BIA Holds That Respondent’s Conviction For Assault By Means Of Force Likely To Produce Great Bodily Injury In Violation Of California Penal Code §245(a)(4) Is Categorically For A Crime Involving Moral Turpitude
On March 12, 2021, the Board of Immigration Appeals (BIA or Board) dismissed in part Respondent’s appeal of the decision of the Immigration Judge (IJ) denying his application for cancellation of removal per INA §240(b)(1) and his request for voluntary departure (VD) per INA §240B(b) and ordered the record remanded to the IJ for further consideration of the VD request. The BIA also denied Respondent’s motion to terminate.
Respondent entered the U.S. without inspection and was placed into removal proceedings by a notice to appear (NTA) that did not specify the time or date of his initial hearing; he was thereafter served with a notice of hearing scheduling his court date. Prior to that hearing, Respondent was convicted of assault by means of force likely to produce great bodily injury under California Penal Code §245(a)(4). He subsequently applied for cancellation of removal per INA §240A(b)(1) but the IJ found his conviction to constitute a crime involving moral turpitude (CIMT) which rendered Respondent statutorily ineligible for this relief. The judge also denied his request for voluntary departure (VD).
On appeal, Respondent contended both that he is cancellation eligible as his conviction is not a CIMT and that he is eligible for VD as a matter of discretion. While his appeal was pending, Respondent filed a motion to terminate on the ground that his NTA was defective and thus failed to vest the IJ with jurisdiction over his proceedings because of its failure to specify the date and time of his first hearing.
First noting that it reviews questions of law, discretion, and judgment de novo, the BIA opened its analysis of the Respondent’s eligibility for cancellation by stating that it is his burden to prove that he has not been convicted of a CIMT; to determine whether his conviction qualifies as such, the decision explained that it uses the categorical approach to examine whether the elements of the criminal statute fit within the “general definition” of a CIMT. (An “element” of a statute is conduct that must be “necessarily involved” in an offense.) Looking to a prior precedential decision, Matter of Wu, 27 I&N Dec. 8 (BIA 2017), the Board found that it has previously held that “all forms of assault proscribed by this statute (including assault by means of force likely to produce great bodily injury) necessarily involve reprehensible conduct and a culpable mental state,” the essential elements of a CIMT. Although Respondent was convicted under a prior version of the criminal statute, the opinion concluded that the “operative language” of both versions was identical and thus its reasoning in Matter of Wu regarding the elements of the former section apply with equal force to the current §245(a)(4), e.g., a conviction under either statute requires an intentional violent act with force likely to cause serious bodily injury that, by its nature, will directly and immediately cause “the application of physical force to another”; Wu held that such conduct necessarily involved “a culpable mental state greater than recklessness or criminal negligence,” falling squarely within the definition of a CIMT.
Of significance, held the BIA, the Ninth Circuit Court of Appeals – where this case arises – “has accorded deference” to Wu’s holding that “assault by means of force likely to produce great bodily injury under former section 245(a)(1) is categorically a crime involving moral turpitude.” Because Wu is controlling, the IJ had correctly determined that Respondent’s conviction under §245(a)(4) is categorically a CIMT.
As to the denial of VD, the Board noted that the IJ had stated that he was denying Respondent’s request in the exercise of discretion but made no findings of fact regarding the relevant favorable and unfavorable factors. It therefore remanded the record for the IJ to “make all necessary findings of fact regarding the favorable and unfavorable factors in this case.” In a footnote, the BIA explained that the IJ had failed to address whether Respondent had been a person of good moral character during the 5 years immediately proceeding the entry of his order; as Respondent’s conviction was over 5 years old, the decision concluded, it fell outside the good moral character period and does not bar him from seeking VD under §240B(b)(1)(B).
Finally, Respondent’s arguments supporting termination based on the defective NTA were foreclosed by intervening Ninth Circuit precedent, so there “is no basis” for terminating proceedings or remanding the record in this regard. Accordingly, the motion to terminate was denied, the appeal dismissed, and the record remanded for further consideration for Respondent’s request for VD. Matter of Aguilar-Mendez, 28 I&N Dec. 262 (BIA 2021).