Elisa Menendez & Hector Castellon v. Whitaker (AG) 908 f3d 467

These two cases were consolidated in appeals to the 9th Circuit from BIA decisions of removal of petitioners, both convicted of state crimes in California. The appellate panel, in an academic display of linguistics and rhetoric, applied their conventional categorical rule of comparing the state criminal law rule used by the BIA with the comparable federal rule. The California rule of Penal Code 288 (c) prohibition of sexual molestation of children requires evidence involving moral turpitude. The BIA held P.C. 288 is categorically a crime of  child abuse under Penal Code 647.6. The same charge in federal court is 8 U.S. Code 1227 but the statute  does not use the same term for the crime.

The panel held neither of the two statutes in the state cases cited by the BIA involved moral turpitude or child abuse under federal law. Only after an extensive examination of the elements in state and federal law did the panel hold the BIA used the wrong law and therefore reversed for a rehearing by the BIA.

The concurring judge in these two cases above reviewed a major federal problem not necessarily confined to this BIA case.  In all habeas corpus hearings of state court convictions the federal appellate court compares state law with the comparable federal law.  If the state case law or statute  do not compare, the federal court reverses, in effect, the state courts by applying the law of federal courts on the same subject. The concurring 9th Circuit judge in the three judge panel commented on this practice as it applies not only to habeas corpus in federal review of state court convictions but also hearings of the rule applicable to the BIA.

The court reversed the BIA and ordered a new hearing.

















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