Edgar Leal v. Eric Holder, Jr. , 771 F.3d 1140 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR LEAL, No. 12-73381
Petitioner,
Agency No.
v. A096-312-954
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 7, 2014—Phoenix, Arizona
Filed November 6, 2014
Before: Dorothy W. Nelson, Barry G. Silverman,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Nelson
2 LEAL V. HOLDER
SUMMARY*
Immigration
The panel denied Edgar Leal’s petition for review of the
three-judge published Board of Immigration Appeals’
decision, Matter of Leal, 26 I. & N. Dec. 20 (BIA 2012),
which held that Leal’s conviction for felony endangerment,
in violation of Arizona Revised Statute § 13-1201, is a
categorical crime involving moral turpitude.
The panel held that the BIA reasonably determined that
ARS § 13-1201 is a crime involving moral turpitude, and the
panel accordingly gave Chevron deference to the BIA’s
decision. The panel also held that the BIA reasonably
determined that excessive voluntary intoxication, combined
with the creation of a substantial, actual risk of imminent
death of another person, constitutes morally turpitudinous
conduct.
COUNSEL
Kara Lee Hartzler (argued), San Diego, California;
Nicomedes E. Suriel, Law Office of Nicomedes E. Suriel,
P.L.L.C., Phoenix, Arizona, for Petitioner.
C. Frederick Sheffield (argued), Trial Attorney, Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LEAL V. HOLDER 3
OPINION
NELSON, Senior Circuit Judge:
Edgar Leal (“Leal”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) dismissal of his appeal of a
final order of removal. The BIA held that Leal had been
convicted of a crime involving moral turpitude (“CIMT”) and
was thus ineligible for cancellation of removal. We hold that
the BIA reasonably determined that felony endangerment in
Arizona is a CIMT and thus deny the petition for review.
I. Background
Leal is a native and citizen of Mexico, born in Culiacan,
Mexico, on October 5, 1978, who entered the United States
on January 1, 1990, without being admitted or paroled. Leal
has four U.S. citizen children, and his spouse1 and parents are
lawful permanent residents of the United States who reside in
Arizona.
On March 12, 2007, Leal pled guilty to, and was
subsequently convicted of, felony endangerment under
Arizona Revised Statute § 13-1201 and misdemeanor driving
under the influence of intoxicating liquor (“DUI”) under
Arizona Revised Statute § 28-1381(A)(1). The Department
of Homeland Security (“DHS”) thereafter initiated removal
proceedings against Leal, charging him with removability as
a person who is present in the United States without having
been admitted or paroled under 8 U.S.C. § 1182(a)(6)(A)(I).
1
Leal’s brief states that his spouse is a naturalized U.S. citizen, but the
record suggests that she is a lawful permanent resident. Leal also claims
to have a U.S. citizen brother, but the record does not support this claim.
4 LEAL V. HOLDER
Once in removal proceedings, Leal admitted he had entered
the United States without inspection and conceded
removability, but he indicated that he would seek cancellation
of removal under 8 U.S.C. § 1229b(b)(1).
Prior to a hearing on the merits of his request for
cancellation of removal, Leal filed a brief on the issue, to
which DHS responded by filing a Motion to Pretermit Leal’s
application for cancellation of removal. In June 2010, the
Immigration Judge (“IJ”) granted DHS’s Motion to Pretermit
based on Leal’s conviction for felony endangerment in
Arizona, finding the crime was a CIMT that rendered Leal
ineligible for cancellation of removal. The IJ also ordered
that Leal be removed from the United States to Mexico.
Leal timely appealed the IJ’s decision to the BIA. The
BIA dismissed Leal’s appeal in a published opinion, holding
felony endangerment under Arizona Revised Statute § 13-
1201 to be a CIMT. Specifically, the BIA relied on the
Attorney General’s opinion in Matter of Silva-Trevino, 24 I.
& N. Dec. 687 (Attorney Gen. 2008), in determining that
felony endangerment in Arizona requires “some form of
scienter” and “reprehensible conduct.” The BIA rejected
Leal’s contention that felony endangerment lacked the
requisite scienter based on recklessness in Arizona
encompassing unawareness of risk due to voluntary
intoxication and that the conduct was not sufficiently
reprehensible based on the lack of actual harm. Following
the BIA’s opinion, Leal filed his timely petition for review
with this court.
LEAL V. HOLDER 5
II. Standard of Review
While 8 U.S.C. § 1252(a)(2)(C) precludes judicial review
of a “final order of removal against a [person] who is
removable” for committing a criminal offense, we have
jurisdiction to review questions of law. Latter-Singh v.
Holder, 668 F.3d 1156, 1159 (9th Cir. 2012). “Whether a
conviction is for a CIMT is a question of law.” Olivas-Motta
v. Holder, 746 F.3d 907, 908 (9th Cir. 2013).
“The determination whether a conviction under a criminal
statute is categorically a crime of moral turpitude involves
two steps, to which different standards of review apply.”
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.
2013) (internal quotation marks, bracket and citation
omitted). First, we determine the elements of the underlying
crime, reviewing de novo the BIA’s conclusions. Vinh Tan
Nguyen v. Holder, 763 F.3d 1022, 1027 (9th Cir. 2014).
Second, we “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.” Ceron v. Holder, 747 F.3d 773, 778 (9th Cir.
2014) (en banc) (internal quotation marks and citation
omitted). We defer to the BIA’s conclusion on this second
issue “following the Chevron framework if the decision is
published or directly controlled by a published decision.” Id.;
see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984). However, if the BIA errs at step one in
determining the elements of the underlying crime, “we owe
its CIMT analysis at step two no deference.” Hernandez-
Cruz v. Holder, 651 F.3d 1094, 1106 (9th Cir. 2011).
6 LEAL V. HOLDER
III. Discussion
A. Felony Endangerment in Arizona
We turn to the first step of our analysis: determining the
elements of the statute of conviction. Leal was convicted of
felony endangerment under Arizona Revised Statute § 13-
1201 (2006), which provided as follows:
A. A person commits endangerment by
recklessly endangering another person
with a substantial risk of imminent death
or physical injury.
B. Endangerment involving a substantial risk
of imminent death is a class 6 felony.
In all other cases, it is a class 1
misdemeanor.
Based on the clear language of the statute, felony
endangerment requires the perpetrator to endanger another
person recklessly with a substantial risk of imminent death.2
Further, the Arizona Supreme Court has made clear that
“substantial risk” for purposes of felony endangerment
requires that the victim be placed “in actual substantial risk
of imminent death.” State v. Carreon, 107 P.3d 900, 909
(Ariz. 2005) (en banc) (internal quotation marks and citation
omitted).
2
Accordingly, our decision and analysis are limited to felony
endangerment and do not reach misdemeanor endangerment, i.e. risk of
physical injury.
LEAL V. HOLDER 7
Arizona has also statutorily defined the mens rea of
recklessness as follows:
“Recklessly” means, with respect to a result or
to a circumstance described by a statute
defining an offense, that a person is aware of
and consciously disregards a substantial and
unjustifiable risk that the result will occur or
that the circumstance exists. The risk must be
of such nature and degree that disregard of
such risk constitutes a gross deviation from
the standard of conduct that a reasonable
person would observe in the situation. A
person who creates such a risk but who is
unaware of such risk solely by reason of
voluntary intoxication also acts recklessly
with respect to such risk.
Ariz. Rev. Stat. § 13-105(9)(c) (2006).3 The statute
contemplates two possible mental states for establishing a
reckless mens rea: (1) conscious disregard of a substantial
and unjustifiable risk, which constitutes a gross deviation
from the standard of conduct of a reasonable person, or
(2) unawareness of such risk solely by reason of voluntary
intoxication. Cf. State v. Gallegos, 870 P.2d 1097, 1107
(Ariz. 1994) (en banc) (explaining the statute “expressly
provides that voluntary intoxication will not negate a
‘reckless’ culpable mental state”).
3
The current version of the statute, while retaining identical language,
is now found at subsection 10(c). See Ariz. Rev. Stat. § 13-105(10)(c)
(2014).
8 LEAL V. HOLDER
Accordingly, the elements of felony endangerment in
Arizona are relatively straightforward: the perpetrator must
(1) act recklessly so as to (2) put another person in
substantial, actual risk of (3) imminent death. While not laid
out quite so directly, the BIA correctly identified these
elements, and we must therefore determine whether its CIMT
analysis of felony endangerment warrants deference under
Chevron.
B. Crime Involving Moral Turpitude Analysis
In order to determine whether a crime is categorically a
CIMT, we must “compare the elements of the crime to the
generic definition of moral turpitude and decide whether the
conduct proscribed in the statute is broader than, and so does
not categorically fall within, this generic definition.” Turijan
v. Holder, 744 F.3d 617, 620 (9th Cir. 2014) (quoting Nunez
v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010)). To find that
the statute of conviction is broader than the generic definition
of a CIMT, there must be “a realistic possibility . . . that the
State would apply its statute” to non-turpitudinous conduct.
Id. (quoting Nunez, 594 F.3d at 1129). This “realistic
possibility” can be established “based on factual evidence of
actual convictions, on unpublished and nonprecedential
opinions, on statutory language and the logic of published
opinions, or some combination thereof.” Nicanor-Romero v.
Mukasey, 523 F.3d 992, 1005 (9th Cir. 2008), overruled on
other grounds by Marmolejo-Campos v. Holder, 558 F.3d
903, 911 (9th Cir. 2009) (en banc).
As our court has repeatedly recognized, the term “moral
turpitude” is “‘perhaps the quintessential example of an
ambiguous phrase.’” Turijan, 744 F.3d at 620 (quoting
Marmolejo-Campos, 558 F.3d at 909). Thus, where the
LEAL V. HOLDER 9
BIA’s decision is a precedential, published opinion—as it is
here—we must accept the BIA’s interpretation of the INA, so
long as it is “a permissible construction of the INA.”
Marmolejo-Campos, 558 F.3d at 913.
In this case, the BIA looked to the “general definition” of
a CIMT set forth by the Attorney General in Silva Trevino,
24 I . & N. Dec. at 706 & n.5. In that case, the Attorney
General explained that “[a] finding of moral turpitude under
the [INA] requires that a perpetrator have committed [a]
reprehensible act with some form of scienter.” Id. Based on
that “general definition,” the BIA held that felony
endangerment required both reprehensible conduct and some
form of scienter.
While we have described the Attorney General’s attempt
to clarify the definition of the term “moral turpitude” as “a
welcome effort,” Marmolejo-Campos, 558 F.3d at 910, and
a “clarification of the substantive definition” of the term,
Olivas-Motta, 746 F.3d at 911, “we have relied on our own
generalized definition of ‘moral turpitude,’” Marmolejo-
Campos, 558 F.3d at 910. We have generally defined CIMTs
as “crimes that involve either fraud or base, vile, and
depraved conduct that shocks the public conscience.” Nunez,
594 F.3d at 1131 (internal quotation marks, brackets and
citation omitted). While our definition is not identical to the
Attorney General’s, we have explained that our understanding
of the term “moral turpitude” for immigration purposes “does
not differ materially from the [BIA]’s.” E.g., Marmolejo-
Campos, 558 F.3d at 910; cf. Pannu v. Holder, 639 F.3d
1225, 1228–29 (9th Cir. 2011) (remanding to the BIA to
determine whether the crime at issue constituted a CIMT
under Silva-Trevino’s definition of moral turpitude);
Saavedra-Figueroa v. Holder, 625 F.3d 621, 627 (9th Cir.
10 LEAL V. HOLDER
2010) (holding crime at issue was not a CIMT as it “does not
require any degree of scienter”). For this reason, we reject
Leal’s argument that the BIA’s judgment was erroneous
because the BIA relied upon Silva-Trevino’s general
definition of a CIMT.
The parties in this case have mainly focused on whether
Arizona’s definition of recklessness suffices to establish the
necessary mens rea for a CIMT. However, “both the actus
reus and the mens rea must be considered in concert to
determine whether the behavior they describe is sufficiently
culpable to be labeled morally turpitudinous.” Castrijon-
Garcia, 704 F.3d at 1214 (internal quotation marks and
citation omitted). As we recently explained in our en banc
decision in Ceron:
[A] finding of moral turpitude involves an
assessment of both the state of mind and the
level of harm required to complete the
offense. Thus, intentional conduct resulting in
a meaningful level of harm, which must be
more than mere offensive touching, may be
considered morally turpitudinous. However,
as the level of conscious behavior decreases,
i.e., from intentional to reckless conduct,
more serious resulting harm is required in
order to find that the crime involves moral
turpitude. Moreover, where no conscious
behavior is required, there can be no finding
of moral turpitude, regardless of the resulting
harm.
747 F.3d at 783 (quoting In re Solon, 24 I. & N. Dec. 239,
242 (BIA 2007)).
LEAL V. HOLDER 11
In reviewing the crime at issue here, we are satisfied that
the BIA reasonably interpreted the INA to hold that felony
endangerment in Arizona is a CIMT, and we accordingly
defer to the BIA’s decision under Chevron. Although the
crime requires only reckless conduct, the level of harm
resulting from the conduct is grave: a substantial, actual risk
of imminent death to another person. We agree with the
BIA’s determination that the creation of a substantial, actual
risk of imminent death is sufficiently reprehensible, or in
terms of our case law “base, vile, and depraved,” to establish
a CIMT, even though no actual harm need occur. As our
colleagues on the Third Circuit explained, a petitioner’s
“good fortune in not . . . killing anyone does not change the
quality of his actions.” Knapik v. Ashcroft, 384 F.3d 84, 90
n.5 (3d Cir. 2004).
While the BIA’s opinion may be somewhat disjointed in
appearing to analyze the mens rea and actus reus as separate
prongs of its CIMT determination, a careful review of the
opinion makes clear the BIA evaluated the applicable mens
rea in the context of the resulting harm at issue. Thus,
although the BIA’s decision came prior to Ceron and did not
cite Solon, the BIA’s analysis properly considered the mens
rea and actus reus in combination, and we reject Leal’s
contrary argument.
As previously noted, Leal argues that because
recklessness in Arizona can be predicated upon voluntary
intoxication to the point of being unaware of the risk created
by one’s conduct, reckless crimes in Arizona cannot
categorically satisfy the necessary mens rea for a CIMT. We
disagree. We have previously explained that certain crimes
requiring reckless conduct have been found to be CIMTs
based in part on the general requirement of “actual
12 LEAL V. HOLDER
knowledge of a factor indicating risk of harm and conscious
disregard it.” Uppal v. Holder, 605 F.3d 712, 718 (9th Cir.
2010). Based on this definition of recklessness, which
mirrors the first part of Arizona’s definition, we noted that
other circuits had specifically found certain endangerment
crimes to be CIMTs. Id. (citing Keungne v. U.S. Attorney
Gen., 561 F.3d 1281, 1286–87 (11th Cir. 2009); Knapik,
384 F.3d at 90 n.5); see also Idy v. Holder, 674 F.3d 111,
118–19 (1st Cir. 2012) (deferring to the BIA’s determination
that New Hampshire’s reckless conduct statute is a CIMT
because “the statute contains both ‘reprehensible conduct’
and ‘some degree of scienter’”). Our explanation of
recklessness in Uppal applies not only to recklessness born of
knowledge or a risk of harm and conscious disregard of that
risk, but also to recklessness based on voluntary intoxication.
Under Arizona’s definition of recklessness, whether the
risk created by an actor’s conduct results from conscious
disregard of the risk or unawareness of the risk due to
voluntary intoxication, the quality of the risk created is the
same: it must be that which “constitutes a gross deviation
from the standard of conduct that a reasonable person would
observe in the situation.” Ariz. Rev. Stat. § 13-105(9)(c)
(2006). As noted by the BIA, the drafters of the Model Penal
Code, in similarly defining recklessness to include
unawareness of risk based on voluntary intoxication,
explained that
awareness of the potential consequences of
excessive drinking on the capacity of human
beings to gauge the risks incident to their
conduct is by now so dispersed in our culture
that it is not unfair to postulate a general
equivalence between the risks created by the
LEAL V. HOLDER 13
conduct of the drunken actor and the risks
created by his conduct in becoming drunk.
Model Penal Code § 2.08 cmt. at 359 (1985). Further, we
agree with the drafters’ observation—based on the common
knowledge that there are degrees of intoxication, rather than
just two states of either intoxicated or sober—that there is a
“relative rarity of cases where intoxication really does
engender unawareness as distinguished from imprudence.”
Id. Thus, where an actor is only mildly intoxicated, his
actions may appear negligibly different from those of a sober
actor, as the person who has been drinking may still be able
to appreciate the risk involved and choose subsequently to
disregard it. This is true even though his intoxication may
have lessened to some degree his inhibitions and, so, his
appreciation of the risk. In the rare circumstance where an
actor is so excessively, voluntarily intoxicated as to be
entirely unable to appreciate a risk that represents a gross
deviation from the conduct of a reasonable person, the actor’s
conscious decision to become so excessively intoxicated—
thus consciously disregarding the well-known risk that he will
be impaired to the extent that he cannot consciously
understand the risk of his intoxicated conduct—may properly
serve as a proxy for conscious disregard of the risk itself.
Accordingly, we hold that the BIA reasonably determined
that such excessive voluntary intoxication combined with the
conduct at issue—creation of a substantial, actual risk of
imminent death of another person—constitutes morally
turpitudinous conduct.
We find Leal’s other arguments to also be without merit.
First, Leal argues that recklessness can only serve as a
predicate mens rea for a CIMT where there is an “aggravating
factor.” Leal’s argument is based on a line of cases
14 LEAL V. HOLDER
discussing various forms of aggravated assaults in the context
of the CIMT analysis, explaining that there must be “‘some
aggravating dimension’ sufficient to increase the culpability
of an assault or battery and so to transform the offense into
one categorically a CIMT.” Uppal, 605 F.3d at 717.
However, this is not due to the reckless mens rea involved,
but rather because of the underlying conduct; both this court
and the BIA have repeatedly stated that simple assault is, in
general, not a CIMT. See, e.g., Nunez, 594 F.3d at 1137;
Solon, 24 I. & N. Dec. at 244. It thus follows that, in order
for an assault to be considered a CIMT, there must be some
additional factor involved in the specific offense to
distinguish it from generic simple assault. Endangerment
crimes in Arizona, however, are distinct crimes, rather than
a form of assault. State v. Morgan, 625 P.2d 951, 956 (Ariz.
Ct. App. 1981) (explaining that endangerment is not a lesser-
included offense of aggravated assault based on the distinct
elements required for each crime, namely that endangerment
requires actual risk). Further, as explained above, the
relevant analysis for a CIMT is measuring the resulting harm
with the applicable mens rea, which felony endangerment
satisfies.
Finally, Leal argues that felony endangerment
encompasses conduct for which the resulting harm is
insufficient to qualify as a CIMT. Pointing to his own case,
Leal relies on his plea colloquy4 for the contention that his
conduct “equates to simple driving under the influence,” and
thus is not morally turpitudinous. However, regardless of
Leal’s interpretation of the factual basis for his conviction in
4
We note that Leal’s plea colloquy is not part of the administrative
record and thus was not considered below by the IJ or the BIA. We
reference it here only to establish the basis of Leal’s argument.
LEAL V. HOLDER 15
his plea colloquy, the simple fact remains that in pleading
guilty to felony endangerment, Leal necessarily admitted to
the elements of the crime, including the creation of a
substantial, actual risk of imminent death to another person.5
Leal’s reliance on other cases fails for this reason as well:
whether the conduct at issue appears at first glance to be
morally turpitudinous, the fact remains that a jury must
unanimously find at trial or the defendant must admit to a
plea that the conduct created a substantial, actual risk of
imminent death to another person. For this reason, we are
satisfied that there is not a realistic possibility that felony
endangerment will be applied to non-turpitudinous conduct.
IV. Conclusion
For the above-stated reasons, we hold the BIA’s
interpretation of the INA to include felony endangerment in
Arizona as a CIMT is reasonable, and we defer to the BIA’s
decision under Chevron. We emphasize, however, that our
holding rests largely on the grave resulting harm involved in
this crime: a substantial, actual risk of imminent death to
another person. Additionally, as previously noted, our
decision applies only to felony endangerment and not
misdemeanor endangerment, i.e. risk of physical injury, in
Arizona.
PETITION FOR REVIEW DENIED.
5
To the extent Leal challenges his conviction for felony endangerment
based on an inadequate factual basis, we must reject such argument as a
petitioner cannot collaterally attack his criminal conviction in this
proceeding. Ortega de Robles v. I.N.S., 58 F.3d 1355, 1358 (9th Cir.
1995).