Uppal v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASPAL SINGH UPPAL, 
Petitioner, No. 07-72614
v.
 Agency No.
A076-841-745
ERIC H. HOLDER, Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 10, 2009—San Francisco, California
Filed August 11, 2009
Before: David R. Thompson, Marsha S. Berzon and
N. Randy Smith, Circuit Judges.
Opinion by Judge Thompson;
Partial Concurrence and Partial Dissent by Judge Berzon
10849
10852 UPPAL v. HOLDER
COUNSEL
Martin Avila Robles, San Francisco, California, for the peti-
tioner.
Tiffany Walters Kleinert, Assistant United States Attorney
General, Washington, D.C., for the respondent.
OPINION
THOMPSON, Senior Circuit Judge:
OVERVIEW
Jaspal Singh Uppal, a native and citizen of India, petitions
for review of the Board of Immigration Appeal’s (BIA) order
dismissing his appeal. Uppal contends the BIA erred in con-
cluding that he had committed a crime which categorically
involved moral turpitude, thus rendering him inadmissible at
UPPAL v. HOLDER 10853
the time of his adjustment of status, and subject to removal.
Uppal also claims he was denied due process of law, and con-
tends the BIA abused its discretion in handling his appeal.
The petition for review is DENIED.
BACKGROUND
Jaspal Singh Uppal, a native and citizen of India, entered
the United States illegally around February 1, 1997, near
Blaine, Washington. On July 31, 1998, he was granted asy-
lum. On February 4, 2004, he was accorded status as a perma-
nent resident.
On April 11, 2006, the Department of Homeland Security
(“DHS”) issued Uppal a Notice to Appear. The Notice
charged Uppal as removable under 8 U.S.C. § 1227(a)(1)(A).
DHS alleged Uppal was inadmissible at the time of his entry
and/ or adjustment of status on two grounds: 1) he had been
convicted of a crime involving moral turpitude, and 2) he
attempted to obtain immigration benefits through fraud or
misrepresentation of a material fact. 8 U.S.C.
§ 1182(a)(2)(A)(i)(I); 8 U.S.C. § 1182(a)(6)(C)(i).
The Notice alleged that on February 21, 1995, Uppal was
convicted of aggravated assault in violation of § 268(2) of the
Criminal Code of Canada. As a result, Uppal was allegedly
deported from Canada to India. In his application for asylum,
Uppal made no mention of this conviction or his status as a
Canadian permanent resident.
Uppal filed a formal motion to terminate the removal pro-
ceedings. On January 9, 2007, without holding an evidentiary
hearing, the IJ issued a final order denying Uppal’s motion.
The IJ held that, as a matter of law, Uppal’s conviction under
§ 268 of the Criminal Code of Canada (on occasion hereafter
“§ 268”) constituted a categorical crime involving moral tur-
pitude (“CIMT”). The IJ also concluded that Uppal had com-
mitted immigration fraud by concealing both the conviction
10854 UPPAL v. HOLDER
and his status as a Canadian permanent resident from U.S.
immigration officials.
Uppal timely appealed the IJ’s order to the BIA. In a one-
panel-member unpublished decision, the BIA affirmed the
IJ’s order. The BIA undertook a de novo review of the moral
turpitude issue, and concluded that the IJ was correct in con-
cluding that a § 268 offense constituted a categorical crime
involving moral turpitude which rendered Uppal inadmissible
at the time of his adjustment of status. In light of this, the BIA
found him removable and declined to reach the immigration
fraud issue.
Uppal then timely filed this petition for review. The gov-
ernment moved for summary denial of the petition; we denied
the motion.
JURISDICTION
We have jurisdiction to review this final order of removal
under 8 U.S.C. § 1252(a)(1). Though our jurisdiction to
review orders of removal against “criminal aliens” is limited
by 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review
constitutional challenges and questions of law. 8 U.S.C.
§ 1252(a)(2)(C) and (D). Whether a crime involves moral tur-
pitude is a question of law which is not subject to the
jurisdiction-stripping provision of § 1252(a)(2)(C). Nicanor-
Romero v. Mukasey, 523 F.3d 992, 996 (9th Cir. 2008), over-
ruled on other grounds by Marmolejo-Campos v. Holder, 558
F.3d 903 (9th Cir. 2009).
DISCUSSION
I. Does Uppal’s conviction under § 268 of the Criminal
Code of Canada constitute a “crime involving moral
turpitude”?
To determine whether a petitioner’s conviction constitutes
a crime involving moral turpitude, the BIA looks first to the
UPPAL v. HOLDER 10855
statute itself, and applies the “categorical” inquiry adopted by
the Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007). Matter of Cristoval Silva-Trevino, 24 I. & N.
Dec. 687, 696 (A.G. 2008); see also Marmolejo-Campos, 558
F.3d at 912. This inquiry requires “categorical comparison of
the elements of the statute of conviction to the generic defini-
tion of moral turpitude.” Nicanor-Romero, 523 F.3d at 999(internal quotation marks and citation omitted). If there is a
“realistic probability, not a theoretical possibility” that § 268
would be applied to conduct that falls outside the generic defi-
nition of a crime involving moral turpitude, then the offense
is not a categorical crime involving moral turpitude. Silva-
Trevino, 24 I. & N. Dec. at 697-98.
Here, in a one-panel-member unpublished decision, the
BIA held that Uppal’s offense under § 268 of the Criminal
Code of Canada constituted a categorical crime involving
moral turpitude. We review the BIA’s interpretation of the
elements of § 268 de novo. Marmolejo-Campos, 558 F.3d at
907. The BIA “has no special expertise” or “special adminis-
trative competence to interpret the petitioner’s statute of con-
viction,” thus we owe no deference to the BIA on this issue.
Id.By contrast, when the BIA determines whether a specific
offense constitutes a CIMT, “it assesses the character, gravity,
and moral significance of the conduct, drawing upon its
expertise as the single body charged with adjudicating all fed-
eral immigration cases.” Marmolejo-Campos, 558 F.3d at
910. This is “precisely the type of agency action” entitled to
deference under Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) and Skidmore v
Swift & Co., 323 U.S. 134 (1944). Id.Thus, our review of the BIA’s determination that § 268
constitutes a CIMT is “governed by the same traditional prin-
ciples of administrative deference we apply to the BIA’s
interpretation of other ambiguous terms in the INA.” Id. at
10856 UPPAL v. HOLDER
911. Because the BIA’s unpublished decision does not bind
future parties, or rely on any published BIA decision inter-
preting § 268, we accord Skidmore deference to the BIA’s
determination that § 268 constitutes a categorical CIMT. Id.
A. Elements of § 268
[1] With this framework in mind, we turn to our de novo
review of the elements of § 268. A person commits “aggra-
vated assault” under § 268 of the Canada Criminal Code if he
“wounds, maims, disfigures, or endangers the life of” another.
Canada Criminal Code, R.S.C., ch. C-46 § 268(1) (1985).
Uppal contends that § 268 encompasses negligent and unin-
tentional conduct, and thus cannot qualify as a categorical
crime involving moral turpitude.
[2] To discern § 268’s mens rea requirement, we must read
§ 268 together with § 265, which establishes a base-level
mens rea requirement for all assault offenses under the Crimi-
nal Code of Canada:
A person commits an assault when
(a) without the consent of another person, he applies
force intentionally to that other person, directly or
indirectly;
(b) he attempts or threatens, by an act or a gesture,
to apply force to another person, if he has, or causes
that other person to believe on reasonable grounds
that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an
imitation thereof, he accosts or impedes another per-
son or begs.
Canada Criminal Code, R.S.C., ch. C-46 § 265(1)-(2) (1985);
R. v. Currier, [1998] 2 S.C.R. 371, ¶¶ 94-95. Read together,
UPPAL v. HOLDER 10857
§§ 265 and 268 establish that “[t]he mens rea for aggravated
assault is the mens rea for assault (intent to apply force inten-
tionally or recklessly or being willfully blind to the fact that
the victim does not consent) plus objective foresight of the
risk of bodily harm[.]” R. v. Williams, [2003] 2 S.C.R. 134,
¶ 22. Thus, we agree with the BIA that an offense under § 268
“cannot be committed negligently or carelessly.”
[3] We also agree with the BIA’s conclusion that § 268’s
actus reus requires “inflict[ion] of significant injury.” Section
268 only applies to acts which either “endanger[ ]” the life of
the victim, or “wound[ ], maim[ ], or disfigure[ ]” the victim,
as the BIA correctly stated. Section 268(1). Contrary to the
dissent’s suggestion, the BIA never concluded that all acts
falling within § 268 require proof of physical harm. Rather,
the BIA stated that the statute requires “willfulness of action
which inflicts significant injury.” Taken in context, this state-
ment expresses the Board’s conclusion that § 268’s actus reus
“involves some aggravating dimension that significantly
increases the culpability of the offense.” The Board explicitly
recognized that the actus reus requires either “wounding,
maiming, disfiguring or endangering the life of the victim.”
(emphasis added)
[4] Though the dissent may disagree with the Board’s ulti-
mate conclusion that § 268 contains aggravating dimensions
which significantly increase the culpability of the offense as
compared to a simple assault or battery charge, it is clear that
the Board correctly identified and interpreted § 268’s statu-
tory elements.
B. The BIA’s Decision
Next, we turn to the BIA’s decision. The BIA concluded
that Uppal’s offense “plainly qualifies” as a CIMT. As dis-
cussed above, this determination is entitled to Skidmore defer-
ence. Marmolejo-Campos, 558 F.3d at 911. The measure of
deference due to the BIA’s decision under Skidmore varies
10858 UPPAL v. HOLDER
“depend[ing] upon the thoroughness evident in its consider-
ation, the validity of its reasoning, its consistency with earlier
and later pronouncements, and all those factors which give it
the power to persuade, if lacking power to control.” Skidmore,
323 U.S. at 140.
Consistent with both BIA and our own precedent, the
Board undertook a de novo review of the IJ’s decision, and
correctly applied the categorical analysis set forth in Duenas-
Alvarez by comparing the statutory elements of Uppal’s
offense against a general definition of moral turpitude derived
from BIA case law.1 See, e.g., Silva-Trevino, 24 I. & N. Dec.
at 696.
[5] To determine whether § 268 was morally turpitudinous,
the BIA examined the statute’s mens rea and actus reus. Pre-
vious BIA and Ninth Circuit decisions identify these two ele-
ments as important factors to be considered when evaluating
whether a crime rises to the level of a morally turpitudinous
offense. In re Solon, 24 I. & N. Dec. 239, 242 (BIA 2007)
(“[I]n the context of assault crimes, a finding of moral turpi-
tude involves an assessment of both the state of mind and the
level of harm required to complete the offense.”); see also
Nicanor-Romero, 523 F.3d at 998 (identifying the mens rea
and actus reus as “important factors”). Neither element, taken
alone, is outcome determinative; rather, it is the combination
of the two that determines whether a crime involves moral
turpitude. Solon, 24 I. & N. Dec. at 242; see also Grageda v.
INS, 12 F.3d 919, 922 (9th Cir. 1993) (“[I]t is the combination
of the base or depraved act and the willfulness of the action
that makes the crime one of moral turpitude.”) (emphasis
added).
1
As we noted in Marmolejo-Campos, to date, the Board’s definition of
“moral turpitude” has been so vague and generalized as to render Chevron
deference meaningless. Marmolejo-Campos, 558 F.3d at 910. Accord-
ingly, we have relied on our own definition of the term. Id. The two defi-
nitions do not “differ materially,” id., and any difference is irrelevant to
the present case.
UPPAL v. HOLDER 10859
Neither the Attorney General nor the BIA has specified
what degree of scienter is generally required for a CIMT.
Marmolejo-Campos, 558 F.3d at 924 (J. Berzon, dissenting).
The BIA has, however, articulated a more specific standard to
be applied in assault cases, a “sliding scale” that measures
both the statute’s mens rea and the harm inflicted:
[I]ntentional 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. More-
over, where no conscious behavior is required, there
can be no finding of moral turpitude, regardless of
the resulting harm.
Solon, 24 I. & N. Dec. at 242. This sliding scale provides a
workable and logical standard by which assault offenses can
be measured on a case-by-case basis.
Section 268 may only be applied to intentional conduct
which “wounds, maims, disfigures, or endangers the life of”
another. Section 268(1). Measured against Solon’s sliding
scale, § 268 may be considered morally turpitudinous because
it requires “intentional conduct” that results in a “meaningful
level of harm.” Solon, 24 I. & N. Dec. at 242. Accordingly,
the BIA’s decision is consistent with prior BIA precedent on
point.
Though the BIA has at times found that assault offenses
arising out of reckless conduct are crimes involving moral tur-
pitude, we have held that only assault offenses arising from
intentional acts may be termed morally turpitudinous. Com-
pare Matter of Wojtkow, 18 I. & N. Dec. 111 (BIA 1981), and
Matter of Medina, 15 I. & N. Dec. 611 (BIA 1976), with
Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th
10860 UPPAL v. HOLDER
Cir. 2006). While it is difficult to draw generalizations about
moral turpitude case law, we have also tended to recognize
assault crimes as morally turpitudinous where the statutes
have required proof of harm. See, e.g., Fernandez-Ruiz, 468
F.3d at 1167 (holding that an assault statute which “con-
tain[ed] absolutely no element of injury whatsoever” was not
a categorical crime involving moral turpitude); Galeana-
Mendoza v. Gonzales, 465 F.3d 1054, 1060 (9th Cir. 2006);
Guerro de Nodhal v. Immigration and Naturalization Service,
407 F.2d 1405, 1406-07 (9th Cir. 1969) (holding that a statute
requiring “cruel and inhuman corporal punishment or injury
resulting in a traumatic condition” was a categorical CIMT);
Grageda, 12 F.3d at 921 (holding that a statute requiring “cor-
poral injury resulting in a traumatic condition” was a categori-
cal CIMT).
[6] Section 268 requires an intent to take an action which,
viewed objectively, subjects another person to the risk of bod-
ily harm. Williams, 2 S.C.R. at ¶ 22. The statute also requires
harm in fact: to convict an offender under § 268, the Crown
must show that the victim has either been “wound[ed], maim-
[ed], [or] disfigur[ed],” or that her life was “endanger[ed].”
Section 268(1). Thus, the BIA’s determination that § 268 con-
stitutes a crime involving moral turpitude is also consistent
with our moral turpitude case law.
Uppal nonetheless contends that since § 268 only requires
the intent to act, not the intent to harm, offenses under this
section lack the necessary evil or malicious intent required of
crimes of moral turpitude. Yet the BIA has recognized that
aggravated assault may involve moral turpitude even in the
absence of an “explicit element of evil intent.” In re Lopez-
Meza, 22 I. & N. Dec. 1188, 1193 (BIA 1999). We have also
questioned the value of the oft-cited “evil intent” requirement:
If the crime is a serious one, the deliberate decision
to commit it can certainly be regarded as the mani-
festation of an evil intent. Conversely, if the crime is
UPPAL v. HOLDER 10861
trivial, even a deliberate intent to commit it will not
demonstrate an intent so ‘evil’ as to make the crime
one of moral turpitude.
Galeana-Mendoza, 465 F.3d at 1061 (quoting Mei v. Asch-
croft, 393 F.3d 737, 741 (7th Cir. 2004)). Intentional conduct
can be morally turpitudinous if accompanied by a “meaning-
ful level of harm,” regardless of whether the assault statute
contains a general or a specific intent requirement. Solon, 24
I. & N. Dec. at 242.
Nor does our decision in Grageda require a different result,
as Uppal argues. In Grageda, we held that offenses under
§ 273.5 of the California Penal Code (“CPC”) constituted cat-
egorical crimes involving moral turpitude, because “the injuri-
ous act under [the statute] must be willful, meaning that the
person intended to cause harm.” Grageda, 12 F.3d at 922.
Yet, as we later pointed out in Galeana-Mendoza, in Grageda
we may have mischaracterized the California statute’s mens
rea requirement. Galeana-Mendoza, 465 F.3d at 1060 n.10.
California courts have interpreted CPC § 273.5 to require
“only the mens rea of intending to do the assaultive act,” not
the specific intent to harm. Id. It appears, then, that CPC
§ 273.5’s mens rea requirement is very similar to the mens rea
of the statute at issue here: both require an intent to act, but
not an intent to harm. In fact, § 268’s mens rea requirement
is slightly more robust, since it also requires the objective
foresight of bodily harm.
[7] While some element of intent is a prerequisite to finding
a crime involving moral turpitude, an intent to harm, per se,
is not necessarily required. Solon, 24 I. & N. Dec. at 242. Sec-
tion 268 requires an intent to take an action which, objectively
viewed, would endanger another’s life or result in serious
bodily injury. The deliberate intent to take an action with such
grave consequences “can certainly be regarded as the mani-
festation of an evil intent.” Galeana-Mendoza, 465 F.3d at
1061. The fact that the statute does not require a subjective
10862 UPPAL v. HOLDER
intent to harm does not preclude a § 268 offense from qualify-
ing as a categorical CIMT.
[8] Nor does the possibility that a § 268 offense may not
result in actual physical harm to the victim preclude the
offense from qualifying as a categorical CIMT, as the dissent
argues. An offense which places a victim in mortal danger is
still more analogous to the statutes at issue in Grageda and
Guerro de Nodhal than to those in Fernandez-Ruiz and
Galeana-Mendoza. Measured on the Solon sliding scale, the
harm caused by an intentional act which endangers the life of
another is serious enough to render § 268 a categorical CIMT.
Solon, 24 I. & N. Dec. at 242 (holding that “intentional con-
duct” that results in a “meaningful level of harm” is a CIMT).
Perhaps the grave nature of offenses falling under § 268 is
best illustrated by the cases themselves. The dissent mis-
takenly suggests that the term “wounds” in § 268 could
encompass minor injuries, such as a “finger cut requiring only
a band-aid.” We disagree. To interpret the term “wounds,” the
court should look to the Canadian court decisions applying
the statute. See, e.g., Nicanor-Romero, 523 F.3d at 1000(examining California case law to determine what conduct
satisfied the actus reus requirement of § 647.6(a)); Galeana-
Mendoza, 465 F.3d at 1054 (“[I]n determining the categorical
reach of a state crime, we consider not only the language of
the state statute, but also the interpretation of that language in
judicial opinions.”) (quoting Ortega-Mendez v. Gonzales, 450
F.3d 1010, 1016 (9th Cir. 2006)).
The dissent’s contention that § 268 encompasses trivial
injuries is graphically contradicted by the decisions interpret-
ing and applying the statute. In one case, the offender shook
her 31-day-old son so vigorously that he suffered subdural
hematomas and a fractured ankle and knee. R. v. McCauley,
[2007] 2007 CarswellOnt 2551. In another, an 18-year old
shot a 12-year old boy, causing serious injury. R. v. Boachie,
[2007] 2007 CarswellOnt 6897. In yet another, a man stabbed
UPPAL v. HOLDER 10863
his co-worker repeatedly in the face and the head, ceasing
only when another co-worker intervened, and broke a chair
over his back. R. v. Sultan, [2007] 2007 CarswellBC 1351.
The dissent has not cited a single case in which § 268’s actus
reus requirement was satisfied by conduct which did not
involve this sort of grievous bodily harm.
[9] Finally, we reject the dissent’s contention that § 268
cannot qualify as a categorical CIMT absent some additional
aggravating factor, such as a trust relationship between the
perpetrator and the victim. The BIA specifically found that
§ 268 “involved some aggravating dimension that signifi-
cantly increase[d] the culpability of the offense” — namely,
the “wounding, maiming, disfiguring or endangering the life
of the victim.” The BIA concluded that this enhanced actus
reus distinguished § 268 from simple assault and battery
offenses. As discussed extensively above, the BIA’s conclu-
sion is consistent with its prior precedent, and with our own
case law. Furthermore, the BIA’s decision is thorough, well-
reasoned and persuasive. Accordingly, under Skidmore, we
defer to the BIA’s determination that an offense under § 268
constitutes a categorical crime involving moral turpitude.
II. Did the IJ violate Uppal’s due process rights and the
Immigration and Nationality Act in issuing a final
order of removal against Uppal without holding a
scheduled contested hearing on the merits?
Uppal contends the IJ denied him due process of law by
issuing a final order of removal against him without first hold-
ing an evidentiary hearing to address the contested issues
raised in his motion to terminate. Specifically, Uppal contends
that he was prejudiced by the inability to challenge the
authentication of his Canadian record of conviction, and the
evidence pertaining to the charge of fraud and misrepresenta-
tion.
We review de novo claims of due process violations in
removal proceedings. Burgos-Abril v. INS, 58 F.3d 475, 476
10864 UPPAL v. HOLDER
(9th Cir. 1995). Under 8 U.S.C. § 1229a, an alien is afforded
certain rights, including “the reasonable opportunity to exam-
ine the evidence against [him], to present evidence on [his]
own behalf, and to cross-examine witnesses presented by the
Government[.]” 8 U.S.C. § 1229a(b)(4)(B). “In general, how-
ever, an alien ‘has been denied a full and fair hearing which
due process provides only if the thing complained of causes
the alien to suffer some prejudice.’ ” Burgos-Abril, 58 F.3d at
476 (quoting Nicholas v. INS, 590 F.2d 802, 809 (9th Cir.
1979)). To show prejudice, the alien must show the alleged
violation potentially affected the outcome of the proceedings.
Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002).
A. Canadian Record of Conviction
[10] Uppal contends that the documents concerning his
§ 268 conviction were not properly authenticated under 8
C.F.R. § 287.6(d), which states that official records issued by
a Canadian government entity must be “evidenced by a certi-
fied copy of the original record attested by the official having
legal custody of the record or by an authorized deputy.” We
have held that § 287.6 “provides one, but not the exclusive,
method for establishing a sufficient basis for admission of a
[document] in a [removal] proceeding.” Iran v. INS, 656 F.2d
469, 472 n.8 (9th Cir. 1981). Nevertheless, the method of
authentication used “must, at a minimum, satisfy due pro-
cess,” id. at 472, and Uppal contends that his due process
rights were denied here.
Uppal has never disputed the fact of his conviction; nor has
he ever contended that the documents contain false or errone-
ous information. He simply argues that the documents were
not authenticated in accordance with the requirements of
§ 287.6(d), that he was denied an opportunity to cross-
examine government witnesses about the documents, and that
these errors constitute a due process violation.
[11] We disagree. Assuming Uppal is correct that the Cana-
dian records were improperly certified and that he should
UPPAL v. HOLDER 10865
have been given the opportunity to cross-examine government
witnesses relevant to those documents, Uppal’s due process
argument fails because he has not shown that he was preju-
diced by the asserted errors. On the contrary, Uppal concedes
that “[i]t is undoubtedly true that the IJ would have rendered
the same decision, finding the Petitioner removable as
charged,” if the IJ had held a hearing on the disputed docu-
ments and allowed Uppal the chance to cross-examine the
government’s witnesses before deciding whether to admit
them. Because Uppal has not made any argument that his pro-
ceeding might have gone differently had he been able to
cross-examine the government’s witnesses, see Cano-Merida,
311 F.3d at 965, we deny his due process challenge on this
point.
B. Other Evidence of Immigration Fraud
Next, Uppal contends he was denied due process of law
because he was denied the opportunity to challenge the gov-
ernment’s evidence concerning the purported immigration
fraud. The IJ found Uppal removable on two alternate
grounds: 1) for a conviction of a crime involving moral turpi-
tude, and 2) for committing immigration fraud. The BIA con-
ducted a de novo review of the moral turpitude issue, and
found that Uppal was indeed removable on this ground. The
BIA specifically declined to express an opinion on the charge
of immigration fraud.
[12] Our review “is limited to the BIA’s decision.”
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).
Because the BIA refused to affirm the IJ’s findings on the
immigration fraud issue, and did not rely on any evidence
concerning the purported fraud in upholding the order of
removal against Uppal, Uppal did not suffer any prejudice by
the denial of the opportunity to challenge the government’s
evidence of the alleged fraud.
In sum, Uppal has failed to demonstrate that he was preju-
diced by either of the alleged due process violations.
10866 UPPAL v. HOLDER
III. Did the BIA abuse its discretion in failing to address
Uppal’s request for a remand?
[13] Finally, Uppal contends that the BIA abused its discre-
tion by failing to address his motion to remand the proceed-
ings to the IJ. He argues that because he styled his appellate
brief as a “Brief In Support of Appeal From Decision of
Immigration Judge/Motion To Remand,” the BIA erred by
failing to specifically rule on his request for remand.
Uppal’s claim is frivolous. He admits that the substance of
his motion was synonymous with that of his appeal: in his
motion, he argued that the IJ erred in determining that a § 268
offense was a categorical crime involving moral turpitude,
and asked for remand for further review of the removability
issue. Precisely the same issue and remedy were at stake in
the appeal itself. The BIA thoroughly addressed this issue,
and provided a clear ruling. In support of his claim, Uppal
cites Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.
2005), which holds that the BIA must provide a reasoned
basis for its decision, in order to facilitate this court’s review
of the issue. The BIA has satisfied this standard.
Uppal’s claim that the BIA failed to rule on or address his
motion for remand borders on disingenuous. While the BIA
did not deny his motion for remand in any particular words,
the order thoroughly addressed the moral turpitude issue, pro-
vided a reasoned analysis rejecting Uppal’s claim, and dis-
missed his appeal. Accordingly, there was no abuse of
discretion.
The petition for review is DENIED.
BERZON, Circuit Judge, concurring in part and dissenting in
part:
I cannot agree with Part I of the majority opinion, in which
the majority defers to the BIA’s holding that a violation of
UPPAL v. HOLDER 10867
Canada Criminal Code § 268 is categorically a crime involv-
ing moral turpitude (CIMT). I would conclude that it is not
and remand to the agency to decide whether, under the modi-
fied categorical approach, Uppal’s conviction qualifies as a
CIMT. I therefore dissent from the majority’s holding to the
contrary.
As we recently explained in Marmolejo-Campos v. Holder,
558 F.3d 903, 907 (9th Cir. 2009) (en banc), the determina-
tion that a conviction under a criminal statute is categorically
a CIMT involves two steps, to which different standards of
review apply. First, the BIA must identify the elements of the
statute necessary to secure a conviction. Because “[t]he BIA
has no special expertise by virtue of its statutory responsibili-
ties in construing state or federal criminal statutes,” we review
its conclusion in that regard de novo. Id. at 907. Second, once
it identifies the elements of the statute, the BIA must compare
those elements to the generic definition of a crime involving
moral turpitude and decide whether they meet the definition.
Id. at 908; see also Morales-Garcia v. Holder, 567 F.3d 1058,
1064 (9th Cir. 2009). Because the BIA does have expertise in
making this determination, we defer to its conclusion if war-
ranted, following the Chevron framework if the decision is a
published decision (or an unpublished decision directly con-
trolled by a published decision interpreting the same statute),
and following the Skidmore framework if the decision is
unpublished (and not directly controlled by any published
decision interpreting the same statute). See Marmolejo-
Campos, 558 F.3d at 909-11; see also Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); Skid-
more v. Swift & Co., 323 U.S. 134, 140 (1944).
1. The BIA incorrectly identified the elements of § 268
I turn to the first step of the inquiry: identifying the ele-
ments of Canada Criminal Code § 268 (aggravated assault).
As the majority notes, the mens rea required for a conviction
under § 268 is the same as the mens rea required for simple
10868 UPPAL v. HOLDER
assault: (1) The force must be intentionally applied; and (2)
the force must be applied without the victim’s consent, with
the perpetrator “intentionally or recklessly [disregarding the
lack of consent] or being wil[l]fully blind to the fact that the
victim does not consent.” R. v. Williams, [2003] 2 S.C.R. 134,
¶ 22 (Can.). In addition to the mens rea requirement, a convic-
tion for aggravated assault requires that the “risk of bodily
harm” resulting from the application of force must be “objec-
tive[ly] fores[eeable.]” Id. Finally, to establish aggravated
assault, the application of force must actually result in
“wound[ing], maim[ing], disfigur[ing], or endanger[ing] the
life of” the victim. Can. Crim. Code, R.S.C., ch. C-46, s. 268
(1985).
The majority, quoting this statutory language, jumps to the
conclusion that “§ 268’s actus reus requires ‘infliction of sig-
nificant injury.’ ” Maj. Op. at 10857 (emphasis added and
brackets omitted). Not so. The statute requires either signifi-
cant injury or the “endanger[ment] of the life of” the victim,
and so can be satisfied even if no actual injury occurs.
Were this fact not clear from the language of the statute
itself, Canadian case law interpreting § 268 leaves no doubt.
As the Canadian Supreme Court explained: “There is no pre-
requisite that any harm must actually have resulted. This first
requirement of § 268(1) is satisfied by the significant risk to
the li[fe] of the [victim] occasioned by the [application of
force].” R. v. Cuerrier, [1998] 2 S.C.R. 371, ¶ 95 (Can.).
Although it is difficult to tell for sure from the BIA’s terse
analysis whether the BIA correctly identified the elements of
§ 268, the only reasonable conclusion is that it did not. The
BIA’s decision quotes the statute’s actus reus language —
“wound[ing], maim[ing], disfigur[ing], or endanger[ing] the
life of the complainant” — correctly, but it then goes on to
paraphrase the statute as requiring “willfulness of the action
which inflicts the serious injury” (emphasis added), suggest-
ing that it has overlooked the endangerment alternative. I
UPPAL v. HOLDER 10869
therefore conclude that the BIA misapprehended the elements
required for a conviction under § 268. Because the BIA failed
to identify the elements of § 268 correctly, its CIMT analysis
— in which it compares the elements it has identified to the
generic definition of moral turpitude — is misdirected and so
merits no deference from this Court. See Morales-Garcia, 567
F.3d at 1066 n.4. Given the BIA’s error, we should remand
to the BIA to consider whether, on a proper understanding of
the elements of the crime, a Canadian aggravated assault con-
viction is categorically a CIMT.
2. The BIA’s reasoning does not merit deference
There is a second problem with the majority’s CIMT rul-
ing: Even if the BIA had correctly identified the elements of
§ 268, I would conclude that the second step of its CIMT
analysis does not warrant deference, because it is neither thor-
oughly reasoned nor consistent with prior BIA or Ninth Cir-
cuit case law. See Skidmore, 323 U.S. at 140 (explaining that
the measure of deference afforded to the agency varies “de-
pend[ing] upon the thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and
later pronouncements, and all those factors which give it
power to persuade, if lacking power to control”). In addition,
there is a head-on conflict between the majority’s analysis and
this Court’s recent decision in Morales-Garcia v. Holder, 567
F.3d 1058, as well as a general conflict with the BIA’s own
case law.
As the majority correctly notes, a conviction for aggravated
assault under § 268 does not require that the perpetrator spe-
cifically intended to inflict serious physical injury or intended
to inflict any injury at all. See R. v. Godin, [1994] 2 S.C.R.
484, ¶ 2 (Can.) (“It is not necessary that there be an intent to
wound or maim or disfigure. The section pertains to an assault
that has the consequences of wounding, maiming or disfigur-
ing.” (emphasis added)); R. v. L., [1992] 59 O.A.C. 130, ¶¶ 8-
10 (Ont. Ct. App.) (“[T]he essential intent required for an
10870 UPPAL v. HOLDER
assault . . . remains the same for all forms of assault, including
aggravated assault. Parliament . . . never intended that, on an
indictment charging ‘aggravated assault,’ the prosecution
would be required to prove that the accused intended to
wound, maim or disfigure the complainant or endanger his
life. . . . Aggravated assault is . . . a crime of general intent.”
(internal quotation marks and citations omitted)) (interpreting
the former § 245.2, which is identical to the current § 268).
It is settled law that simple assault and battery convictions
are not categorically CIMT convictions. That is so because
the required mens rea for simple assault or battery is usually
the intent to touch another offensively — not exactly what
one would call an “evil” intent, which is typically required for
a CIMT.1
1
See Matter of Solon, 24 I. & N. Dec. 239, 241 (BIA 2007) (“Offenses
characterized as ‘simple assaults’ are generally not considered to be
crimes involving moral turpitude. This is so because they require general
intent only and may be committed without the evil intent, depraved or
vicious motive, or corrupt mind associated with moral turpitude.” (internal
citation omitted)); Matter of B-, 5 I. & N. Dec. 538, 540-41 (BIA 1953)
(holding a simple assault committed “knowingly” upon a prison guard
involved no evil intent and so was not a CIMT); Matter of Fualaau, 21
I. & N. Dec. 475, 477 (BIA 1996) (defining a CIMT as “ ‘an act which
is per se morally reprehensible and intrinsically wrong, or malum in se, so
it is the nature of the act itself and not the statutory prohibition of it which
renders a crime one of moral turpitude.’ ”(quoting Matter of Franklin, 20
I. & N. Dec. 867, 868 (BIA 1994))).
See also, generally, Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068
(9th Cir. 2007) (en banc) (defining non-fraud CIMTs as involving conduct
that is “inherently base, vile, or depraved” and “contrary to the [accepted]
private and social duties man owes to his fellow men or to society in gen-
eral” (emphasis added)); Fernandez-Ruiz v. Gonzales, 468 F.3d 1159,
1165-66 (9th Cir. 2006) (discussing the requirement that a crime involve
a showing of “ ‘willfulness’ or ‘evil intent’ ” to be classified as a CIMT,
as opposed to “general intent” or “reckless[ness]”); Notash v. Gonzales,
427 F.3d 693, 698 (9th Cir. 2005) (holding that an act done deliberately
and with knowledge does not necessarily involve the “evil intent” required
for CIMT purposes); Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993)
(rejecting the argument that “evil intent exists if a conviction requires
proof that a defendant did a forbidden act ‘willfully,’ ” where “willfully”
was defined to mean “deliberately and with knowledge”).
UPPAL v. HOLDER 10871
It is true, as the BIA states, that the presence of “some
aggravating dimension” has, as to certain statutes, been held
sufficient to increase the culpability of an assault or battery,
so making the offense categorically a CIMT. Those statutes,
however, involved either the use of a deadly weapon, see
Matter of Medina, 15 I. & N. Dec. 611 (BIA 1976), or a vic-
tim who has a special status or trust relationship vis à vis the
perpetrator, such as a domestic partner or spouse, see In re
Tran, 21 I. & N. Dec. at 291, a child, Guerrero de Nodahl v.
INS, 407 F.2d 1405 (9th Cir. 1969), or a peace officer, Matter
of Danesh, 19 I. & N. Dec. 669 (BIA 1988). As these catego-
ries of cases illustrate, to rise to the level of moral turpitude,
a crime must involve a particular type of aggravating factor,
one that says something about the turpitude or blameworthi-
ness inherent in the action.
The only BIA case of which I am aware in which an assault
offense was found to be categorically a CIMT despite the
absence of a special protected status or trust relationship or
the use of a deadly weapon is Matter of Franklin, 20 I. & N.
Dec. 867 (BIA 1994). In Franklin, the BIA held that an invol-
untary manslaughter statute was categorically a CIMT
because the statute had as elements both extreme recklessness
and the death of another person — a result serious enough to
raise the offense to a CIMT even without a showing of spe-
cific evil intent. Franklin, 20 I. & N. Dec. 867.2
Consistently with these general trends in the BIA’s case
law, this Court recently reversed the BIA and held that Cali-
fornia Penal Code § 273.5, which penalizes the “willful[ ]
inflict[ion] upon a person who is his or her spouse, former
spouse, cohabitant, former cohabitant, or the mother or father
2
In Matter of Fualaau, the BIA hinted that something short of death —
perhaps “serious bodily injury” — might be sufficient. See Matter of
Fualaau, 21 I. & N. Dec. at 477 (indicating that reckless assault was not
categorically a CIMT because it did not require “serious bodily injury”).
As far as I know, there is no case so holding.
10872 UPPAL v. HOLDER
of his or her child, corporal injury resulting in a traumatic
condition,” is not categorically a CIMT. See Morales-Garcia,
567 F.3d at 1060, 1063. The Court so held because the statute
did not require any special trust relationship — the victim
could be merely a “former cohabitant”; it also observed that
the resulting harm, a “traumatic condition,” could encompass
“a wound or external or internal injury [even] . . . of a minor
. . . nature.” Id. at 1063.
I see no way to square the majority opinion in this case
with Morales-Garcia. As in Morales-Garcia, the statute at
issue in Uppal’s case requires no special trust relationship
between the victim and the perpetrator. And it does not
require that serious physical injury, much less death, result.
Under § 268, even if the “endanger[ing]” language is disre-
garded, “wounding” is enough, without any requirement that
the wound be other than minor; a finger cut requiring only a
band-aid would suffice.
With the exception of Franklin, where the unintended
result was death, and the special factor cases, the BIA’s case
law uniformly indicates that a statute cannot be categorically
a CIMT if the mental state element does not require an intent
to injure. For example, in In re Muceros, A42-998-610 (BIA
May 11, 2000) (index decision),3 the BIA held that a convic-
tion under California Penal Code § 243(d) for “battery . . . [in
which] serious injury is inflicted” is not categorically a CIMT,
because
3
All decisions designated to serve as precedent are published in bound
volumes of the reporter entitled Administrative Decisions Under the Immi-
gration & Nationality Laws of the United States (or “I. & N. Dec.”). Sepa-
rately, the Executive Office of Immigration Review periodically compiles
certain unpublished decisions as so-called “indexed decisions,” which are
meant to serve as useful but non-binding guidance for EOIR staff. See
BIA PRAC. MAN., Ch. 1.4(d) (rev. July 30, 2004), available at http://
www.usdoj.gov/eoir/vll/qapracmanual/pracmanual/chap1.pdf. Indexed
decisions are, nevertheless, non-precedential. Id.
UPPAL v. HOLDER 10873
the level of intent involved only extends to touching
the victim. No evil intent is required. The victims are
not a specially protected class of persons or those
who have a special relationship to the . . . . We rec-
ognize the argument that the element of “serious
bodily injury” presents an aggravating factor which
elevates the respondent’s crime to one involving
moral turpitude. [But] [w]e adopt the reasoning of
the California Courts in this regard, which have held
that “[s]ince section 243 does not require an inten-
tion to do any act which would be judged to be evil
by generally accepted community standards of
morality, battery is not a crime of moral turpitude
[for impeachment purposes] even though it may
unintentionally result in serious bodily injury.”
Id. at *5-*6 (internal citation omitted). Similarly, in Matter of
Solon, the BIA gave dispositive significance to the distinction
between general and specific intent in holding that a New
York conviction for assault in the third degree is categorically
a CIMT:
[S]ection 120.00(1) of the revised New York Penal
Law . . . provides that a person is guilty of assault
in the third degree when, “[w]ith intent to cause
physical injury to another person, he causes such
injury to such person or to a third person.” . . . [The
statute] requires “intent to cause physical injury.” . . .
Thus, the statute under which the respondent was
convicted requires the specific intent to cause physi-
cal injury, as opposed to the general intent associated
with simple assault. Therefore, the inclusion of the
specific intent element distinguishes third-degree
assault under section 120.00(1) of the New York
Penal Law from the general-intent simple assaults,
which are not considered to involve moral turpitude.
24 I. & N. Dec. at 243-44 (internal citations omitted).
10874 UPPAL v. HOLDER
This Court, too, has taken note of the distinction between
general and specific intent in the assault and battery contexts.
See Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993) (hold-
ing that “when a person willfully beats his or her spouse
severely enough to cause ‘a traumatic condition,’ he or she
has committed an act of baseness or depravity contrary to
accepted moral standards [and has categorically committed a
crime involving moral turpitude]” and noting that this “con-
clusion follows from Guerrero de Nodahl[, 407 F.2d at 1406,]
because the injurious act under section 273.5(a) must be will-
ful, meaning that the person intended to cause the harm”). Cf.
Morales-Garcia, 567 F.3d at 1066 n.5 (noting that “Grageda
interpreted the statute to require that the defendant ‘intended
to cause the harm,’ although later California cases appear to
require only the general intent to commit the act that results
in injury[ ]” (internal citation omitted) and expressing no
opinion on whether general intent would be sufficient).
As a result, under the BIA’s case law and our own, an
assault statute not involving a specific intent to injure or a
special trust relationship, and not requiring that the assault
cause death, cannot qualify as a categorical CIMT.
Conclusion
As I explain in the first part of this separate opinion, we
should not be deciding the CIMT issue on the merits at all,
because the BIA misconstrued the statutory elements and so
did not itself decide the hard CIMT issue actually raised. I
would therefore remand to the agency to do so. Alternatively,
I would simply grant the petition and remand for application
of the modified categorical approach.
For these reasons, I respectfully dissent in part.