FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELVIN ADIEL AMAYA, AKA

Melvin Adiel Amaya-Cartagena,

Petitioner,

v.

MERRICK B. GARLAND, Attorney

General,

Respondent.

No. 18-70060

Agency No.

A077-152-130

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 13, 2021

Pasadena, California

Filed October 7, 2021

Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges,

and Kathleen Cardone,* District Judge.

Opinion by Judge Bybee

* The Honorable Kathleen Cardone, United States District Judge for

the Western District of Texas, sitting by designation.
2 AMAYA V. GARLAND

SUMMARY**

Immigration

Denying in part and dismissing in part Melvin Amaya’s

petition for review of a decision of the Board of Immigration

Appeals, the panel held that: (1) first-degree assault under

Washington Revised Code § 9A.36.011 is categorically a

crime of violence aggravated felony; (2) the court lacked

jurisdiction to consider Amaya’s unexhausted due process

claim; and (3) substantial evidence supported the denial of

relief under the Convention Against Torture (CAT).

The Immigration and NationalityAct defines “aggravated

felony” to include “a crime of violence,” as defined in

18 U.S.C. § 16, for which the term of imprisonment is at least

one year. 8 U.S.C. § 1101(a)(43)(F). Under § 16(a), a “crime

of violence” is “an offense that has as an element the use,

attempted use, or threatened use of physical force against the

person or property of another.” 

Amaya argued that § 9A.36.011 is too broad, and

therefore not a categorical match for § 16(a) because

§ 9A.36.011(b) punishes someone who administers poison or

exposes another person to the human immunodeficiency

virus. However, the panel concluded that § 9A.36.011(b)

satisfies the requirements of § 16(a). First, § 9A.36.011

requires “intent to inflict great bodily harm,” which

Washington courts have said is specific intent. The panel

concluded that this easily satisfies the “use of physical force”

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
AMAYA V. GARLAND 3

in § 16(a), explaining that the Supreme Court has reasoned

that “use” equates to “active employment,” and thus requires

a higher degree of intent than negligent or accidental conduct. 

Second, the panel explained that this court has repeatedly

recognized that “indirect” force, like exposure to poison

or other harmful substances, satisfies § 16(a)’s force

requirement. Further, the panel saw no realistic probability

that the state would apply § 9A.36.011(b) to conduct outside

the scope of § 16(a).

Amaya raised two arguments that Washington’s

accomplice liability statute, Wash. Rev. Code

§ 9A.08.020(a)(i)–(ii), rendered his conviction categorically

overbroad. First, Amaya argued that, because Washington

requires lessor proof of accomplice liability (general intent)

than is required for a crime of violence (specific intent), and

because, under Gonzales v. Duenas-Alvarez, 549 U.S. 183

(2007), there is no longer any difference between the

culpabilityof principals and accomplices (present at the scene

or accessories before the fact), therefore, a conviction under

Washington law necessarily fails to qualify as a categorical

crime of violence. The panel rejected this argument,

explaining that one of Amaya’s premises—that § 16(a)

requires specific intent—was false because this court has

squarely held that “knowledge” as defined in Washington

satisfies § 16(a). 

Second, Amaya argued that, because principals and the

accomplices are equally culpable, and thus, when conducting

a categorical inquiry, the criminal activities of aiders and

abettors must themselves fall within the scope of the generic

federal crime, but under Washington law accomplices may be

subject to a diminished standard of proof due to the different

mens rea required (specific intent for § 9A.36.011, but only
4 AMAYA V. GARLAND

general intent for Washington accomplice liability), therefore,

accomplice liability in Washington is broader than generic

accomplice liability. The panel observed that Amaya’s

proposition would be a forceful argument if his analysis

governed every application of the categorical approach to

Washington crimes. However, the panel concluded that it did

not. 

In so concluding, the panel discussed United States v.

Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which the

court concluded that a state offense was not a drug trafficking

aggravated felony because the mens rea of Washington

accomplice liability appeared broader than its federal

analogue. The panel explained that Valdivia-Flores maywell

have meant that no Washington state conviction can serve as

an aggravated felony at all. However, in United States v.

Door, 917 F.3d 1146 (9th Cir. 2019), the court rejected that

proposition, explaining that in Valdivia-Flores, the

categorical analysis involved comparing the elements of the

Washington crime with an enumerated generic federal

offense; in contrast, in Door, the categorical analysis involved

measuring the Washington statute against a class of offenses

defined by “the use, attempted use, or threatened use of

physical force”—a phrase known as the “elements or force

clause” of §16(a). Because Door’s conviction necessarily

entailed the threatened use of violent physical force, the court

concluded that it qualified as a crime of violence pursuant to

the force clause, and the inquiry ended there. 

The panel concluded that Door governed this case. As in

Door, the analysis here concerned the force inquiry, not a

comparison to an enumerated offense. Thus, Valdivia-Flores

did not require comparing the mens rea of Washington and

federal accomplice liability. Rather, it was sufficient that
AMAYA V. GARLAND 5

Washington’s first-degree assault statute requires proof of

assault “with intent to inflict great bodily harm.” 

Accordingly, the panel held that § 9A.36.011 is categorically

a “crime of violence” under 8 U.S.C. § 1101(a)(43)(F), and

thus, Amaya was removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having committed an “aggravated

felony.”

The panel concluded that it lacked jurisdiction to reach

Amaya’s due process claim of immigration judge (IJ) bias

because Amaya had failed to exhaust it before the BIA. The

panel explained that neither his notice of appeal nor his

attachment made a clear, non-conclusoryargument in support

of his claim. 

Finally, the panel concluded that the agency did not err in

denying Amaya’s application for deferral of removal under

CAT, observing that the IJ laid out the correct legal standard,

considered Amaya’s concern that he would be harmed by the

Salvadoran government, and found that Amaya was never

harmed in the past by the Salvadoran government. The panel

explained that the IJ considered the totality of the record

evidence, including the country conditions reports. Given the

lack of evidence supporting a claim of torture by the

government, and the evidence demonstrating that El Salvador

does not acquiesce to gang violence, the panel concluded that

substantial evidence supported the denial of CAT relief.
6 AMAYA V. GARLAND

COUNSEL

Andrew M. Knapp (argued), Supervising Attorney; John

Kiang (argued), James M. Glassman (argued), Abraham E.

Bran, Brendan E. Nafarrate, and Elizabeth A. Siruno,

Certified Law Students; Southwestern School of Law, Los

Angeles, California; for Petitioner.

Rebecca Hoffberg Phillips and Katherine A. Smith, Trial

Attorneys; Margaret Kuehne Taylor, Senior Litigation

Counsel; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

OPINION

BYBEE, Circuit Judge:

Melvin Amaya shot his drug dealer five times and was

convicted in Washington of first-degree assault. After

Amaya served his sentence, the Department of Homeland

Security (DHS) charged him with being removable for

having been convicted of an “aggravated felony,” as defined

in the Immigration and Nationality Act (INA), 8 U.S.C.

§ 1227(a)(2)(A)(iii). Amaya contested his removability on

the grounds that his conviction was not categorically an

“aggravated felony.” In the alternative, he sought asylum,

withholding of removal, or relief under the Convention

Against Torture (CAT).

The Board of Immigration Appeals (BIA) held that

Amaya was removable and that he was not entitled to asylum,

withholding of removal, or relief under CAT. Amaya
AMAYA V. GARLAND 7

petitions for review of that decision. We have jurisdiction

under 8 U.S.C. § 1252, and we deny the petition in part and

dismiss in part.

I. BACKGROUND

Melvin Amaya is a 40-year-old native citizen of El

Salvador, who entered the United States in 1994 and received

Lawful Permanent Resident (LPR) status in 1998 at the age

of 17. Before entering the United States, Amaya was

involved with his neighborhood members of the Mara

Salvatrucha (MS-13) gang. Although never an official

member, he often served as a “lookout” or “bait.” Amaya left

El Salvador and joined his mother in the United States to

avoid being “jumped in” as an MS-13 member or

“disappeared” by covert government groups.

During high school in the United States, Amaya made

friends with another Salvadoran student, who was an MS-13

gang member. This friend pressured Amaya to get an “MS”

tattoo, which he did, getting an “M” tattooed on one bicep

and an “S” tattooed on the other. Despite his tattoos, Amaya

maintains that he has never been a member of MS-13, either

in El Salvador or the United States.

Amaya dropped out of high school shortly after he turned

18, and began drinking and using both marijuana and hard

drugs. In 2001, he made friends with a local drug dealer,

Amir Al-Jabori. Three years later, Amaya got into an

argument with Al-Jabori and shot Al-Jabori five times. AlJabori survived. Amaya pleaded guilty to first-degree assault

under Washington Revised Code § 9A.36.011, and was

sentenced to 153 months imprisonment.
8 AMAYA V. GARLAND

After Amaya served his state sentence, DHS placed him

in removal proceedings pursuant to 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having committed an “aggravated

felony.” Amaya contested his removability. Applying the

categorical approach, the Immigration Judge (IJ) held that

Amaya was “removable as charged for the assault in the first

degree, an aggravated felony crime of violence.” Amaya then

applied for asylum, withholding of removal, or CAT relief, on

the basis that he was likely to be tortured by Salvadoran

gangs or the Salvadoran government if removed. After a

merits hearing, the IJ issued a decision denying Amaya’s

application for asylum, withholding, and CAT relief, and

ordering his removal.

Amaya appealed to the BIA.1 The BIA dismissed

Amaya’s appeal and affirmed the IJ’s decision. The BIA held

that Amaya’s Washington conviction for felony first-degree

assault was categorically an “aggravated felony” because it

was also a “crime of violence” satisfying 8 U.S.C.

§ 1101(a)(43)(F). The BIA further concluded that Amaya

had “not identified any factual or legal errors that would

justify disturbing the [IJ’s] decision to deny [Amaya’s]

application for deferral of removal” under CAT.

Amaya now petitions for review of the BIA’s decision. 

He raises three grounds: Whether his Washington conviction

for first-degree assault is an “aggravated felony,” thereby

rendering him removable; whether he was denied due process

of law by the IJ; and whether he is entitled to CAT relief. We

will consider each issue in turn.

1 Amaya’s supporting brief was untimely, and was therefore not

considered by the BIA. Thus, the BIA had only Amaya’s Notice of

Appeal and its attachments from which to glean Amaya’s arguments.
AMAYA V. GARLAND 9

II. FIRST-DEGREE ASSAULT AS AN “AGGRAVATED

FELONY”

Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is

convicted of an aggravated felony at any time after admission

is deportable.” “Aggravated felony” is a defined term and

includes “a crime of violence (as defined in [18 U.S.C. § 16]

. . .) for which the term of imprisonment [is] at least one

year.” 8 U.S.C. § 1101(a)(43)(F). A “crime of violence” is

defined in 18 U.S.C. § 16(a) as “an offense that has as an

element the use, attempted use, or threatened use of physical

force against the person or property of another.”

We “review de novo whether a criminal conviction is a

crime of violence and therefore an aggravated felony

rendering an alien removable.” Covarrubias Teposte v.

Holder, 632 F.3d 1049, 1052 (9th Cir. 2011) (as amended). 

We apply the categorical approach, which requires

“compar[ing] the elements of the statute forming the basis of

the defendant’s conviction with the elements of the ‘generic’

crime.” Descamps v. United States, 570 U.S. 254, 257

(2013); see also Taylor v. United States, 495 U.S. 575 (1990)

(adopting categorical approach). The statute of conviction is

a categorical match “if the statute’s elements are the same as,

or narrower than, those of the generic offense.” Descamps,

570 U.S. at 257. In the crime of violence context, we

compare the state statute to 18 U.S.C. § 16(a), rather than a

generic assault statute, and we will only find a categorical

match if “every violation of the statute necessarily involves

violent force.” Flores-Vega v. Barr, 932 F.3d 878, 883 (9th

Cir. 2019) (quoting Solorio-Ruiz v. Sessions, 881 F.3d 733,

737 (9th Cir. 2018)).
10 AMAYA V. GARLAND

Amaya offers two reasons that his first-degree assault

conviction is not an “aggravated felony” under the INA. 

First, Amaya argues that § 9A.36.011 of the Washington

Revised Code, the statute of conviction, is overbroad because

subsection (1)(b)2criminalizes conduct that does not have “as

an element the use . . . of physical force” against another

person. 18 U.S.C. § 16(a). Second, Amaya argues that his

statute of conviction is overbroad because Washington only

requires proof of general intent, rather than specific intent, to

prove accomplice liability. Amaya is incorrect on both

counts.

A. Washington’s First-Degree Assault Statute

Amaya argues that theWashington provision under which

he was convicted is too broad, and therefore not a categorical

match for the INA’s definition of a “crime of violence” (and,

accordingly, an “aggravated felony”) because it punishes

someone who administers poison or exposes another person

to the human immunodeficiency virus (HIV). At the time of

Amaya’s conviction, Washington Revised Code § 9A.36.011

provided in relevant part:3

(1) A person is guilty of assault in the first

degree if he or she, with intent to inflict great

bodily harm:

2 Amaya does not dispute that subsections (1)(a) and (1)(c) fall within

the scope of a “crime of violence.”

3 Washington revised the statute in 2020. H.B. 1551, 66th Leg., 2020

Reg. Sess. (Wash. 2020). All cites to Washington Revised Code

§ 9A.36.011 are to the statute as it existed when Amaya was convicted.
AMAYA V. GARLAND 11

. . . .

(b) Administers, exposes, or transmits to

or causes to be taken by another, poison,

the human immunodeficiency virus . . . or

any other destructive or noxious substance

. . . .

Washington further defines “great bodily harm” as “bodily

injury which creates a probability of death, or which causes

significant serious permanent disfigurement, or which causes

a significant permanent loss or impairment of the function of

any bodily part or organ.” Wash. Rev. Code § 9A.04.110(c).

Contrary to Amaya’s assertions, § 9A.36.011(1)(b)

satisfies the requirements of 18 U.S.C. § 16(a). First,

§ 9A.36.011 requires the defendant to act with the “intent to

inflict great bodily harm,” which Washington courts have

said is specific intent. State v. Thomas, 98 P.3d 1258, 1263

(Wash. Ct. App. 2004); see Wash. Rev. Code

§ 9A.08.010(1)(a) (defining “intent” to mean that “[a] person

acts with intent or intentionally when he or she acts with the

objective or purpose to accomplish a result which constitutes

a crime.”). This easily satisfies the “use of physical force” in

§ 16(a). In Leocal v. Ashcroft, 543 U.S. 1 (2004), the

Supreme Court reasoned that “use” equated to “active

employment,” and therefore requires “a higher degree of

intent than negligent or merely accidental conduct.” Id. at 9. 

The specific intent embodied in Amaya’s statute of

conviction is more than enough to satisfy this requirement. 

Second, we have repeatedly recognized that “indirect” force,

like exposure to poison or other harmful substances, satisfies

§ 16(a)’s force requirement. See Arellano Hernandez v.

Lynch, 831 F.3d 1127, 1131 (9th Cir. 2016) (poison); United
12 AMAYA V. GARLAND

States v. Melchor-Meceno, 620 F.3d 1180, 1186 (9th Cir.

2010) (poison); United States v. De La Fuente, 353 F.3d 766,

771 (9th Cir. 2003) (anthrax). The Supreme Court has

endorsed our understanding that “‘physical force’ is simply

‘force exerted by and through concrete bodies,’ as opposed to

‘intellectual force or emotional force.’” United States v.

Castleman, 572 U.S. 157, 170 (2014) (quoting Johnson v.

United States, 559 U.S. 133, 138 (2010)). Thus, “the

common-law concept of ‘force’ encompasses even its indirect

application,” such as “‘by administering a poison or by

infecting with a disease.’” Castleman, 572 U.S. at 170

(quoting W. LaFave, Substantive Criminal Law § 16.2(b) (2d

ed. 2003)).4

Intentionallyexposing another individual toHIVqualifies

as “physical force” because it is “force capable of causing

physical pain or injury to another person.” Johnson, 559 U.S.

at 140. As we explained in De La Fuente, exposing another

to anthrax is physical force because it is capable of causing

bodily injury. Even though “[t]he injury and pain caused by

anthrax infection may not always be immediately obvious to

the person exposed, . . . the bacteria’s physical effect on the

body is no less violently forceful than the effect of a kick or

blow.” 353 F.3d at 771. HIV, if untreated, may lead to

acquired immunodeficiency syndrome (AIDS), which can

lead to severe illness and death. Although HIV is a

manageable chronic illness in the United States, it currently

requires long-term medical care treatment in order to avoid

4We reject Amaya’s contention that Castleman is not applicable here. 

While Castleman’s focus was defining “physical force” in the context of

a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9),

its discussion of “force,” independent of the degree required, is relevant

to the inquiry here. Castleman, 572 U.S. at 170–71.
AMAYA V. GARLAND 13

the severe consequences of the disease. That is sufficient to

show that willfully exposing someone to HIV is “capable of

causing physical pain or injury to another person.” Johnson,

559 U.S. at 140 (emphasis added).

Amaya argues that Washington courts have watered down

the “exposes, or transmits” requirement in § 9A.36.011 and

that Washington permits conviction of someone who merely

knows of their own HIV status and engages in consensual

sex. But the cases Amaya points to do not support that

conclusion. In those cases, the Washington state courts relied

on more than the defendant’s simple knowledge of his HIV

status. In State v. Whitfield, 134 P.3d 1203 (Wash. Ct. App.

2006), the court concluded that the facts supported the jury’s

conclusion that the defendant intended to inflict great bodily

harm: The defendant was aware that he could transmit HIV

through intercourse; he had “deliberately lied to all of the

victims, telling them that he did not have any sexually

transmitted diseases while insisting that they engage in

unprotected sex with him;” he “sent an email message to one

victim stating that he hoped she would get AIDS;” and he

“told others that if he knew he had HIV he would try to infect

as many people as possible.” Id. at 1213–14. In State v.

Stark, 832 P.2d 109 (Wash. Ct. App. 1992), the court relied

on the evidence that showed that the defendant had been

counseled regarding “safe-sex” methods; he continued to

have unprotected sex with the victims; and when confronted,

he said “I don’t care. If I’m going to die, everybody’s going

to die.” Id. at 114. These cases do not demonstrate any

“watering down” of the intent requirement.

We cannot see any evidence of “a realistic probability . . .

that the State would apply [Wash. Rev. Code

§ 9A.36.011(1)(b)] to conduct that falls outside the scope of
14 AMAYA V. GARLAND

§ 16(a),” and thus Amaya’s conviction qualifies categorically

as a conviction for a crime of violence. Flores-Vega,

932 F.3d at 883 (internal quotation marks and citations

omitted).

B. Washington Accomplice Liability

Amaya also contends that his conviction for first-degree

assault has been rendered categorically overbroad by

Washington’s accomplice liability statute. Wash. Rev. Code

§ 9A.08.020(a)(i)–(ii). Amaya offers us alternative

arguments, which require us to examine related but slightly

different lines of authority. Both arguments are complicated,

so we will consider them separately.

1. Washington Accomplice Liability and Specific Intent

Amaya’s first argument follows the following logical

form:

(1) There is no longer any difference between

“principals and aiders and abettors” who are “present at

the scene of the crime” or who are “accessories before the

fact,” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189

(2007) (emphasis omitted), and thus, when conducting a

categorical inquiry, “the criminal activities of . . . aiders

and abettors of a generic [crime] must themselves fall

within the scope of the [crime defined] in the federal

statute,” id. at 190.

(2) A “crime of violence” as defined in 18 U.S.C.

§ 16(a) requires proof of specific intent. Cf. Leocal,

543 U.S. at 9 (“[T]he ‘use . . . of physical force against

the person or property of another’—most naturally
AMAYA V. GARLAND 15

suggests a higher degree of intent than negligent or

merelyaccidental conduct.” (quoting 18 U.S.C. § 16(a)));

United States v. Begay, 934 F.3d 1033, 1039 (9th Cir.

2019) (holding that proof of a “crime of violence” under

18 U.S.C. § 924(c)(3)(A) requires “purposeful conduct”).

(3) In Washington, accomplice liability only requires

proof of general intent. Wash. Rev. Code

§ 9A.08.020(a)(i)–(ii); State v. Thomas, 208 P.3d 1107,

1111 (Wash. 2009); State v. Roberts, 14 P.3d 713, 731–32

(Wash. 2000).

(4) Because Washington requires lesser proof of

accomplice liability (general intent), than is required for

a “crime of violence” (specific intent), and there is no

longer any difference between the culpability of

principals and accomplices, a conviction under

Washington law necessarily fails to qualify as a

categorical crime of violence.

The form of Amaya’s argument is proper, but premise (2)

is false. We have squarely held that “knowledge” as defined

in Washington satisfies 18 U.S.C. § 16(a).5In United States

5

 Under Washington law, “knowledge” means:

A person knows or acts knowingly or with knowledge

when:

(i) He or she is aware of a fact, facts, or

circumstances or result described by a statute

defining an offense; or

(ii) He or she has information which would lead a

reasonable person in the same situation to believe
16 AMAYA V. GARLAND

v. Werle, 877 F.3d 879 (9th Cir. 2017) (per curiam), a

Washington case, we held that “knowledge, or general intent,

remains a sufficient mens rea to serve as the basis for a crime

of violence.” Id. at 882 (citing Melchor-Meceno, 620 F.3d at

1186). Leocal does not demand anything more. In that case,

the Court did not address whether § 16(a) requires proof of

specific intent. Rather, the Court held only that § 16(a)

requires “a higher degree of intent than negligent or merely

accidental conduct.” Leocal, 543 U.S. at 9. Our decision in

Werle both cited and followed Leocal. Werle, 877 F.3d at

882. And the Supreme Court’s recent opinion in Borden v.

United States, — S. Ct. —, 2021 WL 2367312 (2021),

reinforces our decision in Werle. There, the Court interpreted

the almost identically worded 18 U.S.C. § 924(e)(2)(B)(I). It

held that § 924(e)(2)(B)(i)’s “required use of physical force

against the person of another” “covers purposeful and

knowing acts, but excludes reckless conduct.” See id. at *6. 

Borden’s reasoning extends to § 16(a). See id. at *7; see also

United States v. Garcia-Lopez, 903 F.3d 887, 893 (9th Cir.

2018) (“Because the wording of § 924(e)(2)(B)(i) and § 16(a)

are virtually identical, we interpret their plain language in the

same manner.” (quotations and alterations omitted)). Without

premise (2), Amaya’s argument fails.

that facts exist which facts are described by a

statute defining an offense.”

Wash. Rev. Code § 9A.08.010(1)(b).
AMAYA V. GARLAND 17

2. Washington Accomplice Liability and Generic

Accomplice Liability

Amaya’s second argument is equally complicated, so we

will set it out in its logical form. Only shades different than

his argument in the previous section, Amaya argues that:

(1) There is no longer any difference between

“principals and aiders and abettors” who are “present at

the scene of the crime” or who are “accessories before the

fact,” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189

(2007) (emphasis omitted), and thus, when conducting a

categorical inquiry, “the criminal activities of . . . aiders

and abettors of a generic [crime] must themselves fall

within the scope of the [crime defined] in the federal

statute,” id. at 190.

(2) Under Washington law, first-degree assault

requires specific intent. See § 9A.36.011 (stating that

first-degree assault requires proof of “intent to inflict

great bodily harm”); § 9A.08.010(1)(a) (defining “intent”

to mean that a person “acts with the objective or purpose

to accomplish a result which constitutes a crime.”); see

also State v. Thomas, 98 P.3d 1258, 1262 (Wash. Ct. App.

2004) (“Assault in the first degree includes specific intent

as an element.”).

(3) In Washington, accomplice liability only requires

proof of general intent. Wash. Rev. Code

§ 9A.08.020(a)(i)–(ii); State v. Thomas, 208 P.3d 1107,

1111 (Wash. 2009); State v. Roberts, 14 P.3d 713, 731–32

(Wash. 2000).
18 AMAYA V. GARLAND

(4) Because principals and accomplices who are either

present at the scene or accessories before the fact are

equally culpable, but under Washington law accomplices

may be subject to a diminished standard of proof due to

the different mens rea required, accomplice liability in

Washington is broader than generic accomplice liability.

Amaya’s proposition (4) follows from his premises and

would be a forceful argument if his analysis governed every

application of the categorical approach to Washington crimes. 

It does not, however, and is now beside the point. We will

explain.

We first addressed similar arguments in United States v.

Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017). In that case,

Valdivia-Flores appealed his conviction under 8 U.S.C.

§ 1326 for attempted reentry of a removed alien. ValdiviaFlores challenged his conviction by collaterally attacking a

2009 removal order, which was based on his 1997 conviction

in Washington for possessing heroin with the intent to deliver

it. As here, we considered whether his conviction under

Washington’s drug trafficking statute, Wash. Rev. Code

§ 69.50.401, was an “aggravated felony” under 8 U.S.C.

§ 1227(a)(2)(A)(iii). The INA defines “aggravated felony”

to include “illicit trafficking in a controlled substance (as

defined in section 802 of Title 21), including a drug

trafficking crime (as defined in section 924(c) of Title 18).” 

8 U.S.C. § 1101(a)(43)(B). Section 924(c) defines “drug

trafficking crime” as “any felony punishable under the

Controlled Substances Act (21 U.S.C. 801 et seq.), the

Controlled Substances Import and Export Act (21 U.S.C. 951

et seq.), or chapter 705 of title 46.” In other words, in

Valdivia-Flores, whether Washington’s drug trafficking

statute was a categorical match for an “aggravated felony” as
AMAYA V. GARLAND 19

defined by 8 U.S.C. § 1101(a)(43)(b) had to be determined by

comparing it to the federal statutory scheme. Citing

Duenas-Alvarez, we observed that “aiding and abetting

liability” is “implicit . . . in every criminal charge,” including

federal crimes. Valdivia-Flores, 876 F.3d at 1207. We then

found that “the Washington drug trafficking law on its face

appears to have a more inclusive mens rea requirement for

accomplice liability than its federal analogue,” id., and thus

“Valdivia-Flores’s conviction cannot support an aggravated

felony determination,” id. at 1209 (footnote omitted).6See

also Alfred v. Garland, No. 19-72903, 2021 WL 4302692

(9th Cir. Sept. 22, 2021) (following Valdivia-Flores); United

States v. Franklin, 904 F.3d 793, 797–98 (9th Cir. 2018)

(same), abrogated on other grounds, Shular v. United States,

140 S. Ct. 784 (2020).

The rule we adopted in Valdivia-Flores might well have

meant that “no Washington state conviction can serve as an

aggravated felony at all.” Valdivia-Flores, 876 F.3d at 1209

(quoting the government; cleaned up). We rejected that

proposition in United States v. Door, 917 F.3d 1146 (9th Cir.

2019). Door had been convicted in Washington of felony

harassment and was looking at a sentencing enhancement

under U.S.S.G. § 4B1.2(a) for having committed a “crime of

violence,” which contains a force clause identical to the

definition of “crime of violence” in § 16(a). Compare

U.S.S.G. § 4B1.2(a)(1) with 8 U.S.C. § 16(a). Citing

Valdivia-Flores, Door argued that “because every

6 We also found that “Washington law is clear that jurors need not

agree on whether a defendant is a principal or accomplice” and thus “the

drug trafficking statute is not divisible so far as the distinction between

those roles is concerned” and “the modified categorical approach may not

be applied.” Valdivia-Flores, 876 F.3d at 1210.
20 AMAYA V. GARLAND

Washington criminal statute incorporates aiding and abetting,

all Washington criminal statutes are overbroad, and therefore

all Washington state convictions fail to qualify as crimes of

violence.” Door, 917 F.3d at 1152. We squarely rejected his

argument, however, because it “overlook[ed] the analytical

difference between the force clause and the enumerated

offenses clause.”7

Id. We explained that in Valdivia-Flores,

the categorical analysis “involved comparing the elements of

the Washington drug trafficking crime with the generic

federal offense of drug trafficking.” Id. at 1153. “Generic

federal offenses” are enumerated offenses that require

comparing a state statute with its federal counterpart. By

contrast, in Door, as here, we were measuring the

Washington statute against a class of offenses defined by “the

use, attempted use, or threatened use of physical force.” 

Valdivia-Flores was an exercise in mapping a state crime

7 The current version of U.S.S.G. § 4B1.2(a) defines “crime of

violence” as follows:

[A]ny offense under federal or state law, punishable by

imprisonment for a term exceeding one years, that—

(1) has as an element the use, attempted use, or

threatened use of physical force against the

person of another, or

(2) is burglary of a dwelling, arson, extortion, or

the use or unlawful possession of a firearm

described in 26 U.S.C. § 5845(a) or explosive

material as defined in 18 U.S.C. § 841(c).

Subsection (a)(1) is known as the “elements or force clause,” while (a)(2)

is referred to as the “enumerated offenses clause.”
AMAYA V. GARLAND 21

onto a federal crime;8 Door was an exercise in category. We

held that the difference was significant. Because Door’s

conviction for felony harassment “necessarily entails the

threatened use of violent physical force, it qualifies as a crime

of violence pursuant to the force clause, and our inquiry ends

there.” Id. We thus held that we “need not compare the

elements of the crime of conviction with the elements of the

generic federal crime when analyzing whether an offense

qualifies as a crime of violence pursuant to the force clause.” 

Id.

Door governs this case, and it renders Amaya’s

proposition (4) irrelevant. As in Door, our analysis here

concerns the force inquiry, not a comparison to an

enumerated offense, as we did in Valdivia-Flores.

9 Thus,

Valdivia-Flores does not require us to compare Washington’s

underlying accomplice liability mens rea to the generic

federal accomplice liability mens rea. For the reasons we

have previously described, it is sufficient that Washington’s

first degree assault statute requires proof of assault “with

intent to inflict great bodily harm.” Wash. Rev. Code

§ 9A.36.011(1); see also United States v. Calvillo-Palacios,

8 We note that there is no suggestion in Valdivia-Flores that the

defendant had been charged as removable under alternate aggravated

felony provisions. Therefore, we had no occasion to consider the

differences between an enumerated offense aggravated felony and a crime

of violence aggravated felony under the INA.

9 The INA’s lengthy definition of “aggravated felony” includes

enumerated offenses—e,g,, 8 U.S.C. § 1101(a)(43)(A) (“murder, rape, or

sexual abuse of a minor”)—but we are only concerned here with a “crime

of violence,” as defined in the equivalent of the force clause in 18 U.S.C.

§ 16(a). See 8 U.S.C. § 1101(a)(43)(F).
22 AMAYA V. GARLAND

860 F.3d 1285, 1290 (9th Cir. 2017). That is all that Door

demands. See Door, 917 F.3d at 1153.

* * *

Section 9A.36.011 is categorically a “crime of violence”

under 8 U.S.C. § 1101(a)(43)(F),10

and the BIA correctly

determined that Amaya is removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having committed an “aggravated

felony.”

III. DUE PROCESS

Amaya asserts that the BIA erred by ignoring his due

process claim of IJ bias. We ordinarily review due process

challenges de novo. Vasquez-Zavala v. Ashcroft, 324 F.3d

1105, 1107 (9th Cir. 2003). However, Amaya failed to

exhaust his due process claim before the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004) (claims must

be exhausted to be raised in a petition for review). A

“conclusory statement does not apprise the BIA of the

particular basis for [the petitioner’s] claim” nor

“meaningfully challenge the IJ’s decision on appeal.” Rizo v.

Lynch, 810 F.3d 688, 692 (9th Cir. 2016). Neither his notice

of appeal nor his attachment thereto made a clear, nonconclusory argument in support of his claim. We cannot say

that the BIA ignored a clearly-identified due process

10 Amaya does not dispute that he was sentenced to a “term of

imprisonment [of] at least one year” as § 1101(a)(43)(F) requires.
AMAYA V. GARLAND 23

argument.11 Amaya thus failed to exhaust his claim before

the BIA, and we lack jurisdiction to reach the underlying

merits of Amaya’s due process claim. See Sola v. Holder,

720 F.3d 1134, 1136 (9th Cir. 2013) (“Challenges to

procedural errors correctable by the administrative tribunal,

must be exhausted before we undertake review.” (alterations

and quotation omitted)); Barron, 358 F.3d at 677–78. We

dismiss that portion of his petition.

IV. DENIAL OF CAT RELIEF

Amaya also challenges the agency’s denial of his

application for deferral of removal under CAT.12 We review

questions of law de novo and factual determinations for

substantial evidence. De Rodriguez-Echeverria v. Mukasey,

534 F.3d 1047, 1050 (9th Cir. 2008). We conclude that the

agency did not err in denying Amaya’s application for

deferral of removal under CAT. Because the BIA concluded

that Amaya “ha[d] not identified any factual or legal errors

that would justify disturbing the [IJ’s] decision to deny

[Amaya’s] application . . . for failure of proof,” we “look to

the IJ’s oral decision as a guide to what lay behind the BIA’s

conclusion.” Avetova-Elisseva v. INS, 213 F.3d 1192, 1197

(9th Cir. 2000).

11 To the extent that Amaya’s brief can be read as arguing that the

BIA’s rejection of his brief was itself a violation of due process, we

disagree. Amaya was clearly informed of the deadline to file his briefs

and failed to file them timely. Nothing prevented Amaya from filing a

motion to reopen or for reconsideration with the agency before this appeal.

12 Amaya does not challenge the denial of asylum, withholding of

removal, or withholding under CAT, which were foreclosed by his

aggravated felony conviction. 8 U.S.C. §§ 1158(b)(2)(B)(i),

1231(b)(3)(B)(ii).
24 AMAYA V. GARLAND

The IJ laid out the correct legal standard for obtaining

CAT protection, considered Amaya’s concern that he would

be harmed by the Salvadoran government, and found that

Amaya “was never harmed in the past by the government of

El Salvador.” As the BIA recognized, the IJ “considered the

totality of the record evidence,” including the country

conditions reports, in determining that Amaya did not

establish “that it is more likely than not that he will be

tortured by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity in El Salvador.” To the extent Amaya

challenges the IJ’s focus on his claim that the government of

El Salvador would acquiesce in his torture by gangs, this

focus mirrors Amaya’s testimony, submissions, and the

testimony of supporting witnesses, which focused on the

threat from the gangs and government acquiescence rather

than a fear of the government committing the torture itself. 

Given the lack of evidence supporting a claim of torture by

the government, and the evidence demonstrating that El

Salvador does not acquiesce to gang violence, substantial

evidence supports the agency’s denial of CAT relief.

V. CONCLUSION

We conclude that Washington Revised Code § 9A.36.011

is categorically an “aggravated felony,” making Amaya

removable under 8 U.S.C. § 1227(a)(2)(A)(iii). We are

without jurisdiction to review Amaya’s unexhausted due

process claim. The agency’s determination that Amaya was

not entitled to CAT relief was supported by substantial

evidence.

DENIED in part and DISMISSED in part.