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February 21, 2018

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The Ninth Circuit holds that witness tampering is not a CIMT

March 2, 2017

The Ninth Circuit Court of Appeals in Duran v. Lynch, No. 12-70930 (9th Cir. Jan. 20, 2017) was asked to determine whether California Penal Code § 136.1(a), witness tampering, is categorically a crime involving moral turpitude.

Duran entered the U.S. in 1989, fleeing violence in El Salvador, and applied for asylum ten years later. After the asylum denial, she was served with a Notice to Appear.  In immigration proceedings, she applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1) which requires, among other things, that the alien has not been convicted of a “crime involving moral turpitude.”  The Immigration Judge determined that she had been convicted of a CIMT because of a conviction for witness tampering under California criminal law.  The Board of Immigration Appeals affirmed the holding.

 

The elements of witness intimidation under CPC § 136.1(a) are: 1) knowingly and maliciously 2) preventing or dissuading or attempting to prevent or dissuade 3) a victim or witness 4) from attending or giving testimony at any trial, proceedings, or inquiry authorized by law.  Furthermore, California defines malice as “an intent to vex, annoy, harm, or injure in any way another person or to thwart or interfere in any manner with the orderly administration of justice.”  Both the BIA and the IJ had determined that CPC § 136.1(a) was categorically turpitudinous simply because of the use of the word "malice."  However, the court stated that neither had actually considered the broad definition of the word as utilized by California courts.  Because “malice” incorporates more than harm but can include any attempt to dissuade an individual from testifying or pursuing prosecution, it encompasses non-turpitudinous conduct.  Specifically, the court noted that a person detained by a shopkeeper could violate the statute simply by trying to talk the shopkeeper out of calling the police.  In a California Court of Appeals case cited by the court, an individual was successfully prosecuted for witness tampering after he requested his victim to settle the matter of a criminal assault “outside the court in a more Muslim manner family to family.”  Even this was a sufficient attempt to “thwart” a criminal proceeding in violation of CPC 136.1(a).

 

Because the California statute is so broad that it does not require an intent to defraud or any harm or injury, the court reversed the BIA and held that witness tampering is not a CIMT.  Nevertheless, the court determined that the conviction may still be a CIMT if the statute is divisible, and remanded for the Board to answer this question in the first instance.

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