Orlando Vasquez-Valle v. Jefferson Sessions, III

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ORLANDO VASQUEZ-VALLE, AKA No. 13-74213 Louis Antonio Contreras, Petitioner, Agency No. A205-671-593 v. JEFFERSON B. SESSIONS III, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 7, 2018 Seattle, Washington Filed August 10, 2018 Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges. Opinion by Judge Gould 2 VASQUEZ-VALLE V. SESSIONS SUMMARY * Immigration The panel granted Orlando Vasquez-Valle’s petition for review of the Board of Immigration Appeals’ decision that he was ineligible for cancellation of removal, holding that: (1) Vasquez-Valle’s conviction for witness tampering under Oregon Revised Statutes § 162.285 is not categorically a crime involving moral turpitude; and (2) while the statute is divisible, the subsection under which Vasquez-Valle was convicted is not a categorical match for a crime involving moral turpitude. The panel concluded that the BIA’s determination that Oregon Revised Statutes § 162.285 is a crime involving moral turpitude did not warrant deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), because the BIA’s analysis directly conflicted with this court’s case law and was inconsistent both internally and with prior BIA decisions. The panel thus reviewed the BIA’s decision de novo. The panel observed that there are two categories of crimes involving moral turpitude: those involving fraud and those involving grave acts of baseness or depravity. Applying that generic definition to the plain text of the statute, the panel held that Oregon Revised Statutes § 162.285 is not categorically a crime involving moral turpitude because the statute captures conduct that is neither fraudulent nor base, vile, or depraved. The panel further * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. VASQUEZ-VALLE V. SESSIONS 3 noted that Oregon case law reveals numerous instances where defendants were convicted under the statute for conduct that does not satisfy the generic definition. The panel also held that the statute is divisible because its subsections criminalize different conduct and require different elements for conviction. Applying the modified categorical approach, the panel concluded that Vasquez- Valle was convicted under subsection (b) (knowingly inducing or attempting to induce a witness to be absent from any official proceeding to which the person has been legally summoned). However, the panel concluded that, for the same reasons it had discussed, subsection (b) is not a categorical match for a crime involving moral turpitude. COUNSEL Kristin Kyrka (argued), Seattle, Washington; Vicky Dobrin and Hilary Han, Dobrin & Han PC, Seattle, Washington; for Petitioner. Jennifer A. Singer (argued), Trial Attorney; Russell J.E. Verby, Senior Litigation Counsel; Joyce R. Branda, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. 4 VASQUEZ-VALLE V. SESSIONS OPINION GOULD, Circuit Judge: Orlando Vasquez-Valle (“Vasquez-Valle”) is a native and citizen of Mexico. He was convicted of witness tampering in ...

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