. If a statute is not divisible or if
there is no match under the modified approach, the
conviction will not serve as a basis of removal.

    Here, we must compare the elements of § 288.3(a) to the
generic federal definition of a crime involving moral
turpitude. Accordingly, we determine whether violation of
§ 288.3(a) matches a crime that is “vile, base, or depraved
and violates accepted moral standards.” Ramirez-Contreras
v. Sessions, 858 F.3d 1298, 1304 (9th Cir. 2017) (simplified)
(setting forth the generic federal definition of a crime
involving moral turpitude).

    Section 288.3(a) includes the following elements: (1) the
defendant communicated with or attempted to communicate
with a minor; (2) the defendant intended to commit one of
15 enumerated offenses involving that minor; and (3) the
defendant knew or reasonably should have known that
person was a minor. San Nicolas v. Harris, 212 Cal. Rptr.
3d 279, 283 (Ct. App. 2016) (citing Judicial Council of
California Criminal Jury Instructions 1124 (2013)
(“CALCRIM No. 1124”)). Since there is nothing morally
turpitudinous about communicating with a child, whether
§ 288.3(a) qualifies as a basis for removal turns on the intent
10                          SYED V. BARR

motivating the communication. If a person seeks to
communicate with a child for a “vile, based, or depraved”
purpose, in contravention of “accepted moral standards,”
then a § 288.3(a) conviction constitutes a crime involving
moral turpitude. Ramirez-Contreras, 858 F.3d at 1304.

    Not all of § 288.3(a)’s enumerated intent offenses
involve moral turpitude. For example, California’s simple
kidnapping statute, § 207(a), which is a § 288.3(a)
enumerated offense, is not categorically a crime involving
moral turpitude. See Castrijon-Garcia v. Holder, 704 F.3d
1205, 1217–18 (9th Cir. 2013) overruled on other grounds
by Ceron v. Holder, 747 F.3d 773, 782 n.2 (9th Cir. 2014)
(en banc) (holding that § 207(a) does not categorically
involve moral turpitude because the offense does not require
an intent to cause harm or that harm actually occur).
Accordingly, under the test explained above, § 288.3(a) by
itself would not categorically serve as a basis to remove
Syed.

    In this case, however, the analysis may continue since
the government asserts that Syed’s § 288.3(a) conviction
was predicated on a specific intent to commit a violation of
§ 288. 3    Accordingly, we must determine whether
communicating or attempting to communicate with a child

     3
       We have no doubt that § 288.3(a) is a divisible statute as it
disjunctively enumerates 15 different offenses which may serve as its
specific-intent element. See Mathis, 136 S. Ct. at 2249 (a criminal statute
is divisible where it “lists multiple elements disjunctively.”). As
confirmed by California’s jury instructions, to convict under a
§ 288.3(a), all jurors must unanimously agree on the same specific-intent
element of the offense—making it a divisible statute. See Almanza-
Arenas v. Lynch, 815 F.3d 469, 482 (9th Cir. 2016) (en banc) (holding
that we “need not go beyond California’s pattern criminal jury
instructions” to resolve divisibility); CALCRIM No. 1124.
                       SYED V. BARR                       11

for the purpose of committing a lewd or lascivious act on the
child constitutes a crime involving moral turpitude. We
agree with the Board that such an act so transgresses
acceptable moral norms that it so qualifies.

     Our precedent instructs that communicating with a minor
for immoral purposes of a sexual nature constitutes a morally
turpitudinous crime. Morales, 478 F.3d at 978. In Morales,
we found that Washington Revised Code § 9.68A.090(1)—
Washington State’s analogous offense of communicating
with a minor for an immoral purpose—was categorically a
crime involving moral turpitude. Id. The elements of that
statute include: (1) communication; (2) with a minor or
someone the defendant believes to be a minor; (3) for
immoral purposes of a sexual nature. Id. (citing State v.
Hosier, 133 P.3d 936, 941 (Wash. 2006) (en banc)).

    We found that “[s]exual communication with a minor is
inherently wrong and contrary to the accepted rules of
morality and the duties owed between persons.” Id. Based
on that understanding, we ruled that the “full range of
conduct” prohibited by § 9.68A.090 constitutes a crime
involving moral turpitude. Id.; see also Islas-Veloz v.
Whitaker, 914 F.3d 1249, 1251 (9th Cir. 2019) (reiterating
that Washington Revised Code § 9.68A.090(1) is such a
crime).

    Following Morales, we hold that the full range of
conduct proscribed by § 288.3(a) with a specific intent of
violating § 288 is a crime involving moral turpitude. First,
the Washington and California statutes are substantially
similar. See San Nicolas, 212 Cal. Rptr. 3d at 283 (finding
that a conviction under Washington Revised Code
§ 9.68A.090 constitutes a conviction of § 288.3(a) for
purposes of state sex offender registration). Second, and
more importantly, the California law prohibits
12                      SYED V. BARR

communicating with a child, while knowing or having
reason to be believe the victim is a child, for the purpose of
committing a lewd or lascivious act on the child.
§§ 288.3(a), 288. Together, these two provisions require
that every conviction for this offense include (1) knowledge;
(2) an attempt at communication with a child; and (3) a
purpose to touch the child with “intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of [a]
person or the child.” Id. Such a conviction evinces an
offense that is so “inherently wrong” and so “contrary to the
accepted rules of morality” that it squarely falls into the
conduct that Congress determined is cause for removal from
this country. Morales, 478 F.3d at 978 (simplified).

    None of our recent caselaw undermines this conclusion.
In Menendez, 908 F.3d at 467, we analyzed whether a
particular subsection of § 288, by itself, constitutes a crime
involving moral turpitude. Subsection (c)(1) prohibits a
lewd or lascivious act upon a child when the victim is a child
of 14 or 15 years and the defendant is at least ten years older
than the child. Menendez, 908 F.3d at 472. In finding that
§ 288(c)(1) was not categorically a morally turpitudinous
crime, we focused on the offense’s lack of a “good-faith
reasonable mistake of age” defense to the statute. Id. at 473.
Since a defendant could be convicted of § 288(c)(1) without
knowing the victim was a child, Menendez reasoned that the
offense did not necessarily include the “evil or malicious
intent” that is the “touchstone of moral turpitude.” Id.
(simplified). In light of this lack of evil or malicious intent,
Menendez also noted that § 288(c)(1) was not morally
turpitudinous because the touching reached by the statute
could be “outwardly innocuous and inoffensive.” Id. at 473;
see also United States v. Eguilos, 383 F. Supp. 3d 1014, 1029
(E.D. Cal. 2019) (opining that § 288(b)(1) was not a
categorical crime of moral turpitude).
                        SYED V. BARR                        13

    Nevertheless, when § 288 serves as the specific-intent
offense of § 288.3(a), we have no doubt as to the inherent
wrongfulness of such an offense, so that Menendez is
distinguishable. A conviction for § 288.3(a) requires that the
defendant “knows or reasonably should know” that the
victim was a minor at the time of commission of the offense.
§ 288.3(a). Thus, by the text of the statute, some form of a
“good-faith reasonable mistake of age” defense is available
to § 288.3(a) offenders. Indeed, § 288.3(a) “does not impose
strict liability upon someone who does not know or has no
reason to know the person with whom he or she is
communicating or attempting to communicate is a minor.”
People v. Korwin, 248 Cal. Rptr. 3d 763, 767 (Ct. App.
2019); see also CALCRIM No. 1124 (advising judges to
instruct on a defense of “good faith belief that the victim was
not a minor” for § 288.3(a) charges). Accordingly, a
conviction under these provisions requires the “evil” and
“malicious” intent of communicating with a child for a
sexual purpose.

    Read together, §§ 288.3(a) and 288 necessarily involve
an “intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires” of the offender or the victim
child—knowing (or having reason to believe) the child is
aged 15 or younger. §§ 288.3(a), 288(a). As we recently
explained, “the greater the requisite state of mind, the less
serious the resulting harm has to be in order for the crime to
be classified as one involving moral turpitude.” Moran v.
Barr, 960 F.3d 1158, 1162 (9th Cir. 2020). Thus, even a
non-injurious touching of a child with knowledge of the
victim’s age is inherently depraved if done with a sexual
intent. Unlike the concern in Menendez, with knowledge of
the victim’s age, such a touch is clearly “vile, base, or
depraved and violates accepted moral standards.” Ramirez-
Contreras, 858 F.3d at 1304. Accordingly, we conclude that
14                      SYED V. BARR

the Board properly held that a conviction under § 288.3(a)
based on the specific intent to commit a § 288 offense is a
categorical crime involving moral turpitude.

                              B.

    Even if a conviction under § 288.3(a) with a specific
intent to commit a § 288 violation constitutes a crime
involving moral turpitude, Syed argues that his conviction
documents do not specify the specific-intent element of his
§ 288.3(a) conviction and, thus, he’s still entitled to relief.
While Syed is correct that the factual basis for his guilty plea
is silent as to the specific-intent offense, we agree with the
Board that Syed pleaded guilty to a § 288 specific intent.

    First, Count 2 of the original Information unequivocally
charges Syed with committing § 288.3(a) “with the intent to
commit an offense specified in Penal Code section 288,
Lewd Act Upon a Child.” Second, the guilty plea indicates
that Syed pleaded guilty to Count 2. Third, the minutes
confirm that Syed pleaded guilty to Count 2 of the “Original
Information.”        Weaving these documents together
sufficiently proves that Syed pleaded guilty to § 288.3(a)
with a specific intent to violate § 288. Syed specifically
affirmed in his agreement that he was pleading guilty to
Count 2 and the minutes demonstrate that he didn’t plead
guilty to any superseding information without the express
reference to § 288. See Coronado v. Holder, 759 F.3d 977,
986 (9th Cir. 2014) (“Where the minute order or other
equally reliable document specifies that a defendant pleaded
guilty to a particular count of a criminal complaint, the court
may consider the facts alleged in the complaint.”).

    The factual basis of his plea agreement may have been,
as Syed contends, carefully negotiated to avoid a reference
to the § 288 lewd-and-lascivious intent. Nevertheless, it was
                       SYED V. BARR                        15

not crafted well enough to evade the inescapable conclusion
that he pleaded guilty to an offense with a § 288 mens rea.
Furthermore, Syed knew that his plea could lead to adverse
immigration consequences. As part of his plea, he
confirmed that he understood that his conviction for the
charged offense would have the “consequence of
deportation, exclusion from admission to the United States,
or denial of naturalization pursuant to the laws of the United
States.” Syed’s then-defense attorney also certified that he
explained the potential immigration consequences of the
conviction to Syed.

    Accordingly, based on these documents before the IJ, we
agree that Syed pleaded guilty to § 288.3(a) with the specific
intent of violating § 288. Thus, Syed was properly deemed
removable as an alien convicted of a crime involving moral
turpitude. 8 U.S.C. § 1227(a)(2)(A)(i).

                             III.

    The Board correctly held that Syed’s offense of
conviction was a categorical crime involving moral
turpitude. Accordingly, we deny Syed’s petition for review.

   DENIED.
