975 F.3d 976
9th Cir.2020Background
- Eduard Safaryan, an Armenian national who overstayed a tourist visa, married a U.S. citizen and sought adjustment of status; removal proceedings followed.
- While his immigration appeal was pending, Safaryan pleaded no contest (2006) to assault with a deadly weapon under California Penal Code § 245(a)(1); he received probation and minimal jail time.
- The IJ found the § 245(a)(1) conviction rendered Safaryan inadmissible as a "crime involving moral turpitude" and denied a § 212(h) waiver for lack of exceptional and extremely unusual hardship; the BIA affirmed.
- The Ninth Circuit had previously identified the § 245(a)(1) question as open in Ceron v. Holder and remanded to the BIA for initial decision.
- The BIA subsequently issued Matter of Wu (published BIA decision) holding § 245(a)(1) categorically involves moral turpitude; this court upheld that decision and denied Safaryan’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CA Penal Code § 245(a)(1) is categorically a "crime involving moral turpitude" | Safaryan: § 245(a)(1) lacks the specific intent to harm and thus cannot be categorically turpitudinous | Government: § 245(a)(1) requires an intentional act plus awareness of facts making battery probable; combined with deadly-weapon/force-likely aggravators it is morally turpitudinous | Held: Yes. BIA’s Matter of Wu reasonably concluded the elements (actus reus + mens rea) meet the federal moral-turpitude standard |
| Whether the BIA’s published decision (Matter of Wu) is entitled to Chevron deference | Safaryan: BIA decision should not control where precedent was unsettled; Ceron signaled caution | Government: Matter of Wu answers the remanded question and is a reasonable agency interpretation | Held: Matter of Wu is consistent with Ceron and entitled to Chevron deference; court defers to BIA |
| Whether § 245(a)(1)’s mens rea (knowledge of facts making battery likely vs. subjective intent to harm) is sufficient | Safaryan: absence of specific intent to injure means statute is not turpitudinous | Government: statute requires intentional act and awareness of facts that make battery probable; more than recklessness/negligence | Held: The required mens rea is more than mere negligence/recklessness and, with aggravators, suffices for moral turpitude |
| Challenge to denial of § 212(h) waiver and IJ’s characterization of the crime as "violent/dangerous" | Safaryan: even if inadmissible, he merited a waiver; agency misapplied heightened hardship standard | Government: IJ/BIA properly applied 8 C.F.R. § 1212.7(d) and denied waiver on the merits | Held: Court lacks jurisdiction to review discretionary waiver denial or the agency’s characterization of the crime as violent/dangerous; those claims dismissed for lack of jurisdiction |
Key Cases Cited
- Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc) (remanded § 245(a)(1) question to BIA for initial decision)
- Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (discussing ambiguity of "moral turpitude" and deference issues)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (U.S. 1984) (agency interpretations entitled to deference if reasonable)
- Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) (aggravating factors and mens rea analysis for assault offenses)
- Moran v. Barr, 960 F.3d 1158 (9th Cir. 2020) (sliding-scale actus reus/mens rea analysis for moral turpitude)
- Altayar v. Barr, 947 F.3d 544 (9th Cir. 2020) (aggravators like deadly weapon increase culpability)
- Silva v. Barr, 965 F.3d 724 (9th Cir. 2020) (discussion of reprehensible conduct and culpable mental state)
- United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009) (California assault mens rea and "violent injury" definition)
- Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014) (recklessness can suffice with aggravating circumstances)