80 F.4th 921
9th Cir.2023Background
- Petitioner Jose Luis Flores-Vasquez, a Mexican national, was convicted in 2015 of "menacing constituting domestic violence" under Oregon Revised Statute § 163.190 for threatening his wife with a bread knife; he pleaded guilty and received a short jail term, classes, and a restraining order.
- DHS initiated removal proceedings; the Immigration Judge found the conviction categorically a crime involving moral turpitude (CIMT) and the BIA affirmed, relying on Matter of J-G-P-.
- A CIMT conviction renders an alien ineligible for cancellation of removal; the Ninth Circuit retained jurisdiction to decide whether the conviction actually qualifies as a CIMT under the categorical approach.
- The Ninth Circuit analyzed the elements of ORS § 163.190 (intentional attempt by word or conduct to place another in fear of imminent serious physical injury) and Oregon precedent establishing an objective reasonable-person fear standard and that actual fear or injury is not required.
- The panel majority concluded the statute criminalizes a range of non-turpitudinous conduct (including mere attempts, emotional outbursts, or acts that cause no fear), so Flores-Vasquez’s conviction is not categorically a CIMT and the petition was granted and remanded.
- A dissent urged Chevron deference to the BIA’s Matter of J-G-P- (which treated § 163.190 as a CIMT), arguing the BIA reasonably focused on intent to cause fear of serious injury; the dissent would have deferred and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS § 163.190 is categorically a CIMT | Flores-Vasquez: statute covers non-turpitudinous conduct (no actual fear/injury; attempts), so not a CIMT | Govt/BIA: statute requires specific intent to cause fear of imminent serious physical injury, which shows moral depravity | Held: Not a CIMT — statute encompasses realistic possibility of non-turpitudinous conduct |
| Whether victim’s subjective fear or actual harm is required for CIMT in assault context | Flores-Vasquez: absence of requirement that victim actually fear or be harmed means statute sweeps in benign conduct | Govt/BIA: intent to place a reasonable person in fear of imminent serious injury is sufficient regardless of subjective victim fear | Held: Court agrees actual fear/injury requirement matters; objective apprehension alone can cover non-turpitudinous acts and defeats categorical match |
| Role of mens rea (specific intent vs general intent/recklessness) | Flores-Vasquez: Oregon requires intent but that alone is insufficient if harm requirement is lacking | Govt/BIA: specific intent to cause fear of serious injury supports CIMT finding | Held: Mens rea alone (even specific intent to cause apprehension) cannot cure a statute that includes non-turpitudinous, de minimis, or unsuccessful-threat conduct |
| Whether to defer to BIA’s Matter of J-G-P- under Chevron | Flores-Vasquez: J-G-P- misapplied Ninth Circuit precedent and is unreasonable | Govt/BIA: J-G-P- reasonably interprets "moral turpitude" and merits Chevron deference | Held: No Chevron deference here — BIA’s J-G-P- misapplied circuit precedent and its conclusion was unreasonable in context |
Key Cases Cited
- Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006) (simple assault that allows mere apprehension without injury is not a CIMT)
- Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012) (threats made willfully and with specific intent to terrorize, causing sustained fear, are CIMT)
- Coquico v. Lynch, 789 F.3d 1049 (9th Cir. 2015) (statute criminalizing intent to cause apprehension — without required victim fear — is not a CIMT)
- Betansos v. Barr, 928 F.3d 1133 (9th Cir. 2019) (applies Chevron deference to BIA precedential CIMT interpretation)
- Fugow v. Barr, 943 F.3d 456 (9th Cir. 2019) (explains categorical approach and realistic probability test for CIMT)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic probability test for categorical approach)
- United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010) (use of categorical inquiry rather than underlying facts)