JOSE LUIS FLORES-VASQUEZ v. MERRICK B. GARLAND, Attorney General
No. 20-73447
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 31, 2023
Agency No. A208-080-952; Argued and Submitted November 9, 2022 Portland, Oregon
Before: Patrick J. Bumatay and Gabriel P. Sanchez, Circuit Judges, and M. Miller Baker, International Trade Judge.
FOR PUBLICATION
OPINION
Opinion by Judge Sanchez; Dissent by Judge Baker
*SUMMARY**
Immigration
The panel granted a petition for review of the Board of Immigration Appeals’ (BIA) dismissal of an appeal of an immigration judge‘s order denying petitioner Jose Luis Flores-Vasquez‘s application for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture.
The panel held that a conviction under
In an unpublished disposition, the panel denied a petition for review as to the denial of asylum, withholding of removal and protection under the Convention Against Torture.
Dissenting, Judge Baker disagreed with the majority‘s determination that the BIA‘s interpretation of a CIMT in Matter of J-G-P- conflicts with this court‘s prior caselaw and is therefore unreasonable. Judge Baker would apply Chevron deference to Matter of J-G-P-, because the term “moral turpitude” is ambiguous, and the BIA‘s construction of it is not arbitrary, capricious, or manifestly contrary to the statute.
COUNSEL
Jonathan C. Gonzales (argued) and Jeffrey C. Gonzales, Gonzales Gonzales & Gonzales, Portland, Oregon, for Petitioner.
Christina R. Zeidan (argued), Trial Attorney; John S. Hogan, Assistant Director; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.
SANCHEZ, Circuit Judge:
Jose Luis Flores-Vasquez (“Flores-Vasquez“), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA“) order dismissing his appeal. He argues that the BIA erred in finding that his prior menacing conviction under
I.
Flores-Vasquez entered the United States without inspection in 1991. He visited Mexico for a few weeks before returning to the United States without inspection in 1998 and has not left the country since. Flores-Vasquez‘s wife is a lawful permanent resident, and they share five adult children who are all United States citizens.
In 2015, Flores-Vasquez was convicted of “menacing constituting domestic violence,” a misdemeanor under
II.
A conviction for a crime of moral turpitude renders an alien statutorily ineligible for cancellation of removal.
“Generally, when determining whether a petitioner‘s conviction is categorically a CIMT, we undertake a two-step process.” Id. First, we identify the elements of the statute. Coquico v. Lynch, 789 F.3d 1049, 1051 (9th Cir. 2015). Second, “we engage in the categorical approach and compare the elements of the statute of conviction to the generic definition of a [CIMT] and decide whether the conviction meets that definition.” Betansos, 928 F.3d at 1137 (internal quotation marks omitted).
“We use the categorical approach to determine whether a conviction qualifies as a CIMT.” Fugow v. Barr, 943 F.3d 456, 458 (9th Cir. 2019). Under this approach, “we do not look to the facts of the underlying conviction, but rather to the state statute
“Because the BIA has no special expertise in the interpretation of state criminal statutes, we review [the elements of the statute] de novo.” Latter-Singh v. Holder, 668 F.3d 1156, 1159 (9th Cir. 2012). However, we afford deference to the BIA‘s determination whether a state law is categorically a crime involving moral turpitude. See id. at 1159-60. Where, as here, the BIA issues or relies on a published decision to reach its conclusion, we apply Chevron deference and “defer to the agency‘s decision so long as it is reasonable.” Reyes v. Garland, 11 F.4th 985, 993 (9th Cir. 2021) (citing Chevron U.S.A., Inc., v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845 (1984)).
A.
We begin by identifying the elements of the Oregon menacing statute. Under Oregon law, “[a] person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.”
The Oregon menacing statute is derived from the common law crime of simple assault. See State v. Garcias, 679 P.2d 1354, 1356 (Or. 1984) (en banc). Assault in Oregon occurs “when one intentionally, or with another specified mental state, causes some degree of physical injury to another. . . . As thus defined, assault includes only acts performed with the intent to cause injury and does not encompass conduct intended to create apprehension, but not necessarily injury.” Id. Menacing was enacted as a separate offense to reach this other form of proscribed behavior—the intent to place another in fear of injury without intending to injure.4 Id. Accordingly, the Oregon menacing statute prohibits words or conduct intended to place others in fear of imminent serious physical injury where actual injury is neither intended nor accomplished.
The Oregon menacing statute does not require that the intended victim experience any actual fear. “Because the victim‘s subjective state of mind is not a defined element of the offense, the standard is whether a ‘reasonable person’ would have been placed in the requisite state of fear.” State v. C.S., 365 P.3d 535, 538 (Or. Ct. App. 2015) (citing Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report (“Commentary“) § 95, 96 (July 1970) (“‘Physical menace’ implies such conduct as would cause fear to a reasonable man. The standard to be applied is an objective one.“)); see also State v. Lee, 23 P.3d 999, 1002 (Or. Ct. App. 2001) (“It bears emphasis that the statute requires proof of an intent to create fear, not that the actor create actual fear in a victim.“) (emphasis in original).
B.
Having identified the elements of the Oregon menacing statute, we next compare these elements with the federal definition of a crime involving moral turpitude to determine whether there is a categorical match. Orellana v. Barr, 967 F.3d 927, 934 (9th Cir. 2020). As the BIA observed in its precedential decision Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019), “the term ‘moral turpitude’ generally refers to conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.‘” Id. at 643 (quoting Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (BIA 2016)). A crime involving moral turpitude “requires two essential elements: reprehensible conduct and a culpable mental state.” Id. at 644.
Ninth Circuit and BIA precedent have long recognized that conviction for simple assault does not involve moral turpitude. See Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165 (9th Cir. 2006); Uppal v. Holder, 605 F.3d 712, 718 (9th Cir. 2010) (“[T]he BIA‘s caselaw uniformly indicates that an assault statute requiring only general intent cannot be categorically a CIMT.“); In re Solon, 24 I. & N. Dec. 239, 241 (BIA 2007) (“Many simple assault statutes prohibit a wide range of conduct or harm, including de minimis conduct or harm, such as offensive or provocative physical contact or insults, which is not ordinarily considered to be inherently vile, depraved, or morally reprehensible.“); Matter of Jing Wu, 27 I. & N. Dec. 8, 10-11 (BIA 2017) (“It is well established that a simple assault or battery that only requires offensive touching or threatened offensive touching of another committed with general intent that does not result in serious bodily harm is not considered to involve moral turpitude.“). For an assault statute to constitute a CIMT, the statute must “contain[] elements that deviate from those associated with simple assault and battery” and “involve[] some aggravating factor that indicates the perpetrator‘s moral depravity.” Id. (emphasis in original).
In Matter of J-G-P-, the BIA concluded that the Oregon menacing statute constituted a crime involving moral turpitude because it requires a specific rather than general intent to cause fear in another, and the “level of harm” contemplated by the statute is the intent to cause a victim to be “in apprehension of imminent serious physical injury.” 27 I. & N. Dec. at 644-46 (emphasis in original). Matter of J-G-P- recognized that the Oregon menacing statute does not require that a victim experience
In Fernandez-Ruiz, we held that the BIA erred when it determined that conviction under Arizona‘s simple assault statute constituted a crime involving moral turpitude. 468 F.3d at 1167-68. The statute lacked two “crucial” elements needed to make a CIMT finding.5 Id. at 1167. First, the statute did not require a willful or intentional act, only a reckless one. Id. at 1166. Second, the Arizona statute “contains absolutely no element of injury whatsoever” because it “prohibits conduct that merely places another person ‘in reasonable apprehension of physical injury.‘” Id. at 1167 (quoting
In Latter-Singh, on the other hand, we held that a California statute criminalizing “threats ‘with intent to terrorize‘” constituted a crime involving moral turpitude. 668 F.3d at 1158, 1162 (analyzing
Third, we observed that ”
In Coquico, we held that a California statute prohibiting “unlawful laser activity” was not a CIMT, reasoning it had more
The BIA erred in concluding that the “element of actual inflicted fear” is not necessary to determine that a crime categorically involves moral turpitude. Cf. Matter of J-G-P-, 27 I. & N. Dec. at 647. This conclusion is directly at odds with our precedent, which explains that at least in the context of assault crimes, a CIMT determination requires both an evil or malicious intent and the infliction of actual substantial harm on another. In Latter-Singh, we explained that the injury required under
[A]t least in the context of assault crimes, a finding of moral turpitude involves an assessment of both the state of mind and the level of harm required to complete the offense. Thus, intentional conduct resulting in a meaningful level of harm, which must be more than mere offensive touching, may be considered morally turpitudinous.
Solon, 24 I. & N. Dec. at 242 (emphasis added).
Like Arizona‘s simple assault statute, Oregon‘s menacing statute encompasses “threats that cause no injury at all,” Fernandez-Ruiz, 468 F.3d at 1167, and unlike
As discussed above, the Oregon menacing statute prohibits words or conduct that is intended to place others in fear of imminent serious physical injury, but it does not require any intent to cause injury or that the victim experience any actual fear or injury as a result of the criminal act. Garcias, 679 P.2d at 1356; Anderson, 641 P.2d at 41; C.S., 365 P.3d at 538; Lee, 23 P.3d at 1002. Indeed, the menacing statute is capacious enough to cover circumstances where “(1) The victim apprehends the danger but does not fear it“; “(2) The actor‘s conduct is such as would cause fear to a reasonable man but the intended victim is aware that the actor will not inflict the
The menacing statute has been interpreted by state appellate courts to encompass even unsuccessful attempts to cause fear in another. For example, in one case, the Oregon Court of Appeals affirmed the juvenile court‘s finding that a youth “committed acts that would constitute the crime of menacing if she were an adult.” State ex rel. Juv. Dep‘t of Klamath Cnty. v. Dompeling, 17 P.3d 535, 535 (Or. Ct. App. 2000). The youth became “very upset” when her mother unplugged a telephone to keep her from using it. Id. The mother testified that her daughter said, “I wish you were dead, I um, I could stab you right now” and then a minute later stated, “I thought about doing it while you were in your sleep.” Id. at 535-36. In another case, the Oregon Court of Appeals held that “[b]ecause laser devices are used to sight weapons,” the act of “shining a laser beam onto the forehead of an elderly couple” who were unaware of the beam could constitute menacing under
These cases demonstrate the breadth of the conduct criminalized under Oregon‘s menacing statute. The daughter‘s angry statements in Dompeling are exactly the kind of “emotional outburst” or “mere angry utterance[]” that Latter-Singh characterized as non-turpitudinous behavior because the victim need not experience sustained fear of immediate danger. Latter-Singh, 668 F.3d at 1162. And the laser-pointing activity in Santacruz-Betancourt is materially indistinguishable from the laser statute that we held was categorically not a crime involving moral turpitude in Coquico, 789 F.3d at 1054. Because “there is a ‘realistic possibility’ that [
Although, as the dissent notes, an agency may “alter[] its views from one reasonable interpretation to another,” the BIA in Matter of J-G-P- announced no new rule. Instead, it stated that its analysis “comports with [the BIA‘s] case law and the controlling jurisprudence of the United State Court of Appeals for the Ninth Circuit” and discussed our decisions at length. Matter of J-G-P-, 27 I. & N. Dec. at 644, 648-50. And as we discussed above, the principles distilled from our prior precedent are derived in part from BIA case law which has long held that simple assault offenses involving only offensive touching or threatened offensive touching without injury are not crimes involving moral turpitude. See In re Solon, 24 I. & N. Dec. at 242; Matter of Jing Wu, 27 I. & N. Dec. at 10-11; In re Sanudo, 23 I. & N. Dec. 968, 972-973 (BIA 2006). Our dissenting colleague‘s reliance on Betansos is therefore inapt. There, we upheld the BIA‘s decision under Chevron as reasonable even as it directly contradicted our earlier ruling that indecent exposure is not
PETITION FOR REVIEW GRANTED; REMANDED.
BAKER, Judge, dissenting:
My colleagues read three of our decisions as standing for the proposition that “at least in the context of assault crimes, a [crime of moral turpitude] determination requires both an evil or malicious intent and the infliction of actual substantial harm on another.” Opinion at 12 (emphasis in original); see also id. at 9-12 (citing Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006); Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012); and Coquico v. Lynch, 789 F.3d 1049 (9th Cir. 2015)). They then conclude that the Board of Immigration Appeals’ contrary interpretation of the term “crime of moral turpitude” in Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019), is unreasonable because it conflicts with those decisions. Opinion at 12. Under settled Supreme Court and circuit precedent, however, we cannot replace the BIA‘s reasonable interpretation of this ambiguous term with our own.
As the majority acknowledges, id. at 5, we use a two-part test to determine whether a criminal statute categorically outlines a crime of moral turpitude:
The first step is to identify the elements of the statute of conviction. The second step is to compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition.
Coquico, 789 F.3d at 1051 (cleaned up) (quoting Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc)). No one questions the elements of the offense for which Flores-Vasquez was convicted, “menacing constituting domestic violence,”
While we review the BIA‘s construction of the statute de novo, Coquico, 789 F.3d at 1051, we must accord Chevron deference to the BIA in its determination of whether the elements of the crime constitute morally turpitudinous conduct when, as here, it relies on a precedential determination. Latter-Singh, 668 F.3d at 1160 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)).1 Although my colleagues profess this standard, see Opinion at 6 (citing Reyes v. Garland, 11 F.4th 985, 993 (9th Cir. 2021)), they fail to practice it.
Chevron demands that we ask two questions:
First, always, is the question whether Congress has directly spoken to the precise question at issue. If . . . the court determines Congress has not directly addressed the precise question at issue, . . . the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.
As to Chevron‘s first question, “[w]e have stated that the term ‘moral turpitude’
Chevron teaches—for better or worse—that agencies, not the courts, fill statutory gaps left by ambiguous language. See id. at 843-44. A prior judicial reading can trump an agency interpretation of a statute only if the former construed unambiguous terms which “leave[ ] no room for agency discretion.” Nat‘l Cable & Telecommc‘ns Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). But where multiple plausible interpretations exist, we cannot allow a “judicial precedent to foreclose an agency from interpreting an ambiguous statute” because doing so “would allow a court‘s interpretation to override an agency‘s.” Id.
Everyone agrees that the term “crime of moral turpitude” is ambiguous. No Ninth Circuit decision has held that it unambiguously requires an element involving “the infliction of actual substantial harm on another,” Opinion at 12, nor could one. Therefore, we must defer to the BIA‘s decision in J-G-P- unless it is unreasonable on its own terms, even if we previously adopted a conflicting construction. Brand X, 545 U.S. at 981, 984-85 (upholding the FCC‘s subsequent construction of “telecommunications service” that disagreed with ours in AT&T Corp. v. City of Portland, 216 F.3d 871, 873 (9th Cir. 2000)).
This is the approach that we recently used in construing the term “crime of moral turpitude.” In Betansos, an alien appealed an Immigration Judge‘s (IJ‘s) conclusion that he was ineligible for cancellation of removal. The IJ held, and the BIA affirmed, that his conviction for indecent exposure qualified as a crime of moral turpitude, relying on a published decision for that characterization. 928 F.3d at 1135-36 (citing Matter of Cortes Medina, 26 I. & N. Dec. 79, 79 (BIA 2013)). Cortes Medina directly contradicted our earlier ruling that indecent exposure is not a crime of moral turpitude. See Nunez v. Holder, 594 F.3d 1124, 1127 (9th Cir. 2010). Still, we upheld the BIA‘s decision as reasonable and declined to supplant the agency‘s interpretation with our own. Betansos, 928 F.3d at 1142 (“Reasonable minds can differ when deciding whether certain crimes are morally turpitudinous. Indeed, we did so in Nunez. However, pursuant to Brand X, we must defer to the BIA‘s decision in Cortes Medina.“).
The majority does the exact opposite here. It distills principles from three earlier cases in which we applied our own definition of “crime of moral turpitude,” granting limited to no deference to the BIA‘s views. See Fernandez-Ruiz, 468 F.3d at 1163 (applying de novo review to this question); Latter-Singh, 668 F.3d at 1160 (applying Skidmore deference to this question); Coquico, 789 F.3d at 1051 (also applying Skidmore deference). And insofar as these opinions do rely on the BIA‘s precedents, we cannot use our decisions to prevent the agency from altering its views from one reasonable interpretation to another. Chevron, 467 U.S. at 863 (“An initial agency interpretation is not instantly carved in stone.“).
The majority improperly “allow[s] a judicial precedent to foreclose an agency from interpreting an ambiguous statute.” Brand X, 545 U.S. at 982. “This is directly at odds with our en banc court‘s recognition that the agency gets to
I would reach the same conclusion even if, instead of deferring to the agency, our task here were to ascertain whether J-G-P- is consistent with our precedent. In J-G-P- the BIA relied on Latter-Singh as support for the proposition that “evil or malicious intent is the essence of moral turpitude, which in our view, properly places the focus on a violator‘s intent to cause fear of serious physical injury, rather than on his victim‘s subjective fear, in assessing the reprehensibility of his actions.” 27 I. & N. Dec. at 649 (cleaned up) (emphasis added) (citing Latter-Singh, 668 F.3d at 1161). Latter-Singh plainly focused on intent to cause fear, not on actually causing fear: “The intent to instill great fear of serious bodily injury or death in another constitutes the ‘vicious motive or corrupt mind’ demonstrative of a crime involving moral turpitude.” 668 F.3d at 1163 (emphasis added).
My reading of Latter-Singh differs from my colleagues’ because I do not conclude that it hinged on the California statute‘s2 requirement that the victim actually fear for his, or his immediate family‘s, safety—rather, my reading is that intent is dispositive. We referred, multiple times, to the importance of the perpetrator‘s intent to make the victim fear that the threat will be carried out. 668 F.3d at 1162 (“[T]he mens rea required by
In this case, by comparison, the Oregon statute at issue criminalizes “intentionally attempt[ing] to place another person in fear of imminent serious physical injury.”
As to Fernandez-Ruiz, my colleagues correctly note that the Arizona simple assault statute at issue there did not require a willful or intentional act—recklessness was enough. Here, in contrast, the Oregon “menacing” statute requires intent: “A person commits the crime of menacing if by word or conduct he intentionally attempts to place another person in fear of imminent serious physical injury.”
Compare that to the Arizona simple assault statute in Fernandez-Ruiz, which criminalized “recklessly causing any physical injury to another person” or “intentionally placing another person in reasonable apprehension of imminent physical injury.” 468 F.3d at 1164 (emphasis added) (quoting
As to Coquico, we stated that “[o]ur precedent casts doubt on whether an intent to cause ‘apprehension or fear,’ rather than intent to injure, can ever be a” crime involving moral turpitude. 789 F.3d at 1054 n.4 (emphasis in original). That footnote also explained that where an underlying act is not “inherently grave, base, or depraved,” causing fear of it cannot be considered “evil” for purposes of moral turpitude. Id.
In J-G-P- the Board specifically considered that footnote but found it to be both dicta and irreconcilable with Latter-Singh, “which concluded that a criminal threat can categorically involve moral turpitude.” 27 I. & N. Dec. at 650. As noted above, Latter-Singh did indeed state that “[t]he intent to instill great fear of serious bodily injury or death in another constitutes the ‘vicious motive or corrupt mind’ demonstrative of a crime involving moral turpitude.” 668 F.3d at 1163.
The BIA is correct in observing that the footnote in Coquico cannot necessarily be squared with our holding in Latter-Singh if both are considered essential holdings. My colleagues reject J-G-P- in light of those two decisions and Fernandez-Ruiz. For the reasons discussed above, I believe J-G-P- is consistent with—and therefore reasonable in view of—both Fernandez-Ruiz and Latter-Singh. As for Coquico, I believe the Board reasonably concluded that footnote 4 was dicta. To the extent the footnote is accorded more weight, creating a possible conflict with Latter-Singh, I note that Coquico is dated June 2015, Latter-Singh is dated February 2012, and Fernandez-Ruiz is dated November 2006. Under those circumstances, it was reasonable for the BIA to adopt the rule announced in our two earlier opinions. If we were to address the issue in a context not requiring
I respectfully dissent.