Safaryan v. Barr

• Decision Date: 17 September 2020
• Docket Number: No. 16-74039,16-74039
• Citation: 975 F.3d 976
• Parties: Eduard SAFARYAN, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

975 F.3d 976

Eduard SAFARYAN, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 16-74039

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2019 Pasadena, California

Filed September 17, 2020

Carlos R. Barrios (argued), Los Angeles, California; Areg Kazaryan, Glendale, California; for Petitioner.

Robert D. Tennyson, Jr., Ph.D. (argued), Trial Attorney; Justin Markel, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX6-744

Before: Carlos T. Bea, Daniel P. Collins, and Daniel A. Bress, Circuit Judges.

COLLINS, Circuit Judge:

This case requires us to decide whether California Penal Code § 245(a)(1), which proscribes certain aggravated forms of assault, is categorically a "crime involving moral turpitude" for purposes of the immigration laws. We were presented with precisely that issue in Ceron v. Holder , 747 F.3d 773 (9th Cir. 2014) (en banc), but we declined to decide it, holding instead that the Board of Immigration Appeals ("BIA") should be given the opportunity "to consider the issue in the first instance." Id . at 784. We explained, however, that after the BIA decided that question, we would then "have to decide whether to defer to the BIA's decision." Id . The BIA subsequently held in a published decision that § 245(a)(1) is categorically a crime involving moral turpitude. Matter of Wu , 27 I. & N. Dec. 8 (BIA 2017). We conclude that Matter of Wu is consistent with Ceron and entitled to deference. Consequently, the petitioner in this case—who was convicted of a violation of § 245(a)(1) in 2006—was properly ordered removed, and we deny his petition for review.

I

A

On July 14, 1999, Eduard Safaryan, a native and citizen of Armenia, arrived in Los Angeles on a tourist visa authorizing him to remain in the United States until January 13, 2000. Safaryan overstayed his visa, however, and in December 2000, he married a lawful permanent resident, to whom he is still married. Their first child was born in April 2001, their second child a year later, and their third child in 2012. In April 2002, Safaryan's wife became a naturalized U.S. citizen.

Meanwhile, in November 2000, the Government served Safaryan with a notice to appear alleging that he was removable under § 237(a)(1)(B) of the Immigration and Nationality Act ("INA") for having remained in the country after the expiration of his visa. On March 21, 2001, Safaryan appeared in Immigration Court in Los Angeles and conceded that he was removable as charged. Although he had applied for asylum, withholding of removal, and relief under the Convention Against Torture, he ultimately withdrew those applications after his wife was naturalized and instead sought adjustment of status to that of a lawful permanent resident. Safaryan's removal proceedings were continued for several years until his application for adjustment of status was finally ready to be heard before an Immigration Judge ("IJ") in early 2005. After several hearings and multiple continuances to allow Safaryan to obtain appropriate documents, the IJ ultimately denied Safaryan's application in June 2005, ruling that he had failed to satisfy the financial-support requirements for obtaining adjustment of status. In February 2007, the BIA upheld the IJ's ruling, but after Safaryan filed his opening brief in this court, the Government moved to remand the case back to the BIA. This court granted that motion in October 2010.

B

While Safaryan's first appeal to the BIA was pending, he was arrested on October 30, 2005 in connection with an apparent road-rage incident. According to the police report, another vehicle inadvertently cut off Safaryan's car as both were transitioning from the westbound 101 freeway to the northbound 405 freeway in the Sherman Oaks section of Los Angeles. After following the other vehicle for a few miles, Safaryan allegedly swerved his car towards it several times and then intentionally struck the vehicle, which consequently collided into the center divider that separates the freeway's northbound and southbound traffic. After Safaryan exited the freeway, he or his wife (who was with him and their children in the car) called the police and claimed that she had been driving the car and that she had been the victim of a hit-and-run. After likewise initially insisting that his wife had been the driver, Safaryan soon thereafter admitted that he had been at the wheel when the collision occurred, but he insisted that the other vehicle had recklessly hit him.

Safaryan was charged with three counts: assault with a deadly weapon other than a firearm in violation of California Penal Code § 245(a)(1) ; assault by means likely to produce great bodily injury in violation of the same provision;¹ and filing a false report of a crime in violation of California Penal Code § 148.5(a). On February 9, 2006, pursuant to a plea agreement, Safaryan pleaded no contest to the first count, assault with a deadly weapon other than a firearm. Safaryan was sentenced to three years of probation, with the requirement that he spend the first 270 days in jail. Safaryan ended up serving only five days in jail.

C

In February 2011, after this court's remand, the BIA vacated its earlier 2007 decision in Safaryan's case and remanded the matter to the IJ. Back before the IJ, the Government argued that Safaryan's intervening conviction under § 245(a)(1) constituted a "crime involving moral turpitude," which now rendered him "inadmissible" under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), and therefore ineligible for adjustment of status in the absence of a waiver. See 8 U.S.C. §§ 1182(h), 1255(a). The IJ agreed with the Government's position and also declined to grant a waiver, concluding that Safaryan had failed to show the requisite exceptional and extremely unusual hardship to him or his qualifying relatives. Accordingly, the IJ ordered Safaryan removed to Armenia.

In an unpublished decision, the BIA upheld the IJ's removal order. The BIA held that, in light of two key factors, the IJ correctly concluded that California Penal Code § 245(a)(1) is a crime involving moral turpitude. First, because § 245(a)(1) requires the willful commission of an "inherently dangerous physical act in the presence of another person" with "actual knowledge of all facts necessary to establish" that the act "would naturally and probably result in a battery upon the other person," the scienter required under § 245(a)(1) was greater than "mere recklessness or criminal negligence." Second, "the use of a deadly weapon is an aggravating factor that elevates an assault to a crime involving moral turpitude." As a result, the BIA concluded that Safaryan's conviction rendered him inadmissible, and ineligible for adjustment of status, absent a waiver. The BIA further held that Safaryan's request for such a waiver was properly denied, and accordingly, it dismissed Safaryan's appeal. This timely petition for review followed.

II

An alien seeking to adjust his or her status to that of a lawful permanent resident must be "admissible to the United States for permanent residence." 8 U.S.C. § 1255(a). Subject to certain enumerated exceptions not relevant here, "any alien convicted of ... a crime involving moral turpitude ... is inadmissible." 8 U.S.C. § 1182(a)(2)(A)(i)(I). Accordingly, the BIA properly held that, if Safaryan's conviction under California Penal Code § 245(a)(1) constitutes a crime of moral turpitude, then he is ineligible for adjustment of status absent a waiver under INA § 212(h). See 8 U.S.C. § 1182(h). The question before us, then, is whether the BIA was correct in its further conclusion that a violation of § 245(a)(1) is categorically a "crime involving moral turpitude" under the INA. We hold that it was.

A

We have described the statutory phrase "moral turpitude" as "perhaps the quintessential example of an ambiguous phrase." Marmolejo-Campos v. Holder , 558 F.3d 903, 909 (9th Cir. 2009) (en banc). Although that might suggest that we should therefore give deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the BIA's legal construction of that phrase, that particular question of deference is ultimately of "no practical significance," because "we have noted that our understanding [of the phrase] does not differ materially from the [BIA's]." Marmolejo-Campos , 558 F.3d at 910 (citations and internal quotation marks omitted); see also id . (noting broad agreement as to the "general understanding of the term ‘moral turpitude’ ").

The BIA's generalized conception of morally turpitudinous crimes draws on familiar criminal-law concepts under which the wrongfulness of an act is a function of both the nature of the underlying conduct (the actus reus) and the state of mind with which it is performed (the mens rea). See Matter of Silva-Trevino , 26 I. & N. Dec. 826, 828 n.2 (BIA 2016) ("[A] crime involving moral turpitude is generally defined as a crime that encompasses a reprehensible act with some form of scienter ." (emphasis added)); see also Moran v. Barr , 960 F.3d 1158, 1161–62 (9th Cir. 2020) ; Marmolejo-Campos , 558 F.3d at 910. Because "turpitude" denotes "[i]nherent baseness or vileness of principle, words, or actions" or "depravity," Turpitude, Webster's New International Dictionary (2d ed. 1934), a "crime involving moral turpitude" denotes an elevated level of wrongfulness that bespeaks some measure of moral depravity on the part of the perpetrator.

In determining whether a crime involves this sort of enhanced reprehensibility, "[w]e consider the actus reus and the mens rea ‘in concert to determine whether the behavior they describe is sufficiently culpable to be labeled morally turpitudinous.’ " Moran , 960 F.3d at 1162 (quoting ...