Alberto Rene QUINTERO-SALAZAR, Petitioner, v. Peter D. KEISLER, Acting Attorney General, Respondent, 506 F.3d 688

Opinion by Judge THOMAS; Dissent by judge KLEINFELD. THOMAS, Circuit Judge: This case presents the question of whether CaLPenal Code § 261.5(

d) is categorically a crime involving moral turpitude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I), thus making an alien removable. We conclude that it is not, and grant the petition for review from the contrary decision of the Board of Immigration Appeals (“BIA”). I Alberto Rene Quintero-Salazar is a citizen and national of Mexico who entered the United States in 1990, obtained his conditional residence in 1992, and became a Lawful Permanent Resident in 1994. His wife, three children and two step-children are all United States citizens.

Quintero-Salazar runs a home repair and maintenance business at which he employs several United States citizens. In 1998, Quintero-Salazar pleaded nolo contendere to contributing to the delinquency of a minor in violation of CaLPenal Code § 272, engaging in intercourse with a minor who is three years younger than the perpetrator in violation of CaLPenal Code § 261.5(c), and engaging in intercourse with a minor who is under 16 years of age when the perpetrator is 21 years of age or older in violation of CaLPenal Code § 261.5(d).

He was sentenced to eleven months imprisonment and ordered to attend counseling and other rehabilitation programs as directed by his probation officer. On April 2, 2002, Quintero-Salazar was returning to the United States from visiting family in Mexico when he was detained by the Immigration and Naturalization Service (“INS”) upon seeking admission in San Francisco. On April 12, 2002, the INS filed a notice to appear and began removal proceedings against Quintero-Salazar, charging him with being an inadmissible alien under INA § 212(a)(2)(A)(i)(

I) for having been convicted of a crime involving moral turpitude. On January 7, 2003, Quintero-Salazar filed an application for waiver of grounds of excludability on the basis of the hardship it would cause his U.S. citizen wife and children pursuant to INA § 212(h). Aliens charged with removability can apply for a waiver if their removal would result in extreme hardship to a United States citizen spouse or children. See 8 U.S.C. § 1182(h)(1)(B). Waiver of remov-ability of those eligible is at the discretion of the Attorney General. Id.

Waiver is not available, however, if the person seeking it has been convicted of an aggravated felony. Id. Thus, the question before the IJ was twofold: (1) whether Quintero-Salazar was removable for committing a crime of moral turpitude and (2) if so, whether his crime constituted an aggravated felony, making him ineligible for waiver of remov-ability. On February 7, 2003, the immigration judge (“IJ”) issued her decision, ordering Quintero-Salazar removed to Mexico.

Analogizing to a 1966 BIA decision interpreting a Wisconsin statute, the IJ found the California § 261.5 convictions categorically to be crimes involving moral turpitude. The IJ then found Quintero-Salazar ineligible for waiver because she found that § 261.5(

d) is also an “aggravated felony” under INA § 101(a)(43)(A). The BIA summarily affirmed pursuant to 8 C.F.R. § 1003.1(e)(4). This timely petition for review followed. We review de novo the question of whether a state statutory crime constitutes a crime involving moral turpitude. Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005) (citing Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n. 4 (9th Cir.1995)). II The BIA erred in holding that a violation of Cal.Penal Code § 261.5(

d) is categorically a crime involving moral turpitude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I). “To determine whether a specific crime falls within a particular category of grounds for removability, we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).” Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005).

A categorical analysis requires us to compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition. Id. In doing so, we “cannot examine the underlying facts of the prior offense, but ‘look only to the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Corona-Sanchez, 291 F.3d 1201, 1203, 1212-13 (9th Cir.2002) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143).

If the statute of conviction criminalizes conduct that would not satisfy the federal definition of the crime at issue, then the conviction does not qualify as a predicate offense under the categorical approach. Id. at 1203. In short, under the categorical approach, the issue is whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude. See United States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir.2001). “[T]o satisfy the categorical test, even the least egregious conduct ... must qualify.” United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir.2006).

For a conviction to be a “crime of moral turpitude” under immigration law, it “must be a crime that (1) is vile, base or depraved and (2) violates societal moral standards.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1072 (9th Cir.2007) (en banc). It “must also be done willfully” or with “evil intent.” Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir.2006); see also Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000) (“it is in the intent that moral turpitude inheres .... one way to determine whether a crime involves moral turpitude is whether the act is accompanied by a vicious motive or corrupt mind”).

Where

an act is only statutorily prohibited, rather than inherently wrong, the act generally will not involve moral turpitude. Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir.2000) (noting difference between malum prohibitum,

an act only statutorily prohibited, 13599 and malum in se,

an act inherently wrong). For there to be moral turpitude, “the crime [must] involve some level of depravity or baseness ‘so far contrary to the moral law' that it gives rise to moral outrage.” Navarro-Lopez, at 1071 (quoting Jordan v. DeGeorge, 341 U.S. 223, 237 n. 9, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (Jackson, J., dissenting)). The statute at issue here is Cal.Penal Code § 261.5(d), which provides: Any person 21 years of age or older who engages in

an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years. In other words, among the range of conduct criminalized by § 261.5(d), would be consensual intercourse between a 21-year-old (possibly a college sophomore) and a minor who is 15 years, 11 months (possibly a high school junior).

That relationship may very well have begun when the older of the two was a high school senior and the younger a high school freshman and have continued monogamously without intercourse for two to three years before the offending event. On its face, such behavior may be unwise and socially unacceptable to many, but it is not “inherently base, vile, or depraved,” Hamdan v. INS, 98 F.3d 183, 186 (5th Cir.1996), or accompanied by a “vicious motive or corrupt mind,” Michel, 206 F.3d at 263. Nor is it “so far contrary to the moral law” as to “give rise to moral outrage.” Navarro-Lopez, at 1071.

In short, the conduct discussed does not meet the first Fernandez-Ruiz requirement of being an “act of baseness or depravity contrary to accepted moral standards.” Fernandez-Ruiz, 468 F.3d at 1165-66. Indeed, § 261.5(

d) proscribes some conduct that is malum prohibitum. We know it is malum prohibitum and not malum in se because some conduct criminalized under § 261.5(

d) would be legal if the adult and minor were married. See CahPenal Code § 261.5(a) (defining “unlawful sexual intercourse” for purposes of 261.5(

d) as involving intercourse “with a person who is not the spouse of the perpetrator, if the person is a minor”); Cal. Fam.Code § 302 (permitting a minor to marry with written consent of a parent and a court order). We also know it is malum prohibitum because some conduct under § 261.5(

d) is legal in other states. See Ark.Code Ann. § 5-14-125(a)(3) (2006) (criminalizing intercourse with minors who are fourteen or under); S.C.Code Ann. § 16-3-655 (2006) (same). Finally, California’s purpose in passing the law reveals that it was not moral, so much as pragmatic-they were attempting to reduce teenage pregnancies. See Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 471, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (“the justification for the statute offered by the State, and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies”). Because § 261.5(

d) defines conduct that is malum prohibitum, in at least some cases, it cannot categorically be a crime of moral turpitude. Moreover, because § 261.5(

d) is a strict liability crime that does not require any showing of scienter, it lacks the requisite element of willfulness or evil intent as required by Fernandez-Ruiz. For these reasons, we conclude that Cal-Penal Code § 261.5(

d) criminalizes conduct that is broader than that contemplated under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Therefore, § 261.5(

d) is not categorically a crime involving moral turpitude within the meaning of the immigration statutes. Ill If the crime of conviction does not categorically qualify as a predicate offense under a federal statute, it still may qualify under a modified categorical analysis. Corona-Sanchez, 291 F.3d at 1203. Under the modified categorical approach we examine “ ‘documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction’ ” for removal purposes. Id. (quoting United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001) (en banc)).

Under the modified categorical approach, if “judicially noticeable facts would allow the defendant to be convicted of an offense other than that defined as a qualifying offense,” it cannot be used as a basis for removal. Id. (quoting United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir.1999)). “As we have noted repeatedly, the government has the burden to establish clearly and unequivocally the conviction was based on all of the elements of a qualifying predicate offense.” United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir.2004) (citing United States v.

Velasco-Medina, 305 F.3d 839, 851 (9th Cir.2002); United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir.2003); Corona-Sanchez, 291 F.3d at 1211). Here, the only evidence that the government tendered was the fact of conviction. Therefore, absent any other judicially noticeable facts, application of the modified categorical approach does not alter our analysis. IV Because the crime of conviction does not qualify as a crime involving moral turpitude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I), the BIA and IJ erred in finding that Quintero-Salazar was removable.

Because he was not removable as having committed a crime of moral turpitude, we need not reach the question of whether he was eligible for a waiver of excludability on the basis of the hardship it would cause his U.S. citizen wife and children pursuant to INA § 212(h). PETITION GRANTED. . Shortly thereafter, Quintero-Salazar began participating in the SAFER Program, which is a therapy and relapse-prevention program for ex-offenders.

Quintero-Salazar’s therapist in the program writes that he "is very responsible about his treatment,” and, after already complying with a SAFER requirement of one year of individual therapy, has started attending additional therapy "to deepen his awareness.” Quintero-Salazar’s therapist also offers that “[i]n the time I have known Mr.

Quintero I have learned how involved he is with his children and how hard it will be for them to be apart from their father.” She adds that he "is a caring father” and "is very responsible not only about his family but also his workers.” Quintero-Salazar’s probation officer also adds that he "has reported as directed on a regular basis, attended counseling ... and paid all fines and fees in full.” . The notice to appear relied only on the §§ 261.5(

c) and (

d) convictions and not the § 272 conviction. . See Matter of Dingena, 11 I & N Dec. 723 (BIA 1966). . The government cites Bendel v. Nagle, 17 F.2d 719, 720 (9th Cir.1927), but that eighty-year-old case involved a Maryland statute different from the one at issue here and preceded both the establishment of the categorical analysis of prior crimes in Taylor and the other intervening Ninth Circuit precedents cited herein. The government also relies on Afridi v. Gonzales, 442 F.3d 1212 (9th Cir.2006). However, Afridi does not address the question of whether conviction under § 261.5(

d) constitutes a crime involving moral turpitude. Rather, Afridi dealt with whether conviction under § 261.5(

d) constitutes an “aggravated felony.” Thus, Afridi would only come into play were we to hold that Quinte-ro-S alazar did commit a crime involving moral turpitude, was removable, and we were forced to consider whether he was eligible for waiver or whether he was ineligible on account of having committed an aggravated felony. Because we need not reach that question, Afridi does not control our analysis. Likewise, our court’s recent decision in United States v. Gomez-Mendez, 486 F.3d 599 (9th Cir.2007) also does not address whether conviction under § 261.5(

d) constitutes a crime involving moral turpitude. Rather, Gomez-Mendez dealt with whether § 261.5(

d) was a "crime of violence” under the Federal Sentencing Guidelines. It answered in the affirmative because those guidelines explicitly defined "crime of violence” as including "statutory rape.” Because we are not guided by as clear a statutory definition, and because our task is to determine what is a crime involving moral turpitude and not a "crime of violence,” our decision is controlled by Fernandez-Ruiz and Navarro-Lopez, and not Gomez-Mendez.