Jaspal Singh UPPAL, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
No. 07-72614.
United States Court of Appeals, Ninth Circuit.
May 21, 2010.
605 F.3d 712
Argued and Submitted Feb. 10, 2009.
Tiffany Walters Kleinert, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.
Before DAVID R. THOMPSON, MARSHA S. BERZON and N. RANDY SMITH, Circuit Judges.
ORDER
The Opinion and Concurrence in Part/Dissent in Part filed August 11, 2009, Slip Op. 10849, and appearing at 576 F.3d 1014 (9th Cir.2009), are withdrawn. They may not be cited as precedent by or to this court or any district court of the Ninth Circuit.
The superseding opinion will be filed concurrently with this order. The parties may file an additional petition for rehearing or rehearing en banc.
OPINION
BERZON, Circuit Judge:
Jaspal Singh Uppal, a native and citizen of India, petitions for review of the Board of Immigration Appeal‘s (BIA) order dismissing his appeal. Uppal contends the BIA erred in concluding that he had committed a crime which categorically involved moral turpitude, thus rendering him inadmissible at the time of his adjustment of status, and subject to removal. We agree and grant the petition.
BACKGROUND
Jaspal Singh Uppal entered the United States illegally around February 1, 1997, near Blaine, Washington. He was granted asylum in 1998 and accorded status as a permanent resident in 2004.
On April 11, 2006, the Department of Homeland Security (“DHS“) issued Uppal a Notice to Appear. The Notice charged Uppal as removable under
Specifically, the Notice alleged that on February 21, 1995, Uppal was convicted of aggravated assault in violation of § 2681 of the Canada Criminal Code and deported from Canada to India as a result. The Notice further alleged that Uppal‘s application for asylum made no mention of this conviction or his status as a Canadian permanent resident.
On receiving the Notice, Uppal filed a formal motion to terminate the removal proceedings. Without holding an evidentiary hearing the IJ issued a final order denying the motion. Uppal‘s conviction under § 268 of the Criminal Code of Canada (on occasion hereafter “§ 268“), the IJ held, constituted a categorical crime involving moral turpitude (“CIMT“). The IJ also concluded that Uppal had committed immigration fraud by concealing both the conviction and his status as a Canadian
Uppal timely appealed the IJ‘s order to the BIA. In a one-panel-member, unpublished decision, the BIA affirmed the IJ‘s order. Undertaking a de novo review of the moral turpitude issue, the BIA concluded that the IJ was correct in determining that a § 268 offense constituted a categorical CIMT, rendering Uppal inadmissible at the time of his adjustment of status. The BIA reasoned that Uppal “was convicted of having committed aggravated assault by, in the process of committing an assault, wounding, maiming, disfiguring or endangering the life of the victim.” Basing its conclusion on its interpretation of the statutory language of § 268, the BIA determined that “the crime cannot be committed negligently or carelessly; rather, [the crime] requires willfulness of the action which inflicts significant injury.” As the BIA found Uppal removable on that basis alone, it did not reach the immigration fraud issue.
Uppal timely filed this petition for review.
JURISDICTION
We have jurisdiction to review this final order of removal under
DISCUSSION
The determination whether a conviction under a criminal statute is categorically a CIMT involves two steps, to which different standards of review apply. See Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc). First, the BIA must identify the elements of the statute necessary to secure a conviction. Because “[t]he BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes,” we review its conclusion in that regard de novo. Id. at 907. Second, once it identifies the elements of the statute, the BIA must compare those elements to the generic definition of a crime involving moral turpitude and decide whether they meet the definition. Id. at 908; see also Morales-Garcia v. Holder, 567 F.3d 1058, 1064 (9th Cir.2009). Because the BIA does have expertise in making this determination, we defer to its conclusion if warranted, following the Chevron framework if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute), and following the Skidmore framework if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute). Marmolejo-Campos, 558 F.3d at 909–11; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). As the decision here is of the latter variety, our deference analysis on the second prong of the CIMT inquiry must proceed under Skidmore.
1. The Elements of § 268
We turn to the first step of the inquiry: identifying the elements of Canada Criminal Code § 268 (aggravated assault). A person commits “aggravated assault” under § 268 of the Canada Criminal Code if he “wounds, maims, disfigures, or
Canadian case law interpreting § 268 leaves no doubt that there need be no actual harm. As the Canadian Supreme Court explained: “There is no prerequisite that any harm must actually have resulted. This first requirement of § 268(1) is satisfied by the significant risk to the li[fe] of the [victim] occasioned by the [application of force].” R. v. Cuerrier, [1998] 2 S.C.R. 371, ¶ 95 (Can.).
Although it is difficult to tell for sure from the BIA‘s terse analysis whether the BIA correctly identified the elements of § 268, most likely it did not. The BIA‘s decision quotes the statute‘s actus reus language—“wound[ing], maim[ing], disfigur[ing], or endanger[ing] the life of the complainant“—correctly, but it then goes on to paraphrase the statute as requiring “willfulness of the action which inflicts significant injury” (emphasis added), suggesting that it has overlooked the endangerment alternative. We therefore conclude that the BIA misapprehended the actus reus elements required for a conviction under § 268. Because the BIA failed to identify the elements of § 268 correctly, its CIMT analysis, in which it compares the elements it has identified to the generic definition of moral turpitude, is misdirected and so merits no deference from this Court. See Morales-Garcia, 567 F.3d at 1066 n. 4.
2. Comparison of § 268 to the CIMT definition
Even if we misread the BIA‘s opinion as premised on the erroneous understanding that § 268 requires actual injury, we still could not defer to the BIA‘s conclusion that § 268 is categorically a CIMT. Under Skidmore, the measure of deference afforded to the agency “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” 323 U.S. at 140, 65 S.Ct. 161. When this standard is applied, the second step of the BIA‘s CIMT analysis does not warrant deference. That analysis is neither thoroughly reasoned nor consistent with prior BIA and Ninth Circuit case law. In addition, there is a head-on conflict between the BIA‘s analysis and this Court‘s recent decision in Morales-Garcia v. Holder, 567 F.3d 1058, as well as a general conflict with the BIA‘s own case law.
To see why the BIA‘s CIMT analysis cannot stand, we begin by elucidating § 268‘s mens rea requirement. To do so, we must read § 268 together with § 265, which establishes a base-level mens rea requirement for all assault offenses under the Criminal Code of Canada:
A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Can.Crim.Code, R.S.C., ch. C-46 § 265(1) (1985); Cuerrier, 2 S.C.R. 371, ¶¶ 94-95.
Once again, this understanding is confirmed by case law. As the Canadian Supreme Court noted in R. v. Godin, “[i]t is not necessary that there be an intent to wound or maim or disfigure [under § 268]. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring.” Id. [1994] 2 S.C.R. 484, ¶ 12 (emphasis added); see also R. v. L., [1992] 59 O.A.C. 130, ¶¶ 8-10 (Ont.Ct.App.) (“[T]he essential intent required for an assault ... remains the same for all forms of assault, including aggravated assault. Parliament ... never intended that, on an indictment charging ‘aggravated assault,’ the prosecution would be required to prove that the accused intended to wound, maim or disfigure the complainant or endanger his life.... Aggravated assault is ... a crime of general intent.” (internal quotation marks and citations omitted)) (interpreting the former § 245.2, which is identical to the current § 268). Likewise, in R. v. Brodie, the British Columbia Court of Appeal affirmed an aggravated assault conviction in which the defendant had forcefully pushed the victim in a driveway, causing the victim to fall and resulting in life-long brain damage. See [1995] 60 B.C.A.C. 153, ¶¶ 5, 12. The court noted that “a reasonable person who contemplated pushing another over ... would be bound to foresee that such conduct would expose the victim to risk of bodily harm.” Id. ¶ 10 (emphasis added).
Comparing the requisite mens rea under § 268 with the case law concerning assaults as CIMTs, it becomes clear that a § 268 conviction cannot categorically be a CIMT. Under well-established law, simple assault and battery convictions are not categorically CIMT convictions because the required mens rea for simple assault or battery is usually the intent to touch another offensively, not the “evil” intent typically required for a CIMT.2
The only precedential BIA case of which we are aware in which an assault offense was held categorically a CIMT despite the absence of a special protected status or trust relationship or the use of a deadly weapon is Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994). In Franklin, the BIA held that an involuntary manslaughter statute was categorically a CIMT because the statute had as elements both extreme recklessness and the death of another person, a result serious enough to raise the offense to a CIMT even without a showing of specific evil intent. Franklin, 20 I. & N. Dec. at 870.3
Consistently with these general trends in the BIA‘s case law, this Court recently reversed the BIA and held that California Penal Code section 273.5, which penalizes the “willful[] inflict[ion] upon a person
There is no way to square the BIA‘s opinion in this case with Morales-Garcia. As in Morales-Garcia, the statute at issue in Uppal‘s case requires no special trust relationship between the victim and the perpetrator. And it does not require that serious physical injury, much less death, result. Under § 268, it is sufficient to “endanger the life of” the victim, even if the victim sustains no bodily injury at all. See Cuerrier, 2 S.C.R. 371, ¶ 95.
Nor can the BIA‘s conclusion with respect to § 268 find support in the context of non-assault cases in which the BIA and courts of appeal have held that certain endangerment crimes constitute a CIMT even without resulting injury. This line of cases requires actual knowledge of a factor indicating risk of harm and conscious disregard of it, whereas § 268 requires only negligence. In Marmolejo-Campos v. Holder, for example, we held, after applying the modified categorical approach, that a conviction for driving or physically controlling a car while under the influence and with a suspended or restricted license constituted a CIMT. 558 F.3d at 917. However, we emphasized that the petitioner had “actual knowledge” that his license was invalid at the time of his crimes, and so demonstrated a subjectively culpable mental state. Id. at 913 n. 12; see also Keungne v. U.S. Att‘y Gen., 561 F.3d 1281, 1286-87 (11th Cir.2009); Knapik v. Ashcroft, 384 F.3d 84, 90 n. 5 (3d Cir.2004); Matter of Lopez-Meza, 22 I. & N. Dec. 1188, 1194, 1196 (BIA 1999), rejected on other grounds by Hernandez-Martinez v. Ashcroft, 329 F.3d 1117, 1118-19 (9th Cir. 2003). In contrast, § 268 requires only that the risk of harm resulting from the assault be “objective[ly] fores[eeable],” R. v. Godin, 2 S.C.R. 484, ¶ 12, not that the perpetrator actually have subjective knowledge of a factor indicating risk to another.
Given these considerations, this case does not fall within the scope of Franklin, in which the unintended result was death; the special factor assault cases; or the endangerment cases requiring actual knowledge and conscious disregard of the risk of harm. And outside of these exceptions, the BIA‘s case law uniformly indicates that an assault statute requiring only general intent cannot be categorically a CIMT. For example, in Matter of Muceros, A42-998-610 (BIA May 11, 2000) (index decision),4 the BIA held that a conviction under California Penal Code section 243(d) for “battery ... [in which] serious injury is inflicted” is not categorically a CIMT, because
[S]ection 120.00(1) of the revised New York Penal Law provides that a person is guilty of assault in the third degree when, “[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person.” ... [The statute] requires “intent to cause physical injury.” ... Thus, the statute under which the respondent was convicted requires the specific intent to cause physical injury, as opposed to the general intent associated with simple assault. Therefore, the inclusion of the specific intent element distinguishes third-degree assault under section 120.00(1) of the New York Penal Law from the general-intent simple assaults, which are not considered to involve moral turpitude.
24 I. & N. Dec. 239, 243–44 (BIA 2007) (internal citations omitted).
This Court, too, has taken note of the distinction between general and specific intent in the assault and battery contexts. See Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1059–61 (9th Cir.2006) (holding that a conviction under a domestic battery statute that applied to a wide range of relationships and required neither injury nor an intent to injure did not categorically qualify as a crime involving moral turpitude); Grageda v. I.N.S., 12 F.3d 919, 922 (9th Cir.1993) (holding that “when a person willfully beats his or her spouse severely enough to cause ‘a traumatic condition,’ he or she has committed an act of baseness or depravity contrary to accepted moral standards [and has categorically committed a crime involving moral turpitude]” and noting that this “conclusion follows from Guerrero de Nodahl [, 407 F.2d at 1406,] because the injurious act under section 273.5(a) must be willful, meaning that the person intended to cause the harm“); cf. Morales-Garcia, 567 F.3d at 1066 n. 5 (noting that ”Grageda interpreted the statute to require that the defendant ‘intended to cause the harm,’ although later California cases appear to require only the general intent to commit the act that results in injury[]” (internal citation omitted) and expressing no opinion on whether general intent would be sufficient).
As a result, under the BIA‘s case law and our own, an assault statute not involving a specific intent to injure or a special trust relationship and not requiring that the assault cause death or even serious bodily injury cannot qualify as a categorical CIMT.
Conclusion
The BIA may have misconstrued the statutory elements. Whether it did or not, it applied a CIMT analysis inconsistent
GRANTED and REMANDED.