C ite as 27 I&N Dec. 8 (BIA 2017 ) Interim Decision #38 88

8 

### Matter of Jing WU

, Respondent

Decided April 13, 2017

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration A ppeals

Assault with a deadly weapon or force likely to produce great bodily injury under

California law is categorically a crime involving moral turpitude. Ceron v. Holder , 747 F.3d 773 (9th Cir. 2014) (en banc), distinguished.

FOR RESPONDENT: Lien L. Uy , E squire, Oakland , California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Deborah F. Ho

, Assistant

Chief Counsel

BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members

.

MALPHRUS

, Board Member :

In a decision dated January 16, 2015, an Immigration Judge terminated the respondent’s removal proceedings

. T he Department of Homeland Security (“DHS”) filed a mo tion t o reconsider , which the Immigration Judge denied on July 17, 2015

. T he DHS has appeal ed from th at decision

. The appeal will be sustained , the removal proceedings will be reinstated, and the record will be remanded to the Immigration Judge

.



### I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of China who was admitted to the United States as a lawful permanent resident on May 2, 2008. On April 20, 2012, he was convicted of assault in violation of section 245(a)(1) of the

California Penal Code. Based on this conviction, the DHS initiated removal proceedi ngs

, charg ing that the respondent is removabl e under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012)

, as an alien who has been convicted of a crime involving moral turpitude committed within 5 years after the date of

admission

, for which a sentence of 1 year or longer may be imposed. T he Immigration Judge determined that the respondent ’s conviction did not

render him removable as charged and s he terminated the proceedings. On appeal, the DHS contends that because section 245(a)(1) of the California Penal Code categorically defines a crime involving moralC ite as 27 I&N Dec. 8 (BIA 2017 ) Interim Decision #38 88

9 turpitude under the Act, the Immigration Judge improperly terminated the proceedings and denied its motion to reconsider

. 1 We review this legal question de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016). For the following reasons, we conclude that the respondent’s assault offense in violation of section 245(a)(1) is categorically a crime involving moral turpitude.



### II. ANALYSIS

“The term ‘moral turpitude’ generally refers to conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’” Matter of Silva

- Trevino , 26 I&N Dec. 826, 833 (BIA 2016) (citation omitted). “To involve moral turpitude, a crime requires two essential elements: reprehensible condu ct and a culpable mental state

. ” Id. at 834. The parties agree that a t the relevant time, section 245(a)(1) of the

Cali fornia Penal Code p unish ed

[a] ny person who commit s an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury

. 2

Both we and t he United States Court of Appeals for the Ninth Circuit , in whose jurisdiction this case arises, long ago addressed the question whether assault with a deadly weapon under California law wa s a cr ime involving moral turpitude and concluded that it was

. See Go nzales v. Barber

, 207 F.2d 398, 400 (9th Cir. 1953), aff’d on other grounds , 347 U.S. 637 (1954);

1 It is undisputed that that the respondent’s offense was committed within 5 years of his

date of admission and that his crime is one for which a sentence of 1 year or longer may be imposed . See Ceron v. Holder , 747 F.3d 773, 777

– 78 (9th Cir. 2014) (en banc).
Moreover, since we ultima tely conclude that the respondent’s conviction involves moral turpitude, we need not reach the DHS’s argument that the respondent is removable under section 237(a)(2)(E)(i) of the Act as an alien convicted of a crime of domestic violence.

2 The portion of section 245(a)(1) pertaining to “force likely to produce great bodily injury” has since been removed from this provision and renumbered as section 245 (a)(4).

See Cal. Penal Code § 245(a) ( West 2017)

. The record reflects that the respondent’s

sentence was enhanced pursuant to section 12022.7(a) of the California Penal Code

, which applies to “[a] ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony .” However,

because w e conclude that assault under section 245(a)(1) is categorically a crime involving moral turpitude, we need not discuss the effect, if any, that this enhancement may have on the moral turpitude inquiry. See generally Matter of Martinez

- Zapata

, 24 I&N Dec. 424 , 426 ( BIA 2007) ( regar ding th e treatment of a sentencing enhancement as an element of the underlying offense)

.C ite as 27 I&N Dec. 8 (BIA 2017 ) Interim Decision #38 88

10 Matter of G

- R

- , 2 I&N Dec. 733 , 740 (BIA 1946, A.G. 1947). However, the Ninth Circuit has recently explain ed that “[t]he development of both federal law and state law over the intervening six decades . . . has undermined the reasoning of those cases.” Ceron v. Holder , 747 F.3d 773, 780 (9th Cir. 2014) (en banc). Specifically, the court in Ceron concluded

that the reasoning employed in Barber a nd Matter of G

- R

- “runs counter to today’s categorical analysis ” a s embodied in Taylor v. United States , 495

U.S. 575 (1990)

. I d. T he court additionally stated that “[s]tate law developments, too, have undermined the reasoning of ” Barber and Matter of G

- R

- because the Ninth Circuit and the Board did not have the benefit of People v. Williams , 29 P.3d 197 (Cal. 2001) , which “ only recently defined with precision the req uisite mental state for assault” under section 245(a)(1). Ceron , 747 F.3d at 781.

Because we are entitled to deference with respect to whether a particular offense involves moral turpitude , t he court in Ceron remanded th at case

so that we could “determine in the first instance whether California

Pe nal Code section 245(a)(1) categorically constitutes a crime involving moral turpitude ” under the framework set forth in Taylor

. Id. at 785 (citing Marmolejo

- Campos v. Holder , 558 F.3d 903, 9 09 (9th Cir. 2009) (en banc ) )

. T he court additionally requested that we clarify on remand “how [to] assess [whether] a statute

— like California Penal Code section 245(a)(1)

— that requires knowledge of the relevant facts but does not require subjective appreciation of the ordinary consequences of those facts”

involv es moral turpitude. Id. at 784. We take the opportunity in this case to clarify our analysis in this regard and to address the issues raised in

Ceron

. We begin our analysis by employing the categorical approach

, i n which

we examine whether the elem ents defining section 245(a)(1) “ fit [] within the generic definition of a crime involving moral turpitude

. ” Matter of

Silva

- Trevino , 26 I&N Dec. at 831 (applying the framework outlined in Taylor in the moral turpitude context ) ; see also Ceron , 747 F.3d at 778

– 81

. The categorical approach requires us to focus on the elements

defin ing the offense of conviction

— rather than the facts underlying the respondent’s particular violation

— and the minimum conduct that has a “realistic probability” of being prosecuted under those elements. See, e.g.

, Hernandez

- Gonzalez v. Holder , 778 F.3d 793, 801 (9th Cir. 2015) (stating

that a State statute does not categorically define a crime involving mor al turpitude if there is a “ realistic probability ” that the elements of th at statute

w ould be applied “ to conduct that falls beyond the scope of the generic federal offense”).

It is well established that a s imple assault or battery that only require s offensive touching or threatened offensive touching of anotherC ite as 27 I&N Dec. 8 (BIA 2017 ) Interim Decision #38 88

11 committed with general intent that do es not result in serious bodily

harm is not considered to involv e moral turpitude. 3 See, e.g.

, Matter of Ahortalejo

- Guzman , 25 I& N Dec. 465, 466 (BIA 2011); Matter of Fualaau

, 21 I&N Dec. 475 , 477 (BIA 1996)

. H owever, t his general rule does not apply where a statute contains elements that deviate from those associated with simple assault and battery and “ involves some aggravating factor that

indicate s the perpetrator’s moral depravity

. ” Matter of Ahortalejo

- Guzman

, 25 I&N Dec. at 466 (emphasis added)

. In assessing whether an alien

convicted under such a statute has committed a crime involving moral turpitude , we weigh the level of danger posed by the perpetrator’s conduct along with his or her degree of mental culpability in committing that

conduct

. See Matter of Danesh , 19 I&N Dec. 669, 67 3 (BIA 1988 )

. In this way , we have determined that an assault statute t hat makes it unlawful for a perpetrator to cause physical injury to another while possessing the specific intent to inflict such harm categorically defines a crime involving moral turpitude. See Matter of Solon , 24 I&N Dec. 239

, 243 (BIA 2007). 4 Conversely, we hav e held that an assault statute prohibit ing a perpetrator from caus ing injury to another “with criminal negligence” does not define a crime involving moral turpitu de

. See Matter of Perez

- Contreras , 20 I&N Dec. 615

, 618

– 19 (BIA 1992) (“ Since there

was no intent required for conviction, nor any conscious disregard of a substantial and unjustifiable risk, we find no moral turpitude inherent in

the statute. ”). Most importantly for purposes of resolving this case , we have concluded that assault and battery offense s that require a state of mind falling between specific intent and criminal negligence

— for instance, general intent and recklessness

— are morally turpitud inous if they

“ necessarily involve [] aggravating factors that significantly increase [] their

cu lpability ” relative to simple assault. Matter of Sanudo , 23 I&N Dec. 968, 971 (BIA 2006) (emphasis added)

. One such aggravating factor is the use of a deadly or dangerous weapon

or instrument

— conduct that magnifies the danger posed by the perpetrator
and demonstrates his or her heightened propensity for violence and

indifference to human life. See Matter of Medina , 15 I&N Dec. 611

, 61 2

– 1 4 (BIA 1976), aff ’ d sub nom. Medina

- Luna v. INS , 547 F.2d 1171

3 The meaning of the phrase “general intent” varies considerably across jurisdictions and does not always denote one particular state of mind

. I n its most generic sense, general intent refers to a mental state in which the perpetrator intentionally engages in conduct, without regard to whether he or she intends that conduct to achieve a particular

result. See Black ’ s Law Dictionary 825

– 26 (8th ed. 2004).

4 The phrase “specific intent” connotes a mental state in which the perpetrator willfully commits a forbidden act with the conscious purpose of bringing about a particular result

. See Black ’ s Law Dictionary

, supra , at 826.C ite as 27 I&N Dec. 8 (BIA 2017 ) Interim Decision #38 88

12 (7th Cir. 1977) (unpublished table decision ) ; see also Weedin v

. Tayokichi

Yamada , 4 F.2d 455, 457 (9th Cir. 1925) ( stating that “assault with a deadly weapon, . . . where the circumstances of the assault show a willful, malignant, and abandoned heart, . . . involves moral turpitude beyond any question ”) ; Matter of O

- , 3 I&N Dec. 193, 196

– 98 (BIA 1948) (holding that assault with a deadly weapon under Connecticut law is a crime involving moral turpitude)

. In Medina

, we concluded that a conviction for aggravated assault with a deadly weapon categorically involve d moral turpitude, despite the fact that the Illinois statute at issue could be violated

with a mental state of recklessness

, because although the “ statute may not require a specific intent to cause a particular harm, the violator must show a willingness to commit the act in disregard of the perceived risk

. ” Matter of

Medina , 15 I&N Dec. at 614 (emphasis added)

. With r espect to section 245(a)(1), t he relevant jury instructions indicate

that a violation of this provision requires proof of the following elements: (1) the defendant did an act that by its nature would directly and probably result in the application of force to a person , using either (a) a deadly

w eapon or instrument, or (b) force likely to produce great bodily injury to
another ; ( 2 ) the defendant did th e act willfully ; and (3 ) w hen the defendant acted, he or she (a) 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 and (b) had the present ability to apply such force

. Judicial Council of California Criminal Jury Instruction

8 75 (Oct. 2016)

. In this regard

, section 245(a)(1) is different from the statute in Medina

because it does not require that a perpetrator subjectively perceive the risk posed by his or her conduct. See Ceron , 747 F.3d at 784. We therefore

must determine w hether a violation of section 245(a)(1) necessarily requir es a culpable mental state that falls within the definition of a crime involving moral turpitude

. For the below reasons, w e conclude that it does.

California has variously define d “assault” as an “unlawful attempt . . . to
commit a violent injury on the person of another,” Cal

. Penal Code § 240 (West 2017) (emphasis added) , and as an “incipient or inchoate battery,” People v. Colantuono

, 865 P.2d 704

, 710 (Cal. 1994)

, superseded by

statute on other grounds as recognized in People v. Conley , 373 P.3d 435

, 441 n.4 (Cal. 2016). Given t hese divergent definitions , it was unclear

whether California assault entail ed a specific intent to commit battery. T he California Supreme Court has since clarified that “attempt” for purposes

of “assault” does not entail specific intent

— rather, it refers to “ an intent

to commit some act which would be indictable, if done, either from

its own character or that of its natural and probable consequences.”C ite as 27 I&N Dec. 8 (BIA 2017 ) Interim Decision #38 88

13 Williams

, 29 P.3d at 20 2 (citation omitted)

. 5 In other words, a ccording to the California Supreme Court

,

[A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur.

In adopting this knowledge requirement, we do not disturb our pr evious holdings. Assault is still a general intent crime . . . . Likewise, mere recklessness or criminal negligence is still not enough because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know.

Id. (e mphas e s added) ( footnote s and citations omitted).

T he Ninth Circuit has addressed the implications of Williams in several criminal sentencing cases in which the issue was whether the mental state under section 245(a)(1) is sufficiently “intentional” to justify treating a conviction for California assault as a crime of violence under 18 U.S.C. § 16(a) (2006)

. 6 See United States v. Jimenez

- Arzate , 781 F.3d 1062

, 1064

– 65 (9th Cir.) (per curiam), cert

. denied , 136 S. Ct. 120 (2015) (mem.) ; United States v. Grajeda , 581 F.3d 1186 , 1193

– 97 (9th Cir. 2009); 7 United States v. Heron

- Salinas , 566 F.3d 898 , 899 (9th Cir. 2009). While the “use of physical force” issue differs from the question presented here, the se issues are closely related in one key respect

— they both focus on

the level of “intent” with which an assault under section 245(a)(1) must be

committed.

The defendant i n Grajeda asserted that a violation of section 245(a)(1)

does not “ require proof of sufficiently intentional conduct to qualify ” as a crime of violence because, pursuant to Williams

, “California’s definition of

5 The court considered different possible definitions of “ attempt ” under section 240

, including one that would have required a specific intent to commit battery. See Williams

, 29 P.3d at 201

– 02. While the court rejected that possibility , the definition it ultimatel y adopted requires a close proximity between the conduct and resulting battery. See id. at 202 ( stating that an assault only occurs where “[t]he next movement would, at least to all

appearance , complete the battery” (citation omitted)). As a consequence

, the California Supreme Court concluded that “a specific intent to injure is not an element of assault because the assaultive act, by its nature, subsumes such an intent.” Id.

6 Section 16(a) defines a crime of violence as an offense having “as an element the use . . . of physical force

. ” S ection 2L1.2 of the United States Sentencing Guidelines is identical to § 16(a) in all relevant respects. United States v. Grajeda , 581 F.3d 1186,

1190 , 1197 (9th Cir. 2009).

7 Grajeda , 581 F.3d a t 1191

– 9 2 & n.5

, addressed t he same version of section 245(a)(1)

that is at issue here.C ite as 27 I&N Dec. 8 (BIA 2017 ) Interim Decision #38 88

14 assault requires merely criminally negligent conduct, and thus does not

have as an eleme nt the intentional use of force. ” Grajeda

, 581 F.3d a t 1192, 1194 (emphasis added). 8

T he Ninth Circuit rejected the defendant’s position, stating that the California Supreme Court’s decision in Williams reflects that

s ection 245(a)(1) re quires proof of an intentional “ violent act ” with a deadly weapon or instrument or with force likely to cause serious bodily injury that “ by its nature will directly and immediately cause ” the application of physical force to another. While this formulation of the necessary mens rea does not fit ne atly with

the standard articulated in Fernandez

- Ruiz , it satisfies the concerns animating

Leocal and Fernandez

- Ruiz that the proscribed conduct be “ violent ” and “ active, ” and the use of force not merely accidental . . . .

Id. at 1195 (citation omitted). In other words , the Ninth Circuit concluded

in Grajeda that a violation of section 245(a)(1) requires a culpable mental

state greater than recklessness and criminal negligence

. 9

We therefore hold that a violation of section 245(a)(1) necessarily

involve s a culpable mental state that falls within the definition of a crime involving moral turpitude. Like the Illinois statute at issue in Medina

, section 245(a)(1) requires that a perpetrator willfully engage in dangerous conduct, by means of either an object employed in a manner likely to cause great bodily injury or force that is, in and of itself, likely to cause such

an injury. Section 245(a)(1) further requires that a perpetrator have knowledge, while not of the risk of causing such injury , of the facts that

make such an injury likely

. With respect to the question whether conduct is morally turpitudinous, the result should be no different for a per son who willfully commits such dangerous conduct with knowledge of all the facts

that make it dangerous than it is for one who commits the conduct with the knowledge that it is dangerous

. 10

8 The Supreme Court has held that the phrase “use of force” in the definition of a crime

of violence requires proo f of active employment of force and cannot be satisfied by negligent or accidental conduct. Leocal v. Ashcroft

, 543 U.S. 1, 9

– 11 (2004). Extending this holding, the Ninth Circuit has stated that “neither recklessness nor gross negligence

is a sufficient mens rea to establish that a conviction is for a crime of violence

. ”
Fernandez

- Ruiz v. Gonzales

, 466 F.3d 1121, 1130 (9th Cir. 2006) (en banc).

9 More recently, i n Jimenez

- Arzate , 781 F.3d at 1064

– 65 , t he Ninth Circuit declined to

reconsider Grajeda and concluded that assault under section 245(a) (1) cannot be

committed with a mental state of mere recklessness

. In that decision, the court additionally held that “ Ceron does not clearly indicate a different interpretation of the mens rea requirement for § 245(a)(1) than that set forth in Grajeda .” Id. at 1065.

10 We would reach a different conclusion if faced with a statute, such as one criminalizing driving under the influence (“DUI”), that does not require knowledge that (continued . . .)C ite as 27 I&N Dec. 8 (BIA 2017 ) Interim Decision #38 88

15 We additionally hold that a violation of section 245(a)(1) necessarily

involves an aggravating factor that renders such an offense reprehensible

. Both portions of the statute require that a perpetrator willfully use either a deadly weapon or instrument, 11 or force likely to produce great bodily injury

, while being aware of the facts that make it likely that such conduct

will cause , at a minimum, great bodily injury to an other person

. See People v. Aguilar , 945 P.2d 1204, 1213 (Cal. 1997) (explaining that a jury must find whether a violator’s conduct “had the capability and probability of inflicting great bodily injury under either a ‘deadly weapon’ theory or a

‘force lik ely’ theory. The jury’s analytical process [is] the same in either

event

. ”); People v. Parrish , 217 Cal. Rptr. 700, 704 (Cal. Ct. App. 1985) (“ The focus [of section 245(a)] is on force likely to produce great bodily injury

. ”). Such conduct “ reflects a level of immorality that is greater than that associated with a simple offensive touching. ” Matter of Sanudo

, 23 I&N Dec. at 971; see also Matter of Kim , 26 I&N Dec. 912, 918 (BIA 2017) ( noting that California defin es “great bodily injury” as a “significant or substantial injury” (citation omitted) ). Weighing the dangerous conduct necessarily involved in a violation of section 245(a)(1) along with the culpable mental state needed to commit

such a violation , we conclude that an assault under this statute is no less base, vile, and depraved than the reckless aggravated assault offense we

d eemed turpitudinous in Medina

. See Matter of Ahortalejo

- Guzman

, 25 I&N Dec. at 466. It is this “building together of el ements ” that reflects

that the conduct criminalized under section 245(a)(1) “ deviates further and further from the private and social duties that persons owe to one another and to society in general” and categorically falls within the definition of a crime involving moral turpitude. Matter of Lopez

- Meza , 22 I&N Dec. 1188, 1196 (BIA 1999). Finally, while w e acknowledge that the unique mental state embodied in section 245(a)(1) does not correspond directly with the culpable mental

_______________________________ the conduct is itself dangerous or of the facts that make the proscribed condu ct dangerous

. We have previously held that a DUI will only involve moral turpitude if it necessarily

involves an “aggravating factor,” such as a “ culpable mental state ” that demonstrates that the perpetrator “ knew, at the time that he was driving while un der the influence of
alcohol, that his driver ’ s license had been suspended and that he was not permitted to

drive .” Matter of Torres

- Varela , 23 I&N Dec. 78, 85 (BIA 2001) (citing Matter of Lopez

- Meza , 22 I&N Dec. 1188, 1196 (BI A 1999)) ; see also Marmolejo

- Campos , 558

F.3d at 914

– 16 (deferring to our reasoning in Torres

- Varela and Lopez

- Meza )

. 11 See People v. Aguilar

, 945 P.2d 1204, 1207 ( Cal. 1997) ( stating that , f or purposes of section 245(a)(1), a deadly weapon or instrument is “any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury” (citation omitted) ).C ite as 27 I&N Dec. 8 (BIA 2017 ) Interim Decision #38 88

16 states we discu ssed in our prior decisions analyzing whether an assault

or battery offense involves moral turpitud e , we are not aware of any cases

in which th is unique mental state has led to the prosecution of an

individual for conduct that is not turpitudinous

. Thus, there is no realistic probability that section 245(a)(1) will be used to prosecute such conduct

. See Hernandez

- Gonzalez , 778 F.3d at 801

.



### III. CONCLUSION

Having considered the issues raised by the Ninth Circuit in Ceron , we conclude that t he respondent’s conviction for assault under section 245(a)(1) of the California Penal Code renders hi m removable under section 237(a)(2)(A)(i) of the Act as an alien who has been convicted of

a crime involving moral turpitude committed within 5 years after the

date of admission for which a sentence of 1 year or longer may be imposed

. The Immigration Judge therefore improperly terminated the removal proceedings and denied the DHS’s motion to reconsider. The respondent

has indicated that he does not wish t o seek relief from removal. Since we cannot enter an order of removal in the first instance in this jurisdiction

, we will remand the record solely for the entry of such an order. See Noriega Lopez v. Ashcroft , 335 F.3d 874, 883

− 85 (9th Cir. 2003). Accordingly, the DHS’s appeal will be sustained, the removal proceedings will be reinstated,

and the record will be remanded

. 

### ORDER: The appeal of the Department of Homeland Security is sustained, the decision of the Immigration Judge is vacated, and the removal proceedings are reinstated. 

### FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.