27 I. & N. Dec. 8
BIA2017Background
- Respondent (Chinese national, LPR since 2008) was convicted in 2012 of California Penal Code § 245(a)(1) (assault with a deadly weapon or by means likely to produce great bodily injury).
- DHS charged removability under INA § 237(a)(2)(A)(i) as an alien convicted of a crime involving moral turpitude (CIMT) within five years of admission for which a year’s sentence may be imposed.
- An Immigration Judge terminated proceedings, concluding the conviction was not a CIMT; DHS moved to reconsider and appealed after denial.
- The Board reviews de novo whether § 245(a)(1) categorically constitutes a CIMT under the categorical/Taylor framework and addresses issues raised by the Ninth Circuit in Ceron v. Holder.
- Key legal issue: whether § 245(a)(1)’s mens rea (willful act plus awareness of facts making force likely, but not subjective appreciation of risk) combined with the aggravating element (deadly weapon or force likely to cause great bodily injury) necessarily produces moral turpitude.
- Board concludes the offense is categorically a CIMT, sustains DHS appeal, vacates IJ decision, reinstates removal proceedings, and remands for entry of an order of removal.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Wu) | Held |
|---|---|---|---|
| Whether § 245(a)(1) categorically is a crime involving moral turpitude | § 245(a)(1) requires willful dangerous conduct plus knowledge of facts making great bodily injury likely; this combination is morally turpitudinous | The IJ found the statute’s mens rea does not categorically reach the culpability required for a CIMT and so does not render respondent removable | Held: § 245(a)(1) is categorically a CIMT because it requires willful dangerous conduct and knowledge of facts making great bodily injury likely, an aggravating factor rendering the offense reprehensible |
| Whether the statute’s mens rea (knowledge of facts vs subjective appreciation of risk) precludes finding a CIMT | DHS: knowledge of the facts that make injury likely, together with willful use of a weapon/force, is sufficient culpability for a CIMT | Wu: absence of a subjective appreciation-of-risk element means the statute could cover less culpable conduct (arguable non-turpitudinous cases) | Held: The statute’s unique mens rea (awareness of facts that make injury likely) combined with the dangerous conduct is functionally equivalent to culpability sufficing for moral turpitude; no realistic probability of prosecuting non-turpitudinous conduct |
| Whether prior BIA/Ninth Circuit precedents (Gonzales/Barber, Ceron) control | DHS: earlier precedents and statutory elements support finding CIMT; Board entitled to determine CIMT in first instance per Ceron | Wu: Ceron questioned earlier precedents and remanded for Board to decide; IJ relied on Ceron to terminate | Held: Board follows categorical/Taylor analysis, reconciles Williams and controlling Ninth Circuit cases (Grajeda, Jimenez-Arzate), and concludes § 245(a)(1) is categorically a CIMT |
| Remedy and procedural outcome | DHS sought reinstatement of proceedings and removal | Wu indicated he does not seek relief from removal | Held: DHS appeal sustained, IJ decision vacated, proceedings reinstated and remanded to IJ for entry of removal order (Board cannot enter removal order in first instance) |
Key Cases Cited
- Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (remanded to BIA to determine categorically whether Cal. Penal Code § 245(a)(1) is a CIMT under Taylor)
- Taylor v. United States, 495 U.S. 575 (1990) (establishes the categorical approach for defining offenses by elements)
- People v. Williams, 29 P.3d 197 (Cal. 2001) (clarifies mens rea for California assault: awareness of facts that would lead a reasonable person to realize battery would probably result; no subjective risk appreciation required)
- United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009) (holds § 245(a)(1) requires more than recklessness and supports treating California assault as an intentional, violent act)
- United States v. Jimenez-Arzate, 781 F.3d 1062 (9th Cir. 2015) (declines to revisit Grajeda; § 245(a)(1) cannot be committed with mere recklessness)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (holding that negligent or accidental use of force does not constitute a crime of violence; informs mens rea analysis regarding active/violent conduct)
- Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977) (affirming BIA’s conclusion that aggravated assault with a deadly weapon involving reckless culpability may still be turpitudinous due to the dangerous conduct)
- People v. Aguilar, 945 P.2d 1204 (Cal. 1997) (explains jury must determine capability and probability of inflicting great bodily injury under § 245(a))