J-G-P, 27 I. & N. Dec. 642

Background

Respondent, a Mexican national who entered without inspection, was convicted in Oregon (Sept. 20, 2011) of menacing under Or. Rev. Stat. § 163.190 (intentionally attempting to place another in fear of imminent serious physical injury).
DHS charged respondent as removable; he conceded inadmissibility and applied for cancellation of removal, asylum, and withholding of removal.
Immigration Judge pretermitted cancellation of removal, finding the Oregon menacing offense categorically a crime involving moral turpitude (CIMT), and denied asylum (untimely) and withholding (no nexus to a protected ground).
Respondent appealed the pretermission and denials; BIA reviewed the CIMT question de novo and heard oral argument and supplemental briefs.
BIA held Oregon menacing (§ 163.190) is categorically a CIMT because it requires specific intent to cause a reasonable person to fear imminent serious physical injury and a substantial step toward that result.
BIA affirmed denial of asylum (untimely; PTSD did not explain 20-year delay) and withholding (threats were countrywide/indiscriminate and proposed particular social group not sufficiently particular).

Issues

Issue	Respondent's Argument	DHS's Argument	Held
Whether Or. Rev. Stat. § 163.190 (menacing) is categorically a crime involving moral turpitude	§ 163.190 is an "apprehension-only" assault statute like simple assault and therefore not a CIMT	The statute requires specific intent to cause fear of imminent serious physical injury and thus reflects reprehensible conduct and culpable mental state (CIMT)	Menacing under § 163.190 is categorically a CIMT because it requires specific intent to cause reasonable fear of imminent serious physical injury and a substantial step
Whether actual inflicted fear is required to find a CIMT	Because the statute does not require the victim to actually experience fear, it cannot be a CIMT	Actual victim fear is not necessary where statute requires malicious intent and threatens serious, immediate harm	Actual inflicted fear is not required; specific malicious intent plus serious threatened harm suffice
Whether Matter of Solon or Ninth Circuit precedent forecloses finding § 163.190 a CIMT	Solon and decisions on simple assault show apprehension-only statutes are non-turpitudinous	Distinguish Solon by the Oregon statute’s requirement of fear of serious physical injury and specific intent; Latter-Singh supports CIMT for threat crimes of serious harm	Solon is distinguished; Ninth Circuit decisions (Latter-Singh) support treating § 163.190 as a CIMT; Fernandez-Ruiz not controlling because it involved a lower harm standard
Eligibility for asylum and withholding based on respondent’s facts	PTSD from witnessing family murders justifies tolling the 1-year asylum deadline; withholding applicable due to risk on return	Asylum untimely; PTSD does not explain 20-year delay; withheld relief unsupported—threats were indiscriminate and proposed PSG not particular	Asylum denied (untimely); withholding denied (no nexus; PSG not particular)

Key Cases Cited

Taylor v. United States, 495 U.S. 575 (U.S. 1990) (establishes categorical approach)
Escobar v. Lynch, 846 F.3d 1019 (9th Cir. 2017) (applies categorical approach in Ninth Circuit context)
Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006) (found Arizona assault not categorically a CIMT where statute reached apprehension of any physical injury)
Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012) (threats to cause death or great bodily injury with intent to terrorize are categorically CIMT)
Coquico v. Lynch, 789 F.3d 1049 (9th Cir. 2015) (distinguished threat statutes; held a California laser statute not a CIMT)
Burboa-Rocha v. Sessions, [citation="725 F. App'x 588"] (9th Cir. 2018) (unpublished but reported in F. App'x) (defers to BIA conclusion that Oregon menacing is a CIMT)
Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) (aggravated assault statute not a CIMT where no specific intent and no requirement of serious bodily injury)