Summary

In Ceron v. Holder, the BIA found petitioner deportable, holding his conviction for assault with a deadly weapon, in violation of California Penal Code 245(a)(1), is a removable offense under 8 U.S.C. 1227(a)(2)(A)(i) because it is (I) a crime involving moral turpitude (II) for which a sentence of one year or longer may be imposed. The Ninth Circuit, however, granted the petition for review, and remanded to the BIA to determine in the first instance whether California Penal Code section 245(a)(1) categorically constitutes a crime involving moral turpitude. Ceron v. Holder, ___ F.3d ___, ___ (9th Cir. Mar. 31, 2014) (en banc). Ten of the eleven justices on the en banc court signed the majority opinion, and Judge Bea alone dissented. This en banc court retained jurisdiction over any future petitions for review in this case.

The court also found that California felony-misdemeanor convictions, also called wobblers, that can be either felonies (with a three-year state prison maximum) or misdemeanors (with a one-year maximum) constituted convictions for crime[s] for which a sentence of one year or longer may be imposed under 8 U.S.C. 1227(a)(2)(A)(i) since even if they were misdemeanors, the maximum penalty was incarceration for one year.

Analysis

Petitioner was convicted in California state court of having violated California Penal Code 245(a)(1), which proscribes an assault upon the person of another with a
deadly weapon or instrument other than a firearm. The DHS issued Petitioner a notice to
appear, alleging that he was removable pursuant to 8 U.S.C. 1227(a)(2)(A)(i) because he had been convicted of a crime involving moral turpitude for which a sentence of one year or longer could have been imposed. The immigration judge sustained the charge of removability and ordered Petitioner removed. The BIA issued its own decision and dismissed Petitioners appeal. The BIA held that a conviction for an assault with a deadly weapon under California Penal Code 245(a)(1) categorically constitutes a crime involving moral turpitude.

The court established the proper analysis:

The determination whether a conviction under a criminal statute is categorically a crime of moral turpitude involves two steps . . . . Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir. 2013) (internal quotation marks and brackets omitted). The first step is to identify the elements of the statute of conviction. Id. Because the BIA lacks expertise in identifying the elements of state statutes, we review the first step de novo. Id. 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. Id. Because the BIA has expertise in that task, we defer to its conclusion if warranted, following the Chevron framework if the decision is published or directly controlled by a published decision, and otherwise following the Skidmore framework. Id.

(Id. at __.)

The court then turned to California law to determine, de novo, the essential elements of the offense of assault with a deadly weapon under Penal Code 245(a)(1):

California Penal Code section 245(a)(1) prohibits an assault upon the person of another with a deadly weapon or instrument other than a firearm. A deadly weapon or instrument is one that is used in such a manner as to be capable of producing death or great bodily injury. People v. Aguilar, 945 P.2d 1204, 1210 (Cal. 1997) (emphasis omitted). The weapon must be an object extrinsic to the human body. Bare hands or feet, therefore, cannot be deadly weapons . . . . Id. An assault does not require actual harm or even physical contact. See id. at 1207 (One may commit an assault without making actual physical contact with the person of the victim; . . . whether the victim in fact suffers any harm is immaterial.).

Assault is a general intent crime. People v. Williams, 29 P.3d 197, 203 (Cal. 2001). An assault requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. Id. at 204. [A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur. Id. at 203. For example, a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery. Id. at 203 n.3. An assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Id. at 204.

(Id. at ___.)

Relying on two decisions from the 1950s, the BIA held that this conviction was categorically a crime involving moral turpitude. See Gonzales v. Barber, 207 F.2d 398,
400 (9th Cir. 1953), affd on other grounds, 347 U.S. 637 (1954); Matter of GR-, 2 I & N Dec. 733 (BIA 1946, A.G. 1947). The Ninth Circuit, however, pointed out that:

[T]he Supreme Court announced in 1990"decades after Barber and In re G-R- were decided"the now-commonplace categorical approach to determining whether a conviction meets a federal definition. Taylor v. United States, 495 U.S. 575 (1990); see also Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010) (To determine if a crime involves moral turpitude, we first apply the categorical approach.). Relevant here, we do not look to the facts of the underlying conviction, but rather to the state statute defining the conviction. United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir. 2010). In order for a violation of the state statute to qualify [under the federal definition], the full range of conduct covered by the state statute must fall within the scope of the federal statutory provision. Id. (internal quotation marks and brackets omitted).

(Id. at ___.)

The Ninth Circuit concluded: The reasoning in In re G-R- and Barber runs counter to todays categorical analysis. (Id. at ___.) This was because In re G- R- examined the facts of the case concluded those facts involved moral turpitude, contrary to the current Taylor categorical analysis which ignores the facts of the case, and examines whether the full range of conduct prohibited by the statute involves moral turpitude. The earlier Ninth Circuit decision in Barber based its conclusion totally on the basis that four states other than California had concluded that their ADW offenses were crimes involving moral turpitude, but current categorical analysis ignores decisions concerning different statutes in other states. As the Ninth Circuit stated in Ceron:

the fact that other state statutes with the same title qualify under the relevant federal definition does not resolve whether the state statute at hand qualifies under the federal definition, see, e.g., United States v. Kelly, 422 F.3d 889, 894"95 (9th Cir. 2005) (holding that, even though eluding statutes in three other states categorically met the federal definition of a crime of violence, the Washington statute did not categorically meet the federal definition).

(Id. at ___.)

The court continued:

State law developments, too, have undermined the reasoning of In re G-R- and Barber. As discussed above, the California courts only recently defined with precision the requisite mental state for assault. Indeed, when In re G-R and Barber were decided, the California cases were unclear, if not contradictory, about that element of the crime. We find it implausible, at best, that the BIA in In re G-R- or we in Barber discerned the nuanced definition of the requisite mental state that the California Supreme Court announced decades later in Williams.

(Id. at ___.)

In addition, the Ninth Circuit overruled Carr v. INS, 86 F.3d 949 (9th Cir. 1996), which had improperly held, without following the binding Barber decision, that a violation of Penal Code 245(a) could be a crime of moral turpitude, and the later Ninth Circuit decisions following Carr. (Id. at ___ and n.2.)

The Ninth Circuit found no other Ninth Circuit or BIA authority on point on this statute. Examining other BIA decisions more generally on other assault with a deadly weapon statutes, the court stated: we find guidance that points in both directions, leaving us uncertain whether a conviction under California Penal Code section 245(a)(1) categorically involves moral turpitude. (Id. at ___.)

The BIA had considered a number of factors in deciding those cases, including:

(1) The use of a deadly weapon argues in favor of a finding of moral turpitude.
(2) The fact that the statute requires no injury at all nor even physical contact argues against a finding of moral turpitude.

The BIA has held that the presence of an aggravating factor is not always dispositive. See, e.g., In re Sejas, 24 I. & N. Dec. 236, 238 (BIA 2007) (although the assault statute at issue contained an aggravating factor"assault against a member of ones family or household"the statute nevertheless was not categorically a crime involving moral turpitude because it does not require the actual infliction of physical injury and may include any touching, however slight.).

On the question of the mental element required for conviction under this statute " a critical factor in any moral turpitude decision, the court stated:

Perhaps most importantly, the need for, and the nature of, any aggravating factor is affected by the mental state required for the conviction. In re Solon, 24 I. & N. Dec. at 245. California Penal Code section 245(a)(1) is a general intent crime and does not require a specific intent to injure. Williams, 29 P.3d at 203. Nor does the statute require that the offender actually perceive the risk created by his or her actions. Id. The offender must commit an intentional act and must have knowledge of the circumstances that would lead a reasonable person to perceive the risk, but the offenders subjective appreciation of the risk is not required. Id.

On this point, the BIAs decision in In re Medina, 15 I. & N. Dec. 611 (BIA 1976), which involved an Illinois statute criminalizing assault with a deadly weapon, is instructive. The BIA concluded that, even though the statute permitted a conviction with only a recklessness mental state, the statute nevertheless involved moral turpitude. Id. at 613"14. Crucial to the BIAs analysis, however, was that the person acting recklessly must consciously disregard a substantial and unjustifiable risk. Id. (emphasis added); see also id. at 614 (This definition of recklessness requires an actual awareness of the risk created by the criminal violators action. . . . [T]he violator must show a willingness to commit the act in disregard of the perceived risk. (emphases added)). Neither In re Medina nor any other BIA decision instructs us definitively on how the BIA would assess 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.

(Id. at ___.)

The Ninth Circuit therefore held: Given the circumstances, the prudent course of action is to remand this case to the BIA to consider the issue in the first instance. (Id. at ___.) The court urged the BIA to decide the question promptly: We note, however, that a prompt decision from the BIA could help to limit the number of individuals who decide to plead guilty without proper guidance as to the immigration consequences of that decision. (Id. at ___.)

In dissent, Judge Bea disagreed that the Taylor categorical analysis is applicable to crimes of moral turpitude, and instead would decide " as the BIA did here " under the weight of authority.