FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN CARLOS BARRERA-LIMA, No. 13-73022 Petitioner, Agency No. v. A087-595-463 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 7, 2018 Seattle, Washington Filed August 24, 2018 Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges. Opinion by Judge Paez; Dissent by Judge Gould 2 BARRERA-LIMA V. SESSIONS SUMMARY * Immigration The panel granted Juan Carlos Barrera-Lima’s petition for review of a decision of the Board of Immigration Appeals that found him ineligible for cancellation of removal and voluntary departure, holding that: 1) Barrera-Lima’s convictions for indecent exposure under Wash. Rev. Code § 9A.88.010(1) and under Wash. Rev. Code § 9A.88.010(2)(b) are not categorically crimes involving moral turpitude; and 2) both statutes are indivisible such that the modified categorical approach is inapplicable, and remanded. With respect to Barrera-Lima’s indecent exposure conviction under Wash. Rev. Code § 9A.88.010(1), the panel concluded, as a threshold matter, that the BIA’s decision in this case was not entitled to deference under either Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), or Skidmore v. Swift & Co., 323 U.S. 134 (1944), because the BIA failed to properly apply its decision in Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013). In Cortes Medina, the BIA held that indecent exposure statutes are categorically crimes involving moral turpitude if they include sexual motivation or lewd intent as an element. The BIA also embraced a definition of lewd intent that was restricted to sexually motivated exposure. Here, the panel concluded that Cortes Medina’s definition of lewd intent could not be squared with the BIA’s decision in * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BARRERA-LIMA V. SESSIONS 3 Barrera-Lima’s case, in which the BIA concluded that lewd intent encompassed any general intent to harass, humiliate, outrage or frighten, and that lewd intent was not commensurate with sexual motivation. Thus, the panel determined that the BIA’s decision in this case was not entitled to deference. Next, the panel assumed, without deciding, that Cortes Medina is entitled to Chevron deference, explaining that Wash. Rev. Code § 9A.88.010(1) is overbroad regardless of whether the panel applied Cortes Medina or this court’s earlier decision Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), which the BIA rejected in Cortes Medina. The panel also noted that it did not address whether Cortes Medina was entitled to deference under National Cable & Telecommunications Association v. Brand X Internet Services., 545 U.S. 967 (2005), because Barrera-Lima failed to raise that argument in his opening brief. Applying Cortes Medina, the panel held that Wash. Rev. Code § 9A.88.010(1) is not categorically a crime involving moral turpitude because it lacks the critical element of lewd intent. The panel further concluded that ...
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