Eduard Safaryan v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARD SAFARYAN, No. 16-74039
Petitioner,
Agency No.
v. A075-726-744
WILLIAM P. BARR, Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2019
Pasadena, California
Filed September 17, 2020
Before: Carlos T. Bea, Daniel P. Collins, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Collins
2 SAFARYAN V. BARR
SUMMARY *
Immigration
Denying Eduard Safaryan’s petition for review of a
decision of the Board of Immigration Appeals, the panel:
1) deferred to Matter of Wu, 27 I. & N. Dec. 8 (BIA 2017),
in which the BIA held that a conviction under California
Penal Code § 245(a)(1), which proscribes certain aggravated
forms of assault, is categorically a crime involving moral
turpitude; and 2) concluded that Safaryan was inadmissible
based on his § 245(a)(1) conviction, and therefore, ineligible
for adjustment of status absent a waiver.
In Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en
banc), this court overruled the precedent on which the BIA
had relied in concluding that § 245(a)(1) is a crime involving
moral turpitude, concluded that the issue was now an open
one in this circuit, and remanded to the BIA to decide the
issue in the first instance. The BIA did not issue a published
decision in Ceron, but while Safaryan’s petition for review
was pending in this court, the BIA issued a published
decision in Matter of Wu, holding that § 245(a)(1) is
categorically a crime involving moral turpitude.
The panel concluded that Matter of Wu was entitled to
deference under Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984). First, the panel reviewed
de novo the agency’s articulation of the elements of the
offense, noting that, at the time of Safaryan’s offense,
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SAFARYAN V. BARR 3
§ 245(a)(1) imposed criminal punishment on “[a]ny person
who commits an assault upon the person of another with a
deadly weapon or instrument other than a firearm or by any
means of force likely to produce great bodily injury.”
The panel also summarized the relevant California law
concerning the actus reus and mens rea of the offense. As to
actus reus, the panel explained that simple assault does not
require actual harm or even physical contact, but that the
aggravators in § 245(a)(1) add an additional element,
requiring either “force likely to produce great bodily injury”
or the use of a “deadly weapon or instrument.” As to mens
rea, the panel noted that the California Supreme Court has
held that assault requires an intentional act and actual
knowledge of those facts sufficient to establish that the act
by its nature will probably and directly result in the
application of physical force against another.
Next, the panel considered whether § 245(a)(1) falls
within the generic federal definition of a crime involving
moral turpitude. The panel explained that, in Matter of Wu,
the BIA concluded that the combination of actus reus and
mens rea required by § 245(a)(1) reflects the sort of
enhanced reprehensibility that qualifies as morally
turpitudinous and that the BIA expressly considered the
issues raised by the Ninth Circuit in Ceron. Specifically,
Ceron approvingly noted that the BIA held in Matter of
Medina, 15 I. & N. Dec. 611 (BIA 1976), that the
combination of a “deadly weapon” and “recklessness” was
sufficient to establish that an Illinois statute was a crime
involving moral turpitude. The panel concluded that the
BIA, in Matter of Wu, correctly noted two important
differences between § 245(a)(1) and the Illinois statute, and
that the BIA permissibly concluded that neither distinction
4 SAFARYAN V. BARR
warranted a different conclusion on the ultimate question of
moral turpitude.
Because the BIA’s decision in Matter of Wu correctly
framed the legal issues and reached a reasonable conclusion
in addressing the issues this court identified in Ceron, the
panel concluded that the decision was entitled to Chevron
deference. Accordingly, the panel held that the BIA correctly
determined that Safaryan’s conviction under § 245(a)(1) was
for a crime involving moral turpitude and that he was
therefore inadmissible.
Finally, the panel addressed Safaryan’s contention that,
even if he is inadmissible, the BIA erred in upholding the
IJ’s denial of a waiver of inadmissibility under § 212(h) of
the Immigration and Nationality Act. The panel concluded
that it lacked jurisdiction to consider Safaryan’s challenges
to the denial of the § 212(h) waiver, explaining that he failed
to raise a cognizable legal or constitutional question
concerning that determination.
COUNSEL
Carlos R. Barrios (argued), Los Angeles, California; Areg
Kazaryan, Glendale, California; for Petitioner.
Robert D. Tennyson, Jr., Ph.D. (argued), Trial Attorney;
Justin Markel, Senior Litigation Counsel; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
SAFARYAN V. BARR 5
OPINION
COLLINS, Circuit Judge:
This case requires us to decide whether California Penal
Code § 245(a)(1), which proscribes certain aggravated
forms of assault, is categorically a “crime involving moral
turpitude” for purposes of the immigration laws. We were
presented with precisely that issue in Ceron v. Holder,
747 F.3d 773 (9th Cir. 2014) (en banc), but we declined to
decide it, holding instead that the Board of Immigration
Appeals (“BIA”) should be given the opportunity “to
consider the issue in the first instance.” Id. at 784. We
explained, however, that after the BIA decided that question,
we would then “have to decide whether to defer to the BIA’s
decision.” Id. The BIA subsequently held in a published
decision that § 245(a)(1) is categorically a crime involving
moral turpitude. Matter of Wu, 27 I. & N. Dec. 8 (BIA
2017). We conclude that Matter of Wu is consistent with
Ceron and entitled to deference. Consequently, the
petitioner in this case—who was convicted of a violation of
§ 245(a)(1) in 2006—was properly ordered removed, and we
deny his petition for review.
I
A
On July 14, 1999, Eduard Safaryan, a native and citizen
of Armenia, arrived in Los Angeles on a tourist visa
authorizing him to remain in the United States until January
13, 2000. Safaryan overstayed his visa, however, and in
December 2000, he married a lawful permanent resident, to
whom he is still married. Their first child was born in April
2001, their second child a year later, and their third child in
6 SAFARYAN V. BARR
2012. In April 2002, Safaryan’s wife became a naturalized
U.S. citizen.
Meanwhile, in November 2000, the Government served
Safaryan with a notice to appear alleging that he was
removable under § 237(a)(1)(B) of the Immigration and
Nationality Act (“INA”) for having remained in the country
after the expiration of his visa. On March 21, 2001, Safaryan
appeared in Immigration Court in Los Angeles and conceded
that he was removable as charged. Although he had applied
for asylum, withholding of removal, and relief under the
Convention Against Torture, he ultimately withdrew those
applications after his wife was naturalized and instead
sought adjustment of status to that of a lawful permanent
resident. Safaryan’s removal proceedings were continued
for several years until his application for adjustment of status
was finally ready to be heard before an Immigration Judge
(“IJ”) in early 2005. After several hearings and multiple
continuances to allow Safaryan to obtain appropriate
documents, the IJ ultimately denied Safaryan’s application
in June 2005, ruling that he had failed to satisfy the financial-
support requirements for obtaining adjustment of status. In
February 2007, the BIA upheld the IJ’s ruling, but after
Safaryan filed his opening brief in this court, the
Government moved to remand the case back to the BIA.
This court granted that motion in October 2010.
B
While Safaryan’s first appeal to the BIA was pending, he
was arrested on October 30, 2005 in connection with an
apparent road-rage incident. According to the police report,
another vehicle inadvertently cut off Safaryan’s car as both
were transitioning from the westbound 101 freeway to the
northbound 405 freeway in the Sherman Oaks section of Los
Angeles. After following the other vehicle for a few miles,
SAFARYAN V. BARR 7
Safaryan allegedly swerved his car towards it several times
and then intentionally struck the vehicle, which
consequently collided into the center divider that separates
the freeway’s northbound and southbound traffic. After
Safaryan exited the freeway, he or his wife (who was with
him and their children in the car) called the police and
claimed that she had been driving the car and that she had
been the victim of a hit-and-run. After likewise initially
insisting that his wife had been the driver, Safaryan soon
thereafter admitted that he had been at the wheel when the
collision occurred, but he insisted that the other vehicle had
recklessly hit him.
Safaryan was charged with three counts: assault with a
deadly weapon other than a firearm in violation of California
Penal Code § 245(a)(1); assault by means likely to produce
great bodily injury in violation of the same provision; 1 and
filing a false report of a crime in violation of California Penal
Code § 148.5(a). On February 9, 2006, pursuant to a plea
agreement, Safaryan pleaded no contest to the first count,
assault with a deadly weapon other than a firearm. Safaryan
was sentenced to three years of probation, with the
requirement that he spend the first 270 days in jail. Safaryan
ended up serving only five days in jail.
C
In February 2011, after this court’s remand, the BIA
vacated its earlier 2007 decision in Safaryan’s case and
remanded the matter to the IJ. Back before the IJ, the
1
Effective 2012, § 245(a)(1) was amended by moving the distinct
offense of assault by means likely to produce great bodily injury into a
new separate subsection, § 245(a)(4). See People v. Lamb, 213 Cal.
Rptr. 3d 467, 468 n.2 (Cal. Ct. App. 2017).
8 SAFARYAN V. BARR
Government argued that Safaryan’s intervening conviction
under § 245(a)(1) constituted a “crime involving moral
turpitude,” which now rendered him “inadmissible” under
INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I),
and therefore ineligible for adjustment of status in the
absence of a waiver. See 8 U.S.C. §§ 1182(h), 1255(a). The
IJ agreed with the Government’s position and also declined
to grant a waiver, concluding that Safaryan had failed to
show the requisite exceptional and extremely unusual
hardship to him or his qualifying relatives. Accordingly, the
IJ ordered Safaryan removed to Armenia.
In an unpublished decision, the BIA upheld the IJ’s
removal order. The BIA held that, in light of two key factors,
the IJ correctly concluded that California Penal Code
§ 245(a)(1) is a crime involving moral turpitude. First,
because § 245(a)(1) requires the willful commission of an
“inherently dangerous physical act in the presence of another
person” with “actual knowledge of all facts necessary to
establish” that the act “would naturally and probably result
in a battery upon the other person,” the scienter required
under § 245(a)(1) was greater than “mere recklessness or
criminal negligence.” Second, “the use of a deadly weapon
is an aggravating factor that elevates an assault to a crime
involving moral turpitude.” As a result, the BIA concluded
that Safaryan’s conviction rendered him inadmissible, and
ineligible for adjustment of status, absent a waiver. The BIA
further held that Safaryan’s request for such a waiver was
properly denied, and accordingly, it dismissed Safaryan’s
appeal. This timely petition for review followed.
II
An alien seeking to adjust his or her status to that of a
lawful permanent resident must be “admissible to the United
States for permanent residence.” 8 U.S.C. § 1255(a).
SAFARYAN V. BARR 9
Subject to certain enumerated exceptions not relevant here,
“any alien convicted of . . . a crime involving moral turpitude
. . . is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Accordingly, the BIA properly held that, if Safaryan’s
conviction under California Penal Code § 245(a)(1)
constitutes a crime of moral turpitude, then he is ineligible
for adjustment of status absent a waiver under INA § 212(h).
See 8 U.S.C. § 1182(h). The question before us, then, is
whether the BIA was correct in its further conclusion that a
violation of § 245(a)(1) is categorically a “crime involving
moral turpitude” under the INA. We hold that it was.
A
We have described the statutory phrase “moral
turpitude” as “perhaps the quintessential example of an
ambiguous phrase.” Marmolejo-Campos v. Holder,
558 F.3d 903, 909 (9th Cir. 2009) (en banc). Although that
might suggest that we should therefore give deference under
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984), to the BIA’s legal construction of that
phrase, that particular question of deference is ultimately of
“no practical significance,” because “we have noted that our
understanding [of the phrase] does not differ materially from
the [BIA’s].” Marmolejo-Campos, 558 F.3d at 910
(citations and internal quotation marks omitted); see also id.
(noting broad agreement as to the “general understanding of
the term ‘moral turpitude’”).
The BIA’s generalized conception of morally
turpitudinous crimes draws on familiar criminal-law
concepts under which the wrongfulness of an act is a
function of both the nature of the underlying conduct (the
actus reus) and the state of mind with which it is performed
(the mens rea). See Matter of Silva-Trevino, 26 I. & N. Dec.
826, 828 n.2 (BIA 2016) (“[A] crime involving moral
10 SAFARYAN V. BARR
turpitude is generally defined as a crime that encompasses a
reprehensible act with some form of scienter.” (emphasis
added)); see also Moran v. Barr, 960 F.3d 1158, 1161–62
(9th Cir. 2020); Marmolejo-Campos, 558 F.3d at 910.
Because “turpitude” denotes “[i]nherent baseness or vileness
of principle, words, or actions” or “depravity,” Turpitude,
Webster’s New International Dictionary (2d ed. 1934), a
“crime involving moral turpitude” denotes an elevated level
of wrongfulness that bespeaks some measure of moral
depravity on the part of the perpetrator.
In determining whether a crime involves this sort of
enhanced reprehensibility, “[w]e consider the actus reus and
the mens rea ‘in concert to determine whether the behavior
they describe is sufficiently culpable to be labeled morally
turpitudinous.’” Moran, 960 F.3d at 1162 (quoting
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1214 (9th Cir.
2013)). As to the underlying conduct defined by an offense,
the “‘presence of an aggravating factor,’ such as ‘serious
physical injury or the use of a deadly weapon,’” Ceron,
747 F.3d at 783 (quoting In re Solon, 24 I. & N. Dec. 239,
245 (BIA 2007)), “can transform a crime that does not
involve moral turpitude into one that does,” Moran, 960 F.3d
at 1162. Likewise, a mental state that reflects “‘a vicious
motive or a corrupt mind’” may contribute to a conclusion
that a particular crime is morally turpitudinous. Latter-Singh
v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012) (quoting In
re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999)); see also
Moran, 960 F.3d at 1161 (“Fraudulent crimes always
involve moral turpitude.”).
Both we and the BIA have recognized that the overall
assessment of the reprehensibility of a crime’s actus reus and
mens rea involves a sliding scale, so that “a greater required
showing in one aspect of the criminal offense can
SAFARYAN V. BARR 11
accommodate a lesser required showing in another.” Altayar
v. Barr, 947 F.3d 544, 554 (9th Cir. 2020); see also Ceron,
747 F.3d at 783 (“‘[A]s 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.’” (quoting In re Solon, 24 I.
& N. Dec. at 242)). But there must be some minimum level
of reprehensibility both as to mens rea and as to actus reus.
Thus, “‘where no conscious behavior is required’” to
convict, “‘there can be no finding of moral turpitude,
regardless of the resulting harm.’” Id. (quoting In re Solon,
24 I. & N. Dec. at 242). And, conversely, we doubt that
merely driving a few miles over the posted speed limit could
ever be considered turpitudinous, even if the offense
required a willful intent and was classified as a
misdemeanor.
We have held that the BIA is entitled to Chevron
deference when it issues a precedential decision applying
this sliding scale in determining whether a particular offense
“constitutes a crime involving moral turpitude,” Ceron,
747 F.3d at 784, because “the BIA has expertise in that task,”
id. at 778. We have likewise applied such deference when
the BIA issues a “subsequent unpublished order” relying on
such a decision. See Marmolejo-Campos, 558 F.3d at 911.
Accordingly, when reviewing such a BIA precedential
decision, we must uphold the BIA’s determination that a
given offense is a crime involving moral turpitude if it “is
based on a permissible construction,” Chevron, 467 U.S.
at 843, of the phrase “crime involving moral turpitude.”
With this legal framework in mind, we turn to the specific
question whether California Penal Code § 245(a)(1) is a
crime involving moral turpitude.
12 SAFARYAN V. BARR
B
In answering that question, we do not write on a clean
slate. We previously confronted this exact question in
Ceron, where we reviewed an unpublished 2008 decision of
the BIA that held—based on published Ninth Circuit and
BIA precedent—that California Penal Code § 245(a)(1) is a
crime involving moral turpitude. 747 F.3d at 777. 2 We
concluded, however, that the precedent on which the BIA
relied had been “undermined” by subsequent developments
in “both federal law and state law.” Id. at 780. In particular,
we held that the reasoning in that precedent was difficult to
square with “today’s categorical analysis,” under which an
offense is not a crime involving moral turpitude unless “‘the
full range of conduct covered by the state statute’” satisfies
the federal definition of a “crime involving moral turpitude.”
Id. at 780 (emphasis added) (citation omitted). We also
noted that the precedent cited by the BIA did not take into
account subsequent California caselaw that had “only
recently defined with precision the requisite mental state for
assault.” Id. at 781. We therefore explicitly overruled the
precedent on which the BIA relied, and finding no other
applicable precedent addressing whether § 245(a)(1) was a
crime involving moral turpitude, we concluded that the issue
was now an open one in this circuit. Id. at 781–82
(overruling in relevant part Carr v. INS, 86 F.3d 949 (9th
Cir. 1996); Gonzales v. Barber, 207 F.2d 398 (9th Cir.
1953), aff’d on other grounds, 347 U.S. 637 (1954); Matter
of G–R–, 2 I. & N. Dec. 733 (BIA 1946, AG 1947)). Rather
2
As in this case, the petitioner in Ceron was convicted only under
the clause of the then-existing version of § 245(a)(1) that proscribed
assault with a deadly weapon other than a firearm and not under the
separate clause addressing assault by “means of force likely to produce
great bodily injury.” 747 F.3d at 776 n.1.
SAFARYAN V. BARR 13
than resolve that open question ourselves, we held in Ceron
that, in light of the deference ordinarily due to such BIA
determinations, the agency should be given the “first
opportunity to decide” it. Id. at 784. We therefore granted
Ceron’s petition and “remand[ed] to the BIA to determine in
the first instance whether California Penal Code section
245(a)(1) categorically constitutes a crime involving moral
turpitude.” Id. at 785. In doing so, we “reiterate[d] that our
level of deference will depend on whether the BIA publishes
its decision.” Id.
The BIA, however, never issued a published decision on
remand in Ceron, nor did it do so in Safaryan’s case. Instead,
while Safaryan’s petition for review was pending before this
court, the BIA issued a published decision in Matter of Wu,
27 I. & N. Dec. 8 (BIA 2017), holding that California Penal
Code § 245(a)(1) is a crime involving moral turpitude. In
the case before us, the parties have briefed the matter on the
premise that, if we determine that Matter of Wu is entitled to
Chevron deference, then Matter of Wu governs this case and
renders Safaryan inadmissible. At oral argument, Safaryan
explicitly reiterated that view. Given the parties’ agreement
on this point, as well as the fact that Matter of Wu’s
reasoning in resolving a long-unsettled issue of law
substantially overlaps with the more abbreviated reasoning
of the BIA in Safaryan’s case, we perceive no issue of
improper retroactivity in applying Matter of Wu here. See
Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th
Cir. 1982); see also Ceron, 747 F.3d at 780–84 (noting that
the question of whether various aggravated assaults under
California law were crimes of moral turpitude had been the
subject of conflicting decisions). For the same reasons, we
also see no need to pointlessly remand the matter to the BIA
so that it can formally invoke Matter of Wu in this case. Cf.
Morgan Stanley Capital Grp. v. Public Util. Dist. No. 1,
14 SAFARYAN V. BARR
554 U.S. 527, 545 (2008) (“‘To remand would be an idle and
useless formality. [SEC v.] Chenery [Corp, 318 U.S. 80
(1943),] does not require that we convert judicial review of
agency action into a ping-pong game.’” (quoting NLRB v.
Wyman-Gordon Co., 394 U.S. 759, 766–67 n.6 (1969)
(plurality opinion)). We are thus squarely presented with the
issue the en banc court framed in Ceron—namely, whether
we should give deference to the BIA’s published post-Ceron
decision holding that a violation of California Penal Code
§ 245(a)(1) is a crime involving moral turpitude. For the
reasons set forth below, we answer that question in the
affirmative.
C
1
The first step in determining whether a crime involves
moral turpitude is “‘to identify the elements of the statute of
conviction.’” Ceron, 747 F.3d at 778 (quoting Castrijon-
Garcia, 704 F.3d at 1208). Because the agency “lacks
expertise in identifying the elements of state statutes,” we
review the agency’s articulation of the elements de novo. Id.
At the time of Safaryan’s offense, § 245(a)(1) imposed
criminal punishment on “[a]ny person who commits an
assault upon the person of another with a deadly weapon or
instrument other than a firearm or by any means of force
likely to produce great bodily injury.” Cal. Penal Code
§ 245(a)(1) (2005). 3 In Matter of Wu, the BIA appropriately
3
As noted earlier, effective in 2012, § 245(a)(1) was amended by
moving the clause involving “force likely to produce great bodily injury”
to a new subsection, § 245(a)(4). See supra note 1. In addressing the
pre-2012 version, the BIA in Matter of Wu could have chosen to apply a
modified categorical approach and to address only the relevant clause
SAFARYAN V. BARR 15
relied on the relevant California criminal pattern jury
instruction in describing, as follows, the elements of a
violation of § 245(a)(1):
(1) the defendant did an act that by its nature
would directly and probably result in the
application of force to a person, using either
(a) deadly weapon or instrument, or (b) force
likely to produce great bodily injury to
another; (2) the defendant did the act
willfully; and (3) when the defendant acted,
he or she (a) was aware of facts that would
lead a reasonable person to realize that his or
her act by its nature would directly and
probably result in the application of force to
someone and (b) had the present ability to
apply such force.
Matter of Wu, 27 I. & N. Dec. at 12 (citing Judicial Council
of California, Criminal Jury Instructions No. 875).
Thereafter, in the course of analyzing whether § 245(a)(1) is
a crime involving moral turpitude, the BIA properly
elaborated on these elements, as necessary, by drawing upon
relevant decisions of the California Supreme Court and this
court. See 27 I. & N. Dec. at 12–15. Before turning to that
under which Safaryan was convicted. See Ceron, 747 F.3d at 776 n.1
(holding that the former version of § 245(a)(1) was divisible and limiting
the court’s analysis only to the relevant clause). But the BIA elected not
to do so and instead held that the broader provision is categorically a
crime involving moral turpitude. Matter of Wu, 27 I. & N. Dec. at 11–
15. In reviewing that decision, we apply the same approach, and we
therefore consider both clauses of the former statute. As a result, our
decision upholding the BIA’s determination as to the prior version of
§ 245(a)(1) is necessarily dispositive of both § 245(a)(1) and § 245(a)(4)
as currently codified.
16 SAFARYAN V. BARR
“moral turpitude” analysis, we again summarize, as we did
in Ceron, the relevant law concerning the actus reus and
mens rea required to establish a violation of § 245(a)(1).
As to the actus reus, California law defines a simple
“assault” as “an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.”
Cal. Penal Code § 240; see also Matter of Wu, 27 I. & N.
Dec. at 12 (quoting § 240). We have held that “‘violent
injury’ . . . require[s] only ‘the least touching’ that is
unconsented or otherwise wrongful; such touching ‘need not
be violent or severe,’” United States v. Grajeda, 581 F.3d
1186, 1192 (9th Cir. 2009) (quoting People v. Colantuono,
865 P.2d 704, 709 n.4 (Cal. 1994)). Moreover, because an
assault is an attempt to commit such a “violent injury,” it
“does not require actual harm or even physical contact.”
Ceron, 747 F.3d at 779; see also Matter of Wu, 27 I. & N.
Dec. at 10–11. The aggravators in § 245(a)(1), however, add
an additional element, requiring either “force likely to
produce great bodily injury” (as opposed to the “least
touching”) or the use of a “deadly weapon or instrument.”
Cal. Penal Code § 245(a)(1) (2011) (emphasis added). A
“deadly weapon or instrument” is an item “‘extrinsic to the
human body’” that “‘is used in such a manner as to be
capable of producing death or great bodily injury.’” Ceron,
747 F.3d at 778–79 (quoting People v. Aguilar, 945 P.2d
1204, 1210 (Cal. 1997)); see also Matter of Wu, 27 I. & N.
Dec. at 15 n.11 (quoting Aguilar).
As to § 245(a)(1)’s mens rea, we noted in Ceron that the
California Supreme Court had clarified the mental state
required for assault in People v. Williams, 29 P.3d 197 (Cal.
2001). See Ceron, 747 F.3d at 779; see also Matter of Wu,
27 I. & N. Dec. at 12–14 (similarly analyzing Williams).
SAFARYAN V. BARR 17
Specifically, the state high court described the mental state
required for assault as follows:
[A] defendant guilty of assault must be aware
of the facts that would lead a reasonable
person to realize that a battery would directly,
naturally and probably result from his
conduct. He may not be convicted based on
facts he did not know but should have known.
He, however, need not be subjectively aware
of the risk that a battery might occur.
Williams, 29 P.3d at 203. The court stressed that “[a]ssault
is still a general intent crime” and “does not require a specific
intent to injure the victim.” Id. The court also specifically
rejected the view that the mens rea for assault could be
satisfied by “mere recklessness or criminal negligence.” Id.;
see also Grajeda, 581 F.3d at 1195. Assault under
California law therefore “‘requires an intentional act and
actual knowledge of those facts sufficient to establish that
the act by its nature will probably and directly result in the
application of physical force against another.’” Ceron,
747 F.3d at 779 (quoting Williams, 29 P.3d at 204). As our
discussion below further confirms, see infra at 18–22, the
BIA’s decision in Matter of Wu faithfully describes the mens
rea for § 245(a)(1), as set forth in Williams and as further
elaborated in Ceron and Grejeda. See 27 I. & N. Dec. at 12–
14 (summarizing § 245(a)(1)’s mens rea requirements in
light of these decisions).
2
Having described the elements of § 245(a)(1), our next
task is to ask whether that offense “‘fall[s] within the generic
federal definition of a crime involving moral turpitude,’”
using the understanding of “moral turpitude” discussed
18 SAFARYAN V. BARR
earlier. Moran, 960 F.3d at 1161 (citation omitted); see
supra at 9–11. In doing so, we apply a “categorical”
approach that “require[s] determining whether the elements
of the offense of conviction (as opposed to the facts
underlying the conviction) constitute a crime involving
moral turpitude.” Altayar, 947 F.3d at 549. For § 245(a)(1)
to qualify as a crime involving moral turpitude under this
categorical approach, “‘the full range of conduct
encompassed by the criminal statute’” must “‘constitute[] a
crime of moral turpitude.’” Id. (citations omitted). And as
we have explained, we give deference to the BIA’s
determinations at this second step, at least where, as here, it
has issued a precedential decision. See supra at 11.
In Matter of Wu, the BIA correctly recognized that the
question of “moral turpitude” involves the application of a
sliding scale in which the “‘building together’” of a
sufficiently reprehensible actus reus and a sufficiently
culpable mens rea may confirm that a given crime is
turpitudinous. 27 I. & N. Dec. at 15 (citation omitted); see
supra at 9–11. That is, because the “‘need for, and the nature
of, any aggravating factor’” concerning the underlying
conduct “‘is affected by the mental state required for the
conviction,’” Ceron, 747 F.3d at 783 (citation omitted), the
relevant inquiry requires “weigh[ing] the level of danger
posed by the perpetrator’s conduct along with his or her
degree of mental culpability in committing that conduct,”
Matter of Wu, 27 I. & N. Dec. at 11. Thus, while an
aggravating factor such as “the use of a deadly weapon” may
not alone be sufficient, the combination of such a factor with
a sufficiently culpable mental state can be enough to confirm
that an offense is categorically a crime involving moral
turpitude. Ceron, 747 F.3d at 783–84. Applying this
analysis, the BIA concluded that the combination of actus
reus and mens rea required by § 245(a)(1) reflects the sort of
SAFARYAN V. BARR 19
enhanced reprehensibility that qualifies as morally
turpitudinous. 27 I. & N. Dec. at 9.
In reaching this conclusion, the BIA expressly
“considered the issues raised by the Ninth Circuit in Ceron.”
Id. at 16. As Ceron approvingly noted, the BIA had
previously held in Matter of Medina, 15 I. & N. Dec. 611
(BIA 1976), that the combination of the use of a “deadly
weapon” and a mental state of criminal “recklessness” was
sufficient to establish that an Illinois statute criminalizing
such an aggravated assault was categorically a crime
involving moral turpitude. 747 F.3d at 784. The BIA in
Matter of Wu therefore properly framed the issue here as
whether the elements of § 245(a)(1) sufficiently differ from
those of the Illinois statute at issue in Matter of Medina to
warrant a different conclusion. 27 I. & N. Dec. at 11–15; see
also Ceron, 747 F.3d at 784 (similarly framing the issue).
The BIA correctly noted that there were two important
differences between § 245(a)(1) and the Illinois statute, and
it permissibly concluded that neither distinction warranted a
different conclusion on the ultimate question of moral
turpitude.
a
First, the BIA followed Ceron in noting that, unlike the
Illinois aggravated assault statute in Matter of Medina,
§ 245(a)(1)’s mens rea “does not require that a perpetrator
subjectively perceive the risk posed by his or her conduct.”
27 I. & N. Dec. at 12 (emphasis added) (citing Ceron,
747 F.3d at 784). Rather, § 245(a)(1) only requires that, in
addition to having the “‘general intent’” to commit the
assaultive act, the defendant “‘must be aware of the facts that
would lead a reasonable person to realize that a battery
would directly, naturally and probably result from his
conduct.’” Id. at 13 (second emphasis added) (quoting
20 SAFARYAN V. BARR
Williams, 29 P.3d at 203). Thus, although the defendant
need not be subjectively aware that a battery will occur, the
person must be subjectively aware of the facts that
objectively establish that a battery will likely result. Id. As
we explained in Ceron, under § 245(a)(1), the “offender
must commit an intentional act and must have knowledge of
the circumstances that would lead a reasonable person to
perceive the risk, but the offender’s subjective appreciation
of the risk is not required.” 747 F.3d at 784.
As the BIA correctly observed, both the California
Supreme Court and this court have squarely held that the
resulting scienter required under § 245(a)(1) is “greater than
recklessness and criminal negligence.” 27 I. & N. Dec.
at 14; see Williams, 29 P.3d at 203 (“[M]ere recklessness or
criminal negligence is still not enough, because a jury cannot
find a defendant guilty of assault based on facts he should
have known but did not know.” (citations and footnote
omitted)); Grajeda, 581 F.3d at 1195 (concluding that
§ 245(a)(1)’s mens rea is properly understood as requiring
“proof of an intentional ‘violent act’” in which “the use of
force [is] not merely accidental, as in an automobile accident
stemming from drunk or reckless driving”); see also United
States v. Jimenez-Arzate, 781 F.3d 1062, 1065 (9th Cir.
2015) (“Ceron does not clearly indicate a different
interpretation of the mens rea requirement for § 245(a)(1)
than that set forth in Grajeda.”). Because more than
negligence is required under § 245(a)(1), the BIA correctly
concluded that the California statute did not fall within the
BIA’s bright-line rule that “an assault statute prohibiting a
perpetrator from causing injury to another ‘with criminal
negligence’ does not define a crime involving moral
turpitude.” Matter of Wu, 27 I. & N. Dec. at 11 (quoting
Matter of Perez-Contreras, 20 I. & N. Dec. 615, 618–19
(BIA 1992)) (emphasis added).
SAFARYAN V. BARR 21
The BIA further held that, at least in the context of an
assault involving the use of a deadly weapon or force likely
to produce great bodily injury, the resulting mens rea is
sufficiently culpable that any difference between the
California and Illinois statutes did not warrant a different
conclusion from Matter of Medina. As the BIA explained,
“the result should be no different for a person who willfully
commits such dangerous conduct”—i.e., assault with a
deadly weapon or with force likely to produce great bodily
harm—“with knowledge of all the facts that make it
dangerous than it is for one who commits the conduct with
the knowledge that it is dangerous.” 27 I. & N. Dec. at 14.
We cannot say that the BIA’s conclusion is unreasonable.
Because the defendant’s commission of a violent act by use
of a “deadly weapon” or by use of “force likely to produce
great bodily injury,” presents an objectively obvious risk of
substantial harm, the BIA reasonably concluded that there is
no meaningful distinction between (1) someone who is
subjectively aware of the facts that create that obvious risk
versus (2) someone who is subjectively aware of that risk.
At least where the underlying conduct involves such
aggravating factors, subjective awareness of the relevant
facts coupled with an objectively unreasonable disregard of
the risk that is obviously inherent in those facts can properly
be thought to involve a significant degree of culpability. In
short, the BIA permissibly concluded that both categories of
offenders have engaged in sufficiently “‘reprehensible
conduct’” with a sufficiently “‘culpable mental state.’” Silva
v. Barr, 965 F.3d 724, 731 (9th Cir. 2020) (citation omitted).
Safaryan urges us to reject Matter of Wu on the grounds
that, in the absence of a specific “intent to harm or injure,”
an assault offense cannot be one that involves moral
turpitude. In support of this contention, Safaryan relies on
Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010), in which we
22 SAFARYAN V. BARR
held that a particular Canadian aggravated assault offense
did not qualify as a crime involving moral turpitude. But
contrary to what Safaryan contends, Uppal did not hold that
specific intent is a minimum prerequisite for finding that a
particular assault offense involves moral turpitude. Uppal
instead noted that the Canadian offense’s mens rea combined
“the base-level mens rea required for simple assault” with an
additional element that we concluded amounted to “a
negligence standard.” 605 F.3d at 716 (emphasis added). In
addition, the Canadian offense lacked the sort of
“aggravating dimensions” that had been “recognized as
sufficiently increasing the culpability of an assault,” such as
“the use of a deadly weapon.” Id. at 717 (citing Matter of
Medina, 15 I. & N. Dec. 611). Neither of these observations
applies to § 245(a)(1). Moreover, nothing in Uppal supports
Safaryan’s view that, in rejecting a negligence standard as
inadequate, we thereby established a minimum mens rea of
specific intent. Indeed, Safaryan’s view cannot be squared
with our favorable citation of Matter of Medina in both
Uppal and Ceron. See Uppal, 605 F.3d at 717; Ceron,
747 F.3d at 784. As we explained in Ceron, the Illinois
assault-with-a-deadly-weapon statute at issue in Matter of
Medina “permitted a conviction with only a ‘recklessness’
mental state.” 747 F.3d at 784; see also Leal v. Holder,
771 F.3d 1140, 1148 (9th Cir. 2014) (explaining that, under
Uppal, recklessness is an adequate mens rea for assault if
combined with additional aggravating factors).
b
Second, Matter of Wu noted that the prior version of
§ 245(a)(1) differed from the Illinois statute at issue in
Matter of Medina in that the former applied, not just to an
assault with a deadly weapon, but also to an assault with
force likely to produce great bodily injury. 27 I. & N. Dec.
SAFARYAN V. BARR 23
at 11–12. The BIA concluded that this distinction did not
warrant a different conclusion either, because both specified
methods for carrying out an assault “involve[d] an
aggravating factor that renders such an offense
reprehensible.” Id. at 15. We conclude that the BIA’s
analysis on this score is likewise reasonable.
As the BIA explained, the reason why the “use of a
deadly or dangerous weapon or instrument” has been treated
as a significant aggravating factor in assessing moral
turpitude is that it “magnifies the danger posed by the
perpetrator and demonstrates his or her heightened
propensity for violence and indifference to human life.”
Matter of Wu, 27 I. & N. Dec. at 11; see also Altayar,
947 F.3d at 552 (an assault with a deadly weapon, or with a
dangerous instrument “‘readily capable of causing death or
serious physical injury,’ necessarily makes the offense more
serious, more dangerous, and therefore more blameworthy
than a simple assault” (citation omitted)). That same
rationale applies to the use of force likely to produce great
bodily injury, which is likewise “more serious, more
dangerous, and therefore more blameworthy than a simple
assault.” Altayar, 947 F.3d at 552. Indeed, as the BIA
correctly noted, § 245(a)(1) requires a finding that the
defendant’s conduct “had the capability and probability of
inflicting great bodily injury under either a ‘deadly weapon’
theory or a ‘force likely’ theory.” Matter of Wu, 27 I. & N.
Dec. at 15 (quoting Aguilar, 945 P.2d at 1213 (emphasis
added)); see also Aguilar, 945 P.2d at 1212 (noting this
“fundamental identity of the concepts of assault with a
deadly weapon and assault by means of force likely to
produce great bodily injury”). The BIA thus reasonably
concluded that either aggravator is sufficient to establish
moral turpitude, at least where (as in § 245(a)(1)) the
offender acts “while being aware of the facts that make it
24 SAFARYAN V. BARR
likely that such conduct will cause, at a minimum, great
bodily injury to another person.” Matter of Wu, 27 I. & N.
Dec. at 15.
* * *
Because the BIA’s decision in Matter of Wu correctly
framed the legal issues and reached a reasonable conclusion
in addressing the issues we identified in Ceron, we conclude
that the decision is entitled to Chevron deference. We
therefore hold that the BIA correctly determined that
Safaryan’s conviction under § 245(a)(1) was for a crime
involving moral turpitude and that he was therefore
inadmissible under the INA.
III
Safaryan also contends that, even if his conviction
renders him inadmissible, the BIA erred in upholding the IJ’s
denial of a waiver of inadmissibility under § 212(h) of the
INA, 8 U.S.C. § 1182(h). In denying a waiver, the IJ held
that, because Safaryan’s conviction under § 245(a)(1)
constituted a “violent or dangerous crime[],” he had to
“clearly demonstrate[]” that denial of a waiver would result
in “exceptional and extremely unusual hardship,” 8 C.F.R.
§ 1212.7(d), and that Safaryan failed to show such hardship.
The BIA upheld both aspects of the IJ’s reasoning and
affirmed the denial of a waiver. Although Safaryan
challenges these rulings in this court, we lack jurisdiction to
consider them.
Section 242(a)(2)(B)(i) of the INA eliminates our
jurisdiction to review discretionary decisions concerning
cancellation of removal “unless the petition raises a
cognizable legal or constitutional question concerning that
determination.” Fernandez v. Gonzales, 439 F.3d 592, 596
SAFARYAN V. BARR 25
(9th Cir. 2006) (citing 8 U.S.C. § 1252(a)(2)(B)(i)).
Safaryan asserts that this exception applies because he
“claims violation of his due process rights.” But beyond that
unadorned statement, Safaryan never alleges, much less
substantiates, any specific due process violation in his
appellate brief, and we may not “‘manufacture’” an
argument for him. Independent Towers of Wash. v.
Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoting
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)).
Rather, his brief only challenges (1) the agency’s conclusion
that § 245(a)(1) is a violent crime that, under 8 C.F.R.
§ 1212.7(d), required him to carry a heavier burden to obtain
a waiver; and (2) the agency’s weighing of the circumstances
in determining that the heightened standard was not met.
But we have expressly held that the jurisdictional bar of
§ 242(a)(2)(B)(i) extends to “the BIA’s discretionary
decision to view [an alien’s] crime as a violent or dangerous
one,” Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152–53
(9th Cir. 2015), and we similarly lack jurisdiction to review
the agency’s discretionary weighing of the equities in
Safaryan’s case, see Fernandez, 439 F.3d at 596.
Accordingly, we DENY Safaryan’s petition for review.