FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS ENRIQUE MENDOZA, 

Petitioner, No. 06-72865

v. Agency No.  A076-612-890 ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 5, 2010*

San Francisco, California

Filed October 27, 2010

Before: Pamela Ann Rymer and N. Randy Smith,

Circuit Judges, and Ronald B. Leighton, District Judge.**

Opinion by Judge N.R. Smith

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Ronald B. Leighton, United States District Judge for

the Western District of Washington, sitting by designation. 

17869
COUNSEL

John M. Pope, Stender and Pope, P.C., Phoenix, Arizona, for

the petitioner.

Joseph D. Hardy, Office of Immigration Litigation, Washington, D.C., for the respondent.

OPINION

N.R. SMITH, Circuit Judge:

Robbery under California Penal Code section 211 is a

crime involving moral turpitude (CIMT) for the purposes of

Immigration and Nationality Act (INA) § 212(a)(2)(A)(i)(I).

Therefore, the robbery conviction of Luis Enrique Mendoza,

a native and citizen of Mexico, renders him inadmissible and

ineligible for adjustment of status. We must then deny the

petition for review.

MENDOZA v. HOLDER 17871
Facts and Procedural History

Mendoza entered the United States without inspection on or

about December 2, 1983. On April 5, 2005, he was convicted

of robbery under California Penal Code section 211 in the

Superior Court of California and sentenced to 365 days

imprisonment. Based on this conviction, the Department of

Homeland Security issued a Notice to Appear (NTA) on

October 3, 2005. The NTA charged that Mendoza was subject

to removal because (1) Mendoza was present in the United

States without being admitted or paroled (INA

§ 212(a)(6)(A)(i)), and (2) he had been convicted of a CIMT1

(INA § 212(a)(2)(A)(i)(I)).2

At the master calender hearing on November 28, 2005, the

immigration judge (IJ) determined that Mendoza had been

convicted of a CIMT (as charged in the NTA) when he was

convicted for robbery in 2005, because robbery was both a

crime of theft and a crime of violence. He also determined

that Mendoza was present in the United States without being

admitted. After receiving Mendoza’s application for adjustment of status, he then set an individual hearing to address

whether Mendoza qualified for a waiver of inadmissibility

under 8 U.S.C. § 1182(h) (“212(h) waiver”).3

1The original NTA incorrectly alleged that Mendoza was convicted of

First Degree Residential Burglary under section 211. A revised NTA dated

October 24, 2005, properly stated that his conviction was for First Degree

Residential Robbery. 

2Although the agency opinions cite the INA, further citations will be to

the corresponding United States Code sections, 8 U.S.C. § 1182(a)(6)

(A)(i) and 8 U.S.C. § 1182(a)(2)(A)(i)(I). 

3A 212(h) waiver was required to allow Mendoza to adjust status

(become a lawful permanent resident) by waiving his ground of

inadmissibility—conviction for a CIMT. See 8 U.S.C. § 1182(h). 

To receive a 212(h) waiver, Mendoza had to show that (1) he is the son

of a United States citizen or lawful permanent resident and (2) denial of

his admission would “result in extreme hardship” to his parents. 8 U.S.C.

§ 1182(h)(1)(B). If he made such a showing, the attorney general (represented by the IJ) could still, in his discretion, refuse to allow Mendoza to

adjust status and remain in the United States lawfully. § 1182(h). 

17872 MENDOZA v. HOLDER
At the individual hearing on February 8, 2006, the IJ again

found that Mendoza was removable under both 8 U.S.C.

§ 1182(a)(6)(A)(i) (present without admission) and 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) (having been convicted of a CIMT). He

also determined that robbery was both a crime of violence and

an aggravated felony, making Mendoza ineligible for most

forms of relief. Regarding the 212(h) waiver, the IJ found that

Mendoza had not shown that his removal would result in

extreme hardship to his parents. Further, even if Mendoza had

shown such hardship, the IJ determined that Mendoza did not

warrant a favorable exercise of discretion in light of Mendoza’s criminal record. Lastly, the IJ denied (1) the motion to

terminate proceedings, (2) the 212(h) waiver, (3) adjustment

of status, and (4) voluntary departure. Mendoza was then

ordered removed to Mexico based on the allegations in the

NTA. 

Mendoza timely appealed to the Board of Immigration

Appeals (BIA). The BIA found “no error in the Immigration

Judge’s conclusion that the respondent is removable for commission of a crime involving moral turpitude.” The BIA

incorrectly stated that Mendoza argued that “his conviction

for burglary does not constitute a [CIMT].” The BIA cited De

La Cruz v. INS, 951 F.2d 226, 228 (9th Cir. 1991) (which

mentions that burglary is a CIMT) and Matter of De La Nues,

18 I. & N. Dec. 140, 145 (BIA 1981) (“Burglary and theft or

larceny, whether grand or petty, are crimes involving moral

turpitude.”) to uphold the IJ’s determination that Mendoza

was removable for a conviction for a CIMT.4 The BIA did not

4Mendoza did not appeal the BIA’s erroneous reference to burglary in

his petition for review. The BIA relied on De La Nues’s holding that burglary and theft offenses are CIMTs. This court has held that when the

underlying crime in a burglary is theft (a CIMT), burglary is also a CIMT.

Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1020 (9th Cir. 2005). Where

the BIA’s analysis is “a simple statement of a conclusion, [the court] also

look[s] to the IJ’s oral decision as a guide to what lay behind the BIA’s

conclusion.” See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010)

(quotation marks and citation omitted). Therefore, we may look directly

to the IJ’s decision, which correctly stated that Mendoza was convicted for

robbery. 

MENDOZA v. HOLDER 17873
specifically address the IJ’s denial of Mendoza’s 212(h)

waiver, stating only that Mendoza “d[id] not meaningfully

identify any error in the Immigration Judge’s conclusion that

the respondent is ineligible for relief from removal and any

such arguments have been waived.” 

Mendoza petitions for review of the BIA’s determination

that he was convicted of a CIMT and therefore was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I). He also petitions for

review of the IJ’s discretionary denial of a 212(h) waiver that

would allow him to adjust status.

Jurisdiction

8 U.S.C. § 1252(a)(2)(C) generally precludes judicial

review of orders against aliens removable on the criminal

grounds enumerated in 8 U.S.C. § 1182(a)(2). However, we

may review “constitutional claims [and] questions of law.” 8

U.S.C. § 1252(a)(2)(D). Whether a crime involves moral turpitude is such a question of law. Navarro-Lopez v. Gonzales,

503 F.3d 1063, 1067 (9th Cir. 2007) (en banc). In this appeal,

we therefore review only “whether [Mendoza] is an alien who

has committed an act that constitutes the essential elements of

a crime involving moral turpitude.” Morales v. Gonzales, 478

F.3d 972, 978 (9th Cir. 2007). We lack jurisdiction to review

the IJ’s exercise of discretion in denying the 212(h) waiver5

and summarily deny Mendoza’s petition as to that issue. 8

U.S.C. § 1252(a)(2)(B)(i).

5Mendoza also failed to raise this issue in his brief to the BIA, and the

BIA did not address it. Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.

2009) (en banc) (per curiam) (“Petitioner will therefore be deemed to have

exhausted only those issues he raised and argued in his brief before the

BIA.”). We do not have jurisdiction over unexhausted claims. 8 U.S.C.

§ 1252(d)(1). 

17874 MENDOZA v. HOLDER
Standard of Review

We review the BIA’s interpretation of the conduct proscribed by a state statutory crime de novo. MarmolejoCampos v. Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en

banc), cert. denied, 130 S. Ct. 1011 (2009). However, the

court applies Chevron deference to the BIA’s precedential

determination that the specified conduct constitutes a CIMT.

Id. at 908-11.

Analysis

[1] This court has not previously decided whether robbery

under California Penal Code section 211 is a CIMT, although

both this court and petitioners have previously assumed that

it is. See, e.g., Wood v. Hoy, 266 F.2d 825, 826 (9th Cir.

1959) (challenging only whether the two robbery counts

under section 211 arose from a single scheme); AguilarRamos v. Holder, 594 F.3d 701, 703 (9th Cir. 2010) (not disputing second degree robbery is a CIMT); Delgadillo v. Carmichael, 332 U.S. 388, 389-90 (1947) (not disputing that a

California robbery conviction is a CIMT). We therefore

directly address this issue for the first time. 

[2] A CIMT is not defined in immigration law. We have

previously held that “crimes are deemed to be offenses of

moral turpitude if they are base, vile, or depraved—if they

offend society’s most fundamental values, or shock society’s

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

concurring for the majority). Therefore, in general, such

offenses are those that are intrinsically wrong (malum in se)

or require evil intent. See Uppal v. Holder, 605 F.3d 712, 716

n.2 (9th Cir. 2010). In addition, “a crime in which fraud is an

ingredient involves moral turpitude.” Jordan v. De George,

341 U.S. 223, 227 (1951). 

[3] “To determine whether a specific crime [qualifies as a

crime involving moral turpitude], we apply the categorical

MENDOZA v. HOLDER 17875
and modified categorical approaches set forth in Taylor v.

United States, 495 U.S. 575 (1990).” Cuevas-Gaspar, 430

F.3d at 1017. “Under the categorical approach, we ask

whether the full range of conduct encompassed by the criminal statute constitutes a crime of moral turpitude.” Morales,

478 F.3d at 978 (internal quotation marks, alteration, and citation omitted). Because 8 U.S.C. § 1182(a)(2)(A)(i)(I) does not

specifically define moral turpitude and does not specify rules

for determining whether a crime involves moral turpitude,6 we

determine whether a state crime involves moral turpitude by

comparing it with crimes that have previously been found to

involve moral turpitude. Nunez v. Holder, 594 F.3d 1124,

1131 & n.4 (9th Cir. 2010). This involves comparing the elements of the state crime with the elements of crimes already

determined to involve moral turpitude.7See Cuevas-Gaspar,

430 F.3d at 1018-19 (comparing Washington burglary statute

requiring proof of “intent to commit any crime” with BIA

determination that burglary is only a CIMT “if accompanied

by the intent to commit a morally turpitudinous act after

entry.”). “[I]n determining the categorical reach of a state

crime, we consider not only the language of the state statute,

but also the interpretation of that language in judicial opin6For example, malicious mischief, involving the destruction of “as little

as $250.00 of another’s property” is not categorically a CIMT, RodriquezHerrera v. INS, 52 F.3d 238, 240 (9th Cir. 1995), nor is domestic battery,

Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1061 (9th Cir. 2006), but

petty theft is, United States v. Esparza-Ponce, 193 F.3d 1133, 1136-37

(9th Cir. 1999). 

7This comparison can also be made to more than one crime. For example, in Nunez, because there was no BIA precedent directly on point, the

court compared California’s indecent exposure statute with other sexual

offenses found to involve moral turpitude. The court determined that the

crucial element of a CIMT in this context was whether there was (1) actual

harm or (2) a protected class of victim by examining the elements of other

sexual CIMTs (rape, incest, child pornography, and lewd and lascivious

conduct toward a child). Nunez, 594 F.3d at 1132. Then, the court determined that neither actual harm nor a protected class of victim was a

required element of indecent exposure, and therefore found that it was not

categorically a CIMT. Id. at 1135, 1138. 

17876 MENDOZA v. HOLDER
ions.” Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th

Cir. 2006). If the statute proscribes only conduct that involves

moral turpitude, we do not proceed to the modified categorical approach. See Marmolejo-Campos, 558 F.3d at 912. Generally, “once the conduct proscribed by the petitioner’s statute

of conviction is identified (e.g., fraud), the question whether

such conduct involves ‘moral turpitude’ is not in doubt and

thus merits little or no analysis from the court.” Id. at 908 n.7.

Also, because Congress’s intent is not clear regarding the

definition of moral turpitude, we apply Chevron deference to

the BIA’s precedential case-by-case adjudications determining which crimes involve moral turpitude. Id. at 908-09. The

BIA’s interpretation is entitled to deference so long as it is “a

permissible construction of the statute.” Id. at 909 (quoting

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 843 (1984)). See also Chevron, 467 U.S. at 845

(The question is whether the agency’s view “is a reasonable

one.”)

[4] California defines robbery as “the felonious taking of

personal property in the possession of another, from his person or immediate presence, and against his will, accomplished

by means of force or fear.” Cal. Penal Code § 211. The BIA

has already specifically determined that robbery under section

211 is a crime involving moral turpitude. Matter of G-R-, 2

I. & N. Dec. 733, 734 (BIA 1946); Matter of Kim, 17 I. & N.

Dec. 144, 145 (BIA 1979). Therefore, under the categorical

approach, because the specific crime has already been determined to be a CIMT, we can conclude that all conduct proscribed by section 211 involves moral turpitude. Our inquiry

then is limited to whether the BIA’s determination is reasonable and entitled to deference. We find that it is.

[5] The BIA’s position that robbery under section 211 is a

CIMT has been consistent since 1946. Matter of G-R-, 2 I. &

N. Dec. at 734; Matter of Kim, 17 I. & N. Dec. at 145. The

BIA’s determination that robbery is a CIMT is also a logical

MENDOZA v. HOLDER 17877
outgrowth of its holding that theft offenses are CIMTs. See

Matter of V-T-, 2 I. & N. Dec. 213, 214 (BIA 1944) (“This

offense [grand theft] is manifestly one involving moral turpitude.”); Matter of De La Nues, 18 I. & N. Dec. at 145. The

BIA’s determination is consistent with precedent in this and

other circuits8 that theft crimes are CIMTs. Esparza-Ponce,

193 F.3d at 1136. Indeed, the California Supreme Court has

also held that “[t]heft is a lesser and necessarily included

offense in robbery.” People v. Ramkeesoon, 702 P.2d 613,

616 (Cal. 1985), abrogated on other grounds by People v.

Breverman, 960 P.2d 1094 (Cal. 1998). Thus, robbery would

also be a CIMT. As such, we hold that the BIA’s determination that robbery is a CIMT is reasonable9

 and entitled to deference.10

PETITION DENIED.

8Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929); United States ex

rel. Ventura v. Shaughnessy, 219 F.2d 249, 251 (2d Cir. 1955) (“That theft

involves moral turpitude cannot be doubted.”); Quilodran-Brau v. Holland, 232 F.2d 183, 184 (3d Cir. 1956); Soetarto v. INS, 516 F.2d 778, 780

(7th Cir. 1975) (“Theft has always been held to involve moral turpitude,

regardless of the sentence imposed or the amount stolen.”); Bartos v. U.S.

Dist. Court, 19 F.2d 722, 724 (8th Cir. 1927) (“[T]heft, whether it be

grand or petit larceny[,] involves moral turpitude.”); Ablett v. Brownell,

240 F.2d 625, 630 (D.C. Cir. 1957) (“[P]etty theft [is] a crime which does

involve moral turpitude within the meaning of the immigration laws.”). 

9Other circuits also generally assume robbery is a CIMT. See, e.g., Fitzgerald ex rel. Miceli v. Landon, 238 F.2d 864, 865-66 (1st Cir. 1956)

(implying that robbery that included criminal battery would be two

CIMTs); Garcia-Padron v. Holder, 558 F.3d 196, 198 (2d Cir. 2009)

(conceding that attempted robbery is CIMT); Tassari v. Schmucker, 53

F.2d 570, 572-73 (4th Cir. 1931) (“Robbery, larceny, and crimes involving

fraud have been held to be crimes of moral turpitude . . . .”); Cina v. INS,

989 F.2d 498 (6th Cir. 1993) (unpublished); United States v. MartinezGonzales, 916 F.2d 715 (7th Cir. 1990) (unpublished) (“Robbery is a

crime involving moral turpitude. . . . .”); Costello v. Ramsey, 88 F.2d 622,

623 (8th Cir. 1937) (conceding removal for CIMTs (larceny and robbery)

was lawful); Camacho-Salinas v. U.S. Attorney Gen., 460 F.3d 1343, 1345

(11th Cir. 2006) (petitioner did not contest that robbery was CIMT). 

10Mendoza argues that robbery cannot be a CIMT, because under California law one can be convicted of robbery as an aider and abettor. Mendoza’s argument is precluded by the Supreme Court’s holding that aiding

and abetting is within the generic definition of a theft crime, specifically

referencing California’s abetting law. Gonzales v. Duenas-Alvarez, 549

U.S. 183, 189-90 (2007). 

17878 MENDOZA v. HOLDER