Jose Gonzalez-Cervantes v. Eric Holder, Jr.

I would hold that the BIA erred when it held that there was no “realistic probability” that California would apply Penal Code § 243.4(e) to conduct that is not morally turpitudinous. In fact, California has done just that in cases the BIA did not consider. I therefore dissent.

In In re Carlos C., 2012 WL 925029 (Cal.Ct.App.2012), California applied § 243.4(e) to a middle school student, who slapped his classmate-victim “with an open hand in her crotch area.” Id. at *1. The *1271defendant claimed that his friends had told him to. Id. The victim was “mad, embarrassed, and ‘kind of scared.” Id. She…