- Introduction: Matter of Wu, 27 I&N Dec. 8 (BIA 2017)
- Factual and Procedural History: 27 I&N Dec. at 8-9
- Relevant Statutes and Issues: 27 I&N Dec. at 9
- Understanding Previous Cases on the Issue: 27 I&N Dec. at 9-10
- Employing the Categorical Approach Generally: 27 I&N Dec. at 10-12
- Applying the Categorical Approach to the Statute in the Instant Case: 27 I&N Dec. at 12-14
- Explaining Why the Statute Categorically Defines a CIMT: 27 I&N Dec. 14-16
- Decision: 27 I&N Dec. at 16
On April 13, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Wu, 27 I&N Dec. 8 (BIA 2017) [PDF version]. In the Matter of Wu, the Board held that “[a]ssault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude.” In rendering its decision, the Board distinguished the instant case from the published opinion of the United States Court of Appeals for the Ninth Circuit in Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc) [PDF version]. The latter point is significant because the Matter of Wu arose under the jurisdiction of the Ninth Circuit.
In this article, we will examine the facts of the Matter of Wu, the Board's reasoning and decision, and what the decision likely means going forward as precedent.
The respondent, a native and citizen of China, was admitted to the United States as a lawful permanent resident (LPR) in 2008.
In 2012, the respondent was convicted of assault in violation of section 245(a)(1) of the California Penal Code.
Based on the respondent's California state assault conviction, the Department of Homeland Security (DHS) charged the respondent as removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) as an alien who was convicted of a crime involving moral turpitude (CIMT) within 5 years after the date of admission, and for which a sentence of 1 year or longer can be imposed.
In removal proceedings, the Immigration Judge determined that the respondent's conviction was not for a CIMT. Accordingly, she terminated removal proceedings.
The DHS appealed from the Immigration Judge's decision, arguing that section 245(a)(1) categorically defines a crime constituting a CIMT. The DHS took the position that the Immigration Judge had improperly terminated removal proceedings against the respondent and then incorrectly denied DHS's motion to reconsider.
The Board took the appeal to review the case de novo (from the beginning) under 8 C.F.R. 1003.1(d)(3)(ii) (2016).
The respondent was charged as removable under section 237(a)(2)(A)(i) of the INA. This provision renders an alien removable if he or she:
- Is convicted of a CIMT;
- Within 5 years after the date of admission; and
- For which a sentence of 1 year or more can be imposed.
The issue in the Matter of Wu is whether the respondent's conviction was for a CIMT. That the conviction had occurred within 5 years of the respondent's admission and that a sentence of 1 year or more could be imposed were undisputed.
Quoting from its published decision in the Matter of Silva-Trevino, 26 I&N Dec. 826, 833 (BIA 2016) [PDF version] [see article], the Board explained that “'[t]he 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.'” Furthermore, citing to the same decision at 834, the Board stated that for a crime to constitute a CIMT requires that it entails “two essential elements: reprehensible conduct and a culpable mental state.”
At the time of the respondent's conviction, the statute of conviction, section 245(a)(1) of the California Penal Code, punished:
Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.
The task before the Board was thus to determine whether the crime defined by section 245(a)(1) of the California Penal Code is categorically a CIMT. For reasons that we will examine, the Board determined that it is.
In the Matter of G-R-, 2 I&N Dec. 733, 740 (BIA 1946, A.G. 1947), the Board and the Attorney General held that assault with a deadly weapon under California law was a CIMT. The Ninth Circuit held the same in Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953) [PDF version], aff'd on other grounds, 347 U.S. 637 (1954) [PDF version].
However, more than twenty years later, in 2014, the Ninth Circuit called both Matter of G-R- and Gonzales v. Barber into question in its published decision titled Ceron v. Holder, 747 F.3d 773, 780 (9th Cir. 2014) (en banc) [PDF version]. The Ninth Circuit explained in Ceron that the two older decisions were undermined by subsequent developments in federal law and state law. Specifically, the Ninth Circuit noted that the reasoning employed in the two older decisions “runs counter to today's categorical analysis” set forth in Taylor v. United States, 495 U.S. 575 (1990) [PDF version] (note that this approach restricts adjudicators to considering the elements of the offense instead of the specific conduct that led to the conviction). The Ninth Circuit further noted that in 2001, the California state court decision in People v. Williams, 29 P.3d 197 (Cal. 2001) [PDF version] defined “the requisite mental state for assault” under section 245(a)(1) of the California Penal Code.
In Ceron, the Ninth Circuit remanded the case to the BIA for consideration of whether section 245(a)(1) is categorically a CIMT under the categorical approach set forth in Taylor. Additionally, the Ninth Circuit requested in Ceron at 784 that the Board clarify “how [to] assess [whether] a statute-like California Penal Code section 245(a)(1)-that requires knowledge of the relevant facts but does not require subjective appreciation of the ordinary consequences of those facts” involves moral turpitude.
The Board began by applying the categorical approach to the section 245(a)(1) of the California Penal Code. Citing to Silva Trevino, 26 I&N Dec. at 831, the Board explained that it would assess whether the statute “fit within the generic definition of a [CIMT].” This meant that the Board would focus on the elements defining the offense of conviction rather than the respondent's underlying conduct. This means that the Board assessed the minimum conduct proscribed by the elements of the statute that had a “realistic probability” of being prosecuted, and determine whether that conduct was a CIMT. To this effect, the Board cited to Hernandez-Gonzalez v. Holder, 778 F.3d 793, 801 (9th Cir. 2015) [PDF version].
Citing to the Matter of Ahortalejo-Guzman, 25 I&N Dec. 465, 466 (BIA 2011) [PDF version], and the Matter of Fualaau, 21 I&N Dec. 475, 477 (BIA 1996) [PDF version], the Board explained that it is “well established” that simple assault or battery that requires, at a minimum, “offensive touching or threatened offensive touching of another committed with general intent” does not constitute a CIMT. However, citing to Ahortalejo-Guzman, 25 I&N Dec. at 466, the Board explained that this general rule does not apply where a statute “involves some aggravating factor that indicates the perpetrator's moral depravity.” Under the Matter of Danesh, 19 I&N Dec. 669, 673 (BIA 1988) [PDF version], the Board is required to weigh the level of danger posed by the perpetrator's conduct in conjunction with his or her degree of mental culpability in committing the offense.
Citing to the Matter of Solon, 24 I&N Dec. 239, 243 (BIA 2007) [PDF version], the Board explained that an assault statute that criminalizes the act of causing physical injury to another while possessing specific intent to cause such harm categorically defines a CIMT. However, under the Matter of Perez-Contreras, 20 I&N Dec. 615, 618-619 (BIA 1992) [PDF version], if the assault statute criminalizes the causing of an injury through “criminal negligence,” it does not define a CIMT. Regarding the specific statute at issue in the instant case, the Board found its decision in the Matter of Sanudo, 23 I&N Dec. 968, 971 (BIA 2006) [PDF version], pertinent. In Sanudo, the Board stated that if the state of mind requirement in an assault offense falls between specific intent and criminal negligence, it is a CIMT if its commission “necessarily involve[s] aggravating factors that significantly increase[s] [its] culpability” relative to a simple assault committed absent such aggravating factors (quote modified from the Board's selection in the instant decision).
In the Matter of Medina, 15 I&N Dec. 611, 612-14 (BIA 1976) [PDF version], aff'd sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977) (unpublished table decision), the Board held that the use of a deadly or dangerous weapon is one such aggravating factor that demonstrates a perpetrator's “heightened propensity for violence and indifference from human life” (quote from Matter of Wu). The Ninth Circuit held similarly in Weedin v. Tayokichi Yamada, 4 F.2d 455, 457 (9th Cir. 1925) [PDF version]. In Medina, the Board held that an assault statute that could be violated with a mental state of recklessness was for a CIMT because the statute also required proof that the assault had been committed with a deadly weapon, meaning that the perpetrator had “show[n] a willingness to commit the act in disregard of the perceived risk” (see 15 I&N Dec. at 614).
The Board explained that the California jury instructions indicate that a violation of section 245(a)(1) of the California Penal Code requires proof of the following elements (see Judicial Council of California Criminal Jury Instruction 875 (Oct. 2016):
- [T]he defendant did an act that by its nature would directly and probably result in the application of force to a person, using either (a) a deadly weapon or instrument, or (b) force likely to produce great bodily injury to another;
- [T]he defendant did the act willfully; and
- [W]hen the defendant acted, he or she (a) was aware of facts that would lead a reasonable person to realize that his or her act by its nature would directly and probably result in the application of force to someone and (b) had the present ability to apply such force.
The Board explained that section 245(a)(1) of the California Penal Code is distinguishable from the statute in question in the Matter of Medina in that “it does not require that a perpetrator subjectively perceive the risk posed by his or her conduct.” This was noted in Ceron, 747 F.3d at 784 as well. Accordingly, the Board had to determine whether a conviction under section 245(a)(1) necessarily requires a culpable mental state that would fall under the definition of a CIMT. For the foregoing reasons, the Board held that it did require such a culpable mental state.
In section 240 of the California Penal Code (West 2017), “assault” is defined as an “unlawful attempt … to commit a violent injury on the person of another.” In People v. Colantuono, 865 P.2d 704, 710 (Cal. 1994) [PDF version], superseded by statute on other grounds as recognized in People v. Conley, 373 P.3d 435, 441 n.4 (Cal. 2016), the California Supreme Court defined “assault” as an “incipient or inchoate battery.” The Board noted that “given these divergent definitions, it was unclear whether California assault entailed a specific intent to commit battery,” a key question in the instant case.
To resolve the issues discussed in Ceron, the Ninth Circuit instructed the Board to assess the applicability of the California Supreme Court decision in People v. Williams, 29 P.3d 197 (Cal. 2001) [PDF version]. In Williams, 29 P.3d at 202, the California Supreme Court explained that “assault” refers to “an intent to commit some act which would be indictable, if done, either from its own character or that of its natural and probable circumstances.” Citing to the same portion of Williams, the California Supreme Court held that a defendant guilty of assault “must be aware of the facts that would lead a reasonable person to realize a battery would directly, naturally, and probably result from his conduct.” Conversely, a defendant could not be convicted of assault based on facts he did not know but should have known. Thus, a defendant could be convicted without having been subjectively aware of the risk that a battery might occur but only if under the same circumstances a reasonable person would have perceived such a risk (see the reasonable person standard). The California Supreme Court added that despite the knowledge requirement, assault is nevertheless a “general crime.” Accordingly, mere recklessness or criminal negligence is insufficient to sustain an assault conviction.
The Ninth Circuit has addressed the implications of Williams “in criminal sentencing cases in which the issue was whether the mental state under section 245(a)(1) is sufficiently 'intentional' to justify treating a conviction for California assault as a crime of violence under 18 U.S.C. 16(a)” (note that 18 U.S.C. 16(a) forms the basis of the immigration aggravated felony crime of violence provision in section 101(a)(43)(F) of the INA). The Board noted that, although the issue of the “use of physical force” is not relevant in the instant case (but it is in the crime of violence context), the issues in the cases are related insofar as they both focus on the level of “intent” required for a conviction under section 245(a)(1) of the California Penal Code.
In United States v. Grajeda, 581 F.3d 1186, 1193-97 (9th Cir. 2009) [PDF version], the Ninth Circuit addressed the same version of section 245(a)(1) of the California Penal Code under which the respondent in the Matter of Wu was convicted. The defendant in Grajeda took the position that section 245(a)(1) allows for convictions for merely negligent conduct and does not have as an element the intentional use of force. The Ninth Circuit rejected this argument, concluding that section 245(a)(1) — based on Williams — requires for a conviction that the conduct have been both “violent” and “active,” and not “merely accidental.” Significantly, the Ninth Circuit held that the statute requires a culpable mental state greater than recklessness and criminal negligence. In 2015, based on its decision in Ceron the Ninth Circuit declined to reconsider its decision in Grajeda in a case titled United States v. Jimenez-Arzate, 781 F.3d 1062-1064-65 (9th Cir.) (per curiam) [PDF version], cert. denied, 136 S.Ct. 120 (2015).
In accordance with relevant precedent, the Board held that “a violation of section 245(a)(1) necessarily involves a culpable mental state that falls within the definition of a [CIMT].” The Board found that section 245(a)(1) requires that a perpetrator “willfully engage in dangerous conduct, by means of either an object employed in a manner likely to cause great bodily injury or force that is, in and of itself, likely to cause such an injury.” Furthermore, the perpetrator must have knowledge of the facts that make such an injury likely. The Board held that with regard to whether an offense is a CIMT, “the result should be no different for a person who willfully commits such dangerous conduct with knowledge of all the facts that make it dangerous than it is for one who commits the conduct with the knowledge that it is dangerous.”
The Board also held that “a violation of section 245(a)(1) necessarily involves an aggravating factor that makes such an offense reprehensible.” The statute requires that the perpetrator willfully use either a deadly weapon or instrument or force likely to produce great bodily injury. Furthermore, it requires that the perpetrator “be aware of the facts that make it likely that such conduct will cause, at a minimum, great bodily injury to another person.” In its recent precedent decision in the Matter of Kim, 26 I&N Dec. 912, 918 (BIA 2017) [PDF version] [see article] that “great bodily injury” is defined in California as a “significant or substantial injury.”
The Board found that, in light of the conduct and culpable mental state necessarily required in a violation of section 245(a)(1), assault under the statute “is no less base, vile, and depraved than the reckless aggravated assault offense we deemed turpitudinous in Medina.” Finally, the Board held that there was no evidence that section 245(a)(1) has been used to prosecute an individual for conduct committed with a non-culpable mental state that would not be turpitudinous.
The Board found, in light of the issues raised in Ceron, that the respondent's conviction for assault under section 245(a)(1) of the California Penal Code was a categorical CIMT. Accordingly, the Board found that the respondent was removable under section 237(a)(2)(A)(i) of the INA, and that the Immigration Judge had improperly terminated removal proceedings and denied the motion to reconsider. The Board sustained the DHS's appeal, reinstated removal proceedings, and remanded the matter to the Immigration Judge for the entry of a final order of removal (the respondent had indicated that he did not wish to seek relief from removal).
In the Matter of Wu, the Board applied its existing jurisprudence regarding assault convictions in the CIMT context to a relatively common California criminal statute. Although the Board had previously held that the statute defined a CIMT, the Ninth Circuit determined that the issue required a fresh look due to changes to jurisprudence that had occurred in the last six decades.
An alien facing criminal charges should always consult with an experienced immigration attorney for guidance on the potential immigration consequences of a conviction. If an alien is placed in removal proceedings, he or she should consult with an experienced immigration attorney immediately for guidance on either contesting the charges, seeking relief from removal, or both.