United States Court of Appeals 

For the First Circuit 

No. 16-2220 

JOAO LOPES COELHO, 

Petitioner, 

v. 

JEFFERSON B. SESSIONS III, Attorney General, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

 Todd Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau 

P.C. were on brief, for petitioner. 

 Andrew N. O'Malley, with whom Lindsay M. Murphy, Trial 

Attorney, Office of Immigration Litigation, Civil Division, U.S. 

Department of Justice, Chad A. Readler, Acting Assistant Attorney 

General, Civil Division, and Cindy S. Ferrier, Assistant Director, 

were on brief, for respondent. 

 Emma Winger, Immigration Impact Unit, Committee for Public 

Counsel Services, on brief for the Massachusetts Committee for 

Public Counsel Services Immigration Impact Unit, the National 

Immigration Project of the National Lawyers Guild, and the 

Immigrant Defense Project, amici curiae. 
July 24, 2017 
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LYNCH, Circuit Judge. This appeal presents the question 

of whether the Board of Immigration Appeals ("BIA") committed 

reversible error when it held that the Massachusetts crime of 

assault and battery with a dangerous weapon ("ABDW"), in violation 

of Mass. Gen. Laws ch. 265, § 15A(b), is categorically a crime 

involving moral turpitude ("CIMT") under the Immigration and 

Nationality Act ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952) 

(codified as amended in scattered sections of 8 U.S.C.). The 

consequence of this BIA ruling is that petitioner Joao Lopes Coelho 

is not eligible for cancellation of removal. Because we remain 

uncertain about the BIA's views on the relevant Massachusetts law 

governing its CIMT determination, we remand for further 

consideration consistent with this opinion. 

I. 

Coelho entered the United States without inspection in 

1986. He has continued to reside here since that date and now has 

a U.S. citizen son. In September 1996, Coelho pled guilty to one 

count of Massachusetts ABDW against his wife. After the Department 

of Homeland Security ("DHS") initiated removal proceedings against 

Coelho in June 2010, he conceded his removability under 8 U.S.C. 

§ 1182(a)(6)(A)(i) but submitted an application for cancellation 

of removal pursuant to 8 U.S.C. § 1229b(b)(1). "Cancellation of 

removal is a form of discretionary relief, the granting of which 

allows a non-resident alien, otherwise removable, to remain in the 
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United States." Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir. 2010). 

In his application, Coelho noted in particular that his removal 

"would result in exceptional and extremely unusual hardship" to 

his son. 8 U.S.C. § 1229b(b)(1)(D). DHS moved to pretermit 

Coelho's application on the ground that his Massachusetts ABDW 

conviction constituted a conviction for a CIMT and thus rendered 

him ineligible for cancellation of removal. See id. 

§ 1229b(b)(1)(C) (providing that an alien, to be eligible for 

cancellation of removal, must not have been "convicted of an 

offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)," the 

first two of which refer to crimes involving moral turpitude). 

After Coelho failed to timely respond to the motion to pretermit, 

the immigration judge ("IJ") granted the government's motion. 

Coelho filed a motion to reconsider, which the IJ denied. 

Explaining the denial, the IJ concluded that Massachusetts ABDW is 

categorically a CIMT because of the presence of an aggravating 

element, namely the use of a dangerous weapon. The IJ further 

acknowledged that Massachusetts case law defines "dangerous 

weapon" to include "common objects," but noted that this definition 

"should not be a determinative factor because it is the defendant's 

use of the object in a dangerous manner which is the vile act." 

Finally, the IJ found that "based on the statute's requirement 

that a dangerous weapon be used, [she could reasonably] conclude 

that there is no realistic probability that [the Massachusetts 
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ABDW statute] would be applied to reach conduct that does not 

involve moral turpitude." 

The BIA dismissed Coelho's appeal in an opinion dated 

October 31, 2013. Applying de novo review, the BIA agreed with 

the IJ's conclusion that Massachusetts ABDW is categorically a 

CIMT because "assault or battery which necessarily involves an 

aggravating factor indicative of the perpetrator's moral depravity 

is a crime involving moral turpitude" and "the knowing or attempted 

use of deadly force is deemed to be an act of moral depravity."

Coelho petitioned for review of the October 31, 2013 

decision. Shortly thereafter, the government -- with Coelho's 

assent -- moved this court to remand the case to the BIA for 

reconsideration of whether Coelho's Massachusetts ABDW conviction 

is categorically a CIMT that renders him ineligible for 

cancellation of removal. We granted the government's unopposed 

motion and vacated the BIA's decision.

On April 10, 2015, the BIA issued a second opinion, once 

again holding that Massachusetts ABDW is categorically a CIMT. 

The BIA applied its then-existing framework, as laid out in Matter 

of Silva-Trevino, for determining whether an offense involves 

moral turpitude. See 24 I. & N. Dec. 687, 704 (A.G. 2008), vacated 

by 26 I. & N. Dec. 550 (A.G. 2015), and overruled by 26 I. & N. 

Dec. 826 (B.I.A. 2016). Under this approach, the first step was 

"to examine the statute of conviction under the categorical 
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approach and determine whether there was a 'realistic probability' 

that the statute would be applied to conduct not involving moral 

turpitude." Id. If the categorical approach proved inconclusive, 

the adjudicator proceeded "to look to the record of conviction 

under the modified categorical approach," and, if the modified 

categorical approach also proved inconclusive, "to consider any 

relevant evidence outside the record of conviction to resolve the 

moral turpitude question." Id. 

Applying that framework, the BIA found under the first 

step that Massachusetts ABDW is categorically a CIMT. The BIA 

acknowledged that the "presence of an 'aggravating factor'" -- 

here, the use of a dangerous weapon -- "is not always dispositive 

as to whether an offense involves moral turpitude," but it noted 

that Massachusetts ABDW involves not only an aggravating factor 

but also the requisite mental state for an offense to be deemed 

morally turpitudinous. Specifically, when ABDW is intentionally 

committed, "the statute requires . . . the intentional application 

of force by use of a dangerous weapon." Alternatively, when ABDW 

is recklessly committed, the statute requires "the intentional 

commission of a reckless or wanton act with a dangerous weapon, 

defined as more than gross negligence, resulting in physical or 

bodily injury that interferes with the victim's health or comfort." 

Accordingly, "[b]ecause the statute includes the intent to use a 
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dangerous weapon and/or a resultant injury," the BIA concluded 

that Massachusetts ABDW is categorically a CIMT.

Coelho once again petitioned this court to review the 

BIA's April 10, 2015 decision. We temporarily held the petition 

in abeyance while Coelho moved the BIA to reconsider its decision. 

The BIA denied that motion in a brief opinion dated September 2, 

2015. On April 5, 2016, with the government moving for another 

remand with Coelho's assent, we remanded the case a second time 

for the BIA to consider whether Coelho's argument that 

Massachusetts ABDW is not categorically a CIMT "because a 

conviction for the reckless commission of [ABDW] does not require 

a defendant to be aware of, and consciously disregard, the risk 

imposed by his conduct" had been properly raised before the BIA 

such that it had been exhausted and could be reviewed by us. We 

accordingly vacated the BIA's April 10, 2015 decision. 

In the BIA's fourth and final opinion, dated September 

7, 2016, the agency once again dismissed Coelho's appeal. The BIA 

stated that whether or not Coelho had raised this argument before 

the agency, the agency had previously addressed both the 

intentional and reckless prongs of Massachusetts ABDW and had 

already found that even reckless ABDW is categorically a CIMT. 

The BIA restated its prior finding that "when committed recklessly, 

the statute requires an intentional act with a dangerous weapon 

resulting in physical or bodily injury." Further, the BIA observed 
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that Massachusetts defines "recklessness" as "knowingly or 

intentionally disregarding an unreasonable risk that involves a 

high degree of probability that death or serious bodily harm will 

result" (alterations omitted) (citing Commonwealth v. Welansky, 55 

N.E.2d 902, 910 (Mass. 1944)). Critically, the BIA noted in a 

parenthetical -- but without elaboration -- that under 

Massachusetts law, "[k]nowing facts that would cause a reasonable 

man to know the danger is equivalent to knowing the danger" 

(quoting Welansky, 55 N.E.2d at 910). In light of this case law, 

the BIA "affirm[ed] [its] prior decision finding that a recklessly 

or wantonly committed offense under the [Massachusetts ABDW] 

statute is sufficient to render it a categorical [CIMT]." 

This petition for review followed. After the BIA had 

issued its last decision in this case and Coelho had filed his 

petition, the BIA issued a decision in Matter of Wu, 27 I. & N. 

Dec. 8 (B.I.A. 2017), the potential relevance of which we discuss 

below.

II. 

Two different standards of review are involved. "We 

review the BIA's legal conclusions de novo, but we afford Chevron 

deference to the BIA's interpretation of the [INA], including its 

determination that a particular crime qualifies as one of moral 

turpitude, unless that interpretation is 'arbitrary, capricious, 

or clearly contrary to law.'" Da Silva Neto v. Holder, 680 F.3d 
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25, 28 (1st Cir. 2012) (quoting Idy v. Holder, 674 F.3d 111, 117 

(1st Cir. 2012)). Under these standards of review, we give 

deference to the BIA's "construction of the term 'moral 

turpitude,'" but we do not give deference to "its reading of an 

underlying criminal statute (as to which it has no expertise)." 

Patel v. Holder, 707 F.3d 77, 79 (1st Cir. 2013). 

Although the INA does not define "crime involving moral 

turpitude," this circuit has adopted the BIA's definition of that 

term as "conduct that shocks the public conscience as being 

inherently base, vile, or depraved, and contrary to the accepted 

rules of morality and the duties owed between persons or to society 

in general." Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir. 1999) 

(quoting Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996)); see 

also Da Silva Neto, 680 F.3d at 29 (defining CIMT alternatively as 

"'an act which is per se morally reprehensible and intrinsically 

wrong' and is 'accompanied by a vicious motive or a corrupt mind'" 

(quoting Maghsoudi, 181 F.3d at 14)). 

This circuit's approach to the CIMT analysis "has been 

generally consistent with the first two steps of the . . . 

framework" applied by the BIA in its April 10, 2015 decision. Da 

Silva Neto, 680 F.3d at 29. Specifically, "[w]e have begun by 

looking 'to the inherent nature of the crime of conviction, as 

defined in the criminal statute,' to determine whether it fits the 
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CIMT definition. If it does, we have said that 'our inquiry may 

end there.'" Id. (quoting Idy, 674 F.3d at 118).1

The criminal statute at issue in this case establishes 

certain imprisonment terms and fine amounts for "[w]hoever commits 

an assault and battery upon another by means of a dangerous 

weapon." Mass. Gen. Laws ch. 265, § 15A(b). Massachusetts common 

law, which supplies the substantive definition of ABDW, see United 

States v. Tavares, 843 F.3d 1, 12 (1st Cir. 2016), recognizes "two 

separate aspects" to the crime of ABDW, Commonwealth v. Burno, 487 

N.E.2d 1366, 1368 (Mass. 1986). The intentional theory of ABDW 

punishes "the intentional and unjustified use of force upon the 

person of another, however slight." Id. at 1368–69 (citation 

omitted). Meanwhile, the reckless theory punishes "the 

intentional commission of a wanton or reckless act (something more 

than gross negligence) causing physical or bodily injury to 

another." Id. at 1369. 

The Massachusetts definition of "recklessness" departs 

from the definition employed by the Model Penal Code ("MPC") and 

a majority of states in that a defendant in Massachusetts need not 

have been subjectively aware of the risk posed by his conduct in 

 1 Under this categorical approach, neither we nor the BIA 

can consider Coelho's actual conduct, but rather only the "'least 

of th[e] acts' criminalized." Moncrieffe v. Holder, 133 S. Ct. 

1678, 1684 (2013) (alteration in original) (quoting Johnson v. 

United States, 559 U.S. 133, 137 (2010)). 
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order to have acted recklessly. Cf. Model Penal Code § 2.02(2)(c). 

That is, the "classic formulation of recklessness" requires an 

"actual awareness and a conscious disregard for a 'substantial and 

unjustifiable risk'" on the defendant's part. Idy, 674 F.3d at 

119 (citing N.H. Rev. Stat. Ann. §§ 626:2, 631:3). In 

Massachusetts, by contrast, the SJC has said that "even if a 

particular defendant is so stupid or so heedless that in fact he 

did not realize the grave danger [posed by his conduct], he cannot 

escape the imputation of wanton or reckless conduct in his 

dangerous act or omission, if an ordinary normal man under the 

same circumstances would have realized the gravity of the danger." 

Welansky, 55 N.E.2d at 910 (alterations omitted). Indeed, in 

Massachusetts, "[k]nowing facts that would cause a reasonable man 

to know the danger is equivalent to knowing the danger." Id. 

Much of the briefing and oral argument before us has 

focused on this aspect of the Massachusetts formulation of 

recklessness. Specifically, Coelho argues that the BIA 

mischaracterized Massachusetts law by failing to take adequate 

account of the state's departure from the "classic" MPC formulation 

of recklessness. Accordingly, Coelho says, we must remand so that 

the BIA can consider in the first instance whether, even under the 
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correct articulation of Massachusetts law, the crime of reckless 

ABDW is categorically a CIMT.2

There are some difficulties with Coelho's argument 

because the BIA did expressly include in its discussion the crucial 

quote from Welansky that "[k]nowing facts that would cause a 

reasonable man to know the danger is equivalent to knowing the 

danger." 55 N.E.2d at 910. Nonetheless, the BIA did so merely in 

a parenthetical without any explanation of how this aspect of 

Massachusetts law figures into its CIMT determination. Further, 

the BIA did not include the "so stupid or so heedless" clause from 

Welansky. 

The government responds that regardless of the BIA's 

sparse discussion of Massachusetts law on recklessness, the 

agency's subsequent decision in Matter of Wu allows us to uphold 

the outcome in this case. See 27 I. & N. Dec. 8. There, the BIA 

concluded that the crime of assault with a deadly weapon or force 

likely to produce great bodily injury, in violation of section 

245(a)(1) of the California Penal Code ("CPC"), categorically 

constitutes a CIMT. Id. at 8–9, 14. As the government emphasizes, 

a conviction under section 245(a)(1) of the CPC, like a conviction 

 2 We have recently held, in a different statutory context, 

that Massachusetts reckless ABDW is not categorically a "violent 

felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 

§ 924(e)(2)(B). See United States v. Windley, No. 16-1949, slip 

op. at 6 (1st Cir. July 21, 2017) (per curiam). 
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for Massachusetts reckless ABDW, "requires knowledge of the 

relevant facts but does not require subjective appreciation of the 

ordinary consequences of those facts." Id. at 10; see also id. at 

12 (noting that an element of section 245(a)(1) is the fact that 

"when the defendant acted, he or she . . . 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" but that the defendant need not have 

"subjectively perceive[d] the risk posed by his or her conduct"). 

While the mens rea requirements of CPC section 245(a)(1) 

and Massachusetts reckless ABDW do share that commonality, the 

government leaves unaddressed other aspects of Matter of Wu that 

complicate matters. For one, the government does not comment on 

the extent to which the BIA's holding in Matter of Wu relies on 

the Ninth Circuit's reading of the mental state required for a 

conviction under section 245(a)(1). See id. at 13–14, 14 nn.8–9 

(discussing United States v. Grajeda, 581 F.3d 1186 (9th Cir. 

2009)). Nor does the government address the BIA's caveat that it 

"would reach a different conclusion if faced with a statute, such 

as one criminalizing driving under the influence . . . , that does 

not require knowledge that the conduct is itself dangerous or of 

the facts that make the proscribed conduct dangerous." Id. at 14–

15 n.10; accord United States v. Hart, 674 F.3d 33, 43 n.8 (1st 

Cir. 2012) (noting that "[i]n Massachusetts, conduct that 
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underlies a conviction for operating under the influence . . . and 

causing serious bodily injury may also be charged as ABDW" and 

collecting cases). As the government has not fully briefed these 

issues, Matter of Wu does not alleviate our uncertainty about the 

BIA's views on Massachusetts law on recklessness. Simply put, we 

are left with too many questions about the BIA's thinking on the 

mental state required for a Massachusetts reckless ABDW conviction 

and cannot proceed with reviewing the BIA's CIMT determination 

before those questions are resolved.3

Accordingly, we remand so that the BIA can consider the 

following three issues: First, what is the effect, if any, of 

Matter of Wu on the outcome that Massachusetts ABDW is 

categorically a CIMT? Second, how does Welansky's prescription 

-- that a defendant "so stupid or so heedless that . . . he did 

not realize" the risk posed by his conduct can nonetheless be 

deemed to have acted recklessly, so long as "an ordinary normal 

man under the same circumstances would have realized" the risk -- 

impact the BIA's analysis of the moral depravity of Massachusetts 

 3 We acknowledge how much Coelho's removal proceedings 

have been prolonged. After all, his ABDW conviction occurred more 

than two decades ago, removal proceedings were instituted seven 

years ago, the IJ ruled against him five years ago, and proceedings 

in this court started almost four years ago. Much of that delay, 

however, was occasioned by the government, which sought two remands 

to the BIA prior to the instant petition. 
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reckless ABDW? 55 N.E.2d at 910 (alterations omitted). Finally, 

was Coelho convicted of intentional or reckless ABDW?4

III. 

We vacate the BIA's September 7, 2016 opinion, the effect 

of which was to render Coelho ineligible for cancellation of 

removal, and remand for further proceedings consistent with our 

opinion. 

 4 We include this final question because the BIA's answer 

may obviate the need for us to address whether Massachusetts 

reckless ABDW is categorically a CIMT once this case returns to 

us.