Argued and Submitted, San Francisco, California
October 7, 2014
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A045-903-122.
The panel granted John Coquico's petition for review of the Board of Immigration Appeals' decision finding that his conviction for misdemeanor unlawful laser activity, in violation of California Penal Code § 417.26, is a categorical crime involving moral turpitude.
The panel concluded that § 417.26 can be violated by conduct which resembles non-turpitudinous simple assault and has little similarity to turpitudinous terrorizing threats, and held that a violation does not constitute a categorical CIMT. Because the government did not ask the court to apply the modified categorical approach, the panel considered only whether the categorical approach was satisfied, and remanded for further proceedings consistent with the opinion.
Heliodoro Moreno, Jr., Law Offices of Robert B. Jobe, San Francisco, CA, argued the cause for the petitioner. Robert B. Jobe, Law Offices of Robert B. Jobe, San Francisco, California, filed the briefs for the petitioner.
Juria L. Jones, Office of Immigration Litigation, United States Department of Justice, Washington, DC, argued the cause for respondent. Tony West, Assistant Attorney General, U.S. Department of Justice, Civil Division, Washington, DC, filed the briefs for the petitioner. With him on the briefs were Michelle G. Latour, Assistant Director, and Phillip M. Truman, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F. O'Scannlain and M. Margaret McKeown, Circuit Judges. Opinion by Judge O'Scannlain.
We must decide whether " unlawful laser activity" under state law is a crime involving moral turpitude.
On September 1, 2006, John Coquico, a citizen of the Philippines, was convicted of misdemeanor " unlawful laser activity" in violation of California Penal Code (" Cal. Penal Code" ) § 417.26, after using a laser device in the hallway of the Alameda County criminal courthouse. A year later, he was also convicted of second degree robbery in violation of Cal. Penal Code § 211, and the Department of Homeland Security (" DHS" ) sought his removal under the Immigration and Nationality Act (" INA" ) as an alien convicted of two or more crimes involving moral turpitude (" CIMT" ). See INA § 237(a)(2)(A)(ii), codified at 8 U.S.C. § 1227(a)(2)(A)(ii).
Though an Immigration Judge (" IJ" ) agreed with the DHS and found Coquico removable, on appeal the Board of Immigration Appeals (" BIA" ) found the IJ's reasoning insufficient and remanded the case so she could provide " a more ...