Uppal v. Eric H. Holder Jr

• Decision Date: 21 May 2010
• Docket Number: No. 07-72614.,07-72614.
• Citation: 605 F.3d 712
• Parties: Jaspal Singh UPPAL, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

605 F.3d 712

Jaspal Singh UPPAL, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07-72614.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 10, 2009.

Filed May 21, 2010.

Martin Avila Robles, Immigration Practice Group, P.C., San Francisco, CA, for the petitioner.

Tiffany Walters Kleinert, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A076-841-745.

Before DAVID R. THOMPSON, MARSHA S. BERZON and N. RANDY SMITH, Circuit Judges.

ORDER

The Opinion and Concurrence in Part/Dissent in Part filed August 11, 2009, Slip Op. 10849, and appearing at 576 F.3d 1014 (9th Cir.2009), are withdrawn. They may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

The superseding opinion will be filed concurrently with this order. The parties may file an additional petition for rehearing or rehearing en banc.

OPINION

BERZON, Circuit Judge:

Jaspal Singh Uppal, a native and citizen of India, petitions for review of the Board of Immigration Appeal's (BIA) order dismissing his appeal. Uppal contends the BIA erred in concluding that he had committed a crime which categorically involved moral turpitude, thus rendering him inadmissible at the time of his adjustment of status, and subject to removal. We agree and grant the petition.

BACKGROUND

Jaspal Singh Uppal entered the United States illegally around February 1, 1997, near Blaine, Washington. He was granted asylum in 1998 and accorded status as a permanent resident in 2004.

On April 11, 2006, the Department of Homeland Security (“DHS”) issued Uppal a Notice to Appear. The Notice charged Uppal as removable under 8 U.S.C. § 1227(a)(1)(A), alleging that Uppal was inadmissible at the time of his entry and/or adjustment of status on two grounds: 1) he had been convicted of a crime involving moral turpitude, and 2) he attempted to obtain immigration benefits through fraud or misrepresentation of a material fact. 8 U.S.C. § 1182(a)(2)(A)(i)(I); (a)(6)(C)(i).

Specifically, the Notice alleged that on February 21, 1995, Uppal was convicted of aggravated assault in violation of § 268 ¹ of the Canada Criminal Code and deported from Canada to India as a result. The Notice further alleged that Uppal's application for asylum made no mention of this conviction or his status as a Canadian permanent resident.

On receiving the Notice, Uppal filed a formal motion to terminate the removal proceedings. Without holding an evidentiary hearing the IJ issued a final order denying the motion. Uppal's conviction under § 268 of the Criminal Code of Canada (on occasion hereafter “ § 268”), the IJ held, constituted a categorical crime involving moral turpitude (“CIMT”). The IJ also concluded that Uppal had committed immigration fraud by concealing both the conviction and his status as a Canadian permanent resident from U.S. immigration officials.

Uppal timely appealed the IJ's order to the BIA. In a one-panel-member, unpublished decision, the BIA affirmed the IJ's order. Undertaking a de novo review of the moral turpitude issue, the BIA concluded that the IJ was correct in determining that a § 268 offense constituted a categorical CIMT, rendering Uppal inadmissible at the time of his adjustment of status. The BIA reasoned that Uppal “was convicted of having committed aggravated assault by, in the process of committing an assault, wounding, maiming, disfiguring or endangering the life of the victim.” Basing its conclusion on its interpretation of the statutory language of § 268, the BIA determined that “the crime cannot be committed negligently or carelessly; rather, [the crime] requires willfulness of the action which inflicts significant injury.” As the BIA found Uppal removable on that basis alone, it did not reach the immigration fraud issue.

Uppal timely filed this petition for review.

JURISDICTION

We have jurisdiction to review this final order of removal under 8 U.S.C. § 1252(a)(1). Although our jurisdiction to review orders of removal against “criminal aliens” is limited by 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review constitutional challenges and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (a)(2)(D). Whether a crime involves moral turpitude is a question of law not subject to the jurisdiction-stripping provision of § 1252(a)(2)(C). Tall v. Mukasey, 517 F.3d 1115, 1118-19 (9th Cir.2008).

DISCUSSION

The determination whether a conviction under a criminal statute is categorically a CIMT involves two steps, to which different standards of review apply. See Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc). First, the BIA must identify the elements of the statute necessary to secure a conviction. 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. at 907. Second, once it identifies the elements of the statute, the BIA must compare those elements to the generic definition of a crime involving moral turpitude and decide whether they meet the definition. Id. at 908; see also Morales-Garcia v. Holder, 567 F.3d 1058, 1064 (9th Cir.2009). 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). Marmolejo-Campos, 558 F.3d at 909-11; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). As the decision here is of the latter variety, our deference analysis on the second prong of the CIMT inquiry must proceed under Skidmore.

1. The Elements of § 268

We turn to the first step of the inquiry: identifying the elements of Canada Criminal Code § 268 (aggravated assault). A person commits “aggravated assault” under § 268 of the Canada Criminal Code if he “wounds, maims, disfigures, or endangers the life of” another. Can.Crim.Code, R.S.C., ch. C-46 § 268(1) (1985). As the statute thus requires either injury or the “endanger[ment] of the life of” the victim, it can be satisfied even if no actual injury occurs.

Canadian case law interpreting § 268 leaves no doubt that there need be no actual harm. As the Canadian Supreme Court explained: “There is no prerequisite that any harm must actually have resulted. This first requirement of § 268(1) is satisfied by the significant risk to the li[fe] of the [victim] occasioned by the [application of force].” R. v. Cuerrier, [1998] 2 S.C.R. 371, ¶ 95 (Can.).

Although it is difficult to tell for sure from the BIA's terse analysis whether the BIA correctly identified the elements of § 268, most likely it did not. The BIA's decision quotes the statute's actus reus language-“wound[ing], maim[ing], disfigur[ing], or endanger[ing] the life of the complainant”-correctly, but it then goes on to paraphrase the statute as requiring “willfulness of the action which inflicts significant injury” (emphasis added), suggesting that it has overlooked the endangerment alternative. We therefore conclude that the BIA misapprehended the actus reus elements required for a conviction under § 268. Because the BIA failed to identify the elements of § 268 correctly, its CIMT analysis, in which it compares the elements it has identified to the generic definition of moral turpitude, is misdirected and so merits no deference from this Court. See Morales-Garcia, 567 F.3d at 1066 n. 4.

2. Comparison of § 268 to the CIMT definition

Even if we misread the BIA's opinion as premised on the erroneous understanding that § 268 requires actual injury, we still could not defer to the BIA's conclusion that § 268 is categorically a CIMT. Under Skidmore, the measure of deference afforded to the agency “depends 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.” 323 U.S. at 140, 65 S.Ct. 161. When this standard is applied, the second step of the BIA's CIMT analysis does not warrant deference. That analysis is neither thoroughly reasoned nor consistent with prior BIA and Ninth Circuit case law. In addition, there is a head-on conflict between the BIA's analysis and this Court's recent decision in Morales-Garcia v. Holder, 567 F.3d 1058, as well as a general conflict with the BIA's own case law.

To see why the BIA's CIMT analysis cannot stand, we begin by elucidating § 268's mens rea requirement. To do so, we must read § 268 together with § 265, which establishes a base-level mens rea requirement for all assault offenses under the Criminal Code of Canada:

A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Can.Crim.Code, R.S.C., ch. C-46 § 265(1) (1985); Cuerrier, 2 S.C.R. 371, ¶¶ 94-95.

The mens rea required for a conviction under § 268 thus includes the base-level mens rea required for simple assault: (1) the force must be intentionally applied; and (2) the force must be applied without the victim's consent, with the...