Nunez v. Holder, 594 F.3d 1124 (9th Cir. Feb. 10, 2010)



The Ninth Circuit described the difficult moral turpitude question as follows:

Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) ("The BIAs conclusion that a particular crime does or does not involve moral turpitude is subject to different standards of review depending on whether the BIA issues or relies on a published decision in coming to its conclusion. If it does either, we accord Chevron deference. Id. If it does neither, we defer to its conclusion to the extent that it has the "power to persuade." Id. at 909 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).").

Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) (acts committed for the purpose of the sexual gratification of the viewer, such as nude dancing, or for the purpose of causing sexual affront, such as mooning, do not necessarily rise to the level of moral turpitude).

Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) ("In making this determination, we must find a realistic 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 . . . . . . .

Gildernew v. Quarantillo, ___ F.3d ___ (2d Cir. Feb. 4, 2010) (one-year absence bar in 8 U.S.C. 1427(b) applied both to the period preceding the naturalization interview and the period following the interview).

Practice Advisory on Matter of Almanza-Arenas, Non-LPR Cancellation and Moral Turpitude: Vasquez-Hernandez Does Not Hurt the Cause in the Ninth Circuit, by Kathy Brady, ILRC, http://www.ilrc.org/immigration_law/pdf/DOC%20vasquez%20hernandez%20prac...

In Re Petition of Sousounis, 239 F. Supp. 126 (D.C. Pa 1965) (minor misrepresentations made for naturalization purposes can be explained by language difficulties and a good faith effort by the applicant to explain those discrepancies).

Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) ("The BIA did take a position on the issue and it is one with which, as explained above, we do not agree. Remand is not appropriate when the BIA addressed an issue and its opinion is reversed."), citing Li v. Ashcroft, 356 F.3d 1153, 1161 n. 7 (9th Cir. 2004).

Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) ("This court must give deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the "agency's construction of the statute [that] it administers." Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 678 (9th Cir.2005). However, in order to be entitled to Chevron deference, the agency's construction must have been issued in "binding agency precedent on-point (either in the form of a regulation or a published BIA case)." Kyung Park v.

Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (to warrant Chevron deference, as a "binding agency precedent on-point," a BIA precedent must be on point: "Second, Ozkok did not address the particular situation present here-namely, whether a suspended fine is sufficient punishment to satisfy the definition of conviction. Ozkok addressed the imposition of probation and the actual enforcement of non-incarceratory penalties, but not the "imposition" of suspended non-incarceratory penalties.").