FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAVIER CASTRIJON-GARCIA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 09-73756

Agency No.

A095-733-515

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 14, 2012—San Francisco, California

Filed January 9, 2013

Before: Stephen Reinhardt, Richard R. Clifton,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Reinhardt
2 CASTRIJON-GARCIA V. HOLDER

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

SUMMARY

*

Immigration

The panel granted Javier Castrijon-Garcia’s petition for

review from the Board of Immigration Appeals’ decision

finding him statutorily ineligible for cancellation of removal,

based on the BIA’s holding that a conviction for simple

kidnapping, in violation of California Penal Code § 207(a), is

a categorical crime involving moral turpitude. 

The panel held that CPC § 207(a) does not constitute a

categorical crime involving moral turpitude because it does

not require an intent to injure, actual injury, or a special class

of victims. The panel also found that California courts have

applied CPC § 207(a) to conduct that is not morally

turpitudinous, and remanded for the BIA to apply the

modified categorical approach.

COUNSEL

Gary A. Watt, Supervising Counsel; Stephen R. Tollafield,

Supervising Counsel; Heidi M. Hansen Kalscheur, Student

Counsel; Nolan R. Shaw (argued), Student Counsel, Hastings

Appellate Project, San Francisco, California, for Petitioner.
CASTRIJON-GARCIA V. HOLDER 3

 Petitioner’s last name is spelled inconsistently throughout the briefs 1

and record as “Castrijon,” “Castrejon,” and “Gastrejon.” We use

“Castrijon,” the last name in the court docket.

Tony West, Assistant AttorneyGeneral, Civil Division; Mary

Jane Candaux, Assistant Director; Laura M.L. Maroldy

(argued), Trial Attorney, Office of Immigration Litigation,

Civil Division, Department of Justice, Washington, D.C., for

Respondent.

OPINION

REINHARDT, Circuit Judge:

Javier Castrijon-Garcia (“Castrijon”) petitions for review

1

of a decision of the Board of Immigration Appeals (“BIA”),

holding that his conviction for simple kidnapping under

California Penal Code (“CPC”) § 207(a) is categorically a

crime involving moral turpitude under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), making him statutorily ineligible for

cancellation ofremoval under 8 U.S.C. § 1229b(b)(1)(C). We

have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to

determine whether a crime involves moral turpitude. See

Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010)

(“Whether a crime involves moral turpitude is a question of

law that we have jurisdiction to review pursuant to 8 U.S.C.

§ 1252(a)(2)(D).”). We grant the petition for review and

remand to the BIA for further proceedings.

We have held that “non-fraudulent crimes of moral

turpitude almost always involve an intent to harm someone,

the actual infliction of harm upon someone, or an action that
4 CASTRIJON-GARCIA V. HOLDER

affects a protected class of victim.” Id. at 1131. Simple

kidnapping under CPC § 207(a) does not involve any of these

elements. Moreover, California courts have applied the statute

to conduct that is not morally turpitudinous. See Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007). Therefore, we

hold that simple kidnapping under CPC § 207(a) is not

categorically a crime involving moral turpitude. We remand

to allow the BIA to conduct a modified categorical analysis of

Castrijon’s crime. See INS v. Ventura, 537 U.S. 12 (2002).

FACTUAL AND PROCEDURAL BACKGROUND

Castrijon is a native and citizen of Mexico who, according

to his application for cancellation of removal, entered the

United States without inspection in 1989. He has resided in

the United States continuously since that time, with the

exception of two short trips to Mexico in 1998 and 2003. He

has three U.S. citizen children as well as U.S. citizen sisters,

and his mother is a legal permanent resident.

In 2007, the Department of Homeland Security charged

Castrijon with removability under 8 U.S.C.

§ 1182(a)(6)(A)(i), in that he was an alien present in the

United States without being admitted or paroled, or who

arrived in the United States at any time or place other than as

designated by the Attorney General. He conceded

removability, designated Mexico as his country of removal,

and submitted an application for cancellation of removal

under 8 U.S.C. § 1229b(b). The conviction records submitted

as part of the application for cancellation of removal reflect

that in 1992 Castrijon pled guilty to attempted kidnapping in

violation of CPC §§ 664 and 207(a), and received a

suspended sentence of 300 days in jail and 36 months of
CASTRIJON-GARCIA V. HOLDER 5

probation. During a hearing before the immigration judge, he

explained that the incident occurred while he was with friends

and that he did not know the victim. The conviction records

also reflect that in 2002 and 2005 Castrijon was convicted of

driving with a suspended license.

The immigration judge issued an oral decision finding

Castrijon ineligible for cancellation of removal under

8 U.S.C. § 1229b(b)(1)(C) because his conviction for

attempted simple kidnapping is a categorical crime of moral

turpitude in that “the language of the statute requir[ed] the

element of instilling fear in the victim.” The BIA affirmed in

an unpublished decision. It noted that it had previously “listed

kidnapping as an example of a [crime of moral turpitude], . . .

found that kidnapping for ransom under the Federal

Kidnapping Act involves moral turpitude,” and “found that

the offense of kidnapping, as defined by the California Penal

Code (CPC), involves moral turpitude.” The BIA identified

the elements of CPC § 207(a) as: “(1) a person was

unlawfully moved by use of physical force or fear, (2) the

movement was without the person’s consent, and (3) the

movement of the person was for a substantial distance.” It

held that, although ransom was an element under the Federal

Kidnapping Act, the lack of a ransom element in CPC

§ 207(a) was not relevant because “there is no requirement

that a state offense match all the elements of an analogous

federal offense in order to be classified as a [crime of moral

turpitude].” The BIA concluded that simple kidnapping is a

crime of moral turpitude because it “involves readiness to do

evil and is an offense that grievously offends the moral code

of mankind in its inherent nature,” citing to People v.

Zataray, 219 Cal. Rptr. 33, 39 (Cal. Ct. App. 1985). It
6 CASTRIJON-GARCIA V. HOLDER

therefore held that Castrijon was ineligible for cancellation of

removal. Castrijon now petitions for review.

ANALYSIS

“The determination whether a conviction under a criminal

statute is categorically a [crime of moral turpitude] involves

two steps, to which different standards of review apply.”

Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010); see also

Marmolejo-Campos v. Holder, 558 F.3d 903, 907–11 (9th

Cir. 2009) (en banc) (clarifying standard of review). The first

step is to identify the elements of the statute of conviction.

See Uppal, 605 F.3d at 714. “Because ‘[t]he BIA has no

special expertise by virtue of its statutory responsibilities in

construing state or federal criminal statutes,’ we review its

conclusion in that regard de novo.” Id. (quoting MarmolejoCampos, 558 F.3d at 907). The second step is to compare the

elements of the statute of conviction to the generic definition

of a crime of moral turpitude and decide whether the

conviction meets that definition. See id. “Because the BIA

does have expertise in making this determination, we defer to

its conclusion if warranted, following the Chevron framework

if the decision is a published decision (or an unpublished

decision directly controlled by a published decision

interpreting the same statute), and following the Skidmore

framework if the decision is unpublished (and not directly

controlled by any published decision interpreting the same

statute).” Id.; see also Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift &

Co., 323 U.S. 134 (1944).
CASTRIJON-GARCIA V. HOLDER 7

 “We have previously looked to underlying crimes in determining 2

whether convictions for inchoate offenses constitute crimes involving

moral turpitude.” Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th

Cir. 2007). Therefore, we look to the elements of simple kidnapping under

CPC § 207(a) to determine whether a conviction for attempted simple

kidnapping is a crime involving moral turpitude.

I.

We turn to the first step of our analysis: identifying the

elements of the statute of conviction. Castrijon was convicted

of attempted simple kidnapping in violation of CPC § 207(a). 2

That statute provides:

Every person who forcibly, or by any other

means of instilling fear, steals or takes, or

holds, detains, or arrests any person in this

state, and carries the person into another

country, state, or county, or into another part

of the same county, is guilty of kidnapping.

CPC § 207(a). “To prove a defendant guilty of kidnapping,

the prosecution must establish that (1) the defendant took,

held, or detained another person by using force or by instilling

reasonable fear; (2) using that force or fear, the defendant

moved the other person, or made the other person move a

substantial distance; and (3) the other person did not consent

to the movement.” People v. Burney, 212 P.3d 639, 666 (Cal.

2009); see also People v. Jones, 133 Cal. Rptr. 2d 358, 362

(Cal. Ct. App. 2003). The California Supreme Court has

explained that “the force used against the victim need not be

physical. The movement is forcible where it is accomplished

through the giving of orders which the victim feels compelled

to obey because he or she fears harm or injury from the
8 CASTRIJON-GARCIA V. HOLDER

accused and such apprehension is not unreasonable under the

circumstances.” People v. Majors, 92 P.3d 360, 363 (Cal.

2004) (internal quotation marks and citation omitted). For

example, “an implicit threat of arrest satisfies the force or fear

element of section 207(a) kidnapping if the defendant’s

conduct or statements cause the victim to believe that unless

the victim accompanies the defendant the victim will be

forced to do so, and the victim’s belief is objectively

reasonable.” Id. at 367.

When the victim is a person capable of giving consent,

“the purpose or motive of the taking and carrying away is

immaterial.” In re Michele D., 59 P.3d 164, 168 (Cal. 2002)

(internal quotation marks, alterations and citation omitted).

“The rule governing the forcible carrying of conscious

persons capable of giving consent . . . makes a person who

forcibly carries such a person and transports him against his

will guilty of kidnap[p]ing, however good or innocent his

motive or intent may otherwise be . . . .” People v. Oliver, 361

P.2d 593, 595 (Cal. 1961); see also People v. Sheasbey, 255

P. 836, 838–39 (Cal. Ct. App. 1927) (holding that “no state of

mind or belief is a part of the crime of kidnap[p]ing”). This is

because “[s]imple kidnapping traditionally has been a general

intent crime,” and does not require, for example, the intent to

instill fear in the victim. People v. Moya, 6 Cal. Rptr. 2d 323,

325 (Cal. Ct. App. 1992). “A crime is characterized as a

‘general intent’ crime when the required mental state entails

only an intent to do the act that causes the harm . . . .” People

v. Davis, 896 P.2d 119, 148 n.15 (Cal. 1995). When the

victim is an unresisting infant or child or other person

incapable of giving consent, however, “the amount of force

required to kidnap . . . is simply the amount of physical force

required to take and carry the child away a substantial
CASTRIJON-GARCIA V. HOLDER 9

distance for an illegal purpose or with an illegal intent.” In re

Michele D., 59 P.3d at 171.

II.

A.

We now turn to the second step of our analysis:

comparing the elements of the statute of conviction to the

generic definition of a crime involving moral turpitude. The

parties disagree about whether we must defer to the BIA’s

unpublished decision. The government argues that because,

in its decision, the BIA cited to several published decisions,

including Matter of Lopez-Meza, Matter of P, Matter of

Nakoi, and Matter of C-M-, its decision that simple

kidnapping in violation of CPC § 207(a) is a crime involving

moral turpitude is entitled to Chevron deference.

Alternatively, the government argues that the BIA decision

was persuasive and is thus entitled to Skidmore deference.

Castrijon contends that the BIA decision is not entitled to

Chevron deference because the decision was unpublished and

the “cited decisions do not construe the identical statute . . .

and instead consist of boilerplate generalities and other

conclusory statements.” Castrijon also contends that the BIA

decision does not warrant deference under Skidmore because

its decision “lacks any real analysis and consists of a single

conclusory paragraph.”

We hold first that the BIA decision here is not entitled to

Chevron deference. Chevron deference is afforded to an

unpublished decision only when it is “directly controlled by

a published decision interpreting the same statute.” Uppal,

605 F.3d at 714. Although the BIA’s unpublished decision
10 CASTRIJON-GARCIA V. HOLDER

 In fact, is not clear that Matter of C-M- involved CPC § 207(a), as the 3

BIA failed to specify under which California kidnapping statute the

petitioner had been convicted.

 In its answering brief, the government argues that although the 4

published decisions cited by the BIA did not interpret CPC § 207(a), the

agency decision is nonetheless entitled to Chevron deference. It relies on

cites to published decisions, none interprets CPC § 207(a) and

thus none directly controls. The first case cited by the BIA,

Matter of Lopez-Meza, involved the offense of aggravated

driving under the influence in violation of Arizona law. 22 I.

& N. Dec. 1188 (BIA 1999). The second and third cases cited

by the BIA, Matter of P and Matter of Nakoi, involved

convictions under the Federal Kidnapping Act, which

contains different elements than simple kidnapping under

CPC § 207(a), most important being that the kidnapping be

committed for “ransom or reward or otherwise.” Matter of P,

5 I. & N. Dec. 444 (BIA 1953); Matter of Nakoi, 14 I. & N.

Dec. 208 (BIA 1972). Finally, although Matter of C-M-, the

fourth case cited by the BIA, involved a kidnapping

conviction under the California Penal Code, the BIA did not

interpret CPC § 207(a), or even decide that kidnapping was 3

a categorical crime of moral turpitude. 9 I. & N. Dec. 487

(BIA 1961). Rather, the petitioner took “no issue with the

finding [by the special inquiry officer] that the offense of

kidnapping, as defined by the California Penal Code, involves

moral turpitude,” instead arguing that he had been convicted

as a juvenile and that the proceedings were therefore not

criminal. Id. at 488. In sum, the cases cited by the BIA in its

unpublished decision did not “interpret[] the same statute”

and thus do not “directly control[]” the outcome here. See

Uppal, 605 F.3d at 714. Therefore, the BIA decision is not

entitled to Chevron deference.4
CASTRIJON-GARCIA V. HOLDER 11

our en banc decision in Marmolejo-Campos, 558 F.3d 903, to support its

argument. In that case, however, we afforded Chevron deference to an

unpublished BIA decision because it relied on “a precedential decision

addressing the dispositive question of statutory interpretation at issue in

this case” by interpreting the same statute, the Arizona aggravated driving

under the influence statute. Id. at 905–06, 911.

We turn to the Skidmore framework to determine whether

we should nevertheless defer to the BIA decision to the extent

it has persuasive effect. Under Skidmore, the weight afforded

to the agency decision “will depend upon the thoroughness

evident in its consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements, and all

those factors which give it power to persuade, if lacking

power to control.” Skidmore, 323 U.S. at 140; see also Uppal,

605 F.3d at 715. Here, the BIA decision is unpersuasive. It

had little reasoning and its analysis of why CPC § 207(a)

constitutes a crime of moral turpitude consists only of two

conclusory statements. In these statements, the BIA simply

repeated phrases used in a decision by the California Court of

Appeal, Zataray, 219 Cal. Rptr. at 39, which decided that

under California evidence law, a simple kidnapping

conviction was admissible for impeachment purposes.

Borrowing the language from that decision, the BIA said that

simple kidnapping under CPC § 207(a) “involves readiness to

do evil and is an offense that grievously offends the moral

code of mankind in its inherent nature.” This is no analysis at

all; the BIA does not explain why simple kidnapping under

CPC § 207(a) involves a readiness to do evil (or even what

readiness to do evil means), or why it so deeply offends our

moral code — especially as it is a general intent crime, see

Moya, 6 Cal. Rptr. 2d at 325. Moreover, we have held that

whether a crime has been found to be one of moral turpitude

under California law is “not of great weight given the
12 CASTRIJON-GARCIA V. HOLDER

 We discuss Zataray in more detail in part II.B. below, and conclude 5

that its holding does not affect our moral turpitude analysis in part because

the factors relied upon by the California Court of Appeal — that simple

kidnapping under CPC § 207(a) involves instilling fear in the victim and

is an inherently dangerous felony — fail to consider the absence of a

culpable mental state.

 Notably, this is not the first time we have held a crime not to be a 6

categorical crime of moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I)

even though California courts have held the contrary under their

evidentiary standard for purposes of impeachment of a defendant.

Compare People v. Elwell, 253 Cal. Rptr. 480, 482 (Cal. Ct. App. 1988)

(assault with a deadly weapon is a crime of moral turpitude under

California evidentiary standard), with Carr v. INS, 86 F.3d 949, 951 (9th

Cir. 1996) (assault with deadly weapon is not a crime involving moral

turpitude under the Immigration and Nationality Act).

different roles of the [crime involving moral turpitude]

designation under the [Immigration and Nationality Act] and

California law.” Latter-Singh v. Holder, 668 F.3d 1156, 1163

n.4 (9th Cir. 2012). The BIA’s unreasoned reliance on a state 5

court decision that is of a type that we have held “is not of

great weight” because it relates to the very different issue of

whether a crime is morally turpitudinous for purposes of

California evidence law, lacks “power to persuade” and thus

is not entitled to deference. See Saavedra-Figueroa v. 6

Holder, 625 F.3d 621, 627 (9th Cir. 2010) (holding that BIA

decision “has no persuasive authority” and declining

Skidmore deference where immigration judge speculated that

the crime was considered heinous by the people of California

without explanation and failed to address intent element);

Uppal, 605 F.3d at 715 (declining to afford BIA decision

Skidmore deference because its “analysis [was] neither

thoroughly reasoned nor consistent with prior BIA and Ninth

Circuit case law”). We therefore decline to grant deference to
CASTRIJON-GARCIA V. HOLDER 13

the unpublished BIA decision and determine de novo whether

the elements of simple kidnapping under CPC § 207(a) meet

the generic definition of moral turpitude under immigration

law.

B.

To determine whether a given offense constitutes a crime

involving moral turpitude, we apply the categorical and

modified categorical approaches set forth in Taylor v. United

States, 495 U.S. 575 (1990). See Nunez, 594 F.3d at 1129.

Under the categorical approach, we “compare the elements of

the crime to the generic definition of moral turpitude and

decide whether the conduct proscribed in the statute is

broader than, and so does not categorically fall within, this

generic definition.” Id. at 1129 (internal quotation marks

omitted). In order to hold that the statute of conviction is

overbroad, we must determine that there is a “realistic

probability” of its application to conduct that falls beyond the

scope of the generic federal offense. Id.; see also

Duenas-Alvarez, 549 U.S. at 193. “If the crime does not

qualify under the categorical approach, we apply the modified

categorical approach and look to the documents within the

record of conviction to see whether the conviction in the

particular case involved moral turpitude.” Nunez, 594 F.3d at

1129–30.

The Immigration and Nationality Act does not define the

term “crime involving moral turpitude,” but “courts and the

BIA have generally defined [it] as comprising crimes that are

inherently base, vile, or depraved, and contrary to the

accepted rules of morality and the duties owed between

persons or to society in general.” Robles-Urrea v. Holder,
14 CASTRIJON-GARCIA V. HOLDER

 “We have held that, at this stage of our analysis, we ‘rel[y] on our own 7

generalized definition’ of moral turpitude because the BIA has failed to

provide any generic definition to which we could meaningfully defer.”

Nunez, 594 F.3d at 1130–31 n.3 (quoting Marmolejo-Campos, 558 F.3d

at 910) (alteration in original).

678 F.3d 702, 708 (9th Cir. 2012) (internal quotation marks

and citation omitted). “Such crimes are of two types: those 7

involving fraud and those involving grave acts of baseness or

depravity.” Id. Fraud is not an element of simple kidnapping

under CPC § 207(a), nor is it inherent in the nature of the

crime. In fact, the California Supreme Court has held that

when the consent of the victim is obtained through fraud

alone, the defendant is not guilty of simple kidnapping. See

Majors, 92 P.3d at 364 (“In contrast to the use of force or fear

to compel asportation, asportation by fraud alone does not

constitute general kidnapping in California.”) (internal

quotation marks and citation omitted). We therefore focus on

whether simple kidnapping involves “grave acts of baseness

or depravity.”

We have explained that some “offenses . . . are so base,

vile, and depraved that they qualify as crimes of moral

turpitude even though they have no element of fraud. These

offenses involve ‘rather grave acts of baseness or depravity’

such as murder, rape, and incest.” Navarro-Lopez v.

Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007) (Reinhardt, J.,

concurring for the majority) (citation omitted), overruled on

other grounds by United States v. Aguila–Montes de Oca,

655 F.3d 915 (9th Cir. 2011) (en banc). The majority in

Navarro-Lopez explained:
CASTRIJON-GARCIA V. HOLDER 15

 Only the Fifth Circuit has decided whether kidnapping is categorically 8

a crime involving moral turpitude, holding that it is not. Hamdan v. INS,

98 F.3d 183 (5th Cir. 1996). That case will be discussed infra. No case

from our circuit has addressed whether kidnapping is a crime involving

moral turpitude. One case from the First Circuit involved a removal on the

ground that kidnapping was a crime of moral turpitude, but the petitioner

Not all serious crimes meet this standard,

however. Indeed, we have determined, for

example, that burglary, Cuevas-Gaspar v.

Gonzales, 430 F.3d 1013, 1020 (9th Cir.

2005), and assault with a deadly weapon, Carr

v. INS, 86 F.3d 949, 951 (9th Cir. 1996), do

not involve moral turpitude. To be considered

a crime of moral turpitude, a crime other than

fraud must be more than serious; it must

offend the most fundamental moral values of

society, or as some would say, ‘shock[ ] the

public conscience.’ Medina v. United States,

259 F.3d 220, 227 (4th Cir. 2001) (quoting

Matter of Danesh, 19 I. & N. Dec. 669, 670

(BIA 1988)).

Id. at 1074–75 (alteration in original). Ultimately, “[o]nly

truly unconscionable conduct surpasses the threshold of moral

turpitude.” Robles-Urrea, 678 F.3d at 708.

Crimes of moral turpitude generally involve some “evil

intent.” Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir.

2010). “The BIA has emphasized that evil or malicious intent

is the essence of moral turpitude,” and we have “upheld this

emphasis on evil intent.” Latter-Singh, 668 F.3d at 1161

(internal quotation marks, alterations, and citations omitted).

A review of our past cases analyzing whether particular 8
16 CASTRIJON-GARCIA V. HOLDER

in that case conceded removability, and the issue whether her crime was

categorically one of moral turpitude was not considered or decided.

Choeum v. INS, 129 F.3d 29 (1st Cir. 1997).

offenses are crimes of moral turpitude reveals that nonfraudulent crimes of moral turpitude generally involve an

intent to injure, actual injury, or a protected class of victims.

Nunez, 594 F.3d at 1131. In Uppal, for example, we held that

a conviction for aggravated assault under § 268 of the Canada

Criminal Code was not categorically a crime involving moral

turpitude because “an assault statute not involving a specific

intent to injure or a special trust relationship and not requiring

that the assault cause death or even serious bodily injury

cannot qualify as a categorical [crime of moral turpitude].”

605 F.3d at 719 (emphases in original). Similarly, in

Saavedra-Figueroa, we analyzed a conviction for false

imprisonment under CPC § 236, and held that it was not a

categorical crime of moral turpitude because the statute “does

not proscribe conduct that categorically causes serious harm

or is directed against a protected class of persons” and “does

not require the defendant to have had the intent to harm

necessary for the crime to be base, vile, or depraved.”

625 F.3d at 626 & n.4 (internal quotation marks omitted).

Simple kidnapping under CPC § 207(a) does not require

an intent to injure, actual injury, or a special class of victims.

The three elements of simple kidnapping under the statute are:

“(1) the defendant took, held, or detained another person by

using force or by instilling reasonable fear; (2) using that

force or fear, the defendant moved the other person, or made

the other person move a substantial distance; and (3) the other

person did not consent to the movement.” Burney, 212 P.3d

at 666. It is a “general intent crime,” and does not require, for
CASTRIJON-GARCIA V. HOLDER 17

 For this reason, our decision here is consistent with our recent decision 9

in United States v. Marquez-Lobos, 697 F.3d 759 (9th Cir. 2012). In

Marquez-Lobos we held that Arizona’s kidnapping statute, ARS §13-

1304, is categorically a “crime of violence” under U.S.S.G.

§ 2L1.2(b)(1)(A), but only because the Arizona kidnapping statute is a

specific intent crime that “includes the element of the ‘concept of a

nefarious purpose.’” Id. at 764; see also ARS § 13-1304 (listing six

motives, at least one of which the accused must have to be guilty of

kidnapping).

example, the intent to instill fear in the victim. Moya, 6 Cal.

Rptr. 2d at 325. The California Supreme Court has held that

“the purpose or motive of the taking and carrying away is

immaterial” when the victim is capable of giving consent;

illegal intent or motive is required only when a child or other

person incapable of consenting is kidnapped. In re Michele

D., 59 P.3d at 168, 171 (internal quotation marks, alterations

and citation omitted). Therefore, a person can be guilty of

kidnapping “however good or innocent his motive or intent

may otherwise be.” Oliver, 361 P.2d at 595; see also People

v. Bruno, 193 P. 511, 512–14 (Cal. Ct. App. 1920)

(kidnapping conviction upheld even where defendant believed

that he was engaged to the victim and the victim would not

object). In fact, “no state of mind or belief is a part of the

crime of kidnap[p]ing,” Sheasbey, 255 P. at 838–39, and a

person can be convicted of kidnapping if he actually, but

unreasonably, believed that the victim consented to the

movement, see Mayberry, 542 P.2d at 1345; Williams,

841 P.2d at 965. Accordingly, the intent to cause injury is not

an element of simple kidnapping.9

Nor does simple kidnapping involve “the actual infliction

of harm upon someone, or an action that affects a protected

class of victim.” Nunez, 594 F.3d at 1131. There is no
18 CASTRIJON-GARCIA V. HOLDER

requirement that the kidnapping result in actual injury to the

victim, and simple kidnapping convictions under CPC

§ 207(a) have been upheld even when the victims have been

found to be uninjured. See, e.g., People v. Felix, 112 Cal.

Rptr. 2d 311, 314–15 (Cal. Ct. App. 2001) (kidnapping

conviction upheld where defendant kidnapped victim to

request a renewal of their relationship and eventually returned

her home safely). Moreover, while a kidnapping under CPC

§ 207(a) could involve a minor victim or other person with a

special trust relationship to the defendant, see, e.g., In re

Michele D., 59 P.3d at 166 (victim was minor child), it can

also involve complete strangers, see, e.g., Majors, 360 P.3d

at 361 (victim was 18-year-old girl without relationship to

defendant).

Thus, simple kidnapping under CPC § 207(a) “does not

categorically have anything in common with the type of crime

we have normally held to involve moral turpitude. It can be

committed without any intention of harming anyone, it need

not result in actual harm, and it does not necessarily involve

a protected class of victim.” See Nunez, 594 F.3d at 1135. It

is true that the BIA’s and our cases note that some crimes

involve moral turpitude because they are “intrinsically wrong

(malum in se).” Mendoza, 623 F.3d at 1302. We have noted,

however, that “not all malum in se crimes categorically

involve moral turpitude.” Nicanor-Romero v. Mukasey,

523 F.3d 992, 998 (9th Cir. 2008), overruled on other

grounds by Marmolejo-Campos, 558 F.3d 903. Instead, we

have emphasized that “both the actus reus and the mens rea

must be considered in concert to determine whether the

behavior they describe is sufficiently culpable to be labeled

morally turpitudinous.” Id. at 999. In fact, in concluding that

kidnapping for ransom under the Federal KidnappingAct was
CASTRIJON-GARCIA V. HOLDER 19

a crime of moral turpitude, the BIA emphasized that the

record of conviction established that the kidnapping had

involved ransom. Matter of P, 5 I. & N. Dec. at 446–47. Even

in the specific context of a kidnapping conviction, therefore,

the BIA has acknowledged the importance of considering the

presence of a culpable mental state in determining whether

the crime is one of moral turpitude.

In sum, simple kidnapping under CPC § 207(a) does not

fall within the types of cases we have previously held are

categorical crimes of moral turpitude. Moreover, courts in

California have applied CPC § 207(a) to conduct that is not

morally turpitudinous. For example, in one case, black

students at a college complained about the actions of a

football coach in beating a black football player during the

course of a game. People v. Apo, 102 Cal. Rptr. 242, 244

(Cal. Ct. App. 1972). Members of the Black Students Union

demanded to meet with several administrators, who

responded that only the president of the college could take

action on personnel issues. See id. The students then

surrounded the administrators and “marched from the

physical education building to the administration building, a

distance of 700 yards (just slightly less than four-tenths of a

mile),” so that the administrators could speak with the

president of the college regarding the incident. Id. at 244–45.

During the march, some students pushed the administrators,

and made threats to make them continue moving. See id.

Several of the students who participated in the march were

convicted of kidnapping. See id. at 245. Their convictions,

which were upheld on appeal, demonstrate that simple

kidnapping under CPC § 207(a) will be applied to conduct

that, although criminal, is not “truly unconscionable” such

that it meets the moral turpitude standard. The students in Apo
20 CASTRIJON-GARCIA V. HOLDER

acted foolishly, no doubt, but their conduct cannot be said to

“involve rather grave acts of baseness or depravity.” NavarroLopez, 503 F.3d at 1074 (Reinhardt, J., concurring for the

majority) (internal quotation marks and citation omitted).

In a more recent case, the defendant was convicted of

kidnapping after he intercepted his 18-year-old niece, who

had run away to go live with her boyfriend, and drove her

back to his home. People v. Garibay, 2010WL 2112947 (Cal.

Ct. App. May 27, 2010) (unpublished). The conviction was

upheld on appeal. The niece had made abuse allegations

against her father, and left home to go live with her boyfriend

and his parents. Id. at *1–*2. One night, when she and her

boyfriend were returning from dinner with some friends, the

defendant, his brother (the father of the girl), and two other

men intercepted their vehicle. Id. at *1. The father grabbed

the girl by the arm, threatened her friends, got her into the car

the defendant was driving, and the defendant drove away,

taking his brother and niece to his house. Id. at *2. That the

defendant, the uncle of the victim, was convicted of simple

kidnapping again demonstrates that CPC § 207(a) is applied

to conduct that is not morally turpitudinous. The defendant

acted in an unlawful manner, but assisting one’s brother in

bringing back a familymember who has run away from home

is not conduct we would classify as “truly unconscionable”

such that it meets the moral turpitude standard.

These two cases demonstrate that there is a “a realistic

probability, not [just] a theoretical possibility, that

[California] would apply [the simple kidnapping] statute to

conduct that falls outside the generic definition of [the]

crime.” Duenas-Alvarez, 549 U.S. at 193. We have held that

“[t]his realistic probability can be established by showing
CASTRIJON-GARCIA V. HOLDER 21

that, in at least one other case, the state courts in fact did

apply the statute in the special (nongeneric) manner.” Nunez,

594 F.3d at 1129 (internal quotation marks and citation

omitted). Here, California courts “in fact did apply the statute

in the special (nongeneric) manner” to conduct that is not

morally turpitudinous. Thus, simple kidnapping under CPC

§ 207(a), when compared to the definition of moral turpitude,

is overbroad and not limited to conduct that constitutes a

crime of moral turpitude.

The government relies on a different California case,

Zataray, 219 Cal. Rptr. at 39, to support its position that

simple kidnapping is a categorical crime of moral turpitude.

As explained in part II.A., the decision in Zataray is “not of

great weight.” Latter-Singh, 668 F.3d at 1163 n.4. The issue

in Zataray was whether simple kidnapping was a crime of

moral turpitude for purposes of California evidentiary law.

219 Cal. Rptr. at 38–39. In California, a prior conviction of an

offense involving moral turpitude may be introduced for the

purpose of impeachment — to show that the defendant is

likely to lie under oath. Zataray concluded that a defendant

convicted of simple kidnapping had a bad character, a

readiness to do evil, and therefore had committed a crime of

moral turpitude, which could be used to impeach him. Id. at

39. The court failed, however, to consider whether CPC

§ 207(a) involved the most elementary requirement for an

offense to categorically constitute a crime of moral turpitude

as applied in cases relating to removal and similar

immigration provisions. To constitute moral turpitude in such

cases, the offense must generally include a requirement of

intent to injure, the infliction of actual injury, or a protected

class of victims. See Nunez, 594 F.3d at 1131.
22 CASTRIJON-GARCIA V. HOLDER

Zataray labeled all kidnapping as a crime of moral

turpitude in part because it grievously offends the inherent

“moral code of mankind.” 219 Cal. Rptr. at 39. We cannot

accept this sweeping hyperbolic statement, as the State itself

has created a lesser category of kidnapping that does not

require specific intent, the infliction of any injury, bad faith,

unlawful motive, or any other element establishing that all

such offenses would categorically be base, vile or depraved.

Compare CPC § 207 with CPC § 209. Similarly, Zataray

states that CPC § 207(a) is a felony dangerous to human life

and that the gravamen of the offense is the victim’s

apprehension or fear; it does not, however, state, as required

for purposes of moral turpitude under immigration law, that

the defendant must be aware of the risk and consciously

disregard it. Uppal, 605 F.3d at 718.

Our determination that CPC § 207(a) is not categorically

a crime involving moral turpitude is also consistent with our

recent decision in Delgado-Hernandez v. Holder, 697 F.3d

1125 (9th Cir. 2012), in which we held that CPC § 207(a) is

categorically a crime of violence under 18 U.S.C. § 16(b)

because kidnapping presents a “substantial risk that physical

force . . . may be used.” Id. at 1127–28 (quoting 18 U.S.C.

§ 16(b)). Delgado-Hernandez did not answer the question

here, i.e., whether the potential use of physical force in the

commission of a CPC § 207(a) kidnapping is categorically

turpitudinous. It is not the case that every categorical crime

of violence is also categorically a crime involving moral

turpitude. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,

1020 (9th Cir. 2005) (residential burglary is not a categorical

crime of moral turpitude even though it is categorically a

crime of violence), abrogated on other grounds by Holder v.

Martinez Gutierrez, 132 S. Ct. 2011 (2012); see also In re
CASTRIJON-GARCIA V. HOLDER 23

Brieva-Perez, 23 I& N Dec. 766, 772–73 (BIA 2005) (“Some

of the most common crimes falling within the definition of a

‘crime of violence’ do not necessarily involve moral

turpitude.”), overruled on other grounds by Judulang v.

Holder, 132 S. Ct. 476 (2011). Here, the violence inherent in

a CPC § 207(a) kidnapping does not render the crime a

categorical crime involving moral turpitude because the force

involved or threatened is not necessarily accompanied by an

evil intent. For example, in two of the cases we describe

above, which constituted kidnappings under CPC § 207(a),

the defendants (or their co-conspirators) used a modicum of

force against the victims; in Apo, the defendants pushed and

shoved university administrators to force them to march with

the protesting students, 102 Cal. Rptr. at 244–45, while in

Garibay the defendant’s brother grabbed his daughter, who

was a runaway, by the arm and forced her into the defendant’s

car, 2010 WL 2112947 at *1; see also Felix, 112 Cal. Rptr. 2d

at 314–15 (upholding a defendant’s conviction for kidnapping

his ex-girlfriend where he took their four-year old daughter,

who was in a car seat in the ex-girlfriend’s car, and put her in

his own car in order to convince the girlfriend to take a ride

in his car to discuss reunification, and then returned both

safely after a 30–45 minute drive). Yet despite the use of

physical force in these cases, the actions giving rise to the

kidnapping charges against the defendants under CPC

§ 207(a) were not “base, vile, and depraved,”Navarro-Lopez,

503 F.3d at 1074 (Reinhardt, J., concurring for the majority),

or “truly unconscionable,” Robles-Urrea, 678 F.3d at 708,

and did not “involv[e] a specific intent to injure,” Uppal,

605 F.3d at 719, or any other form of “evil intent,” Mendoza,

623 F.3d at 1302, as would be required for these offenses to

constitute crimes of moral turpitude. Accordingly, our

holding in Delgado-Hernandez that CPC § 207(a) is
24 CASTRIJON-GARCIA V. HOLDER

 The Louisiana simple kidnapping statute provided: 10

A. Simple kidnapping is:

(1) The intentional and forcible seizing and carrying of

any person from one place to another without his

consent; or

(2) The intentional taking, enticing or decoying away,

for an unlawful purpose, of any child not his own and

under the age of fourteen years, without the consent of

its parent or the person charged with its custody; or

(3) The intentional taking, enticing or decoying away,

without the consent of the proper authority, of any

person who has been lawfully committed to any orphan,

insane, feeble-minded or other similar institution.

(4) The intentional taking, enticing or decoying away

and removing from the state, by any parent of his or her

child, from the custody of any person to whom custody

has been awarded by any court of competent

jurisdiction of any state, without the consent of the legal

custodian, with intent to defeat the jurisdiction of the

said court over the custody of the child.

categorically a crime of violence under 18 U.S.C. § 16(b) is

fully consistent with our decision today.

Finally, we note that our holding here is in line with the

holding of the Fifth Circuit, the only other circuit to have

decided whether kidnapping qualifies as a categorical crime

of moral turpitude. Hamdan, 98 F.3d 183. The Louisiana

statute in that case, like the statute here, was a simple

kidnapping statute. The Fifth Circuit held that the 10
CASTRIJON-GARCIA V. HOLDER 25

(5) The taking, enticing or decoying away and removing

from the state, by any person, other than the parent, of

a child temporarily placed in his custody by any court

of competent jurisdiction in the state, with intent to

defeat the jurisdiction of said court over the custody of

the child.

Id. at 186–87 (quoting 14 L.A. Rev. Stat. § 45A).

kidnapping “statute covers conduct that cannot be considered

inherently morally turpitudinous, and that the analysis must

extend beyond the statute to the record of conviction” to

determine whether the petitioner had been convicted of a

crime involving moral turpitude. Hamdan, 98 F.3d at 189. In

other words, the Fifth Circuit held that simple kidnapping

under Louisiana law is not categorically a crime of moral

turpitude, thus requiring application of the modified

categorical approach. Id. The Louisiana simple kidnapping

statute contains different elements than CPC § 207(a), but

there are sufficient similarities that the holding of the Fifth

Circuit provides a clear path to the result here. The Louisiana

statute requires “intentional and forcible seizing and carrying

of any person.” Simple kidnapping under CPC § 207(a)

similarly requires that the kidnapping be accomplished

“forcibly, or by any other means of instilling fear.” Neither

statute, however, requires the intent to cause harm, or that

actual harm result. Moreover, although both the Louisiana

statute and CPC § 207(a) relax the force and lack of consent

requirements when the victim is a child or unable to consent,

neither requires that the victim be from these protected

groups. Given these similarities, Hamdan provides persuasive

authority for holding that kidnapping under CPC § 207(a),

like kidnapping under the Louisiana simple kidnapping

statute, is not a categorical crime of moral turpitude.
26 CASTRIJON-GARCIA V. HOLDER

 We also note that although simple kidnapping under CPC § 207(a) is 11

a serious crime, a defendant convicted under that statute can receive a

sentence of as little as three years, or if probation is granted, one year (or

less if a lesser sentence is in the interest of justice). CPC § 208. More

severe sentences are reserved for more serious forms of kidnapping, such

as kidnapping for ransom, robbery, or rape, which carry a possible

sentence of life. CPC § 209. Here, Castrijon received only a suspended

sentence of less than a year plus probation for his crime of attempt.

C.

This undoubtedly appears to be a difficult question at first

glance. Kidnapping is a serious crime, and our instincts may

be that it would meet the moral turpitude definition. “Not all

serious crimes meet [the moral turpitude] standard, however.”

Navarro-Lopez, 503 F.3d at 1074 (Reinhardt, J., concurring

for the majority). Even for serious offenses, we must look to

the specific elements of the statute of conviction and compare

them to the definition of crimes involving moral turpitude.

Here, the elements of simple kidnapping under CPC § 207(a)

“do[] not categorically have anything in common with the

type of crime we have normally held to involve moral

turpitude. It can be committed without any intention of

harming anyone, it need not result in actual harm, and it does

not necessarily involve a protected class of victim.” Nunez,

594 F.3d at 1135. “Only truly unconscionable conduct

surpasses the threshold of moral turpitude,” Robles-Urrea,

678 F.3d at 708, and simple kidnapping, as interpreted by

California courts, does not surpass that threshold. California

courts have in fact applied the simple kidnapping statute to

conduct that is clearly not morally turpitudinous. Therefore,

11

we hold that simple kidnapping under CPC § 207(a) is not a

categorical crime of moral turpitude.
CASTRIJON-GARCIA V. HOLDER 27

D.

“In the absence of a categorical match, we generally apply

a modified categorical analysis, in which we consider whether

record documents or judicially noticeable facts establish that

the alien’s prior conviction satisfies the generic offense.”

Saavedra-Figueroa, 625 F.3d at 628. The BIA did not reach

the modified categorical approach analysis because it

erroneously held that simple kidnapping under CPC § 207(a)

is a categorical crime of moral turpitude. Although it seems

unlikely that on the basis of this record the agency could

conclude that Castrijon was convicted of a crime of moral

turpitude, “we recognize that the BIA is entitled to conduct

the analysis in the first instance.” Robles-Urrea, 678 F.3d at

712. We therefore remand to the BIA to conduct the modified

categorical approach.

CONCLUSION

Because simple kidnapping under CPC § 207(a) is not

categorically a crime involving moral turpitude, the BIA erred

in determining that Castrijon was statutorily ineligible for

cancellation of removal on that basis. We remand to the BIA

to determine whether, under the modified categorical

approach, Castrijon was convicted of a crime of moral

turpitude.

PETITION GRANTED and REMANDED.