947 F.3d 544
9th Cir.2020Background
- Altayar, an Iraqi national and U.S. lawful permanent resident, pleaded guilty in Arizona to Count 1: aggravated assault for intentionally placing another in reasonable apprehension of imminent physical injury while using a handgun (A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2)).
- Facts: after an altercation at a smoke shop, Altayar drew and pointed a firearm at a victim and others, and later kicked the restrained victim; surveillance and witness statements supported the charge.
- Plea agreement dismissed other counts; plea colloquy and charging document tracked § 13-1203(A)(2) language; sentencing resulted in 48 hours jail and five years probation.
- DHS charged Altayar with removability under 8 U.S.C. § 1227(a)(2)(A)(i) as convicted of a crime involving moral turpitude (CIMT) punishable by ≥1 year within five years of admission.
- The IJ and BIA found the conviction was a CIMT; Altayar petitioned for review in the Ninth Circuit contesting only whether his conviction qualifies as a CIMT.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under A.R.S. §§ 13‑1203(A)(2) & 13‑1204(A)(2) is a "crime involving moral turpitude" for deportability | Altayar argued his offense is broader than CIMT (relying on precedents that simple assault is not a CIMT and that plea colloquy used “reckless” language creating ambiguity) | Government (BIA) argued the conviction required intentional conduct plus use of a deadly weapon/dangerous instrument, an aggravating factor that transforms assault into a CIMT | Court held the conviction is a CIMT: statute-as-convicted requires intentional threat plus use of a deadly weapon/dangerous instrument, which satisfies CIMT criteria |
Key Cases Cited
- Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014) (reckless creation of substantial risk of imminent death can be a CIMT)
- Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006) (simple assault does not categorically constitute a CIMT)
- Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (definition and elements analysis for CIMT; role of mens rea)
- Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) (use of a deadly weapon can be an aggravating element that converts assault into a CIMT)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility/elemental analysis for applying the modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (limited documents permitted when applying the modified categorical approach)