In re Wu

• Decision Date: 13 April 2017
• Docket Number: Interim Decision #3888
• Citation: 27 I&N Dec. 8
• Parties: Matter of Jing WU, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 8

Matter of Jing WU, Respondent

Interim Decision #3888

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

April 13, 2017

Assault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude. Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc), distinguished.

FOR RESPONDENT: Lien L. Uy, Esquire, Oakland, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Deborah F. Ho, Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.

MALPHRUS, Board Member:

In a decision dated January 16, 2015, an Immigration Judge terminated the respondent's removal proceedings. The Department of Homeland Security ("DHS") filed a motion to reconsider, which the Immigration Judge denied on July 17, 2015. The DHS has appealed from that decision. The appeal will be sustained, the removal proceedings will be reinstated, and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of China who was admitted to the United States as a lawful permanent resident on May 2, 2008. On April 20, 2012, he was convicted of assault in violation of section 245(a)(1) of the California Penal Code. Based on this conviction, the DHS initiated removal proceedings, charging that the respondent is removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), as an alien who has been convicted of a crime involving moral turpitude committed within 5 years after the date of admission, for which a sentence of 1 year or longer may be imposed. The Immigration Judge determined that the respondent's conviction did not render him removable as charged and she terminated the proceedings.

On appeal, the DHS contends that because section 245(a)(1) of the California Penal Code categorically defines a crime involving moral turpitude under the Act, the Immigration Judge improperly terminated the proceedings and denied its motion to reconsider.¹ We review this legal question de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016). For the following reasons, we conclude that the respondent's assault offense in violation of section 245(a)(1) is categorically a crime involving moral turpitude.

II. ANALYSIS

"The term 'moral turpitude' generally refers to conduct that is 'inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.'" Matter of Silva-Trevino, 26 I&N Dec. 826, 833 (BIA 2016) (citation omitted). "To involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state." Id. at 834.

The parties agree that at the relevant time, section 245(a)(1) of the California Penal Code punished

[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.²

Both we and the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, long ago addressed the question whether assault with a deadly weapon under California law was a crime involving moral turpitude and concluded that it was. See Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff'd on other grounds, 347 U.S. 637 (1954);Matter of G-R-, 2 I&N Dec. 733, 740 (BIA 1946, A.G. 1947). However, the Ninth Circuit has recently explained that "[t]he development of both federal law and state law over the intervening six decades . . . has undermined the reasoning of those cases." Ceron v. Holder, 747 F.3d 773, 780 (9th Cir. 2014) (en banc). Specifically, the court in Ceron concluded that the reasoning employed in Barber and Matter of G-R- "runs counter to today's categorical analysis" as embodied in Taylor v. United States, 495 U.S. 575 (1990). Id. The court additionally stated that "[s]tate law developments, too, have undermined the reasoning of" Barber and Matter of G-R- because the Ninth Circuit and the Board did not have the benefit of People v. Williams, 29 P.3d 197 (Cal. 2001), which "only recently defined with precision the requisite mental state for assault" under section 245(a)(1). Ceron, 747 F.3d at 781.

Because we are entitled to deference with respect to whether a particular offense involves moral turpitude, the court in Ceron remanded that case so that we could "determine in the first instance whether California Penal Code section 245(a)(1) categorically constitutes a crime involving moral turpitude" under the framework set forth in Taylor. Id. at 785 (citing Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en banc)). The court additionally requested that we clarify on remand "how [to] assess [whether] a statute—like California Penal Code section 245(a)(1)—that requires knowledge of the relevant facts but does not require subjective appreciation of the ordinary consequences of those facts" involves moral turpitude. Id. at 784. We take the opportunity in this case to clarify our analysis in this regard and to address the issues raised in Ceron.

We begin our analysis by employing the categorical approach, in which we examine whether the elements defining section 245(a)(1) "fit[] within the generic definition of a crime involving moral turpitude." Matter of Silva-Trevino, 26 I&N Dec. at 831 (applying the framework outlined in Taylor in the moral turpitude context); see also Ceron, 747 F.3d at 778-81. The categorical approach requires us to focus on the elements defining the offense of conviction—rather than the facts underlying the respondent's particular violation—and the minimum conduct that has a "realistic probability" of being prosecuted under those elements. See, e.g., Hernandez-Gonzalez v. Holder, 778 F.3d 793, 801 (9th Cir. 2015) (stating that a State statute does not categorically define a crime involving moral turpitude if there is a "realistic probability" that the elements of that statute would be applied "to conduct that falls beyond the scope of the generic federal offense").

It is well established that a simple assault or battery that only requires offensive touching or threatened offensive touching of anothercommitted with general intent that does not result in serious bodily harm is not considered to involve moral turpitude.³ See, e.g., Matter of Ahortalejo-Guzman, 25 I&N Dec. 465, 466 (BIA 2011); Matter of Fualaau, 21 I&N Dec. 475, 477 (BIA 1996). However, this general rule does not apply where a statute contains elements that deviate from those associated with simple assault and battery and "involves some aggravating factor that indicates the perpetrator's moral depravity." Matter of Ahortalejo-Guzman, 25 I&N Dec. at 466 (emphasis added). In assessing whether an alien convicted under such a statute has committed a crime involving moral turpitude, we weigh the level of danger posed by the perpetrator's conduct along with his or her degree of mental culpability in committing that conduct. See Matter of Danesh, 19 I&N Dec. 669, 673 (BIA 1988).

In this way, we have determined that an assault statute that makes it unlawful for a perpetrator to cause physical injury to another while possessing the specific intent to inflict such harm categorically defines a crime involving moral turpitude. See Matter of Solon, 24 I&N Dec. 239, 243 (BIA 2007).⁴ Conversely, we have held that an assault statute prohibiting a perpetrator from causing injury to another "with criminal negligence" does not define a crime involving moral turpitude. See Matter of Perez-Contreras, 20 I&N Dec. 615, 618-19 (BIA 1992) ("Since there was no intent required for conviction, nor any conscious disregard of a substantial and unjustifiable risk, we find no moral turpitude inherent in the statute."). Most importantly for purposes of resolving this case, we have concluded that assault and battery offenses that require a state of mind falling between specific intent and criminal negligence—for instance, general intent and recklessness—are morally turpitudinous if they "necessarily involve[] aggravating factors that significantly increase[] their culpability" relative to simple assault. Matter of Sanudo, 23 I&N Dec. 968, 971 (BIA 2006) (emphasis added).

One such aggravating factor is the use of a deadly or dangerous weapon or instrument—conduct that magnifies the danger posed by the perpetrator and demonstrates his or her heightened propensity for violence and indifference to human life. See Matter of Medina, 15 I&N Dec. 611, 612-14 (BIA 1976), aff'd sub nom. Medina-Luna v. INS, 547 F.2d 1171(7th Cir. 1977) (unpublished table decision); see also Weedin v. Tayokichi Yamada, 4 F.2d 455, 457 (9th Cir. 1925) (stating that "assault with a deadly weapon, . . . where the circumstances of the assault show a willful, malignant, and abandoned heart, . . . involves moral turpitude beyond any question"); Matter of O-, 3 I&N Dec. 193, 196-98 (BIA 1948) (holding that assault with a deadly weapon under Connecticut law is a crime involving moral turpitude). In Medina, we concluded that a conviction for aggravated assault with a deadly weapon categorically involved moral turpitude, despite the fact that the Illinois statute at issue could be violated with a mental state of recklessness, because although the "statute may not require a specific intent to cause a particular harm, the violator must show a willingness to commit the act in disregard of the perceived risk." Matter of Medina, 15 I&N Dec. at 614 (emphasis added).

With respect to section 245(a)(1), the relevant jury instructions indicate that a violation of this provision requires proof of the following elements: (1) the defendant did an act that by its nature would directly and probably result in the application of force to a person, using either (a) a deadly weapon or instrument, or (b) force likely to produce great bodily injury to...