Gonzalo Garcia-Fabela v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GONZALO GARCIA-FABELA, No. 19-70427
Petitioner, Agency No. A099-010-084
v.
MEMORANDUM*
MERRICK GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 2, 2021
Portland, Oregon
Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,** District Judge.
Partial Concurrence and Partial Dissent by Judge PAEZ
Gonzalo Garcia-Fabela petitions for review of an order of the Board of
Immigration Appeals (BIA) denying his motion to terminate for lack of
jurisdiction; denying his motion to remand; and dismissing his appeal from an
immigration judge’s decision denying his applications for cancellation of removal,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
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asylum, withholding of removal, and protection under the Convention Against
Torture (CAT).
1. The BIA did not err in denying Garcia-Fabela’s motion to terminate his
removal proceedings. Garcia-Fabela argues the immigration court lacked
jurisdiction because his initial notice to appear (NTA) did not include the time and
date for his first hearing in Immigration Court. We previously rejected this
jurisdictional argument in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019),
cert. denied sub nom. Karingithi v. Barr, 140 S. Ct. 1106 (Feb. 24, 2020), but
Garcia-Fabela argues that Karingithi is irreconcilable with the Supreme Court’s
later decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019).
We conclude, however, that Karingithi is not clearly irreconcilable with
Kisor because the Karingithi court reached its conclusion by interpreting the
regulations itself, rather than by deferring to the BIA. 913 F.3d at 1160–61. Thus,
we will not reexamine controlling precedent. Cf. Miller v. Gammie, 335 F.3d 889,
892–93 (9th Cir. 2003). As such, Garcia-Fabela’s motion to terminate is
foreclosed by Karingithi, and we affirm the BIA’s denial of the motion. Close v.
Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (“So long as the court can
apply our prior circuit precedent without running afoul of the intervening authority
it must do so.” (quotation omitted)).
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2. The BIA reasonably concluded that menacing under Oregon Statute
§ 163.190 is a crime involving moral turpitude (CIMT) and did not err in denying
Garcia-Fabela’s motion to remand for further consideration of his application for
cancellation of removal. We defer to the BIA’s interpretation of whether a crime
involves moral turpitude, if warranted. Ceron v. Holder, 747 F.3d 773, 778 (9th
Cir. 2014) (en banc).
Although the BIA’s decision in Garcia-Fabela’s case is unpublished, the
BIA has since issued a published decision concluding that menacing under Oregon
law is a CIMT. See Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019). To grant
Garcia-Fabela’s petition, we would therefore need to find that the BIA’s decision
in Matter of J-G-P- unreasonably categorized menacing as a CIMT and therefore
does not warrant Chevron deference. See Ceron, 747 F.3d at 778.
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.” Or. Rev. Stat. § 163.190. The BIA reasoned
that, unlike simple assault, menacing requires specific intent to create fear in the
victim, which reflects a vicious motive indicative of moral turpitude. See Matter of
J-G-P-, 27 I. & N. Dec. at 645. The BIA also concluded that the severity of the
intended fear—fear of imminent serious physical injury—indicates that any
substantial step taken toward inducing that fear must be reprehensible. See id. at
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646–49. The BIA thus held that the offense of menacing in violation of § 163.190
is categorically a CIMT. Id. at 650.
We find that the BIA’s conclusion that menacing under Oregon law is a
CIMT is a reasonable one. Specifically, we agree that the requisite specific intent
combined with the severity of the intended fear illustrate that the crime of
menacing involves a culpable mind and reprehensible act, and therefore defer to
the published decision. See Latter-Singh v. Holder, 668 F.3d 1156, 1161, 1163
(9th Cir. 2012) (“The intent to instill great fear of serious bodily injury or death in
another constitutes the ‘vicious motive or corrupt mind’ demonstrative of a crime
involving moral turpitude.”). Accordingly, we affirm the denial of Garcia-Fabela’s
motion to remand.
3. The BIA’s decision to deny Garcia-Fabela’s applications for asylum,
withholding of removal, and CAT protection was supported by substantial
evidence. We have repeatedly found that Garcia-Fabela’s purported social group
of culturally Americanized Mexicans is not a cognizable particular social group for
purposes of asylum or withholding. See, e.g., Delgado-Ortiz v. Holder, 600 F.3d
1148, 1151–52 (9th Cir. 2010) (per curiam). Further, even if Garcia-Fabela could
establish membership in a particular social group, a desire to be free from
harassment by criminals bears no nexus to a protected ground. See Zetino v.
Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). Moreover, the BIA’s unchallenged
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finding that Garcia-Fabela could relocate to another part of Mexico precludes relief
through asylum and withholding altogether. See 8 C.F.R. § 1208.13(b)(2)(ii),
(b)(3); id. § 1208.16(b)(2), (b)(3). As to CAT protection, Garcia-Fabela failed to
establish it is more likely than not that he would be tortured by or with the
acquiescence of a public official in their official capacity. In sum, the BIA’s
conclusions were supported by substantial evidence, and we accordingly affirm the
BIA’s dismissal of Garcia-Fabela’s appeal from the immigration judge’s decision.
PETITION FOR REVIEW DENIED.
FILED
Gonzalo Garcia-Fabela v. Garland, 19-70427
APR 26 2021
Paez, Circuit Judge, concurring in part and dissenting in part:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the majority’s holding that the BIA did not err in denying Garcia-
Fabela’s motion to terminate removal proceedings for lack of jurisdiction. I
respectfully dissent, however, from the portion of the disposition holding that the
BIA reasonably concluded that menacing under Oregon Revised Statutes §
136.190 is a crime involving moral turpitude (CIMT).
A CIMT “requires two essential elements: reprehensible conduct and a
culpable mental state.” Silva-Trevino, 26 I. & N. Dec. 826, 834 (BIA 2016). In my
view, the BIA’s conclusion, both in its decision in Garcia-Fabela’s appeal and in
its precedential decision in Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019), that
Oregon’s menacing law necessarily involves a reprehensible act is unreasonable.
The BIA erred by unreasonably distinguishing Oregon’s menacing statute
from a precedential line of cases holding that “simple assault” crimes are not
CIMTs, 27 I. & N. Dec. at 646-47, even though § 163.190 is derived from common
law “simple assault.” See State v. Garcias, 679 P.2d 1354, 1356 (Or. 1984). Under
the BIA’s precedent, only where a criminal statute “contains elements that deviate
from those associated with simple assault and battery and involves some
aggravating factor that indicates the perpetrator’s moral depravity” may it fall
outside of the rule that “simple assault” is not a CIMT. Matter of Wu, 27 I. & N.
Dec. 8, 11 (BIA 2017) (internal quotation marks omitted) (emphasis added). The
BIA held that § 163.190’s requirement of “specific intent to cause fear of imminent
serious physical injury” was a sufficiently aggravating factor to render it
categorically morally turpitudinous. 27 I. & N. Dec. at 644, 647. The BIA’s
analysis is unreasonable. Oregon’s menacing statute does not require among its
elements1 any “aggravating factor that indicates the actor’s moral depravity.”
First, by the plain terms of the statute and the state court cases construing it,
§ 163.190 does not require an intent to cause any physical injury—let alone serious
physical injury—nor does it require actual fear or harm of any kind—let alone
physical injury—to result. See Garcias, 679 P.2d at 1356; Commentary to the
Proposed Oregon Criminal Code § 95 at 97.
Second, because the statute does not require an intent to harm or for any
harm to result, our decisions in Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th
Cir. 2006), Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012), and Coquico v.
Lynch, 789 F.3d 1049 (9th Cir. 2015) compel concluding that § 163.190 does not
contain an aggravating factor necessary to qualify as a CIMT. The BIA’s strained
reading of those cases to imply the opposite is unreasonable.
In Fernandez-Ruiz, we held that Arizona’s assault statute did not
categorically involve moral turpitude because it lacked as aggravating factors both
a specific intent to cause harm and a requirement that actual harm result. 468 F.3d
1The elements of Oregon’s criminal menacing statute are “(1) intentionally; (2)
attempting; (3) by word or conduct; (4) to place another person in fear of imminent
serious physical injury.” State v. Cummings, 576 P.2d 36, 37 (Or. Ct. App. 1978).
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at 1167. We noted that the statute “contains absolutely no element of injury
whatsoever, as it prohibits conduct that merely places another person ‘in
reasonable apprehension of’ physical injury.” Id. We observed that a “simple
assault statute which permits a conviction for . . . mere threats, or for conduct that
causes only the most minor or insignificant injury is not limited in scope to crimes
of moral turpitude.” Id. So too, here, where Oregon’s menacing statute may be
violated by words and does not require an intent to harm, nor any harm to result.
The BIA acknowledges that its decision in Matter of J-G-P- is in “some
tension” with Fernandez-Ruiz but relies on the distinction that the statute there
“reached threats that place another in apprehension of physical injury” whereas the
Oregon statute sets a threshold of “fear of imminent serious physical injury.” 27 I.
& N. Dec. at 648 (emphasis in original). This distinction, however, is irrelevant to
our analysis that a conviction under a statute that “does not require inflicting bodily
injury of any kind” is not a CIMT. 468 F.3d at 1167 (emphasis in original).
The BIA attempts to avoid this clear conflict by suggesting that our
subsequent holding in Latter-Singh displaced Fernandez-Ruiz’s rule of decision.
27 I. & N. Dec. 648-49. The BIA’s reliance on Latter-Singh, however, is
misplaced: the elements of the statute at issue there do not align with those of the
statute in Fernandez-Ruiz, nor with the elements of § 163.190. Notably, the statute
at issue in Latter-Singh requires “substantial harm” to result. 668 F.3d at 1162.
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In Latter-Singh, we held that California Penal Code § 422, which
criminalized making threats with the specific intent to “terrorize,” is a CIMT. We
emphasized that that the statute required the perpetrator to intend injury (not just
fear of injury), that the conduct actually “resulted in substantial harm by being so
unequivocal, immediate and specific as to convey to the person a threatened
gravity of purpose,” such that the victim actually experienced “sustained fear” for
their “own safety.” 668 F.3d at 1162. None of these aggravating factors inhere in §
163.190. These distinctions demonstrate how § 163.190 departs from the
generically defined crime involving moral turpitude which requires “reprehensible
conduct:” because Oregon’s law covers attempts to cause fear, it is the intent that is
reprehensible, not the conduct.
Finally, the BIA fails to explain why this court’s reasoning in Coquico v.
Lynch does not apply here. There we found the threat associated with “unlawful
laser activity” under California Penal Code § 417.26—which “requires only an
intent to place the victim in ‘apprehension or fear of bodily harm’”—was not
categorically a CIMT because it did not meet Latter-Singh’s requirement that the
victim experience “sustained fear” for their safety nor require that the victim
experience any harm at all. 789 F.3d at 1054 (internal citation omitted); see also id.
at n.4 (“[W]hen an act cannot be characterized as inherently grave, base, or
depraved, then adding to these acts an intent to commit them does not change that
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conclusion.”). The BIA does not offer any rationale why Oregon’s menacing
statute should be analyzed differently. Instead, the BIA asserts, without basis, that
the portions of Coquico’s reasoning that call into question the BIA’s conclusion
that § 163.190 is a CIMT are mere dicta. 27 I. & N. Dec. at 650. The BIA’s
summary dismissal of controlling authority is not reasonable.
For the foregoing reasons, I would hold that the BIA’s decision that §
163.190 is a CIMT is unreasonable. I would grant Garcia-Fabela’s petition on this
ground and remand to the BIA for further consideration of his application for
cancellation of removal. Accordingly, I do not address whether the BIA’s decision
to deny Garcia-Fabela’s applications for asylum, withholding of removal and CAT
protection was supported by substantial evidence.
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