F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M E L V I N A D I E L A M

A Y A , AKA Melvin Adiel Amay a-Cartag ena, P etitioner
,

v

.

M E R R I C K B

. G A R

L A N D , Attorney General, Respondent. N o. 18-70060

Ag ency No. A077-152-130

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted May 13, 2021 Pasadena, California

F iled October 7, 2021

B efore: J ay

S. B y bee and Daniel A. B ress, Circuit J udg es, and Kathleen Cardone, * District J udg e.
Opinion by

J udg e B y bee

* T h e Ho n o rab le Kath leen Card o n e, Un ited States District J u dg e f or th e W estern District o f

T ex as, sittin g b y

d esig n atio n

.A M A Y A V

. G A R L A N D 2

SUMMARY * *

Im m igration

Deny ing in part a

nd dismissing in part Melvin A may a ’s petition for review of a decision of the B oard of I mmig r ation Appeals, the panel held that: ( 1) first-deg ree as s a u l t under W a shing ton Revised Code § 9A.36.011 is c ateg o rically a crime of violence ag g ravated felony ; ( 2 ) the court lacked jurisdiction to consider Amay a’s unex h austed due process claim; and (3) substantial evidence supported the denial o f relief under the Convention Ag ainst Torture (CAT).

The I mmig ration and Nationality Act defines “ag g ravated felony ” to include “ a crime of vio l e n c e , ” as defined in 18 U.S.C. § 16, for which the term of imprisonment is at least

one y ear. 8 U.S.C. § 1101(a)(43)(F ). U nder § 16(a), a “ crime of violence” is “ an offense that has a s an elemen t t h e u se, attempted use, or threatened use of phy sical force ag ainst the person or property of another.”

Amay a a rg ued that § 9A.36.011 is too broa d
, a nd
t herefore not a categ orical match for § 16(a) because § 9A.36.011(b) punishes someone who administers poison o r

ex p oses a

nother person to the h uman immunodeficiency virus. Howeve r , the panel concluded that § 9A.36.011(b) satisfies the requirements of § 16(a). F irst, § 9A.36.011 requires “ intent to inflict g reat bodily h arm , ” which W a shing ton courts have said is spec i f i c i n tent. The panel concluded that this easily satisfies the “ use of phy sical force”

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A M A Y A V

. G A R L A N D 3

i n § 16(a), ex plaining that the Supreme Court has reasone d that “use” equates to “active employ ment,” and thus requires

a hig h er d eg ree of intent than neg lig ent or accidental conduct. S e c ond, the panel ex plained that this court has repeat ed l y recog niz ed that “indirec t ” f o rce, like ex posure to poison

or other h a rmful substances, satisfies § 16(a)’s force requirement. F u r t h e r, the p anel saw no realistic probability that the state would apply § 9A.36.011(b) to conduct outside the scope of § 16(a).

Amay a raised two arg uments that Was h ing ton’s

a c c o m p l i c e l i a b i l i t y s t a t u t e , W a s h

. R e v

. C o d e § 9A.08.020(a)(i)–(ii), rendered his conviction categ orically overbroad. F irst, Amay a arg ued that, because W ashing ton requires lessor proof of accomplice l i ability (g e neral intent) than is required for a crime of violence (specific intent), and because, under Gonzales v

. Duena s-Alvarez
, 549 U.S. 183 (2007), there is no long er any difference bet w een the culpability of principals and a ccomplices (present a t the scene

or accessories before the fact), therefore, a convicti on under W a shing ton law necessarily fails to qualify as a categ orical crime of violence. The p ane l r e j e cted this arg ument,

ex p laining that one of Amay a ’s premises—that § 16(a) requires specific intent—was f alse because t h i s court has squarely held tha t “knowledg e” as defined in W ashing ton satisfies § 16(a).

Second, Amay a arg ued that, b e c ause principals a nd the accomplices are e qually c ulpable, and thus, when conducting

a categ orical inquiry
, the criminal activities of aiders a nd abettors must themselves fall within the scope of the g eneric federal crime, but under W a shing ton law accomplices may be subject to a diminished standard of p roof due to the different

mens rea required (specific inte n t f o r § 9A.36.011, but onlyA M A Y A V

. G A R L A N D 4

g eneral intent for Wa s h i n g t o n a c c o mplice liability )
, therefore,

a ccomplice liability in W a shing ton is broader than g ener i c accomplice liability

. The panel observed t h a t Amay a’s proposition would be a forceful arg u ment if h is analy sis
g overned every applicati o n of the categ orical approach to W a shing ton crimes. However, the panel concluded that it did
not.

I n so concluding
, the panel dis c u s s e d United S tates v

. Valdivia-Flores
, 876 F .3d 1201 (9th Cir. 2017), in which the
court concluded that a state offense was not a drug trafficking
ag g r avated f

e lony because the mens rea of W ashing ton

accom p l i c e liability appeared broader than its federal analog ue. The panel ex p lained that Valdivia-Flores may w ell have meant that no W a shing ton state conviction can serve a s

an ag g ravated felony at all. However, in U n i ted S tates v

. Door
, 9 17 F

. 3d 1146 (9th Cir. 2019), the court rejected that
p r o position, ex plaining that in Valdivia-Flores
, the categ orical analy sis involved comparing th e e l ements of the W a shing ton crime with an enumerated g eneric federal offense; in contrast, in Door
, the categ orical analy sis invol v ed measuring the W ashing ton statute ag ainst a class of o ffenses defined b y “ the use, attempted u se, or threatened use o f
p h y s i cal f

orce”—a phrase known as the “elements or for c e clause” of §16(a). B ecause D oor’s convictio n necessarily entailed the threatened use of violent phy sical force, the court concluded that it qualified as a crime of violence p ursuant to the force clause, and the inquiry ended there.

The p anel concluded that Door g overned this c ase. As in Door
, the analy sis here con cerned the force inquiry
, n ot a comparison to an enumerated offense. Thus, Valdivia-Flore s did not require comparing the mens rea of W ashing ton a nd federal ac c o mplice liability

. Rather, it was sufficient thatA M A Y A V

. G A R L A N D 5

W a shing ton’s first-deg ree assault statute requires proof o f assaul t “ w i th intent to inflict g reat bodily harm.” According ly
, the panel held that § 9 A.36.011 is categ orically

a “crime o f violence” under 8 U.S.C. § 1101(a)(43)(F ), a n d
t h u s , A m a y a w a s r e m o v a b l e u n d e r 8 U

. S

. C

. § 1 2 27(a)(2)(A)(iii) for having committed an “ag g r a vated felony .”

The panel c o n c luded that it lacked jurisdiction to reach Amay a’s due p rocess claim of immig ration judg e (I J ) bias because A may a had failed to ex h aust it before the B I A. The panel ex plained that neither his notice of appeal nor his attachment made a clear, non-conclusory arg ument in support of his claim.

F inally
, the panel concluded that the ag ency did not e rr in deny ing Amay a’s application for defe r ral of removal under CAT, observing that the I J laid out the correct leg al standard, considered A may a’s concern that h e would be harmed by the Salvadoran g overnment, a nd f ound that Amay a was never harmed in the past by the Salvadoran g overnment. The panel

ex p lained that the I J c o n sidered t h e totality of the record evidence, including the country conditions reports. G iven the lack of e vidence supporting a claim of torture b y the
g overnment, a

nd the evidence demonstrating that El Salvador does not acquiesce to g a

ng violence, the panel concluded that substantial evidence supported the denial of CAT relief.A M A Y A V

. G A R L A N D 6

COUNSEL

Andrew M. Knapp (arg ued), Supervising Attor n e y ; J ohn Kiang (arg

ued), J ames M. Glassman (arg ued), Abraha m E. B ran, B rendan E. N afarrate, and Eliz abeth A. Siruno, Certified L a

w Students; Southwes t e r n School of L aw, L os Ang eles, California; for Petitioner.

Rebecca H offberg Phillips and Katherine A. Smit h
, Trial Attorney s; Marg a ret Kuehne Tay lor, Senior L itig ation Counsel; Office of I mmig ration L itig ation, Civil D ivision, United States Department of J ustice, Washing ton, D.C.; for Respondent.

OP INION

B YB EE, Circuit J udg e:

Melvin Amay a shot his drug de a l e r f i ve times and was

conv i c t e d in W ashing ton of f irst-deg ree assault. After Amay a served his sentence, the Depa r t m e nt of Homeland Security (D H S ) charg ed him with being removable for having been convicted of an “ag g r a v ated felony ,” as defined in the I mmig ration and Nationality Act (I N A )
, 8 U .S.C. § 1227(a)(2)(A)(iii). Amay a contested his removability on the g rounds th a t his conviction was not categ orically an “ag g ravated felony .” I n the alternative, he soug ht asy lum, withholding of r e moval, or r elief under the Convention Ag ainst Torture (CAT).

The B oard of I mmig ration Appeals ( B I A ) held that Amay a was r emovable a

n d that he was not entitled to asy lum, withholding of remova l
, o r relief under CAT. Amay aA M A Y A V

. G A R L A N D 7

petitions for rev i e w o f that decision. W e have jurisdiction under 8 U.S.C. § 1252, a

nd we d eny t h e p e t i tion in part a nd dismiss in part.

I . B ACKGROUND

Melvin A m a y a is a 40-y ear-old native citiz e n of El Salvador, who entered the U nited States in 1994 and received L awful Permanent Resident (L PR) status in 1998 a t the ag e of 17. B efore e n t ering the U nited States, Amay a was involved with his neig hborhood members of the Mara Salvatrucha (MS-13) g ang

. A lthoug h never an o fficial member, he o ften served a s a “lookout” or “bait.” Amay a left El Salvador and joined his mother i n the United States to avoid being “jumped in” as an MS-13 m ember o r “disappeared” by

covert g o vernment g roups.
During high s c hool in the United States, Amay a made friends with another Salvadoran student, who was an MS-13
g ang member. This f

riend pressured Amay

a to g et an “MS” tattoo, which he did, g etting an “M” t a t t o o ed on one bicep and an “S” tattooed on the other. Despite his tattoos, Amay a maintains that he has never b een a member of MS-13, either in El Salvador or the United States.

Amay a dropped o ut of hig h school shortly a fter h e turned 18, and beg an drinking and using both marijuana and hard drug s. I n 2001, he made frien d s w i t h a local drug dealer, Amir A l-J abori. Three y ears later, Am a y a got into an arg ument w i t h Al-J abori and shot Al-J a bori five times. AlJ abori survived. Amay a p leaded g uilty to first-deg ree assault under W a shing ton Revised Code § 9 A

. 36.011, and was sentenced to 153 months imprisonment.A M A Y A V

. G A R L A N D 8

A f ter Amay a served his state sentence, D HS p laced h i m i n r e m o v a l p r o c e e d i n g s p u r s u a n t t o 8 U

. S

. C

. § 1227(a)(2)(A)(iii) for having c ommitted an “a gg ravated felony .” Amay a contest e d h i s removability

. Apply ing the categ orical approach, the I mmig ration J udg e (I J ) held t h at Amay a was “removable as charg ed f or the assault in the first deg ree, an ag g ravated felony crime of v iolence.” Amay a then applied for a sy lum, withholding of removal, or CAT relief, on the basis that he w as likely to be tortured by Salvadoran
ga n gs or the Salvadoran g overnment if removed. A f te r a merits h earing
, t h e I J issued a decision deny ing Amay a’s application for as y l u m, withholding
, and CAT r elief, a nd orderinghis removal.

Amay a appealed to the B I A. 1 The B I A dism i s s ed Amay a’s appeal a

nd affirmed the I J ’s decision. T he B I A h eld that Amay a’s W ashing ton conviction for felony first-deg r ee assault was c ateg orically an “ag g ravated felo n y ” because it

was a lso a “crime of violence” satisf y i n g 8 U .S.C. § 1101(a)(43)(F ). The B I A further concluded that Amay a had “not identified any factual or le ga l errors that would justify disturbing the [ I J ’s] decision to deny [ A m a y a’s] application for deferral of removal” under CAT.

Am ay a now petitions for review of the B I A’s decision. He raises three g rounds: W hether his W ashing ton conviction for first-deg r ee a s s ault is an “ag g ravated felony
, ” thereby rendering him r emovable; whether he was denied due process of law by the I J ; and whether he is entitled to CAT relief. W e will consider each issue in turn.

1 A m ay a’ s su

p p o rtin g b rief w as u n tim ely
, an d w as t h eref o r e n o t

co n sid ered by th e BIA

. T h u s, th e B IA h ad o n ly A m ay a’ s No ti ce of A p peal an d its attach m en t s f ro m w h i ch to g lean A m ay a’ s arg u m en ts.A M A Y A V

. G A R L A N D 9

I I . F I RST-DEGREE ASSAUL T AS AN “AGGRAVATED

F EL ONY”

Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[ a] n y alien who is convicted o f an ag g ravated felony at any time a fter admission is deportable.” “Ag g ravated f elony ” is a defined te r m a n d includes “a crime of violence ( a s defined in [ 18 U.S.C. § 1 6]

. . .) for w hich t h e t e r m of imprisonment [ is] at least o ne y ear.” 8 U.S.C. § 1101(a)(43)(F ). A “ c r i m e o f violence” is d efined in 18 U.S.C. § 16(a) as “an o ffense that h a s a s a n element the use, attempted use, or threatened use of phy sical force ag ainst the person or property of another.”

W e “revie w de novo whether a criminal conviction is a crime of v iolence a n d t h e r efore an ag g ravated felony rendering an alien r emovab l e

. ” Covarrubias Teposte v

. Holder
, 632 F .3d 1049, 1052 ( 9th Cir

. 2 011) (as amended). W e apply the categ orical approach, w hich requires “compar[ ing ] the elements of the statute forming the basis o f the defendant’s conviction with the elements o f the ‘g eneric’ crime.” Descamps v

. U nited States
, 570 U.S. 2 54, 257 (2013); see also Taylor v. United States
, 495 U.S. 575 (1990) (adopting categ orical approach). T he statute of conviction is

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

or narrower than, those o f the g e neric offense.” Descamps
, 570 U.S. at 257. I n the c rime of violence c o n t e x t , we compare the state statute to 18 U.S.C. § 16(a), rather than a g e n e ric assault statute, and we will only find a categ orical match if “ every violation o f the statute nece s sarily involves violent force.” Flores-Vega v. Barr , 932 F .3d 878, 883 (9th Cir. 2 019) (quoting Solorio-Ruiz v

. Sessions
, 881 F .3d 733, 737 (9th Cir. 2018)).A M A Y A V

. G A R L A N D 10

Amay a o ffers two r easons that his first-deg r ee assault conviction i s n o t an “ a g g ravated felony ” under the I NA. F irst, A may a arg ues that § 9A.36.011 of the W ashington Revised Code
, the statute of conviction, is overbroad because subsection (1)(b) 2 criminaliz es conduct that does not h ave “as

an element the u se

. . . of phy sical force” ag ainst another
person. 18 U.S.C. § 16(a). Second, Amay a arg ues t h a t his
statute of conviction is overbroad because W ashington only requires proof of g eneral intent, r ather than specific intent, to prove accomplice liability

. A may a is incorrect on b oth
counts.

A. W ashington’s First-Degree Assault Statute

Amay a arg ues that t

h e W ashing ton provision under which he was convicted is too broad, and therefore not a categ orical match for the I

NA’s definition of a “crime of violence” (and, according ly
, an “ag g ravated felony ”) b ecause it punishes

someone who administers poison or ex poses another person to the human immunodeficiency virus (HI V). At the time o f Amay a’s conviction, Washing ton Revised Code § 9A.36.011 provided in relevant part: 3

(1) A person is g uilty of assault in the first deg ree if he or she, with intent to inflict g reat bodily harm:

2 A m ay a do es n o t disp u t e t h at su b sectio n s (1 )(a) an d (1 )(c) f all w ith in th e sco p e o f

a “ crim e o f

v io len ce.”

3 W ash i n g to n rev ised th e s tatu te in 2 0 2 0

. H.B

. 1 5 5 1
, 6 6 th L eg ., 2 0 2 0 Reg

. Sess. (W ash

. 2 0 2 0). Al l c i t e s to W ash in g to n Rev ised Co d e § 9 A .3 6 .0 11 are to th e statu te as it ex i sted w h en A m ay a w as co n v icted

.A M A Y A V

. G A R L A N D 11

. . . . (b) Administers, e x poses, or transmits to

or ca u ses to be taken by another, poison, the human immunodeficiency virus

. . . o r any other destructive or nox ious substance

. . . .

W a shing ton f

urther defines “ gr eat b odily harm” as “bodily injury w hich creates a probabili ty of death, or w hich causes sig nificant serious permanent disfig u rement, or which causes

a sig nificant permanent loss o r impairment of the function o f
any bodily part or org an.” W ash. Rev. Code § 9 A.04.110(c).

Contrary to Amay a ’s assertions, § 9A.36.011(1)(b) satisfies the requirements of 1 8 U .S.C. § 16(a). F irst, § 9A.36.011 requires the defendant to act with the “intent to inflict g reat bodily h arm,” which W a s h i ng ton courts have said is specific intent. State v. Thomas
, 98 P.3d 1 2 5 8
, 1 2 63 ( W a s h

. C t

. A p p

. 2 0 0 4 ); s ee W a s h

. R e v

. C o d e § 9A.08.010(1)(a) (defining “intent” to mean that “[ a] person acts with intent o r 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 phy sical force” in § 1 6(a). I n Leoc a l v. A s h croft
, 543 U.S. 1 (2004), the Supreme Court reasoned that “ use” eq u a ted to “active employ ment,” and therefore r e q u i res “ a hig her deg ree o f intent than neg lig ent or merely accidental conduct.” Id. at 9. The specific intent embodied in Amay a ’s statute o f convictio n i s more than enoug h to satisfy this requirement. Second, we have repeatedly recog niz ed that “ indirect” force, like ex posure to p oison o r o ther h armful substances, satisfies § 1 6(a)’s force requirement. See Arellano Hernandez v

. Lynch
, 8 31 F .3d 1127, 1131 (9th Cir. 2016) (poison); UnitedA M A Y A V

. G A R L A N D 12

States v. Melchor-Meceno
, 620 F .3d 1180, 1186 (9th Cir. 2010) (poison); United States v

. D e La Fuente
, 353 F .3d 766, 771 (9th Cir. 2003) (anthrax ). The Supreme Court has endorsed our understanding t h at “‘phy sical force’ is simply ‘force ex erted by and throug h concrete bodies,’ a s opposed to ‘intellectual force or e m o t ional force.’” United States v

. Castleman
, 5 72 U.S. 1 57, 170 (2014) (quoting Johnson v

. United S tates , 559 U.S. 133, 1 3 8 (2010)). Thus, “the common-law co n c e pt of ‘force’ encompasses even its indirect

a p p l ication,” such as “‘by administering a poison o r b y in f e c t i n g with a disease.’” Castleman
, 572 U .S. at 170 (quoting W

. L aF a ve, Substantive Criminal Law § 16.2(b) (2d ed. 2003)). 4

I ntentionally ex posing another individual t o H IV q u a l ifies

as “phy sical force” because it is “ force capable of c ausing phy sical pain or injury to another person.” Johnson
, 5 59 U.S. at 140. As we ex plained in De La Fuente , ex posing another
to anthrax is phy sical force because it is capable of c ausing bodily injury . Even thoug h “[ t] he injury and pain caused by anthrax infection may n ot alway s be immediately obvious to the person e x posed,

. . . the bacteria’s phy sical effect on the body is no less violently forc e fu l than the effect of a kick o r b l ow.” 353 F .3d at 771. H I V, if untreated, may lead t o acquired immunodeficiency sy ndrome (AI DS), which can lead to severe illness a n d death. Al t h o u gh HI V is a

m a n ag eable chronic illness in the United States, it c urrent l y requires long -term medical care treatment in order to avoid

4 We rej ect A m ay a’ s co n ten tio n th at Ca s tlema n i s n o t ap p licab l e h ere. W h ile C a s tlema n ’ s f

o cu s w as d ef

in i n g “ ph y sical f

o rce” in th e co n tex t of

a “ m isd em ean o r crim e o f d o m estic v i o len ce” u n d er 1 8 U.S.C. § 9 2 2 (g )(9 ), its d i scu ssio n o f “ f

o rce,” in d ep en d en t o f

th e d eg ree req u ired
, is relev an t to th e in q u iry

h ere. Ca stlema n , 5 7 2 U.S. at 1 7 0– 7 1

.A M A Y A V

. G A R L A N D 13

the severe consequences of the disease. That is sufficient to show that willfully ex posing someone to HI V is “ capable o f causing phy sical pain or injury to another person.” Johnson
, 559 U.S. at 140 (emphasis added).

Amay a arg ues that Washing ton courts have wa tered down the “ex poses, or transmits” requirement in § 9A.36. 0 1 1 and that W ashing ton permits conviction of someone who merely knows of their own HI V status and eng ag es in co n s e nsual

s e x

. B ut the cases Amay a points to d o not support t h at conclusion. I n those cases, the W ashing ton state courts relied

on more than the d e fe n dant’s simple knowledg e of his HI V
status. I n S

tate v. W h itfield , 134 P.3d 1203 (W ash. Ct. App. 2006), the court c oncluded that the facts supported the jury ’s conclusion that the defendant intended to inflict g reat bodily harm: The defendant w as aware t h a t he could transmit HI V throug h intercourse; he had “deliberately lied to all of t h e victims, telling them that he did not h a v e any sex ually transmitted diseases while insisting that they eng a g e in unprotected sex with him;” he “sent an email messag e to o ne victim stating that he hoped she would g et AI D S ; ” and he “told others that if he knew he h ad HI V he would try to infect

as many people as possible.” Id. a t 1213–14. I n State v

. Stark
, 832 P.2d 109 ( W ash. C t

. A p p

. 1992), the court relied

on the e vidence t h a t showed that the defendant h ad been counseled reg a

rding “s a f

e -sex ” methods; he continued to have unprotected sex with the victims; and when c onfronted, he said “ I don’t care. I f I ’m g oing to die, every b ody ’s g oing
to die.” Id. at 114. These cases do not demons t r ate any “watering down” of the intent requirement.

W e cannot see any evidence of “a realistic p robability

. . . t h a t t h e S t a t e w o u l d a p p l y [ W a s h

. R e v

. C o d e § 9A.36.011(1)(b)] to conduct that falls outside the scope ofA M A Y A V

. G A R L A N D 14

§ 16(a),” and thus Amay a’s conviction qualifies categ orically

as a conviction for a crime of viole n c e

. F lores-Vega
, 932 F .3d at 883 ( i n t e r

nal quotation marks and citations omitted).

B

. W ashington Accomplice Liability

Amay a a l s o c ontends that his conviction for first-deg r ee

assau l t has been rendered c ateg orically overbroad b y W a shing ton’s accomplice liability statute. W ash. Rev. Code § 9A.08.020(a)(i)–(ii). Am a y a offers us a lternative
arg uments, which require u s to e x amine related but slig htly different lines of authority

. B oth arg uments are complicated, so we will consider them separately

.

1. W a shing ton A ccomplice L iability and Specific I ntent

A m a y a ’s first arg ument follows the following log ical form:

(1) There is no long e r any difference b etween “principals and aiders and abe t t o r s” who are “present at the scene of the crime” or who are “accessories before the fact,” G o n z ales v. Duenas-Alvarez
, 549 U.S. 183, 189 (2007) (emphasis omitted), and thus, when conducting a categ orical inquiry
, “the crimina l a c tivities of

. . . aiders and a bettors of a g eneric [ crime] must themselves fall within the scope of the [crime defined] in t h e federal statute,” id. at 190.

(2) A “ crime o f violence” as defined in 18 U .S.C. § 16(a) requires proof o f specific in t e nt. Cf. Leocal
, 543 U.S. at 9 (“[ T] he ‘use

. . . of phy sical force ag ainst the person or pro p e r ty of a n other’—most naturallyA M A Y A V

. G A R L A N D 15

sug g ests a hig h e r d e gree of intent than neg lig ent o r merely accidental conduct.” (quoting 18 U.S.C. § 16(a))); United S t ates 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) I n W ashing ton, accomplice liability only requires
p r o o f o f g e n e r a l i n t en t

. W a s h

. R e v

. C o d e § 9 A.08.020(a)(i)–(ii); State v. T h omas , 208 P.3d 1107, 1111 ( W ash. 2009); State v. Roberts
, 14 P.3d 713, 731–32 (W ash. 2000).

(4) B ecause W a s h ing ton requires lesser proof o f accomplice liability (g eneral intent), than is required for

a “crime o f v i o lence” (specific intent), and there is no long er any differenc e b etween the culpability o f principals and accomplices, a con viction under W a shing ton law necessarily fails to q ualify as a categ orical crime of violence.

The form of Amay a’s a

rg ument is proper, but premise (2) is false. W e have squarely held that “knowledg e” as defined in W ashing ton satisfies 18 U.S.C. § 16(a). 5 I n United States

5 Un der W ash in g to n

law , “ k n o w led g e” m ean s:

A p erso n k

n o w s o r a c t s k

n ow in g ly o r w ith k

n o w led g e

w h en :
(i) H e o r sh e is aw are o f a f act, f acts, or

c i rcu m stan ces o r resu lt d escrib ed b y a statu t e d ef in in g an o f

f en se; o r
(ii) He o r sh e h as in f

o rm atio n w h ich w o u l d lead a

reaso n ab le p erso n

in th e sam e situ atio n

to b eliev eA M A Y A V

. G A R L A N D 16

v. W erle
, 877 F .3d 879 (9th C i r

. 2017) (per curiam), a W a shing ton case, we held that “knowledg e, or g eneral intent, remains a sufficient mens rea to serve a s the basis for a crime of violence.” I

d. at 882 (citing Melchor-Meceno
, 6 20 F .3d at 1186). Leocal does not demand any thing more. I n that c ase, the Court did not addr e s s whether § 16(a) requires proof o f

s p ecific intent. Rather, the Court held only that § 1 6 ( a ) requires “a hig her deg ree of intent than n e g lig ent or merely accidental conduct.” Leocal
, 5 43 U.S. at 9. Our decision in W erle both cited and f

ollowed L eocal

. W

erle
, 877 F .3d at 882. And the Supreme Court’s r ec e n t o pinion in Borden v

. United States
, — S. Ct. —, 2021 W L 2367312 (2021), reinforces our decision in W erle

. There, the Court interpreted the almost identically worded 1 8 U.S.C. § 924(e)(2)(B )(I ). I t held that § 924(e)(2) (B) (i)’s “required use of phy sical force
ag ainst the person of anoth e r” “covers p urposeful a nd knowing acts, but ex cludes reckless conduct.” See id. a t *6. Borden ’s reasoning ex tends to § 1 6(a). See id. at *7; see also United States v. Garcia-Lopez
, 903 F

. 3 d 887, 893 (9th Cir. 2018) ( “B ecause the wording of § 924(e)(2)(B )(i) and § 16(a)

are virtually identical, we interpret their p lain lang uag e in the

same manner.” (quotations and alt e r a t i o n s o m i t t ed)). W ithout premise (2), Amay

a’s arg u ment fails.

th at f acts ex ist w

h i ch f acts a r e describ ed b y a statu te d ef

in in g an o f

f en se.”

W ash . Rev . Co d e § 9 A .0 8 .0 1 0 (1 )(b ).A M A Y A V

. G A R L A N D 17

2. W a shing ton Accomplice L iability and Generic Accomplice L iability

Amay a’s second arg ument is equally complicated, so we will set it o ut in its log ical form. O nly shades different than his arg ument in the previous section, Amay a arg ues that:

(1) There is no long e r any difference b etween “principals and aiders and abettors” who are “p r es ent at the scene of the crime” or who are “ accessories before the fact,” Gonzales v. Du en a s-Alvarez
, 549 U.S. 183, 189 (2007) (emphasis omitted), and thus, when conducting a

ca t e gorical inquiry
, “the criminal a c tivities of

. . . aiders and a bettors of a g eneric [ crime] must themselves fall within the scope of the [ crime defined] in the federal statute,” id. at 190.

( 2) Under W a shing ton law, first-deg ree assau l t requires specific int en t. S ee § 9A.36.011 (stating that first-deg ree a ssau l t r equires proof of “intent to inflict
g reat b odily harm”); § 9A.08.010(1)(a) (defining “intent”
to mean that a person “acts with the objective or purpose to accomplish a result which cons t i tutes a crime.”); see also State v. Thomas
, 98 P.3d 1258, 1262 (W ash. Ct. App. 2004) ( “Assault in the f

irst deg ree includes specific intent as an element.”).

(3) I n W ashing ton, accomplice liability only requires
p r o o f o f g e n e r al i n t e n t

. W a s h

. R e v

. C o d e § 9 A.08.020(a)(i)–(ii); Sta t e v. Thomas
, 208 P.3d 1107, 1111 ( W ash. 2009); State v. Roberts
, 14 P.3d 713, 731–32 (W ash. 2000).A M A Y A V

. G A R L A N D 18

( 4 ) B ecause principals and a ccomplices who are eith e r present at the scene or accessories before the f act a re equally culpable, but under W a shing ton law accomplices
may be s u b

j e c t to a diminished standard of proof due to the different mens rea required, a c c o mplice liability in W a shing ton is broader than g eneric accomplice liability

. Amay a’s proposition (4) follows from his premises a nd would be a fo r ceful a

rg ument if his analy sis g overned every

a p p lication of the categ o rical approach to W ashing ton cr i m e s

. I t does n ot, however, a

nd is now beside the point. W e will

ex p lain.

W e first addressed similar arg u ments in United States v

. Valdivia-Flores
, 876 F .3d 1 201 (9th Cir. 2017). I n that c ase, Valdivia-F lores appealed hi s c o nviction under 8 U .S.C. § 1326 for attempted reentry of a removed alien. Va l d i v iaF lores challeng ed his conviction by collaterally att ac k i ng a 2009 removal order, which was b ased o n his 1997 conviction in Washing ton for p ossessing heroin with the intent to deliver it. As here, we c o nsidered w hether his convi c t i o n u nder W a shing ton’s d rug trafficking statute, W ash. Rev. Code § 69.50.401, w as an “ a g g ravated felony ” under 8 U .S.C. § 1227(a)(2)(A)(iii). T he I NA def ines “ag g ravated felony ”
to include “ illicit trafficking in a controlled substance (as defined in s e c t i o n 802 of Title 21), including a d rug trafficking c rime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1 101(a)(43)(B ). Section 924(c) defines “drug trafficki ng crime” as “any felony punishable u nder the Controlled Subst a n c e s Act ( 21 U.S.C. 801 et seq.), the Controlled Substances I mport a n d E x port Act (21 U.S.C. 951
et seq.), or chapter 705 o f t i tle 46.” I n other words, in Valdivia-Flores
, whether W ashing ton’s drug trafficking
statute was a c ateg orical match for an “ag g ravated felony ” a sA M A Y A V

. G A R L A N D 19

defined by 8 U.S.C. § 1101(a)(43)(b) had to be determined b y compari ng it to the federal statutory scheme. Citing Duenas-Alvarez
, we observed that “aiding and abetting liability ” is “implicit

. . . in every c riminal charg e,” including federal crimes. Valdivia-Flores
, 876 F .3d at 1207. W e then found that “ the W ashin g ton drug trafficking law on its face
appears to have a more inc l usive mens rea requirement for accomplice liability than its federal a n alog ue,” id.
, and thus “Valdivia-F lores’s conviction cannot support an a g g ravated felony determination
, ” id. at 1209 ( footnote omitted). 6 See also Alfred v

. Garland
, No. 1 9-7290 3
, 2021 W L 4302692 (9th Cir. Sept. 22, 2 021) (following V aldivia-Flores ); United States v. Franklin
, 9 0 4 F.3d 793, 7 97–98 (9th Cir. 2 018) (same), abrogated on o ther grounds
, Shular v

. United States
, 140 S. Ct. 784 (2020).

The rule we adopted in Valdivia-Flores mig ht well have
meant that “ no W ashing ton state c onvicti o n c a n serve as an ag g r avated felony a t all.” V aldivia-Flores
, 876 F

. 3 d at 1209 (quoting the g overnment; c leaned up). W e rejec t ed that proposition in United States v. Door
, 917 F .3d 1146 (9th Cir. 20 1 9 )

. Door had b een c onvicted in W ashing ton o f felony harassment a

nd was lo o k i n g a t a sentencing enhancement under U.S.S.G. § 4B 1.2(a) for having committed a “crime o f violence,” which contains a force clause ide n t i ca l to the definition of “crime of violence” in § 16( a )

. Compare U.S.S.G. § 4 B 1.2(a)( 1 ) with 8 U.S.C. § 1 6(a). Citing Va l d i v i a

- F

l o r e s , D o o r a r gu ed t h a t “ b e c a u s e every

6 W e also f

o u n d t h a t “ Wash in g to n law is clear th at j u ro rs n eed n o t ag ree o n w

h eth er a d ef

en d an t is a p rin cip al o r acco m p lice” an d t

h u s “ th e d ru g traf f ick i n g s tatu te is n o t d iv i sib le so f ar as th e d istin ctio n b etw een th o se ro les is co n cern ed ” an d “ th e m o d i f ied categ o rical ap p ro ach m ay n o t b e ap p lied .” Va ld ivia -Flo res , 8 76 F.3 d at 1 2 1 0

.A M A Y A V

. G A R L A N D 20

W a shing ton criminal statute incorporates aiding and a betting
, all W ashing ton criminal statutes a r e overbroad, and therefore all W ashing ton state convictions fail to qua lify as crimes o f violence.” D oor , 917 F .3d at 1 1 52. W e squarely rejected his
arg ument, however, b ecause it “overlook[ ed] the analy tical difference between the force clause and the enumerated offenses clause.” 7 Id. W e ex plained that in V aldivia-Flores
, the c ateg orical analy sis “involved c omparing the elements o f the W a shing ton drug trafficking crime with the g eneric federal offense of drug trafficking .” Id. at 1153. “Ge n e ric federal offenses” are enumerated offenses that require
comp ar ing a state statute with its federal counterpart. B y

c o n trast, in Door
, a s here, we w ere measuring the W a shing ton statute ag ainst a class of offenses defined by “the
use, attempted use, or threatened u s e of phy sical force.” Valdivia-Flores was an ex ercis e i n mapping a state crime

7 T h e cu rren t v ersio n o f U .S.S.G. § 4 B 1 .2 (a) d ef in es “ crim e of

v io len ce” as f

o llo w s:

[A ]n y o f f en se u n d er f

ed eral o r state l aw , p u n ish ab le b y im p riso n m en t f

o r a term ex ceed i n g o n e y ears, th at—

(1 ) h as as an elem en t th e u se, attem p ted us e , or th reaten ed u se o f p h y s ical fo rce ag ain st th e p erso n o f an o t h er, o r
(2 ) i s b u rg lary o f a d w ellin g , arso n , ex to rtio n , o r th e u se o r u n law f

u l p o ssessio n o f a f

irearm d escrib ed in 2 6 U.S.C. § 5 8 45 (a) o r ex p lo siv e

m aterial as d ef

in ed in 1 8 U.S.C. § 8 4 1 (c).

Su b sectio n (a)(1 ) is k

n o w n as th e “ elem en ts o r f

o rce clau se,” w

h ile (a)(2 ) is ref erred to as th e “ en u m erated o f f en s es clau se.”A M A Y A V

. G A R L A N D 21

onto a federal crime; 8 Door w as an ex ercise in categ ory

. W e held that the difference was sig nificant. B ecause Door’s conviction for felony harassment “necessarily entails the threatened use of violent phy sical f orce, it qualifies as a crime of violence pursuant to the force clause, and o ur inquiry ends
t h e r e

. ” I d. W e thus held that we “need not compare the elements of the crime of conviction with the elements of the
g eneric federal c rime when analy z ing wheth e r an offense qualifies as a crime of violence pursuant to the force clause.” Id.

Door g overns this case, and it renders Amay a ’s proposition (4) irrelevant. As in D oor , our a n a ly sis here

concerns the f

orce inquiry
, not a comparison to an

e n umerated offense
, as we d id in Valdivia-Flores

. 9 T h u s , Valdivia-Flores does not r equire us to compare W ashing ton’s underly ing accomplice liability m e n s rea to the g eneric federal accomplice liability mens rea. Fo r the reasons we have previously d e scribed, it is sufficient that W ashing ton’s first deg r ee assault statute requires p roof of assault “with intent t o inflict g reat bodily h arm.” W ash. Rev. Code § 9A.36.011(1); see also United States v. Calvillo-Palacios
,

8 W e n o te th at th ere i s n o s ug g e s tio n i n Va ld ivia -Flo res th at th e d ef en d an t h ad b een ch arg ed as rem o v ab le u n d er altern ate ag g ra va ted f elo n y p ro v isio n s. T h er e fo r e , w e h ad n o o ccasio n to co n sid er th e d if f eren ces b etw een an en u m erated o f f en se ag g rav ated f

elo n y an d a crim e

o f v io len ce ag g rav ated f

elo n y u n der th e INA

.

9 T h e INA ’ s l en g th y d ef i n itio n o f “ ag g rav ated f elo n y ” in clu des

en u m erated o f

f en ses— e,g

, , 8 U.S.C. § 1 1 0 1 (a)(4 3 )(A ) (“ m u rd er, rap e, or

sex u al ab u se o f a m in o r”)—b u t w e are on ly co n cern ed h ere w ith a “ crim e

o f v io len ce,” as d ef

i n ed i n th e eq u iv alen t o f th e f o rce clau se in 1 8 U.S.C. § 1 6 (a). S

ee 8 U.S.C. § 1 1 0 1 (a)(4 3 )(F).A M A Y A V

. G A R L A N D 22

860 F .3d 1285, 1290 (9th Cir. 2017). T hat is all that Door demands. See Door , 917 F .3d at 1153.

* * *

Section 9A.36.011 is categ orically a “crime of violence” under 8 U.S.C. § 1101(a)(43)(F ), 1 0 a nd the B I A co r r ec t l y determined th a t A may a is removable under 8 U .S.C. § 1227(a) ( 2)(A)(iii) for having committed an “ag g ravated felony .”

I I I

. DUE PROCESS

Amay a as s e r t s t hat the B I A erred by ig noring his d ue process claim of I J bias. W e o rdinarily review due pr o c e s s challeng es de novo. Vasquez-Zavala v. A shcroft
, 324 F .3d 1105, 1107 (9th Cir. 2003). However, Amay a failed to

ex h aust his due process c laim b efore the B I A

. See Barron v

. Ashcroft
, 358 F .3d 6 74, 677–78 ( 9th Cir. 2004) (claims must be ex hausted to be raised in a petition for rev iew). A “conclusory stateme n t does not apprise the B I A of the
p a r t i cu l a r b a s i s f

o r [ t h e p e t i t i o n e r ’ s ] cl ai m ” n o r “meaning fully challeng e the I J ’s decision on appeal.” Rizo v

. Lynch
, 8 10 F .3d 688, 692 ( 9th Cir. 2016). Neither his notice of appeal nor his a t t a c h ment thereto made a c lear, nonconclusory arg ument in support of his claim. W e cannot say that the B I A ig nored a clearly -identified due process

10 A m ay a d o es n o t d isp u te th at h e w as sen ten ce d t o a “ t erm of im p riso n m en t [o f

] at least o n e y ear” as § 1 1 0 1 (a)(4 3 )(F) req u ires.A M A Y A V

. G A R L A N D 23

arg ument. 1 1 A m a y a thus failed to ex h aust his claim before the B I A, and we lack j u r i s d iction to reach the underly ing merits of Amay a’s due p r o c e s s claim. See Sola v. H older
, 720 F .3d 1 134, 1136 (9th Cir. 20 1 3 ) (“Challeng e s to procedural e rrors correctable b y t he administrative tribunal,
must b e ex hausted before w e undertake review.” (alterations and quotation omitted)); Barron
, 358 F .3d at 677–78. W e dismiss that portion of his petition.

I V. DENI AL

OF CAT REL I EF

Amay a also c halleng e s the a g ency ’s d e n i al of his application for deferral of removal u n der CAT. 1 2 W e r eview questions of law de novo and factual determinations for substantial evidence. D e Rodriguez-Echeverria v. Mukasey
, 534 F .3d 1047, 1050 (9th Cir. 2008). W e c o n c l ude that the
ag ency did n ot err in deny ing Amay a’ s application for deferral of removal under CAT. B ecause the B I A concluded that Amay a “ ha[ d] not identified any factual or l e g a l errors that would justify disturbing the [ I J ’s ] d e c i sion to deny [ Amay a’s] application

. . . for failure of pr o o f
, ” w e “look to the I J ’ s oral d ecision as a g uide to what lay behind the B I A ’s conclusion.” Avetova-Elisseva v. I N S
, 213 F .3d 1192, 1197 (9th Cir. 2000).

1 1 T o th e ex ten t th at A m ay a’ s b rief can b e read as arg u in g th at t h e B IA ’ s rej ectio n o f h is b rief w as itself a v i o l a t i o n o f d u e p ro cess, w e d isag ree. A m ay a w a s c l e a r l y in f o rm ed of th e d ead lin e t o f ile h is b rief

s

an d f ailed to f ile th em tim ely

. No th in g p rev en t ed A m ay a f ro m f ilin g a

m o tio n to reo p en o r f

o r reco n sid eratio n w ith th e ag en cy b ef o re th is ap p eal.

12 A m ay a d o es n o t ch allen g e th e d en i al o f asy lu m , w ith h o ld in g of

rem o v al, o r w ith h o ld in g u n d er CA T
, w h ich w ere f

o reclo s ed by h is
ag g rav a t e d f

elo n y co n

v i ctio n

. 8 U.S.C. § § 1 1 5 8 (b )(2 )(B )(i), 1 2 3 1 (b )(3 )(B )(ii).A M A Y A V

. G A R L A N D 24

The I J laid o ut the correct leg al standard for obtaining CAT protection, considered Amay a’s concern that he would be harmed by the Salvadoran g overnment, and f o u n d that Amay a “was never harmed in the past by the g overnment of El Salvador.” As the B I A recog niz ed, the I J “considered the totality of the record evidence, ” including the country

c o nditions reports, in determining that Amay a did no t establish “that it is more likely than not that he w ill be tortured by o r a t the instig ation o f or with the consent o r acquiescence of a public official or other person acting in an of f i c i a l capacity in El Salvador.” T o the ex tent Amay a challeng es the I J ’s f

ocus on his claim that the g overnment o f El Salvador would a cquiesce in his torture by g ang s, this focus mir r o r s Amay a’s testimony
, submissions, and the testimony of supportin g w i t nesses, which focused on the threat from the g ang s and g ove r n m ent acquiescence rather
t h an a fear of the g overnment committing the torture itse l f. Given the lack of evidence supporting a claim of torture b y the g overnment, a

n d the evidence demonstrating t h a t El Salvador d oes not acquiesce to g ang vio l e n ce , substantial evidence supports the ag e n cy ’s denial of CAT relief.

V . CONCL U SI ON

W e conclude that W ashing ton Revised Code § 9A.36.011 is categ ori c ally an “ag g ravated felony ,” making Amay a

r e movable u nder 8 U.S.C. § 1227(a)(2)(A)(iii). W e a r e without jurisdiction to review Amay a’s unex hausted d ue process claim. The ag e ncy ’s d etermination that Amay a was not entitled to CAT relief was supported b y substantial evidence.

DENIED in part and DISMISSED in part.