Mohammed Altayar v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOHAMMED MOSTAFA ALTAYAR, Nos. 17-73308
AKA Mohammed Mastafa Majid, 18-71754
Petitioner,
Agency No.
v. A212-377-363
WILLIAM P. BARR, Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 24, 2019
San Francisco, California
Filed January 14, 2020
Before: J. Clifford Wallace and Daniel A. Bress, Circuit
Judges, and Robert S. Lasnik, * District Judge.
Opinion by Judge Bress
*
The Honorable Robert S. Lasnik, United States District Judge for
the Western District of Washington, sitting by designation.
2 ALTAYAR V. BARR
SUMMARY **
Immigration
Denying Mohammed Mostafa Altayar’s petition for
review of a decision of the Board of Immigration Appeals,
the panel held that his aggravated assault conviction under
Arizona Revised Statutes (“A.R.S.”) §§ 13-1203(A)(2) and
13-1204(A)(2) qualifies as a crime involving moral turpitude
that made him removable.
Aggravated assault in Arizona arises from the interplay
of two separate provisions, A.R.S. § 13-1203(A), which
describes basic assault, and A.R.S. § 13-1204(A), which
describes aggravated assault. The panel agreed that the
parties’ approach of treating both statutes as divisible
comported with this court’s case law and Arizona precedent.
Reviewing the judicially noticeable documents in the
record, the panel concluded that Altayar had been convicted
of aggravated assault under A.R.S. § 13-1203(A)(2), which
contemplates intentionally placing another person in
reasonable apprehension of imminent physical injury, and
§ 13-1204(A)(2), which provides that a person commits
aggravated assault if the person uses a deadly weapon or
dangerous instrument. The panel rejected Altayar’s
contention that the plea colloquy, in which his counsel used
the word “reckless” in describing Altayar’s misconduct,
created ambiguity whether he was convicted under § 13-
1203(A)(2), which has a means rea of “intentionally.”
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ALTAYAR V. BARR 3
Considering the charging the document, the plea agreement,
and plea colloquy together, the panel concluded it that it was
clear that Altayar had been convicted under A.R.S. §§ 13-
1203(A)(2) and 13-1204(A)(2).
Next, the panel turned to the question whether an
aggravated assault conviction under A.R.S. §§ 13-
1203(A)(2) and 13-1204(A)(2) is a crime involving moral
turpitude. The panel noted that, under this court’s cases, a
crime involving moral turpitude is a crime that (1) is vile,
base, or depraved and (2) violates accepted moral standards.
The panel also observed that, under this court’s precedents,
the assault statutes that have been held to be crimes
involving moral turpitude are those that include as an
element some aggravating dimension sufficient to increase
the culpability of an assault or battery and so to transform
the offense into one categorically a crime involving moral
turpitude.
The panel concluded that, consistent with this court’s
precedents and the BIA’s longstanding decisions, the BIA
could properly regard an aggravated assault with a deadly
weapon or dangerous instrument as substantially more
turpitudinous than a mere simple assault. The panel further
explained that the intent element of A.R.S. § 13-
1203(A)(2)—which requires intentionally placing another
person in reasonable apprehension of imminent physical
injury—is another factor supporting the BIA’s
categorization of Altayar’s offense as a crime involving
moral turpitude. Finally, the panel concluded that
aggravated assault under A.R.S. §§ 13-1203(A)(2) and 13-
1204(A)(2) involves serious contemplated harm, another
factor that supports characterizing it as a crime involving
moral turpitude. In this respect, the panel explained that the
reasonable apprehension of imminent physical injury is not
4 ALTAYAR V. BARR
merely of any injury, but a serious physical injury or even
death. Accordingly, the panel held that aggravated assault
under A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2) is a
crime involving moral turpitude.
In a separate unpublished memorandum disposition, the
panel denied Altayar’s petitions for review as to the agency’s
determinations that he was ineligible for asylum and related
relief, as well as the denial of his motion to reopen.
COUNSEL
Benjamin T. Wiesinger (argued), Pope & Associates, PC,
Phoenix, Arizona, for Petitioner.
Sabatino F. Leo (argued), Senior Litigation Counsel;
Anthony P. Nicastro, Assistant Director; Joseph H. Hunt,
Assistant Attorney General; United States Department of
Justice, Office of Immigration Litigation, Civil Division,
Washington, D.C.; for Respondent.
OPINION
BRESS, Circuit Judge:
The question in this case is whether an Arizona
aggravated assault conviction for “[i]ntentionally placing
another person in reasonable apprehension of imminent
physical injury” while “us[ing] a deadly weapon or
dangerous instrument,” A.R.S. §§ 13-1203(A)(2) and 13-
1204(A)(2), qualifies as “a crime involving moral
turpitude,” 8 U.S.C. § 1227(a)(2)(A)(i), thus rendering an
ALTAYAR V. BARR 5
alien deportable. Consistent with our precedents, we hold
that such a conviction so qualifies.
I.
Petitioner Mohammed Mostafa Altayar is an Iraqi citizen
who was admitted to the United States as a refugee in 2011
and became a lawful permanent resident in 2012. On April
13, 2014, Altayar was working at Sandy’s Smoke Shop in
the Phoenix area and standing out front with his friend and
customer, Tracie Gomez. Erick Villasenor walked by them
and allegedly touched Gomez’s buttocks.
Things quickly got out of hand. Altayar called
Villasenor a “faggot,” and Villasenor then punched Altayar
in the face. Altayar drew a firearm and Villasenor fled.
Altayar and his brother Mohannad chased Villasenor and
caught him at a nearby Shell Gas station. Video surveillance
footage (which is no longer available) reportedly showed
Altayar pointing his gun at Villasenor after Villasenor had
been detained. Villasenor also confirmed this to the police.
Villasenor’s brother and an acquaintance, who were both
standing nearby, saw the commotion and ran to intervene,
but Altayar waved his gun at both men, who then backed
away with their hands up. Before long, the smoke shop’s
security guard arrived at the parking lot and placed
Villasenor in handcuffs, believing Villasenor had robbed the
store. Once Villasenor was restrained, Altayar holstered his
firearm and kicked Villasenor in the head. Police responded
to the scene, questioned witnesses, reviewed footage from
the gas station’s security cameras, and placed Altayar under
arrest.
Altayar was charged in Arizona state court with four
counts of aggravated assault and one count of disorderly
conduct. “Count 1” charged Altayar with “Aggravated
6 ALTAYAR V. BARR
Assault, A Class 3 Dangerous Felony.” Count 1 alleged that
Altayar, “on or about the 13th day of April, 2014, using a
handgun, a deadly weapon or dangerous instrument,
intentionally placed ERICK VILLASENOR in reasonable
apprehension of imminent physical injury, in violation of
A.R.S. §§ 13-1203, 13-1204, 13-3105, 13-701, 13-702, and
13-801.”
Altayar pleaded guilty to Count 1. In exchange, the
prosecution agreed to dismiss “Counts 2–5, and the
allegation that Count 1 was a dangerous offense for sentence
enhancement purposes.” At the plea colloquy, Altayar
through counsel confirmed that Altayar had drawn his gun
“after there was no further issue as to danger for himself,”
and that “there was no issue in terms of self-defense because
the danger had ceased to exist the moment he withdrew the
weapon.”
Altayar’s plea and sentence were formally entered on
March 6, 2015. As a first-time offender, he faced a
sentencing range of 2 – 8.75 years in prison and a
presumptive sentence of 3.5 years. See A.R.S. § 13-702(D).
Altayar’s presentence investigation report concluded that
Altayar “escalated matters when he pulled out a handgun”
and “waved and pointed the gun” at Villasenor. While this
was Altayar’s first criminal conviction, the presentence
report found the conviction was “quite serious in nature as it
involved a weapon and a victim.” The court sentenced
Altayar to 48 hours in jail along with five years of probation
and ordered payment of restitution, a fine, and fees.
Shortly after Altayar pleaded guilty, the Department of
Homeland Security (DHS) initiated removal proceedings
against him. Citing his aggravated assault conviction, DHS
alleged that Altayar was removable under 8 U.S.C.
§ 1227(a)(2)(A)(i) for being convicted of a crime involving
ALTAYAR V. BARR 7
moral turpitude punishable by a sentence of one year or more
that was committed within five years after admission.
Altayar admitted his conviction but denied removability.
Altayar also applied for asylum, withholding of removal, and
protection from removal under the Convention Against
Torture.
As relevant here, the Immigration Judge (IJ) determined
that Altayar’s conviction qualified as a crime involving
moral turpitude (sometimes referred to as a “CIMT”). The
Board of Immigration Appeals (BIA) dismissed Altayar’s
appeal. The BIA concluded that the charging documents and
plea agreement confirmed that Altayar was convicted of
“[i]ntentionally placing another person in reasonable
apprehension of imminent physical injury” while “us[ing] a
deadly weapon or dangerous instrument,” in violation of
A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2). In the BIA’s
view, such a conviction qualified as a crime involving moral
turpitude because it “require[d] both proof of an aggravating
factor (here, the use of a deadly weapon) and a culpable state
of mind.” In the alternative, the BIA held that Altayar’s
crime would involve moral turpitude even if the statute of
conviction had only required a mens rea of recklessness.
Altayar now petitions for review. 1
1
The IJ further found that Altayar had committed a “particularly
serious crime,” thereby rendering him ineligible for asylum and
withholding of removal. 8 U.S.C. §§ 1158(b)(2)(A)(ii),
1231(b)(3)(B)(ii). The IJ also denied deferral of removal under the
Convention Against Torture. The BIA agreed as to both issues. Altayar
later filed a motion to reopen in the BIA, which the BIA denied. We
address these issues in a separate unpublished memorandum disposition,
where we deny the petitions for review as to those issues.
8 ALTAYAR V. BARR
II.
A.
An alien is deportable if he (1) “is convicted of a crime
involving moral turpitude committed within five years . . .
after the date of admission” and (2) “is convicted of a crime
for which a sentence of one year or longer may be imposed.”
8 U.S.C. § 1227(a)(2)(A)(i). The only requirement that
Altayar challenges is whether his Arizona aggravated assault
conviction is a “crime involving moral turpitude.” We have
jurisdiction to address this purely legal question. See
8 U.S.C. § 1252(a)(2)(D); Leal v. Holder, 771 F.3d 1140,
1144 (9th Cir. 2014).
To answer it, we apply the so-called “categorical” and
“modified categorical approaches,” which require
determining whether the elements of the offense of
conviction (as opposed to the facts underlying the
conviction) constitute a crime involving moral turpitude.
See, e.g., Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir.
2010); Marmolejo–Campos v. Holder, 558 F.3d 903, 912
(9th Cir. 2009) (en banc). Under the categorical approach,
“we ask whether the full range of conduct encompassed by
the criminal statute constitutes a crime of moral turpitude.”
Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1086 (9th
Cir. 2017) (quotations omitted). The modified categorical
approach, by comparison, requires examination of those
elements encompassed within the specific statutory
provision that formed the basis for the conviction. Id. We
apply the modified categorical approach “only if the statute
is divisible,” id., which is to say that the statute contains
multiple, alternative sets of elements that define multiple,
distinct crimes. See Mathis v. United States, 136 S. Ct. 2243,
2248–49 (2016). At that point, we “consult a limited class
of documents . . . to determine which alternative formed the
ALTAYAR V. BARR 9
basis of the [petitioner’s] prior conviction.” Descamps v.
United States, 570 U.S. 254, 257 (2010). When, as here, the
conviction is based on a guilty plea, we may examine the
“charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” Shepard v. United
States, 544 U.S. 13, 16 (2005); United States v. Cabrera-
Perez, 751 F.3d 1000, 1005 n.4 (9th Cir. 2014) (same). 2
B.
Aggravated assault in Arizona arises from the interplay
of two separate provisions, A.R.S. §§ 13-1203(A) and 13-
1204(A). Under A.R.S. § 13-1203(A), Arizona’s basic
assault provision, “[a] person commits assault by”:
1. Intentionally, knowingly or recklessly
causing any physical injury to another
person; or
2. Intentionally placing another person in
reasonable apprehension of imminent
physical injury; or
3. Knowingly touching another person with
the intent to injure, insult or provoke such
person.
A.R.S. § 13-1203(A). Under § 13-1204(A), “[a] person
commits aggravated assault if the person commits assault as
2
We must reject Altayar’s request that we abandon the categorical
and modified approaches altogether and consider the underlying facts
giving rise to his conviction. Circuit precedent forecloses that argument.
See, e.g., Mendoza, 623 F.3d at 1302.
10 ALTAYAR V. BARR
prescribed by § 13-1203 under” eleven separately numbered
circumstances. One of these, which is relevant here, is “[i]f
the person uses a deadly weapon or dangerous instrument.”
A.R.S. § 13-1204(A)(2).
The parties have treated both the basic and aggravated
assault provisions as divisible. That approach comports with
our case law and Arizona precedent. See United States v.
Sahagun-Gallegos, 782 F.3d 1094, 1098 & n.3 (9th Cir.
2015) (treating A.R.S. § 13-1203(A) as divisible in
determining if conviction constituted a “crime of violence”
under the Sentencing Guidelines, and noting that “Arizona
treats the subsections of A.R.S. § 13-1203(A) as three
different crimes, each comprised of different elements”);
Cabrera-Perez, 751 F.3d at 1004–05 (same for purposes of
“crime of violence” provision in Immigration and
Nationality Act). Because each subsection of § 13-1203(A)
carries different punishments, see A.R.S. §§ 13-1203(B),
13-707(A), “then under Apprendi [v. New Jersey, 530 U.S.
466 (2000)] they must be elements,” Mathis, 136 S. Ct. at
2256. The same is true for § 13-1204(A), which contains
eleven subsections that trigger differing punishments
depending upon the aggravating circumstance. A.R.S. § 13-
1204(E)–(G); A.R.S. § 13-702.
The judicially noticeable documents in the record
establish beyond question that Altayar was convicted of
aggravated assault under A.R.S. §§ 13-1203(A)(2) and 13-
1204(A)(2). Altayar concedes the latter, but disputes the
former. He is mistaken. As we explained above, Altayar’s
charging document in Count 1 used language that directly
tracked the language of A.R.S. § 13-1203(A)(2), and Altayar
pleaded guilty to Count 1. We have applied the modified
categorical approach in like circumstances to hold that
ALTAYAR V. BARR 11
A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2) formed the
statute of conviction. See Cabrera-Perez, 751 F.3d at 1006.
Altayar tries to inject uncertainty into this analysis by
seizing upon two instances in the plea colloquy during which
his counsel used the word “reckless” or “recklessly” in
describing Altayar’s misconduct. According to Altayar, this
creates ambiguity whether Altayar was convicted under
§ 13-1203(A)(2), which has a mens rea of “intentionally.”
That argument fails. Like the charging document, Altayar’s
counsel at various points in the colloquy described Altayar’s
offense in language that mirrors the statutory language of
§ 13-1203(A)(2). In light of the factual basis confirmed
during the plea hearing, Altayar’s plea under the statute
shows that he “necessarily admitted” the elements therein,
Shepard, 544 U.S. at 26, including that the offense was done
“intentionally.” Considering the charging document, plea
agreement, and plea colloquy together, it is clear Altayar was
convicted under A.R.S. §§ 13-1203(A)(2) and 13-
1204(A)(2).
C.
1.
We now turn to the question whether an aggravated
assault conviction under A.R.S. §§ 13-1203(A)(2) and 13-
1204(A)(2) is a crime involving moral turpitude, examining
the statute of conviction and not Altayar’s underlying
conduct. See Hernandez-Cruz v. Holder, 651 F.3d 1094,
1110 (9th Cir. 2011).
To begin, we determine de novo the elements of the
statute of conviction. See, e.g., Leal, 771 F.3d at 1144. We
then compare those elements “to the generic definition of a
crime of moral turpitude and decide whether the conviction
12 ALTAYAR V. BARR
meets that definition.” Ceron v. Holder, 747 F.3d 773, 778
(9th Cir. 2014) (en banc) (quotations omitted). The
objective is to determine “whether the conduct proscribed in
the statute is broader than, and so does not categorically fall
within,” the definition of a crime involving moral turpitude.
Leal, 771 F.3d at 1145 (quotations omitted).
Under our cases, “‘a crime involving moral turpitude is
generally a crime that (1) is vile, base, or depraved and
(2) violates accepted moral standards.’” Ceron, 747 F.3d at
779 (quoting Latter-Singh v. Holder, 668 F.3d 1156, 1161
(9th Cir. 2012)). The BIA can receive deference in its
determination that an offense qualifies as a crime involving
moral turpitude. See, e.g., id. at 785. Where, as here, the
BIA’s decision “is unpublished (and not directly controlled
by any published decision interpreting the same statute),”
Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010), we
apply the Skidmore framework, under which “the measure
of deference afforded to the agency varies ‘depend[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.’” Marmolejo–
Campos, 558 F.3d at 909 (alteration in original) (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). In this
case, the BIA’s decision, though unpublished, is a reasoned
one that derives its conclusion from our prior decisions and
prior BIA decisions. It is therefore entitled to some measure
of deference. See, e.g., Latter-Singh, 668 F.3d at 1160.
2.
The starting point for evaluating the BIA’s decision is
our own decision in Fernandez-Ruiz v. Gonzales, 468 F.3d
1159, 1164–68 (9th Cir. 2006), in which we held that A.R.S.
§ 13-1203(A)—Arizona’s base assault provision—did not
ALTAYAR V. BARR 13
categorically qualify as a crime involving moral turpitude.
Our holding there reflected the well-accepted proposition
that “a conviction for simple assault does not involve moral
turpitude.” Id. at 1165; see also Uppal, 605 F.3d at 716
(same); In re Wu, 27 I. & N. Dec. 8, 10–11 (BIA 2017) (“It
is well established that a simple assault or battery that only
requires offensive touching or threatened offensive touching
of another committed with general intent that does not result
in serious bodily harm is not considered to involve moral
turpitude.”).
Fernandez-Ruiz did not involve an aggravated assault
under A.R.S. § 13-1204(A)(2), or any other aggravating
circumstance. See 468 F.3d at 1167 n.8. Nor did Fernandez-
Ruiz involve a conviction under § 13-1203(A)(2) in
particular: the administrative record there did not allow us to
apply the modified categorical approach because it was
unclear which subsection of § 13-1203(A) supported the
conviction. Id. at 1164–68. Fernandez-Ruiz therefore did
not consider the question presented here, namely, whether
an aggravated assault under A.R.S. §§ 13-1203(A)(2) and
13-1204(A)(2) is a crime involving moral turpitude.
Under our precedents in this area, an aggravated assault
presents a very different situation than mere simple assault.
As we have explained, “[s]ome assault statutes . . . have been
held to be CIMTs. Those statutes include as an element
‘some aggravating dimension’ sufficient to increase the
culpability of an assault or battery and so to transform the
offense into one categorically a CIMT.” Uppal, 605 F.3d at
717 (citing various BIA decisions); see also Leal, 771 F.3d
at 1148; Latter-Singh, 668 F.3d at 1161. As a result, “to rise
to the level of moral turpitude, an assault crime must involve
a particular type of aggravating factor, one that says
14 ALTAYAR V. BARR
something about the turpitude or blameworthiness inherent
in the action.” Uppal, 605 F.3d at 717.
The BIA here relied on the fact that Altayar’s conviction
involved the aggravating circumstance that he “use[d] a
deadly weapon or dangerous instrument.” A.R.S. § 13-
1204(A)(2). Arizona law defines “[d]eadly weapon” as
“anything designed for lethal use, including a firearm.”
A.R.S. § 13-105(15). A “[d]angerous instrument,”
meanwhile, is “anything that under the circumstances in
which it is used, attempted to be used or threatened to be
used is readily capable of causing death or serious physical
injury.” A.R.S. § 13-105(12). These definitions underscore
that the aggravating circumstance in A.R.S. § 13-1204(A)(2)
is a quite serious one involving a weapon or instrument
capable of producing serious harm or even mortal injury.
The BIA determined that the aggravating circumstance
of using a deadly weapon or dangerous instrument supported
categorizing Altayar’s offense as one involving moral
turpitude. That determination finds ample support in the
BIA’s own longstanding decisions, see, e.g., Wu, 27 I. & N.
Dec. at 11–12; In re Sanudo, 23 I. & N. Dec. 968, 971 (BIA
2006); In re Medina, 15 I. & N. Dec. 611, 614 (BIA 1976),
as well as our own. Indeed, in Uppal, we specifically noted
that an “‘aggravating dimension[]’” that has been
“recognized as sufficiently increasing the culpability of an
assault to turn an assault into a CIMT ha[s] been the use of
a deadly weapon.” 605 F.3d at 717 (emphasis added) (citing
Medina, 15 I. & N. Dec. at 614). In Ceron, our en banc Court
similarly explained that “[t]he presence of an aggravating
factor, such as . . . the use of a deadly weapon, can be
important in determining whether a particular assault
amounts to a crime involving moral turpitude.” 747 F.3d at
783 (quotations omitted).
ALTAYAR V. BARR 15
These observations are readily understandable: the use in
an assault of a “deadly weapon” (or a “dangerous
instrument” that “is readily capable of causing death or
serious physical injury,” A.R.S. § 13-105(12)) necessarily
makes the offense more serious, more dangerous, and
therefore more blameworthy than a simple assault. See
Uppal, 605 F.3d at 717. Such an aggravating circumstance
is directly reflective of “‘the character, gravity, and moral
significance of the conduct.’” Latter-Singh, 668 F.3d at
1159 (quoting Marmolejo-Campos, 558 F.3d at 910); see
also Wu, 27 I. & N. Dec. at 11 (BIA concluding that the
aggravating factor of use of a deadly or dangerous weapon
or instrument “magnifies the danger posed by the perpetrator
and demonstrates his or her heightened propensity for
violence and indifference to human life”). Consistent with
our own precedents, see Ceron, 747 F.3d at 783; Uppal, 605
F.3d at 717, the BIA could properly regard an aggravated
assault with a deadly weapon or dangerous instrument as
substantially more turpitudinous than a mere simple assault.
The intent element of A.R.S. § 13-1203(A)(2)—which
requires “[i]ntentionally placing another person in
reasonable apprehension of imminent physical injury”
(emphasis added)—is another factor supporting the BIA’s
categorization of Altayar’s offense as a crime involving
moral turpitude. The BIA relied upon this factor, and its
reliance was well-placed. We have explained that “intent is
a crucial element in determining whether a crime involves
moral turpitude.” Ceron, 747 F.3d at 781 (quotations
omitted). And citing the BIA’s “previous opinions in which
it found that intentionally threatening behavior indicated a
crime involving moral turpitude,” we have held that “[t]he
BIA is entitled to place great weight on the presence or
absence of a mens rea element when determining whether a
16 ALTAYAR V. BARR
crime involves moral turpitude.” Latter-Singh, 668 F.3d at
1162.
In this case, “intentionally” is defined as “with respect to
a result or to conduct described by a statute defining an
offense, that a person’s objective is to cause that result or to
engage in that conduct.” A.R.S. § 13-105(10)(a). Arizona
law requires that this heightened mens rea applies to each
element of the offense. See A.R.S. § 13-202(A) (“If a statute
defining an offense prescribes a culpable mental state that is
sufficient for commission of the offense without
distinguishing among the elements of such offense, the
prescribed mental state shall apply to each such element
unless a contrary legislative purpose plainly appears.”). In
the context of an aggravated assault conviction under A.R.S.
§§ 13-1203(A)(2) and 13-1204(A)(2), a defendant must
therefore intend to use the deadly weapon or dangerous
instrument and must, through the use of that weapon or
instrument, “intend[] to place another person in reasonable
apprehension of imminent physical injury.” State v. Salman,
897 P.2d 661, 664 (Ariz. Ct. App. 1994) (citing In re Pima
Cty. Juvenile Action, 693 P.2d 909, 911 (Ariz. 1984)). The
heightened mens rea of “intentional[]” wrongdoing in
A.R.S. § 13-1203(A)(2) adds to the moral blameworthiness
of Altayar’s offense and supports the BIA’s determination
that Altayar’s conviction is a crime involving moral
turpitude. 3
3
Because it is clear under the modified categorical approach that
Altayar was convicted under a subsection requiring intentional
misconduct and not reckless misconduct, we have no occasion to
consider the BIA’s alternative holding that a reckless aggravated assault
with a deadly weapon or dangerous instrument would also qualify as a
crime involving moral turpitude. Our opinion should not be read to
suggest that an aggravated assault offense must necessarily contain a
ALTAYAR V. BARR 17
Finally, aggravated assault under A.R.S. §§ 13-
1203(A)(2) and 13-1204(A)(2) involves serious
contemplated harm, another factor that supports
characterizing it as a crime involving moral turpitude. In
Fernandez-Ruiz, we relied on the fact that A.R.S. § 13-
1203(A)(2), standing alone, “contains absolutely no element
of injury whatsoever, as it prohibits conduct that merely
places another person ‘in reasonable apprehension of’
physical injury.” 468 F.3d at 1167. But as stated above,
Fernandez-Ruiz did not consider an aggravated assault with
a deadly weapon or dangerous instrument. And later cases
have clarified that in some circumstances, offenses that do
not result in physical harm can still qualify as crimes
involving moral turpitude.
For example, in Latter-Singh, we held that a conviction
under California Penal Code § 422 qualified as a crime
involving moral turpitude, where the statute criminalized
“‘willfully threaten[ing] to commit a crime which will result
in death or great bodily injury to another person, with the
specific intent that the statement . . . is to be taken as a
threat.’” 668 F.3d at 1156 (ellipsis in original) (quoting Cal.
Penal Code § 422). We explained that “the underlying
conduct threatened”—“death or great bodily injury”—“is
itself a crime of moral turpitude.” Id. at 1161. That, we held,
“was not true of the statute in Fernandez-Ruiz, which
involved a simple assault.” Id.; see also Coquico v. Lynch,
789 F.3d 1049, 1054 (9th Cir. 2015) (“[T]he threat in Latter-
Singh had to be of ‘death or great bodily injury,’ which was
not the case in Fernandez-Ruiz . . . .”) (quotations omitted).
mens rea requirement greater than recklessness in order to qualify as a
crime involving moral turpitude. We do not reach that issue.
18 ALTAYAR V. BARR
Several years later in Leal, we similarly held that
Arizona’s felony endangerment statute, A.R.S. § 13-1201,
qualified as a crime involving moral turpitude because it
“require[d] the perpetrator to endanger another person
recklessly with a substantial risk of imminent death.” 771
F.3d at 1145–46. In Leal, we therefore “agree[d] with the
BIA’s determination that the creation of a substantial, actual
risk of imminent death is sufficiently reprehensible, or in
terms of our case law, ‘base, vile, and depraved,’ to establish
a CIMT, even though no actual harm need occur.” Id. at
1146.
More recently, in Fugow, we held that first-degree
imprisonment under Hawaii law was a crime involving
moral turpitude. Fugow v. Barr, 943 F.3d 456, 459 (9th Cir.
2019) (per curiam). The statute at issue there criminalized
“knowingly restrain[ing] another person under
circumstances which expose the person to the risk of serious
bodily injury.” Id. at 458 (alteration in original) (quoting
Haw. Rev. Stat. § 707-721(1)). Relying on Leal, we
reiterated that actual injury was not invariably a requirement
for crimes involving moral turpitude, and that it was
sufficient, in combination with the Hawaii statute’s
heightened mens rea, that the misconduct “expose[s] the
[victim] to a risk of serious bodily injury.” Id. at 459.
The contemplated bodily harm associated with conduct
punishable under A.R.S. §§ 13-1203(A)(2) and § 13-
1204(A)(2) fits comfortably within these above-described
precedents. While A.R.S. § 13-1203(A)(2) standing alone
requires only “reasonable apprehension of imminent
physical injury,” without more, the aggravating
circumstance in § 13-1204(A)(2) requires the use of “a
deadly weapon or dangerous instrument.” And as we
explained above, Arizona law defines “[d]eadly weapon” as
ALTAYAR V. BARR 19
“anything designed for lethal use, including a firearm,”
A.R.S. § 13-105(15), and a “[d]angerous instrument” as
“anything that under the circumstances in which it is used,
attempted to be used or threatened to be used is readily
capable of causing death or serious physical injury,” A.R.S.
§ 13-105(12). The “reasonable apprehension of imminent
physical injury,” A.R.S. § 13-1203(A)(2), is thus not merely
of any injury, but a serious physical injury or even death.
See A.R.S. §§ 13-1204(A)(2), 13-105(12) & (15). In that
situation, “the underlying conduct threatened is itself a crime
of moral turpitude.” Latter-Singh, 668 F.3d at 1161.
There are, to be sure, some differences between the
Arizona offense at issue here and the offenses at issue in
these other cases. For example, the contemplated harm in
Leal was death, 771 F.3d at 1144, whereas the contemplated
harm here is death or serious physical injury. But that was
true in Fugow as well. See Fugow, 943 F.3d at 459 (holding
that “the lesser harm contemplated by the Hawaii statute . . .
is less severe than the harm contemplated by the Arizona
statute” in Leal, but that “the harm required by the Hawaii
statute is still severe”). It was also the case in Latter-Singh.
See 668 F.3d at 1161. Another difference is that Latter-
Singh involved the “requirement that the person threatened
be in sustained fear of immediate danger to his or his
family’s safety,” id. at 1162, whereas the Arizona aggravated
assault offense in this case does not require such a
“sustained” fear component.
But there are other differences among the statutes
indicating that, in certain respects, the Arizona offense at
issue here reflects greater moral turpitude. Leal, for
example, proscribed only reckless conduct, see 771 F.3d at
1146, whereas the statute of conviction here proscribes
intentional conduct. See also Fugow, 943 F.3d at 459
20 ALTAYAR V. BARR
(making a similar point). In Latter-Singh, the offense did
not even involve conduct, but rather speech. See 668 F.3d at
1162. And none of the other cases involved the most
turpitudinous feature of this case, which is the required use
of a deadly weapon or dangerous instrument. See, e.g.,
Uppal, 605 F.3d at 717.
That statutes with such differences all qualify under our
precedents as crimes involving moral turpitude speaks to the
basic point that in order to so qualify, a greater required
showing in one aspect of the criminal offense can
accommodate a lesser required showing in another. As we
have held, “‘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.’” Leal, 771 F.3d at 1146 (quoting
Ceron, 747 F.3d at 783). By that logic, “[i]t follows that a
crime committed knowingly or intentionally needs less
serious harm to qualify as a CIMT than a crime committed
recklessly.” Fugow, 943 F.3d at 458. We are satisfied that
under our cases, an aggravated assault conviction under
A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2) involving the
use of a deadly weapon or dangerous instrument qualifies as
a crime involving moral turpitude.
* * *
For the foregoing reasons and those set forth in our
accompanying memorandum disposition, Altayar’s petitions
for review are DENIED.