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Ryan v. Sessions

United States Court of Appeals, Ninth Circuit

July 17, 2018

Rocio Aurora Martinez-de Ryan, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Submitted July 9, 2018 [*] San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A096-025-359

          K. Alexandra Monaco, The Monaco Law Group Ltd., Las Vegas, Nevada, for Petitioner.

          Allison Frayer, Trial Attorney; Melissa Neiman-Keltin, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Susan P. Graber and Richard C. Tallman, Circuit Judges, and Ivan L.R. Lemelle, [**] District Judge.

         SUMMARY[***]

         Immigration

         The panel denied a petition for review of the Board of Immigration Appeals' denial of Martinez-de Ryan's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude.

         The panel rejected the government's contention that the void-for-vagueness doctrine does not apply at all to any grounds of inadmissibility, such as crimes involving turpitude.

         Applying Jordan v. De George, 341 U.S. 223 (1951) (rejecting a void-for-vagueness challenge to the phrase "crime of moral turpitude") and Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957) (following Jordan), the panel held that the crime involving moral turpitude statute, 8 U.S.C. § 1182(a)(2)(A)(i)(I), is not unconstitutionally vague. The panel concluded that Jordan and Tseung Chu remain good law in light of the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015) (concluding that the residual clause of the federal criminal code's definition of "crime of violence" is unconstitutionally vague), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (extending Johnson's holding to the immigration context). The panel explained that it was obliged to follow on-point Supreme Court precedent- here, Jordan-even if later Supreme Court cases cast some doubt on its general reasoning. The panel also pointed out that Johnson and Dimaya interpret statutory "residual" clauses whose wording does not include the phrase "moral turpitude" and which are not tethered to recognized common law principles.

          OPINION

          GRABER, CIRCUIT JUDGE

         Petitioner Rocio Aurora Martinez-de Ryan is a native and citizen of Mexico who entered the United States without being inspected and admitted or paroled. She timely seeks review of a decision issued by the Board of Immigration Appeals, which affirmed an immigration judge's decision pretermitting her application for cancellation of removal and ordering her removed from the United States. She argues that the statutory phrase "crime involving moral turpitude," 8 U.S.C. § 1182(a)(2)(A)(i)(I), is unconstitutionally vague.[1]We disagree.

         Petitioner entered the United States some time before 1999. A few years later, she provided cash payments to an employee at the Nevada Department of Motor Vehicles to influence and reward the employee for issuing identification documents to non-citizens illegally present in the United States. As a result, in 2010, Petitioner pleaded guilty to one count of bribery, in violation of 18 U.S.C. § 666(a)(2), for which the maximum penalty is 10 years' imprisonment.

         Shortly thereafter, Petitioner received a Notice to Appear, charging her with inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i). Through counsel, Petitioner conceded inadmissibility but sought cancellation of removal. An immigration judge ruled that Petitioner's bribery conviction constituted a crime of moral turpitude, rendering her ineligible for cancellation of removal. The Board of Immigration Appeals agreed, and this petition for review ...


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