                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 27 2014

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOSUE DANIEL HERRERA,                            No. 12-71462

              Petitioner,                        Agency No. A088-673-586

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted December 3, 2013
                            San Francisco, California

Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.

       Josue Herrera petitions for review of the Board of Immigration Appeals’

(“BIA”) conclusion that his conviction under Ariz. Rev. Stat. Ann. § 13-

1202(A)(3) is categorically a crime involving moral turpitude, subjecting him to

deportation under 8 U.S.C. § 1227(a)(2)(A)(i). Because the parties are familiar

with the facts and procedural history of the case, we need not recount them here.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Because we conclude that Section 13-1202(A)(3) is not categorically a crime of

moral turpitude, we grant the petition for review and remand to the BIA for it to

apply the modified categorical approach.

                                           I

      In order to determine whether a criminal statute, such as Section 13-

1202(A)(3) in this case, involves a crime of moral turpitude, “we apply the

categorical and modified categorical approaches set forth in Taylor v. United

States, 495 U.S. 575 (1990).” Castrijon-Garcia v. Holder, 704 F.3d 1205, 1212

(9th Cir. 2013). “Under the categorical approach, we 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.” Id. (internal quotation marks omitted). This two-step

process requires first identifying the elements of the statute of conviction and then

comparing those elements to the generic definition of a crime of moral turpitude.

Id. at 1208. As to the first step, we review the BIA’s determination de novo. Id.

As to the second step, where, as here, the BIA has not issued a precedential

decision, and where its unpublished decision is not directly controlled by a

published decision interpreting the same statute, “we defer to the BIA’s

determination only to the extent that it has the power to persuade (i.e. Skidmore


                                           2
deference).” Latter-Singh v. Holder, 668 F.3d 1156, 1160 (9th Cir. 2012); see also

Castrijon-Garcia, 704 F.3d at 1208.

      Although not defined in the Immigration and Nationality Act, we have

generally defined the term “crime of moral turpitude” “as comprising crimes that

are inherently base, vile, or depraved, and contrary to the accepted rules of

morality and the duties owed between persons or to society in general.” Castrijon-

Garcia, 704 F.3d at 1212 (internal quotation marks omitted). These crimes

generally require some “evil intent.” Id. at 1213 (internal quotation marks

omitted). Typically, non-fraudulent morally turpitudinous crimes “involve an

intent to injure, actual injury, or a protected class of victims.” Id.; see also Turijan

v. Holder, 744 F.3d 617, 619 (9th Cir. 2014) (“[N]on-fraudulent crimes of moral

turpitude ‘almost always’ involve the intent to injure, actual injury, or a protected

class of victim.” (quoting Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010))).

                                           II

      Section 13-1202(A)(3) bars a person from “threatening or intimidating.”

Ariz. Rev. Stat. Ann. § 13-1202(A)(3). A person is guilty of violating the statute if

he or she “threatens or intimidates by word or conduct: . . . [t]o cause physical

injury to another person or damage to the property of another in order to promote,

further or assist in the interests of or to cause, induce or solicit another person to


                                            3
participate in a criminal street gang, a criminal syndicate or a racketeering

enterprise.” Id. The BIA summarized the elements of the crime as follows: “A

conviction under that provision requires proof beyond a reasonable doubt that the

accused uttered a threat or engaged in intimidating conduct for the specific purpose

of promoting a criminal street gang or other joint criminal enterprise.” The BIA

concluded that the statute contains the requisite scienter and is morally

turpitudinous because it “encompasses only that subset of threats which are made

for the specific purpose of promoting gang activity or organized crime.”

      Herrera argues that the BIA erred both because Section 13-1202(A)(3) lacks

the requisite mens rea and, in the alternative, because it encompasses conduct that

is not “inherently base, vile, or depraved.” Regardless of whether Section 13-

1202(A)(3) contains the necessary scienter, we conclude that the statute is not

categorically a crime of moral turpitude because there is a “realistic probability of

its application to conduct that falls beyond the scope of the generic federal

offense.” Castrijon-Garcia, 704 F.3d at 1212 (internal quotation marks omitted).

The statute encompasses conduct outside the scope of the three factors cited above:

an “intent to injure, actual injury, or a protected class of victim.” Turijan, 744 F.3d

at 619.




                                           4
      Assuming, without deciding, that the BIA has correctly listed the elements, a

person could be convicted of those elements—of uttering “a threat or engaging in

intimidating conduct for the specific purpose of promoting a criminal street gang

or other joint criminal enterprise”—without intending to injure or actually injuring

a victim, and without targeting a protected class of victims. Indeed, the statute

could encompass more than the type of depraved actions we generally label as

morally turpitudinous, including the bragging, boasting, and verbal puffery that

sometimes exists between rival gangs. See, e.g., State v. Hernandez, No. 1 CA-CR

09-0627, 2011 WL 315784, at *5 (Ariz. Ct. App. Feb. 1, 2011) (affirming

Hernandez’s conviction under Section 13-1202(A)(3), in a separate analysis than

that applied to his other convictions, because the evidence—particularly that

Hernandez yelled “Who wants to box?” and exhibited tattoos—demonstrated that

he “threatened or intimidated to promote” a gang). Although not necessary in

every case, these three factors are almost always required to conclude a non-

fraudulent crime is morally turpitudinous, Turijan, 744 F.3d at 619, and the

government has not given us a reason to ignore them here. On similar grounds, we

rejected conclusions that felony false imprisonment and simple kidnapping in

California were categorically crimes of moral turpitude. Id. at 621 (“[T]he crime

does not require any of the three factors set forth above.”); Castrijon-Garcia, 704


                                          5
F.3d at 1213. Although the BIA’s decision is entitled to Skidmore deference, it has

provided only a brief analysis that, in light of the preceding discussion, we do not

deem persuasive.

                                          III

      In sum, because Section 13-1202(A)(3) is not categorically a crime of moral

turpitude, we grant Herrera’s petition for review and remand to the BIA for

application of the modified categorical approach. See Castrijon-Garcia, 704 F.3d

at 1218 (concluding simple kidnapping under California law is not categorically a

crime of moral turpitude and remanding to the BIA for application of the modified

categorical approach in the first instance). We note that the modified categorical

approach may be applied here because the statute is divisible (i.e., it “sets out one

or more elements of the offense in the alternative”). Descamps v. United States,

133 S. Ct. 2276, 2281 (2013); see also Rodriguez-Castellon v. Holder, 733 F.3d

847, 852-53 (9th Cir. 2013) (applying Descamps in the immigration context).



      PETITION GRANTED AND REMANDED.




                                           6
