It's not unusual for the Ninth Circuit and the Board of Immigration Appeals to fight about....well...everything. And last week, the Ninth Circuit refused to defer to the BIA's determination that a gang enhancement can turn a non-morally turpitudinous offense (such as a simple assault) into a crime involving moral turpitude. Mr. Hernandez-Gonzalez was convicted of possession of a billy club. At the sentencing phase, the criminal court added an enhancement because the conviction was related to gang activity. The Ninth Circuit noted that possession of a billy club is widely acknowledged to be non-morally turpitudinous conduct. It also reiterated its prior holding that non-fraud crimes will rarely be considered crimes involving moral turpitude unless they require an intent to injury, actual injury, or a protected class of victims. Neither the underlying weapons possession charge nor the gang enhancement included these factors. Thus, the gang enhancement did not transform the conviction into a crime involving moral turpitude.
In reaching its conclusion, the Ninth Circuit declined to accord Chevron deference to Matter of E. E. Hernandez, which held that a conviction for vandalism with a gang enhancement was a crime involving moral turpitude.
The full text of Hernandez-Gonzalez v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/02/13/11-70359.pdf