Melvin Amaya v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN ADIEL AMAYA, AKA No. 18-70060
Melvin Adiel Amaya-Cartagena,
Petitioner, Agency No.
A077-152-130
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 13, 2021
Pasadena, California
Filed October 7, 2021
Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges,
and Kathleen Cardone,* District Judge.
Opinion by Judge Bybee
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
2 AMAYA V. GARLAND
SUMMARY**
Immigration
Denying in part and dismissing in part Melvin Amaya’s
petition for review of a decision of the Board of Immigration
Appeals, the panel held that: (1) first-degree assault under
Washington Revised Code § 9A.36.011 is categorically a
crime of violence aggravated felony; (2) the court lacked
jurisdiction to consider Amaya’s unexhausted due process
claim; and (3) substantial evidence supported the denial of
relief under the Convention Against Torture (CAT).
The Immigration and Nationality Act defines “aggravated
felony” to include “a crime of violence,” as defined in
18 U.S.C. § 16, for which the term of imprisonment is at least
one year. 8 U.S.C. § 1101(a)(43)(F). Under § 16(a), a “crime
of violence” is “an offense that has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another.”
Amaya argued that § 9A.36.011 is too broad, and
therefore not a categorical match for § 16(a) because
§ 9A.36.011(b) punishes someone who administers poison or
exposes another person to the human immunodeficiency
virus. However, the panel concluded that § 9A.36.011(b)
satisfies the requirements of § 16(a). First, § 9A.36.011
requires “intent to inflict great bodily harm,” which
Washington courts have said is specific intent. The panel
concluded that this easily satisfies the “use of physical force”
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AMAYA V. GARLAND 3
in § 16(a), explaining that the Supreme Court has reasoned
that “use” equates to “active employment,” and thus requires
a higher degree of intent than negligent or accidental conduct.
Second, the panel explained that this court has repeatedly
recognized that “indirect” force, like exposure to poison
or other harmful substances, satisfies § 16(a)’s force
requirement. Further, the panel saw no realistic probability
that the state would apply § 9A.36.011(b) to conduct outside
the scope of § 16(a).
Amaya raised two arguments that Washington’s
accomplice liability statute, Wash. Rev. Code
§ 9A.08.020(a)(i)–(ii), rendered his conviction categorically
overbroad. First, Amaya argued that, because Washington
requires lessor proof of accomplice liability (general intent)
than is required for a crime of violence (specific intent), and
because, under Gonzales v. Duenas-Alvarez, 549 U.S. 183(2007), there is no longer any difference between the
culpability of principals and accomplices (present at the scene
or accessories before the fact), therefore, a conviction under
Washington law necessarily fails to qualify as a categorical
crime of violence. The panel rejected this argument,
explaining that one of Amaya’s premises—that § 16(a)
requires specific intent—was false because this court has
squarely held that “knowledge” as defined in Washington
satisfies § 16(a).
Second, Amaya argued that, because principals and the
accomplices are equally culpable, and thus, when conducting
a categorical inquiry, the criminal activities of aiders and
abettors must themselves fall within the scope of the generic
federal crime, but under Washington law accomplices may be
subject to a diminished standard of proof due to the different
mens rea required (specific intent for § 9A.36.011, but only
4 AMAYA V. GARLAND
general intent for Washington accomplice liability), therefore,
accomplice liability in Washington is broader than generic
accomplice liability. The panel observed that Amaya’s
proposition would be a forceful argument if his analysis
governed every application of the categorical approach to
Washington crimes. However, the panel concluded that it did
not.
In so concluding, the panel discussed United States v.
Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which the
court concluded that a state offense was not a drug trafficking
aggravated felony because the mens rea of Washington
accomplice liability appeared broader than its federal
analogue. The panel explained that Valdivia-Flores may well
have meant that no Washington state conviction can serve as
an aggravated felony at all. However, in United States v.
Door, 917 F.3d 1146 (9th Cir. 2019), the court rejected that
proposition, explaining that in Valdivia-Flores, the
categorical analysis involved comparing the elements of the
Washington crime with an enumerated generic federal
offense; in contrast, in Door, the categorical analysis involved
measuring the Washington statute against a class of offenses
defined by “the use, attempted use, or threatened use of
physical force”—a phrase known as the “elements or force
clause” of §16(a). Because Door’s conviction necessarily
entailed the threatened use of violent physical force, the court
concluded that it qualified as a crime of violence pursuant to
the force clause, and the inquiry ended there.
The panel concluded that Door governed this case. As in
Door, the analysis here concerned the force inquiry, not a
comparison to an enumerated offense. Thus, Valdivia-Flores
did not require comparing the mens rea of Washington and
federal accomplice liability. Rather, it was sufficient that
AMAYA V. GARLAND 5
Washington’s first-degree assault statute requires proof of
assault “with intent to inflict great bodily harm.”
Accordingly, the panel held that § 9A.36.011 is categorically
a “crime of violence” under 8 U.S.C. § 1101(a)(43)(F), and
thus, Amaya was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having committed an “aggravated
felony.”
The panel concluded that it lacked jurisdiction to reach
Amaya’s due process claim of immigration judge (IJ) bias
because Amaya had failed to exhaust it before the BIA. The
panel explained that neither his notice of appeal nor his
attachment made a clear, non-conclusory argument in support
of his claim.
Finally, the panel concluded that the agency did not err in
denying Amaya’s application for deferral of removal under
CAT, observing that the IJ laid out the correct legal standard,
considered Amaya’s concern that he would be harmed by the
Salvadoran government, and found that Amaya was never
harmed in the past by the Salvadoran government. The panel
explained that the IJ considered the totality of the record
evidence, including the country conditions reports. Given the
lack of evidence supporting a claim of torture by the
government, and the evidence demonstrating that El Salvador
does not acquiesce to gang violence, the panel concluded that
substantial evidence supported the denial of CAT relief.
6 AMAYA V. GARLAND
COUNSEL
Andrew M. Knapp (argued), Supervising Attorney; John
Kiang (argued), James M. Glassman (argued), Abraham E.
Bran, Brendan E. Nafarrate, and Elizabeth A. Siruno,
Certified Law Students; Southwestern School of Law, Los
Angeles, California; for Petitioner.
Rebecca Hoffberg Phillips and Katherine A. Smith, Trial
Attorneys; Margaret Kuehne Taylor, Senior Litigation
Counsel; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
BYBEE, Circuit Judge:
Melvin Amaya shot his drug dealer five times and was
convicted in Washington of first-degree assault. After
Amaya served his sentence, the Department of Homeland
Security (DHS) charged him with being removable for
having been convicted of an “aggravated felony,” as defined
in the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1227(a)(2)(A)(iii). Amaya contested his removability on
the grounds that his conviction was not categorically an
“aggravated felony.” In the alternative, he sought asylum,
withholding of removal, or relief under the Convention
Against Torture (CAT).
The Board of Immigration Appeals (BIA) held that
Amaya was removable and that he was not entitled to asylum,
withholding of removal, or relief under CAT. Amaya
AMAYA V. GARLAND 7
petitions for review of that decision. We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition in part and
dismiss in part.
I. BACKGROUND
Melvin Amaya is a 40-year-old native citizen of El
Salvador, who entered the United States in 1994 and received
Lawful Permanent Resident (LPR) status in 1998 at the age
of 17. Before entering the United States, Amaya was
involved with his neighborhood members of the Mara
Salvatrucha (MS-13) gang. Although never an official
member, he often served as a “lookout” or “bait.” Amaya left
El Salvador and joined his mother in the United States to
avoid being “jumped in” as an MS-13 member or
“disappeared” by covert government groups.
During high school in the United States, Amaya made
friends with another Salvadoran student, who was an MS-13
gang member. This friend pressured Amaya to get an “MS”
tattoo, which he did, getting an “M” tattooed on one bicep
and an “S” tattooed on the other. Despite his tattoos, Amaya
maintains that he has never been a member of MS-13, either
in El Salvador or the United States.
Amaya dropped out of high school shortly after he turned
18, and began drinking and using both marijuana and hard
drugs. In 2001, he made friends with a local drug dealer,
Amir Al-Jabori. Three years later, Amaya got into an
argument with Al-Jabori and shot Al-Jabori five times. Al-
Jabori survived. Amaya pleaded guilty to first-degree assault
under Washington Revised Code § 9A.36.011, and was
sentenced to 153 months imprisonment.
8 AMAYA V. GARLAND
After Amaya served his state sentence, DHS placed him
in removal proceedings pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having committed an “aggravated
felony.” Amaya contested his removability. Applying the
categorical approach, the Immigration Judge (IJ) held that
Amaya was “removable as charged for the assault in the first
degree, an aggravated felony crime of violence.” Amaya then
applied for asylum, withholding of removal, or CAT relief, on
the basis that he was likely to be tortured by Salvadoran
gangs or the Salvadoran government if removed. After a
merits hearing, the IJ issued a decision denying Amaya’s
application for asylum, withholding, and CAT relief, and
ordering his removal.
Amaya appealed to the BIA.1 The BIA dismissed
Amaya’s appeal and affirmed the IJ’s decision. The BIA held
that Amaya’s Washington conviction for felony first-degree
assault was categorically an “aggravated felony” because it
was also a “crime of violence” satisfying 8 U.S.C.
§ 1101(a)(43)(F). The BIA further concluded that Amaya
had “not identified any factual or legal errors that would
justify disturbing the [IJ’s] decision to deny [Amaya’s]
application for deferral of removal” under CAT.
Amaya now petitions for review of the BIA’s decision.
He raises three grounds: Whether his Washington conviction
for first-degree assault is an “aggravated felony,” thereby
rendering him removable; whether he was denied due process
of law by the IJ; and whether he is entitled to CAT relief. We
will consider each issue in turn.
1
Amaya’s supporting brief was untimely, and was therefore not
considered by the BIA. Thus, the BIA had only Amaya’s Notice of
Appeal and its attachments from which to glean Amaya’s arguments.
AMAYA V. GARLAND 9
II. FIRST-DEGREE ASSAULT AS AN “AGGRAVATED
FELONY”
Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is
convicted of an aggravated felony at any time after admission
is deportable.” “Aggravated felony” is a defined term and
includes “a crime of violence (as defined in [18 U.S.C. § 16]
. . .) for which the term of imprisonment [is] at least one
year.” 8 U.S.C. § 1101(a)(43)(F). A “crime of violence” is
defined in 18 U.S.C. § 16(a) as “an offense that has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.”
We “review de novo whether a criminal conviction is a
crime of violence and therefore an aggravated felony
rendering an alien removable.” Covarrubias Teposte v.
Holder, 632 F.3d 1049, 1052 (9th Cir. 2011) (as amended).
We apply the categorical approach, which requires
“compar[ing] the elements of the statute forming the basis of
the defendant’s conviction with the elements of the ‘generic’
crime.” Descamps v. United States, 570 U.S. 254, 257
(2013); see also Taylor v. United States, 495 U.S. 575 (1990)
(adopting categorical approach). The statute of conviction is
a categorical match “if the statute’s elements are the same as,
or narrower than, those of the generic offense.” Descamps,
570 U.S. at 257. In the crime of violence context, we
compare the state statute to 18 U.S.C. § 16(a), rather than a
generic assault statute, and we will only find a categorical
match if “every violation of the statute necessarily involves
violent force.” Flores-Vega v. Barr, 932 F.3d 878, 883 (9th
Cir. 2019) (quoting Solorio-Ruiz v. Sessions, 881 F.3d 733,
737 (9th Cir. 2018)).
10 AMAYA V. GARLAND
Amaya offers two reasons that his first-degree assault
conviction is not an “aggravated felony” under the INA.
First, Amaya argues that § 9A.36.011 of the Washington
Revised Code, the statute of conviction, is overbroad because
subsection (1)(b)2 criminalizes conduct that does not have “as
an element the use . . . of physical force” against another
person. 18 U.S.C. § 16(a). Second, Amaya argues that his
statute of conviction is overbroad because Washington only
requires proof of general intent, rather than specific intent, to
prove accomplice liability. Amaya is incorrect on both
counts.
A. Washington’s First-Degree Assault Statute
Amaya argues that the Washington provision under which
he was convicted is too broad, and therefore not a categorical
match for the INA’s definition of a “crime of violence” (and,
accordingly, an “aggravated felony”) because it punishes
someone who administers poison or exposes another person
to the human immunodeficiency virus (HIV). At the time of
Amaya’s conviction, Washington Revised Code § 9A.36.011
provided in relevant part:3
(1) A person is guilty of assault in the first
degree if he or she, with intent to inflict great
bodily harm:
2
Amaya does not dispute that subsections (1)(a) and (1)(c) fall within
the scope of a “crime of violence.”
3
Washington revised the statute in 2020. H.B. 1551, 66th Leg., 2020
Reg. Sess. (Wash. 2020). All cites to Washington Revised Code
§ 9A.36.011 are to the statute as it existed when Amaya was convicted.
AMAYA V. GARLAND 11
....
(b) Administers, exposes, or transmits to
or causes to be taken by another, poison,
the human immunodeficiency virus . . . or
any other destructive or noxious substance
....
Washington further defines “great bodily harm” as “bodily
injury which creates a probability of death, or which causes
significant serious permanent disfigurement, or which causes
a significant permanent loss or impairment of the function of
any bodily part or organ.” Wash. Rev. Code § 9A.04.110(c).
Contrary to Amaya’s assertions, § 9A.36.011(1)(b)
satisfies the requirements of 18 U.S.C. § 16(a). First,
§ 9A.36.011 requires the defendant to act with the “intent to
inflict great bodily harm,” which Washington courts have
said is specific intent. State v. Thomas, 98 P.3d 1258, 1263
(Wash. Ct. App. 2004); see Wash. Rev. Code
§ 9A.08.010(1)(a) (defining “intent” to mean that “[a] person
acts with intent or intentionally when he or she acts with the
objective or purpose to accomplish a result which constitutes
a crime.”). This easily satisfies the “use of physical force” in
§ 16(a). In Leocal v. Ashcroft, 543 U.S. 1 (2004), the
Supreme Court reasoned that “use” equated to “active
employment,” and therefore requires “a higher degree of
intent than negligent or merely accidental conduct.” Id. at 9.
The specific intent embodied in Amaya’s statute of
conviction is more than enough to satisfy this requirement.
Second, we have repeatedly recognized that “indirect” force,
like exposure to poison or other harmful substances, satisfies
§ 16(a)’s force requirement. See Arellano Hernandez v.
Lynch, 831 F.3d 1127, 1131 (9th Cir. 2016) (poison); United
12 AMAYA V. GARLAND
States v. Melchor-Meceno, 620 F.3d 1180, 1186 (9th Cir.
2010) (poison); United States v. De La Fuente, 353 F.3d 766,
771 (9th Cir. 2003) (anthrax). The Supreme Court has
endorsed our understanding that “‘physical force’ is simply
‘force exerted by and through concrete bodies,’ as opposed to
‘intellectual force or emotional force.’” United States v.
Castleman, 572 U.S. 157, 170 (2014) (quoting Johnson v.
United States, 559 U.S. 133, 138 (2010)). Thus, “the
common-law concept of ‘force’ encompasses even its indirect
application,” such as “‘by administering a poison or by
infecting with a disease.’” Castleman, 572 U.S. at 170
(quoting W. LaFave, Substantive Criminal Law § 16.2(b) (2d
ed. 2003)).4
Intentionally exposing another individual to HIV qualifies
as “physical force” because it is “force capable of causing
physical pain or injury to another person.” Johnson, 559 U.S.
at 140. As we explained in De La Fuente, exposing another
to anthrax is physical force because it is capable of causing
bodily injury. Even though “[t]he injury and pain caused by
anthrax infection may not always be immediately obvious to
the person exposed, . . . the bacteria’s physical effect on the
body is no less violently forceful than the effect of a kick or
blow.” 353 F.3d at 771. HIV, if untreated, may lead to
acquired immunodeficiency syndrome (AIDS), which can
lead to severe illness and death. Although HIV is a
manageable chronic illness in the United States, it currently
requires long-term medical care treatment in order to avoid
4
We reject Amaya’s contention that Castleman is not applicable here.
While Castleman’s focus was defining “physical force” in the context of
a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9),
its discussion of “force,” independent of the degree required, is relevant
to the inquiry here. Castleman, 572 U.S. at 170–71.
AMAYA V. GARLAND 13
the severe consequences of the disease. That is sufficient to
show that willfully exposing someone to HIV is “capable of
causing physical pain or injury to another person.” Johnson,
559 U.S. at 140 (emphasis added).
Amaya argues that Washington courts have watered down
the “exposes, or transmits” requirement in § 9A.36.011 and
that Washington permits conviction of someone who merely
knows of their own HIV status and engages in consensual
sex. But the cases Amaya points to do not support that
conclusion. In those cases, the Washington state courts relied
on more than the defendant’s simple knowledge of his HIV
status. In State v. Whitfield, 134 P.3d 1203 (Wash. Ct. App.
2006), the court concluded that the facts supported the jury’s
conclusion that the defendant intended to inflict great bodily
harm: The defendant was aware that he could transmit HIV
through intercourse; he had “deliberately lied to all of the
victims, telling them that he did not have any sexually
transmitted diseases while insisting that they engage in
unprotected sex with him;” he “sent an email message to one
victim stating that he hoped she would get AIDS;” and he
“told others that if he knew he had HIV he would try to infect
as many people as possible.” Id. at 1213–14. In State v.
Stark, 832 P.2d 109 (Wash. Ct. App. 1992), the court relied
on the evidence that showed that the defendant had been
counseled regarding “safe-sex” methods; he continued to
have unprotected sex with the victims; and when confronted,
he said “I don’t care. If I’m going to die, everybody’s going
to die.” Id. at 114. These cases do not demonstrate any
“watering down” of the intent requirement.
We cannot see any evidence of “a realistic probability . . .
that the State would apply [Wash. Rev. Code
§ 9A.36.011(1)(b)] to conduct that falls outside the scope of
14 AMAYA V. GARLAND
§ 16(a),” and thus Amaya’s conviction qualifies categorically
as a conviction for a crime of violence. Flores-Vega,
932 F.3d at 883 (internal quotation marks and citations
omitted).
B. Washington Accomplice Liability
Amaya also contends that his conviction for first-degree
assault has been rendered categorically overbroad by
Washington’s accomplice liability statute. Wash. Rev. Code
§ 9A.08.020(a)(i)–(ii). Amaya offers us alternative
arguments, which require us to examine related but slightly
different lines of authority. Both arguments are complicated,
so we will consider them separately.
1. Washington Accomplice Liability and Specific Intent
Amaya’s first argument follows the following logical
form:
(1) There is no longer any difference between
“principals and aiders and abettors” who are “present at
the scene of the crime” or who are “accessories before the
fact,” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189
(2007) (emphasis omitted), and thus, when conducting a
categorical inquiry, “the criminal activities of . . . aiders
and abettors of a generic [crime] must themselves fall
within the scope of the [crime defined] in the federal
statute,” id. at 190.
(2) A “crime of violence” as defined in 18 U.S.C.
§ 16(a) requires proof of specific intent. Cf. Leocal,
543 U.S. at 9 (“[T]he ‘use . . . of physical force against
the person or property of another’—most naturally
AMAYA V. GARLAND 15
suggests a higher degree of intent than negligent or
merely accidental conduct.” (quoting 18 U.S.C. § 16(a)));
United States v. Begay, 934 F.3d 1033, 1039 (9th Cir.
2019) (holding that proof of a “crime of violence” under
18 U.S.C. § 924(c)(3)(A) requires “purposeful conduct”).
(3) In Washington, accomplice liability only requires
proof of general intent. Wash. Rev. Code
§ 9A.08.020(a)(i)–(ii); State v. Thomas, 208 P.3d 1107,
1111 (Wash. 2009); State v. Roberts, 14 P.3d 713, 731–32
(Wash. 2000).
(4) Because Washington requires lesser proof of
accomplice liability (general intent), than is required for
a “crime of violence” (specific intent), and there is no
longer any difference between the culpability of
principals and accomplices, a conviction under
Washington law necessarily fails to qualify as a
categorical crime of violence.
The form of Amaya’s argument is proper, but premise (2)
is false. We have squarely held that “knowledge” as defined
in Washington satisfies 18 U.S.C. § 16(a).5 In United States
5
Under Washington law, “knowledge” means:
A person knows or acts knowingly or with knowledge
when:
(i) He or she is aware of a fact, facts, or
circumstances or result described by a statute
defining an offense; or
(ii) He or she has information which would lead a
reasonable person in the same situation to believe
16 AMAYA V. GARLAND
v. Werle, 877 F.3d 879 (9th Cir. 2017) (per curiam), a
Washington case, we held that “knowledge, or general intent,
remains a sufficient mens rea to serve as the basis for a crime
of violence.” Id. at 882 (citing Melchor-Meceno, 620 F.3d at
1186). Leocal does not demand anything more. In that case,
the Court did not address whether § 16(a) requires proof of
specific intent. Rather, the Court held only that § 16(a)
requires “a higher degree of intent than negligent or merely
accidental conduct.” Leocal, 543 U.S. at 9. Our decision in
Werle both cited and followed Leocal. Werle, 877 F.3d at
882. And the Supreme Court’s recent opinion in Borden v.
United States, — S. Ct. —, 2021 WL 2367312 (2021),
reinforces our decision in Werle. There, the Court interpreted
the almost identically worded 18 U.S.C. § 924(e)(2)(B)(I). It
held that § 924(e)(2)(B)(i)’s “required use of physical force
against the person of another” “covers purposeful and
knowing acts, but excludes reckless conduct.” See id. at *6.
Borden’s reasoning extends to § 16(a). See id. at *7; see also
United States v. Garcia-Lopez, 903 F.3d 887, 893 (9th Cir.
2018) (“Because the wording of § 924(e)(2)(B)(i) and § 16(a)
are virtually identical, we interpret their plain language in the
same manner.” (quotations and alterations omitted)). Without
premise (2), Amaya’s argument fails.
that facts exist which facts are described by a
statute defining an offense.”
Wash. Rev. Code § 9A.08.010(1)(b).
AMAYA V. GARLAND 17
2. Washington Accomplice Liability and Generic
Accomplice Liability
Amaya’s second argument is equally complicated, so we
will set it out in its logical form. Only shades different than
his argument in the previous section, Amaya argues that:
(1) There is no longer any difference between
“principals and aiders and abettors” who are “present at
the scene of the crime” or who are “accessories before the
fact,” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189
(2007) (emphasis omitted), and thus, when conducting a
categorical inquiry, “the criminal activities of . . . aiders
and abettors of a generic [crime] must themselves fall
within the scope of the [crime defined] in the federal
statute,” id. at 190.
(2) Under Washington law, first-degree assault
requires specific intent. See § 9A.36.011 (stating that
first-degree assault requires proof of “intent to inflict
great bodily harm”); § 9A.08.010(1)(a) (defining “intent”
to mean that a person “acts with the objective or purpose
to accomplish a result which constitutes a crime.”); see
also State v. Thomas, 98 P.3d 1258, 1262 (Wash. Ct. App.
2004) (“Assault in the first degree includes specific intent
as an element.”).
(3) In Washington, accomplice liability only requires
proof of general intent. Wash. Rev. Code
§ 9A.08.020(a)(i)–(ii); State v. Thomas, 208 P.3d 1107,
1111 (Wash. 2009); State v. Roberts, 14 P.3d 713, 731–32
(Wash. 2000).
18 AMAYA V. GARLAND
(4) Because principals and accomplices who are either
present at the scene or accessories before the fact are
equally culpable, but under Washington law accomplices
may be subject to a diminished standard of proof due to
the different mens rea required, accomplice liability in
Washington is broader than generic accomplice liability.
Amaya’s proposition (4) follows from his premises and
would be a forceful argument if his analysis governed every
application of the categorical approach to Washington crimes.
It does not, however, and is now beside the point. We will
explain.
We first addressed similar arguments in United States v.
Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017). In that case,
Valdivia-Flores appealed his conviction under 8 U.S.C.
§ 1326 for attempted reentry of a removed alien. Valdivia-
Flores challenged his conviction by collaterally attacking a
2009 removal order, which was based on his 1997 conviction
in Washington for possessing heroin with the intent to deliver
it. As here, we considered whether his conviction under
Washington’s drug trafficking statute, Wash. Rev. Code
§ 69.50.401, was an “aggravated felony” under 8 U.S.C.
§ 1227(a)(2)(A)(iii). The INA defines “aggravated felony”
to include “illicit trafficking in a controlled substance (as
defined in section 802 of Title 21), including a drug
trafficking crime (as defined in section 924(c) of Title 18).”
8 U.S.C. § 1101(a)(43)(B). Section 924(c) defines “drug
trafficking crime” as “any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951
et seq.), or chapter 705 of title 46.” In other words, in
Valdivia-Flores, whether Washington’s drug trafficking
statute was a categorical match for an “aggravated felony” as
AMAYA V. GARLAND 19
defined by 8 U.S.C. § 1101(a)(43)(b) had to be determined by
comparing it to the federal statutory scheme. Citing
Duenas-Alvarez, we observed that “aiding and abetting
liability” is “implicit . . . in every criminal charge,” including
federal crimes. Valdivia-Flores, 876 F.3d at 1207. We then
found that “the Washington drug trafficking law on its face
appears to have a more inclusive mens rea requirement for
accomplice liability than its federal analogue,” id., and thus
“Valdivia-Flores’s conviction cannot support an aggravated
felony determination,” id. at 1209 (footnote omitted).6 See
also Alfred v. Garland, No. 19-72903, 2021 WL 4302692(9th Cir. Sept. 22, 2021) (following Valdivia-Flores); United
States v. Franklin, 904 F.3d 793, 797–98 (9th Cir. 2018)
(same), abrogated on other grounds, Shular v. United States,
140 S. Ct. 784 (2020).
The rule we adopted in Valdivia-Flores might well have
meant that “no Washington state conviction can serve as an
aggravated felony at all.” Valdivia-Flores, 876 F.3d at 1209
(quoting the government; cleaned up). We rejected that
proposition in United States v. Door, 917 F.3d 1146 (9th Cir.
2019). Door had been convicted in Washington of felony
harassment and was looking at a sentencing enhancement
under U.S.S.G. § 4B1.2(a) for having committed a “crime of
violence,” which contains a force clause identical to the
definition of “crime of violence” in § 16(a). Compare
U.S.S.G. § 4B1.2(a)(1) with 8 U.S.C. § 16(a). Citing
Valdivia-Flores, Door argued that “because every
6
We also found that “Washington law is clear that jurors need not
agree on whether a defendant is a principal or accomplice” and thus “the
drug trafficking statute is not divisible so far as the distinction between
those roles is concerned” and “the modified categorical approach may not
be applied.” Valdivia-Flores, 876 F.3d at 1210.
20 AMAYA V. GARLAND
Washington criminal statute incorporates aiding and abetting,
all Washington criminal statutes are overbroad, and therefore
all Washington state convictions fail to qualify as crimes of
violence.” Door, 917 F.3d at 1152. We squarely rejected his
argument, however, because it “overlook[ed] the analytical
difference between the force clause and the enumerated
offenses clause.”7 Id. We explained that in Valdivia-Flores,
the categorical analysis “involved comparing the elements of
the Washington drug trafficking crime with the generic
federal offense of drug trafficking.” Id. at 1153. “Generic
federal offenses” are enumerated offenses that require
comparing a state statute with its federal counterpart. By
contrast, in Door, as here, we were measuring the
Washington statute against a class of offenses defined by “the
use, attempted use, or threatened use of physical force.”
Valdivia-Flores was an exercise in mapping a state crime
7
The current version of U.S.S.G. § 4B1.2(a) defines “crime of
violence” as follows:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one years, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, extortion, or
the use or unlawful possession of a firearm
described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c).
Subsection (a)(1) is known as the “elements or force clause,” while (a)(2)
is referred to as the “enumerated offenses clause.”
AMAYA V. GARLAND 21
onto a federal crime;8 Door was an exercise in category. We
held that the difference was significant. Because Door’s
conviction for felony harassment “necessarily entails the
threatened use of violent physical force, it qualifies as a crime
of violence pursuant to the force clause, and our inquiry ends
there.” Id. We thus held that we “need not compare the
elements of the crime of conviction with the elements of the
generic federal crime when analyzing whether an offense
qualifies as a crime of violence pursuant to the force clause.”
Id.Door governs this case, and it renders Amaya’s
proposition (4) irrelevant. As in Door, our analysis here
concerns the force inquiry, not a comparison to an
enumerated offense, as we did in Valdivia-Flores.9 Thus,
Valdivia-Flores does not require us to compare Washington’s
underlying accomplice liability mens rea to the generic
federal accomplice liability mens rea. For the reasons we
have previously described, it is sufficient that Washington’s
first degree assault statute requires proof of assault “with
intent to inflict great bodily harm.” Wash. Rev. Code
§ 9A.36.011(1); see also United States v. Calvillo-Palacios,
8
We note that there is no suggestion in Valdivia-Flores that the
defendant had been charged as removable under alternate aggravated
felony provisions. Therefore, we had no occasion to consider the
differences between an enumerated offense aggravated felony and a crime
of violence aggravated felony under the INA.
9
The INA’s lengthy definition of “aggravated felony” includes
enumerated offenses—e,g,, 8 U.S.C. § 1101(a)(43)(A) (“murder, rape, or
sexual abuse of a minor”)—but we are only concerned here with a “crime
of violence,” as defined in the equivalent of the force clause in 18 U.S.C.
§ 16(a). See 8 U.S.C. § 1101(a)(43)(F).
22 AMAYA V. GARLAND
860 F.3d 1285, 1290 (9th Cir. 2017). That is all that Door
demands. See Door, 917 F.3d at 1153.
* * *
Section 9A.36.011 is categorically a “crime of violence”
under 8 U.S.C. § 1101(a)(43)(F),10 and the BIA correctly
determined that Amaya is removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having committed an “aggravated
felony.”
III. DUE PROCESS
Amaya asserts that the BIA erred by ignoring his due
process claim of IJ bias. We ordinarily review due process
challenges de novo. Vasquez-Zavala v. Ashcroft, 324 F.3d
1105, 1107 (9th Cir. 2003). However, Amaya failed to
exhaust his due process claim before the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004) (claims must
be exhausted to be raised in a petition for review). A
“conclusory statement does not apprise the BIA of the
particular basis for [the petitioner’s] claim” nor
“meaningfully challenge the IJ’s decision on appeal.” Rizo v.
Lynch, 810 F.3d 688, 692 (9th Cir. 2016). Neither his notice
of appeal nor his attachment thereto made a clear, non-
conclusory argument in support of his claim. We cannot say
that the BIA ignored a clearly-identified due process
10
Amaya does not dispute that he was sentenced to a “term of
imprisonment [of] at least one year” as § 1101(a)(43)(F) requires.
AMAYA V. GARLAND 23
argument.11 Amaya thus failed to exhaust his claim before
the BIA, and we lack jurisdiction to reach the underlying
merits of Amaya’s due process claim. See Sola v. Holder,
720 F.3d 1134, 1136 (9th Cir. 2013) (“Challenges to
procedural errors correctable by the administrative tribunal,
must be exhausted before we undertake review.” (alterations
and quotation omitted)); Barron, 358 F.3d at 677–78. We
dismiss that portion of his petition.
IV. DENIAL OF CAT RELIEF
Amaya also challenges the agency’s denial of his
application for deferral of removal under CAT.12 We review
questions of law de novo and factual determinations for
substantial evidence. De Rodriguez-Echeverria v. Mukasey,
534 F.3d 1047, 1050 (9th Cir. 2008). We conclude that the
agency did not err in denying Amaya’s application for
deferral of removal under CAT. Because the BIA concluded
that Amaya “ha[d] not identified any factual or legal errors
that would justify disturbing the [IJ’s] decision to deny
[Amaya’s] application . . . for failure of proof,” we “look to
the IJ’s oral decision as a guide to what lay behind the BIA’s
conclusion.” Avetova-Elisseva v. INS, 213 F.3d 1192, 1197
(9th Cir. 2000).
11
To the extent that Amaya’s brief can be read as arguing that the
BIA’s rejection of his brief was itself a violation of due process, we
disagree. Amaya was clearly informed of the deadline to file his briefs
and failed to file them timely. Nothing prevented Amaya from filing a
motion to reopen or for reconsideration with the agency before this appeal.
12
Amaya does not challenge the denial of asylum, withholding of
removal, or withholding under CAT, which were foreclosed by his
aggravated felony conviction. 8 U.S.C. §§ 1158(b)(2)(B)(i),
1231(b)(3)(B)(ii).
24 AMAYA V. GARLAND
The IJ laid out the correct legal standard for obtaining
CAT protection, considered Amaya’s concern that he would
be harmed by the Salvadoran government, and found that
Amaya “was never harmed in the past by the government of
El Salvador.” As the BIA recognized, the IJ “considered the
totality of the record evidence,” including the country
conditions reports, in determining that Amaya did not
establish “that it is more likely than not that he will be
tortured by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity in El Salvador.” To the extent Amaya
challenges the IJ’s focus on his claim that the government of
El Salvador would acquiesce in his torture by gangs, this
focus mirrors Amaya’s testimony, submissions, and the
testimony of supporting witnesses, which focused on the
threat from the gangs and government acquiescence rather
than a fear of the government committing the torture itself.
Given the lack of evidence supporting a claim of torture by
the government, and the evidence demonstrating that El
Salvador does not acquiesce to gang violence, substantial
evidence supports the agency’s denial of CAT relief.
V. CONCLUSION
We conclude that Washington Revised Code § 9A.36.011
is categorically an “aggravated felony,” making Amaya
removable under 8 U.S.C. § 1227(a)(2)(A)(iii). We are
without jurisdiction to review Amaya’s unexhausted due
process claim. The agency’s determination that Amaya was
not entitled to CAT relief was supported by substantial
evidence.
DENIED in part and DISMISSED in part.