Considering When Menacing Offense is a CIMT (Matter of J-G-P-)

 

Introduction: Matter of J-G-P-, 27 I&N Dec. 642 (BIA 2019)

On October 11, 2019, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of J-G-P-, 27 I&N Dec. 642 (BIA 2019) [PDF version]. The Board held that an Oregon menacing statute which did not include actual inflicted fear as an element categorically defined a crime involving moral turpitude. The Board reasoned that a menacing statute may define a crime involving moral turpitude “where the statute requires evil or malicious intent, and the level of threatened harm, or magnitude of menace implicit in the threat, is serious and immediate” even though the statute does not require proof of the actual infliction of fear in the victim. In so doing, the Board distinguished its precedent in the Matter of Solon, 24 I&N Dec. 239 (BIA 2007) [PDF version].

In this article, we will examine the factual and procedural history of Matter of J-G-P-, the Board's analysis and conclusions, and what the decision may mean going forward. The decision also briefly addresses the immigration judge's denial of the respondent's applications for asylum and withholding of removal on entirely separate bases. We address that part of the Matter of J-G-P- decision in a separate article in our website's growing section on asylum [see article].

Factual and Procedural History: 27 I&N Dec. at 642-43

The respondent, a native and citizen of Mexico, entered the United States without inspection at an unknown time and place.

The respondent was convicted on September 20, 2011, of menacing in violating of section 163.190 of the Oregon Revised Statutes.

Subsequent to the respondent's conviction, the Department of Homeland Security (DHS) initiated removal proceedings against him on the basis that he was inadmissible under section 212(a)(6)(A)(i) as an alien who was present in the United States without legal authorization. The respondent conceded that he was removable as charged, and sought relief in the forms of cancellation of removal for non-lawful permanent residents, asylum, and withholding of removal.

In considering whether the respondent was eligible for cancellation of removal, the Immigration Judge found that the respondent's menacing conviction in violation of section 163.190 of the Oregon Revised Statutes was categorically a crime involving moral turpitude (CIMT). Because a conviction for a CIMT constitutes a bar to eligibility for cancellation of removal for non-permanent residents, the Immigration Judge pretermitted the respondent's application, meaning that she found that the respondent was statutorily ineligible for the relief sought without going on to consider he would otherwise have merited relief. The Immigration Judge denied the respondent's application for asylum on the basis that it was untimely and denied the respondent's application for withholding of removal on the basis that he had not sustained his burden of proof.

The respondent appealed from the Immigration Judge's decision to the BIA, challenging the finding that he was ineligible for cancellation of removal as well as the denial of his applications for asylum and withholding of removal on separate bases. Below, we will examine the Board's analysis and conclusions relating to whether the respondent's menacing conviction rendered him ineligible for cancellation of removal. We address the Board's briefer discussion of the asylum and withholding of removal questions in a separate article [see article].

Overview of the Relevant Statutes: 27 I&N Dec. at 643-44

Section 240A(b)(1) of the Immigration and Nationality Act (INA) defines which non-permanent resident aliens are eligible for consideration for cancellation of removal. Section 240A(b)(1)(C) specifically provides that any alien who has been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3) of the INA is ineligible. The inadmissibility provision for crimes involving moral turpitude is codified at section 212(a)(2)(A)(i)(I), meaning that it falls under the ambient of crimes which render a non-permanent resident alien ineligible for cancellation of removal for. (We discuss the Board's construction of “an offense under” in our separate article on the BIA's recent precedent decision in Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019) [see article].)

The Board explained that, in order to be statutorily eligible for consideration for cancellation of removal for non-permanent residents under section 240A(b), the respondent had the burden of proving by a preponderance of the evidence (meaning “more likely than not” [see article]) that he was not convicted of a crime involving moral turpitude.

The Board has provided its construction of the term “crime involving moral turpitude” in past decisions, in which the Board held that the term 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.” Matter of Silva-Trevino, 26 I&N Dec. 826, 833-34 (BIA 2016) [PDF version] [see article]. In that same decision, the Board held that a crime involving moral turpitude necessarily requires “reprehensible conduct and a culpable mental state.” Id. at 834.

The question before the Board thus was whether section 163.190(1) of the Oregon Revised Statutes categorically defined a crime involving moral turpitude (that is, whether the minimum conduct punishable by the statute would be a crime involving moral turpitude, in which event any conduct punishable by the statute would be a crime involving moral turpitude.) The Board excerpted from the relevant parts of the Oregon statute of conviction:

At all relevant times, section 163.190(1) … has provided that 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 Revised Statutes defines the term “serious physical injury” in a separate provision codified at section 161.015(8) as “physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

Board's Analysis and Conclusions: 27 I&N Dec. at 644-47

The respondent, and numerous amicus curiae (friends of the court) who submitted briefs in favor of the respondent's position, argued that section 163.190 did not categorically define a crime involving moral turpitude. The Board explained that the respondent and amicus curiae considered it to be an “apprehension-only” simple assault statute. That is, “[t]hey contend that to violate the statute, a defendant need only cause the victim to experience the apprehension of imminent injury and that, accordingly to longstanding precedent, such assaults are not turpitudinous.” To this effect, the respondent relied on cases such as Matter of Ahortalejo-Guzman, 25 I&N Dec. 465, 466 (BIA 2011) [PDF version], wherein the Board stated that “[s]imple assault or battery is generally not considered to involve moral turpitude for purposes of the immigration laws.” The Board held the same as early as in 1943 (see Matter of E-, 1 I&N Dec. 505, 507 (BIA 1943)). In effect, the respondent and amici argued that the Oregon menacing statute criminalized instilling in the victim merely the fear that the perpetrator would commit an offense on his or her person, and that such an offense would constitute simple assault or battery which is not, itself, a categorical crime involving moral turpitude. Accordingly, they reasoned, menacing itself would not be a categorical crime involving moral turpitude.

The Board disagreed with the respondent and amici that past precedents squarely controlled with regard to the question of whether section 163.190(1) of the Oregon Revised Statutes was categorically a crime involving moral turpitude: “[T]he [simple assault and battery] cases that the respondent and amicus cite involve the nonconsensual touching of another person, committed with general intent, and causing only slight injury, if any.” The Board concluded that this was different from the pertinent question in the instant case: “[W]hether an assault statute that requires a defendant to act with the specific intent to cause a victim to apprehend or fear imminent serious injury involves moral turpitude.”

Having distinguished the question in the instant case from the question addressed in past precedent decisions relied upon by the respondent and amici, the Board addressed the pertinent issue — agreeing with the Immigration Judge that menacing under section 163.190 of the Oregon Revised Statutes is categorically a crime involving moral turpitude. The Board concluded: “[T]he specific intent to cause fear of imminent serious physical injury involves a culpable mental state and reprehensible conduct.” This conclusion, the Board explained, was consistent not only with its own precedent decisions, but also with controlling case-law from the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction the instant case arose [see article].

The Board analyzed section 163.190 of the Oregon Revised Statutes under the categorical approach articulated by the Supreme Court of the United States in Taylor v. United States, 495 U.S. 575, 600 (1990) [PDF version]. As we discussed earlier in the article, the categorical approach inquires only into the statute, not the offender's actual conduct, to determine whether any conviction under the statute would fall under the relevant Federal provision — in this case, a “crime involving moral turpitude.” The Board described the categorical approach as inquiring of “the minimum conduct that has a realistic probability of being prosecuted under the statute …, rather than inquiring into the facts underlying the respondent's particular violation of that statute.” Matter of Silva-Trevino, 26 I&N Dec. at 831.

In order to apply the categorical approach, the Board examined how Oregon courts have interpreted section 163.190 of the Oregon Revised Statutes. From its survey, the Board found that Oregon courts interpret the statute as requiring the prosecutors to prove that the offender engaged in conduct with the intent to cause a particular result. In this case, that entail conduct committed with the intent of placing the victim in fear of imminent serious physical injury. Another decision requires proof that a “reasonable person” objectively would have been placed in fear of imminent physical injury based on the conduct of the offender. In proof of menacing, the State must prove that the defendant took a “substantial step” to placing the victim in fear of imminent physical injury. You may read the Board's discussion of Oregon state court decisions below:

The Board stated that it “recognize[d] that menacing under section 163.190 derives in part from the common-law crime of assault and the definition of simple assault in the Model Penal Code.” The respondent argued that because simple assault is generally not a crime involving moral turpitude under long-standing BIA precedent, menacing — placing a victim in fear of incurring an assault — should not be either. The Board, however, found that the intent requirement in section 163.190 made it distinguishable from many statutes criminalizing simple assault: “[I]n contrast to simple assault offenses, which 'require general intent only and may be committed without … evil intent,' section 163.190 requires a specific intent to create fear in the victim, as perceived by a reasonable person.” The Board held that it was this specific intent required by section 163.190 that made it a categorical crime involving moral turpitude. The Ninth Circuit had previously agreed with the Board's manner of construction of section 163.190 in this way in an unpublished decision in a non-precedent 2018 case. Burboa-Rocha v. Sessions, 725 F.App'x 588, 589 (9th Cir. 2018) [PDF version].

The Board continued, however, stating that its discussion of the requisite mens rea for “menacing” under section 163.190 was not the end of its inquiry. The Board held in the Matter of Solon, 24 I&N Dec. 239, 243, that “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.” The Board held in Matter of Solon that the level of harm must be “meaningful,” and “must be more than mere offensive touching.” Id. Thus, consistent with Matter of Solon, the Board moved to examine the requisite level of harm required to commit the crime of menacing under section 163.190 of the Oregon Revised Statutes.

In 1984, the Oregon Supreme Court held that the requisite level of harm to complete the crime of menacing may only occur in “a narrow category of conduct, a face to face confrontation between [an] actor and victim,” both of whom share “a hostile relationship.” State v. Garcias, 679 P.2d 1354, 1360-61 (Or. 1984). The same court later held that holding and raising a crowbar above another and stating “I'm going to level you” rose to the level of “menacing” under section 163.190. State v. Ziska, 334 P.3d 964, 965, 970 (Or. 2014). The respondent here argued that even this level of threatened imminent harm did not rise to that of a crime involving moral turpitude because the violator of the Oregon menacing statute is not required to actually cause, or intend to cause, any harm to the victim. The respondent reasoned, based on Matter of Solon, that the offense is indistinguishable from that of simple assault for purpose of the moral turpitude analysis.

The Board explained that in Matter of Solon, it recognized that many assault statutes reach de minimis conduct, such as offensive or provocative physical contact or insults. This conduct, the Board held, does not generally involve moral turpitude. The respondent argued that Oregon's menacing statute was analogous to the simple assault statutes in states which reached de minimis conduct. The Board, however, found that the Oregon menacing statute is distinguishable from these overbroad simple assault statutes in that it requires the specific intent to place another in apprehension of 'imminent serious physical injury.” (Emphasis added by the Board.)

In Matter of Solon, the Board had briefly addressed menacing under section 120.15 of the New York Penal law in a footnote in dicta (meaning it was not decisive to the question before the Board). Matter of Solon, at 244 n.5. The respondent nevertheless read the decision as a clear holding that the New York menacing statute did not categorically involve moral turpitude. However, regardless of whether the New York menacing statute categorically defines a crime involving moral turpitude, the Board concluded that it was distinguishable from the Oregon menacing statute at issue in the instant case: “Unlike the New York menacing statute and the assault statutes cited in Solon, which reached offenses that placed another in fear of any physical injury, section 163.190 requires that a defendant must cause a reasonable person to fear imminent serious physical injury.” More broadly, the Board held that “Matter of Solon does not preclude us from holding that intentionally causing fear of imminent serious physical injury 'reflects a level of immorality that is greater than that associated with a simple offensive touching.'”

The Board held “that the offense of menacing in violation of section 163.190 of the Oregon Revised Statutes is categorically a crime involving moral turpitude.” The Board also held “that [inclusion of] the element of actual inflicted fear is not necessary to determine that a crime categorically involves moral turpitude because section 163.190 requires evil or malicious intent, and the level of threatened harm, or magnitude of menace implicit in the threat, is serious and immediate.”

Further Discussion and Reconciling Result With Existing Precedents: 27 I&N Dec. at 647-50

The Board acknowledged that there may be tension between its conclusion regarding the Oregon menacing statute and the precedent decision of the Ninth Circuit in Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1167 (9th Cir. 2006) [PDF version], in whose jurisdiction the instant case arose. In Fernandez-Ruiz, the Ninth Circuit held that assault under section 13-1203(A)(2) of the Arizona Revised Statutes was not a categorical crime involving moral turpitude because it prohibited only “conduct that merely places another person 'in reasonable apprehension of' physical injury.'” The Board, however, found this decision to be distinguishable from its decision in the instant case because the Arizona statute covered a broader range of conduct than the Oregon menacing statute: “[S]ection 13-1203(A)(2) of the Arizona Revised Statutes only reaches threats that place another in apprehension of 'physical injury,' which Arizona defines in section 13-105(33) as the 'impairment of physical condition.'” Not only did the Board conclude that “impairment of physical condition” covers less severe threats than the “fear of imminent serious physical injury” required for conviction under the Oregon menacing statute, but it also noted that the DHS had conceded in oral arguments in the instant case that if the Oregon statute had not required the intent to cause apprehension of serious physical injury, it would not have been a categorical crime involving moral turpitude. The Board rejected the view that Fernandez-Ruiz stands for the proposition that no statute prohibiting criminal threats that do not result in actual physical injury can constitute a crime involving moral turpitude. Instead, it took the position that the issue in Fernandez-Ruiz was the de minimis level of threatened injury prohibited under the Arizona statute.

The respondent cited to another Ninth Circuit decision — Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012) [PDF version] — in support of his position that his Oregon conviction was not a categorical crime involving moral turpitude. The Board explained that in Latter-Singh, the Ninth Circuit held that making threats with the intent to terrorize under section 422 of the California Penal Code is categorically a crime involving moral turpitude. That California statute “requires that the threat caused the victim to experience an immediate and sustained fear of injury.” The respondent argued that, unlike section 422 of the California Penal Code, the Oregon menacing statute did not require proof of the actual infliction of fear, and that it was not a categorical crime involving moral turpitude. The Board rejected this argument for two reasons. First, the Board noted that the Ninth Circuit did not hold in Latter-Singh that the infliction of actual fear was a necessary element for section 422 to be a crime involving moral turpitude, but rather that it was a fact relevant to the analysis. Second, the Board read Latter-Singh as emphasizing that section 422 of the California Penal Code was a categorical crime involving moral turpitude because it required that the violator act with the specific intent to place someone in fear of physical injury — precisely the same mens rea required by the Oregon menacing statute. Thus, the Board emphasized that the requisite mens rea to commit the offense rather and not whether the statute requires the actual infliction of fear was determinative of the issue before it. The cited to Latter-Singh itself to support this view: “[E]vil or malicious intent is … the essence of moral turpitude…” Latter-Singh, 668 F.3d at 1161.

Finally, the Board addressed Coquico v. Lynch, 789 F.3d 1049 (9th Cir. 2015) [PDF version], another Ninth Circuit precedential decision upon which the respondent relied to support his argument. The Board explained that the Ninth Circuit compared the statute at issue in Latter-Singh with section 417.26 of the California Penal Code, which addresses the threat associated with “unlawful laser activity.” Section 417.16 “requires only an intent to place the victim in 'apprehension or fear of bodily harm.'” Coquino, 789 F.3d at 1054. The Ninth Circuit concluded that section 417.16 was not a categorical crime involving moral turpitude. In a footnote to the decision, the Ninth Circuit stated that its prior precedent “casts doubt on whether an intent to cause 'apprehension or fear, rather than an intent to injure, can ever be a [crime involving moral turpitude].” Coquino, at 1054 n.4. The Board added that the Oregon Court of Appeals held in one case that shining a read laser beam into a home and onto the occupant's head “could constitute menacing.” State v. Santacruz-Betancourt, 969 P.2d 1040, 1043 (Or. Ct. App. 1998).

The Board disagreed with the respondent that Coquino foreclosed its finding that the respondent's menacing conviction was a categorical crime involving moral turpitude. It explained that the Ninth Circuit's footnote in Coquino was dicta, rather than part of its central holding resolving the case. The Board added that, in its view, the Ninth Circuit's footnote was irreconcilable with its central holding in Latter-Singh. In addition to “declin[ing] to hold that a whole category of crimes does not involve moral turpitude solely because the offenses lack an element of actual fear or injury,” the Board agreed with the DHS's position “that certain criminal threat crimes, like the California offense defined at section 422 and menacing [in Oregon] under section 163.190, involve a fear on the part of the victim that is injurious because of its seriousness.”

Conclusion

The Board's decision in Matter of J-G-P- on the crime involving moral turpitude question may have far-reaching consequences. In determining whether a statute prohibiting placing a reasonable person in fear of injury, the Board emphasized the significance of both the requisite intent of the violator and the level of feared injury of a reasonable person. Where the statute requires that the violator have had evil or malicious intent and that the level of threatened harm is both serious and immediate, the statute need not also require actual inflicted fear in order for it to be a crime involving moral turpitude. This decision does not reach every menacing statute. For example, the Board's discussion of section 120.15 of the New York Penal Law, which prohibits menacing, suggests that it covers too broad a range of threatened harm to constitute a categorical crime involving moral turpitude (however, it is important to note that the Board did not squarely reach the New York menacing provision). Menacing statutes that either do not define the requisite intent and/or do not set a high enough threshold for the threatened harm will likely not constitute crimes involving moral turpitude under the Matter of J-G-P- rubric.

Because every case is unique, and because there are many menacing statutes in different jurisdictions, an alien facing charges or who has a conviction should always seek counsel from an experienced immigration attorney regarding his or her particular case. This is especially important if the alien has been served with a Notice to Appear initiating removal proceedings against him or her. To learn about these issues more broadly, please see our website's growing sections on criminal aliens [see category] and removal and deportation defense [see category].

Please see our related article to learn about the Board's consideration of the respondent's applications for asylum and withholding of removal [see article].