Amaya v. Garland

• Citation: 15 F.4th 976
• Decision Date: 07 October 2021
• Docket Number: No. 18-70060,18-70060
• Parties: Melvin Adiel AMAYA, aka Melvin Adiel Amaya-Cartagena, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

15 F.4th 976

Melvin Adiel AMAYA, aka Melvin Adiel Amaya-Cartagena, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 18-70060

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2021 Pasadena, California

Filed October 7, 2021

Andrew M. Knapp (argued), Supervising Attorney; John Kiang (argued), James M. Glassman (argued), Abraham E. Bran, Brendan E. Nafarrate, and Elizabeth A. Siruno, Certified Law Students; Southwestern School of Law, Los Angeles, California; for Petitioner.

Rebecca Hoffberg Phillips and Katherine A. Smith, Trial Attorneys; Margaret Kuehne Taylor, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges, and Kathleen Cardone,^* District Judge.

BYBEE, Circuit Judge:

Melvin Amaya shot his drug dealer five times and was convicted in Washington of first-degree assault. After Amaya served his sentence, the Department of Homeland Security (DHS) charged him with being removable for having been convicted of an "aggravated felony," as defined in the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii). Amaya contested his removability on the grounds that his conviction was not categorically an "aggravated felony." In the alternative, he sought asylum, withholding of removal, or relief under the Convention Against Torture (CAT).

The Board of Immigration Appeals (BIA) held that Amaya was removable and that he was not entitled to asylum, withholding of removal, or relief under CAT. Amaya petitions for review of that decision. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition in part and dismiss in part.

I. BACKGROUND

Melvin Amaya is a 40-year-old native citizen of El Salvador, who entered the United States in 1994 and received Lawful Permanent Resident (LPR) status in 1998 at the age of 17. Before entering the United States, Amaya was involved with his neighborhood members of the Mara Salvatrucha (MS-13) gang. Although never an official member, he often served as a "lookout" or "bait." Amaya left El Salvador and joined his mother in the United States to avoid being "jumped in" as an MS-13 member or "disappeared" by covert government groups.

During high school in the United States, Amaya made friends with another Salvadoran student, who was an MS-13 gang member. This friend pressured Amaya to get an "MS" tattoo, which he did, getting an "M" tattooed on one bicep and an "S" tattooed on the other. Despite his tattoos, Amaya maintains that he has never been a member of MS-13, either in El Salvador or the United States.

Amaya dropped out of high school shortly after he turned 18, and began drinking and using both marijuana and hard drugs. In 2001, he made friends with a local drug dealer, Amir Al-Jabori. Three years later, Amaya got into an argument with Al-Jabori and shot Al-Jabori five times. Al-Jabori survived. Amaya pleaded guilty to first-degree assault under Washington Revised Code § 9A.36.011, and was sentenced to 153 months imprisonment.

After Amaya served his state sentence, DHS placed him in removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having committed an "aggravated felony." Amaya contested his removability. Applying the categorical approach, the Immigration Judge (IJ) held that Amaya was "removable as charged for the assault in the first degree, an aggravated felony crime of violence." Amaya then applied for asylum, withholding of removal, or CAT relief, on the basis that he was likely to be tortured by Salvadoran gangs or the Salvadoran government if removed. After a merits hearing, the IJ issued a decision denying Amaya's application for asylum, withholding, and CAT relief, and ordering his removal.

Amaya appealed to the BIA.¹ The BIA dismissed Amaya's appeal and affirmed the IJ's decision. The BIA held that Amaya's Washington conviction for felony first-degree assault was categorically an "aggravated felony" because it was also a "crime of violence" satisfying 8 U.S.C. § 1101(a)(43)(F). The BIA further concluded that Amaya had "not identified any factual or legal errors that would justify disturbing the [IJ's] decision to deny [Amaya's] application for deferral of removal" under CAT.

Amaya now petitions for review of the BIA's decision. He raises three grounds: Whether his Washington conviction for first-degree assault is an "aggravated felony," thereby rendering him removable; whether he was denied due process of law by the IJ; and whether he is entitled to CAT relief. We will consider each issue in turn.

II. FIRST-DEGREE ASSAULT AS AN "AGGRAVATED FELONY"

Under 8 U.S.C. § 1227(a)(2)(A)(iii), "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." "Aggravated felony" is a defined term and includes "a crime of violence (as defined in [ 18 U.S.C. § 16 ] ...) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). A "crime of violence" is defined in 18 U.S.C. § 16(a) as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another."

We "review de novo whether a criminal conviction is a crime of violence and therefore an aggravated felony rendering an alien removable." Covarrubias Teposte v. Holder , 632 F.3d 1049, 1052 (9th Cir. 2011) (as amended). We apply the categorical approach, which requires "compar[ing] the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; see also Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (adopting categorical approach). The statute of conviction is a categorical match "if the statute's elements are the same as, or narrower than, those of the generic offense." Descamps , 570 U.S. at 257, 133 S.Ct. 2276. In the crime of violence context, we compare the state statute to 18 U.S.C. § 16(a), rather than a generic assault statute, and we will only find a categorical match if "every violation of the statute necessarily involves violent force." Flores-Vega v. Barr , 932 F.3d 878, 883 (9th Cir. 2019) (quoting Solorio-Ruiz v. Sessions , 881 F.3d 733, 737 (9th Cir. 2018) ).

Amaya offers two reasons that his first-degree assault conviction is not an "aggravated felony" under the INA. First, Amaya argues that § 9A.36.011 of the Washington Revised Code , the statute of conviction, is overbroad because subsection (1)(b)² criminalizes conduct that does not have "as an element the use ... of physical force" against another person. 18 U.S.C. § 16(a). Second, Amaya argues that his statute of conviction is overbroad because Washington only requires proof of general intent, rather than specific intent, to prove accomplice liability. Amaya is incorrect on both counts.

A. Washington's First-Degree Assault Statute

Amaya argues that the Washington provision under which he was convicted is too broad, and therefore not a categorical match for the INA's definition of a "crime of violence" (and, accordingly, an "aggravated felony") because it punishes someone who administers poison or exposes another person to the human immunodeficiency virus (HIV). At the time of Amaya's conviction, Washington Revised Code § 9A.36.011 provided in relevant part:³

(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:

....

(b) Administers, exposes, or transmits to or causes to be taken by another, poison, the human immunodeficiency

virus ... or any other destructive or noxious substance

....

Washington further defines "great bodily harm" as "bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ." Wash. Rev. Code § 9A.04.110(c).

Contrary to Amaya's assertions, § 9A.36.011(1)(b) satisfies the requirements of 18 U.S.C. § 16(a). First, § 9A.36.011 requires the defendant to act with the "intent to inflict great bodily harm," which Washington courts have said is specific intent. State v. Thomas , 123 Wash.App. 771, 98 P.3d 1258, 1263 (2004) ; see Wash. Rev. Code § 9A.08.010(1)(a) (defining "intent" to mean that "[a] person acts with intent or intentionally when he or she acts with the objective or purpose to accomplish a result which constitutes a crime."). This easily satisfies the "use of physical force" in § 16(a). In Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the Supreme Court reasoned that "use" equated to "active employment," and therefore requires "a higher degree of intent than negligent or merely accidental conduct." Id. at 9, 125 S.Ct. 377. The specific intent embodied in Amaya's statute of conviction is more than enough to satisfy this requirement. Second, we have repeatedly recognized that "indirect" force, like exposure to poison or other harmful substances, satisfies § 16(a) ’s force requirement. See Arellano Hernandez v. Lynch , 831 F.3d 1127, 1131 (9th Cir. 2016) (poison); United States v. Melchor-Meceno , 620 F.3d 1180, 1186 (9th Cir. 2010) (poison); United States v. De La Fuente , 353 F.3d 766, 771 (9th Cir. 2003) (anthrax). The Supreme Court has endorsed our understanding that " ‘physical force’ is simply ‘force exerted by and through concrete bodies,’ as opposed to ‘intellectual force or emotional force.’ " United States v. Castleman , 572 U.S. 157, 170, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014) (quoting Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ). Thus, "the common-law concept of ‘force’ encompasses even its indirect application," such as " ‘by administering a poison or by infecting with a disease.’ " Castleman , 572 U.S. at 170, 134 S.Ct. 1405 (quoting W. LaFave, ...