Flores-Vasquez v. Garland

80 F.4th 921

Jose Luis FLORES-VASQUEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 20-73447

United States Court of Appeals, Ninth Circuit

Argued and Submitted November 9, 2022 Portland, Oregon

Filed August 31, 2023

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX0-952

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.

Before: Patrick J. Bumatay and Gabriel P. Sanchez, Circuit Judges, and M. Miller Baker,^* International Trade Judge.

Opinion by Judge Sanchez;

Dissent by Judge Baker

OPINION

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 Oregon Revised Statute § 163.190 constitutes a crime involving moral turpitude ("CIMT"), rendering him ineligible for cancellation of removal. We agree and grant this portion of the petition.¹

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 O.R.S. § 163.190, for threatening his wife with a bread knife. Flores-Vasquez pleaded guilty and was sentenced to four weekends in jail, one year of domestic violence classes, and a two-year restraining order. Soon after, the Department of Homeland Security initiated removal proceedings against Flores-Vasquez. The Immigration Judge ("IJ") ordered Flores-Vasquez removed, finding that menacing under O.R.S. § 163.190 "is categorically a crime involving moral turpitude," rendering Flores-Vasquez ineligible for cancellation of removal. The BIA upheld the IJ's decision, citing its holding in Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019) "that a conviction under § 163.190 categorically qualifies as a CIMT."

II.

A conviction for a crime of moral turpitude renders an alien statutorily ineligible for cancellation of removal. 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2). Although "[w]e lack jurisdiction to review a final order of removal based on a petitioner's conviction of a CIMT," we "retain jurisdiction to determine whether a petitioner's conviction is in fact a CIMT as defined in the Immigration and Nationality Act ('INA')." Betansos v. Barr, 928 F.3d 1133, 1137 (9th Cir. 2019).

"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 defining the conviction." United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir. 2010). A conviction constitutes a crime of moral turpitude only "if the full range of conduct encompassed by the statute, including the least egregious conduct prosecuted under the statute, is a crime of moral turpitude." Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007) (internal quotation marks omitted). "If there is a 'realistic probability' that the statute of conviction would be applied to non-turpitudinous conduct, there is no categorical match." Fugow, 943 F.3d at 458 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)).²

"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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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." O.R.S. § 163.190. "[T]he material elements of the offense of menacing are: (1) intentionally (2) attempting (3) by word or conduct (4) to place another person in fear of imminent serious physical injury." State v. Anderson, 56 Or. App. 12, 641 P.2d 40, 41 (1982).³

The Oregon menacing statute is derived from the common law crime of simple assault. See State v. Garcias, 296 Or. 688, 679 P.2d 1354, 1356 (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. See Anderson, 641 P.2d at 41 ("Menacing covers any situation where the actor attempts to place another person in fear of imminent serious bodily harm and where serious injury is neither intended nor inflicted."); Garcias, 679 P.2d at 1356.

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., 275 Or.App. 126, 365 P.3d 535, 538 (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, 174 Or.App. 119, 23 P.3d 999, 1002 (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 ...