FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN WESLEY LIWANAG COQUICO,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 09-73867

Agency No.

A045-903-122

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 7, 2014—San Francisco, California

Filed June 17, 2015

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.

O’Scannlain and M. Margaret McKeown, Circuit Judges.

Opinion by Judge O’Scannlain
2 COQUICO V. LYNCH

SUMMARY*

Immigration

The panel granted John Coquico’s petition for review of

the Board of Immigration Appeals’ decision finding that his

conviction for misdemeanor unlawful laser activity, in

violation of California Penal Code § 417.26, is a categorical

crime involving moral turpitude. 

The panel concluded that § 417.26 can be violated by

conduct which resembles non-turpitudinous simple assault

and has little similarity to turpitudinous terrorizing threats,

and held that a violation does not constitute a categorical

CIMT. Because the government did not ask the court to

applythe modified categorical approach, the panel considered

only whether the categorical approach was satisfied, and

remanded for further proceedings consistent with the opinion.

COUNSEL

Heliodoro Moreno, Jr., Law Offices of Robert B. Jobe, San

Francisco, CA, argued the cause for the petitioner. Robert B.

Jobe, Law Offices of Robert B. Jobe, San Francisco,

California, filed the briefs for the petitioner.

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

been prepared by court staff for the convenience of the reader.
COQUICO V. LYNCH 3

Juria L. Jones, Office of Immigration Litigation, United

States Department of Justice, Washington, DC, argued the

cause for respondent. Tony West, Assistant Attorney

General, U.S. Department of Justice, Civil Division,

Washington, DC, filed the briefs for the petitioner. With him

on the briefs were Michelle G. Latour, Assistant Director, and

Phillip M. Truman, Trial Attorney, U.S. Department of

Justice, Office of Immigration Litigation, Washington, DC.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether “unlawful laser activity” under

state law is a crime involving moral turpitude.

I

On September 1, 2006, John Coquico, a citizen of the

Philippines, was convicted of misdemeanor “unlawful laser

activity” in violation of California Penal Code (“Cal. Penal

Code”) § 417.26, after using a laser device in the hallway of

the Alameda County criminal courthouse. A year later, he

was also convicted of second degree robbery in violation of

Cal. Penal Code § 211, and the Department of Homeland

Security (“DHS”) sought his removal under the Immigration

and Nationality Act (“INA”) as an alien convicted of two or

more crimes involving moral turpitude (“CIMT”). See INA

§ 237(a)(2)(A)(ii), codified at 8 U.S.C. § 1227(a)(2)(A)(ii).

Though an Immigration Judge (“IJ”) agreed with the DHS

and found Coquico removable, on appeal the Board of

Immigration Appeals (“BIA”) found the IJ’s reasoning
4 COQUICO V. LYNCH

insufficient and remanded the case so she could provide “a

more complete explanation” of her findings.

On remand, the IJ again found Coquico removable due to

his convictions under Cal. Penal Code § 211 and § 417.26. 

Most relevant here, she asserted that “unlawful laser activity”

under § 417.26 was a CIMT because it involved the

“possession of weapons which are insidious instruments

normally used for criminal purposes,” and that possessing

such weapons was “indicative of a readiness to do evil.” 

Coquico appealed this decision to the BIA.

On November 24, 2009, the BIA dismissed Coquico’s

appeal, concluding his conviction under § 417.26 was a

CIMT because “the crime is committed against a peace

officer and the nature of the crime involves using a device

which gives the appearance or facade of the use of a deadly

weapon.” The BIA also concluded § 211 was a CIMT.

Coquico does not challenge the conclusion that the

robbery is a CIMT. However, he continues to argue that

“unlawful laser activity” is not morally turpitudinous.

II

While we lack jurisdiction to review “any final order of

removal against an alien who is removable by reason of

having committed a criminal offense,” including a crime of

moral turpitude, 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A), 

we retain jurisdiction over “constitutional claims or questions

of law.” Id. § 1252(a)(2)(D). Whether a crime involves

moral turpitude is a question of law not subject to the

jurisdiction-stripping provision of § 1252(a)(2)(C). Uppal v.

Holder, 605 F.3d 712, 714 (9th Cir. 2010).
COQUICO V. LYNCH 5

Determining “whether a conviction under a criminal

statute is categorically a crime of moral turpitude involves

two steps.” Ceron v. Holder, 747 F.3d 773, 778 (9th Cir.

2014) (en banc) (quoting Castrijon-Garcia v. Holder,

704 F.3d 1205, 1208 (9th Cir. 2013) (internal quotation marks

omitted)). “The first step is to identify the elements of the

statute of conviction.” Id. “The second step is to compare

the elements of the statute of conviction to the generic

definition of a crime of moral turpitude and decide whether

the conviction meets that definition.” Id.

A

We begin our examination of the conviction under

§ 417.26 by considering what weight to give the BIA’s

analysis of the statute. Though we review the BIA’s

construction of state law de novo, Ceron, 747 F.3d at 778, we

review the BIA’s unpublished interpretation of immigration

law, including the definition of a CIMT, with Skidmore

deference. Id. “Under Skidmore, the measure of deference

afforded to the agency varies ‘depend[ing] upon the

thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to

persuade, if lacking power to control.’” Marmolejo-Campos

v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en banc)

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

1

Here, the BIA’s decision suffers from several defects, the

first of which is its incorrect description of § 417.26 as

requiring the use of “a device which gives the appearance or

facade of the use of a deadly weapon.” Not only does § 417.2
6 COQUICO V. LYNCH

not discuss “deadly weapons,” but its prohibition of the use

of any laser pointer—not just laser targeting devices—belies

the claim that it only regulates instruments that appear

deadly.

1 By including laser pointers within its ambit,

§ 417.26 goes beyond the regulation of laser targeting

systems that could be integrated with deadly firearms. The

statute prohibits aiming or pointing “a laser scope as defined

in subdivision (b) of Section 417.25, or a laser pointer, as

defined in subdivision (c) of that section.” Cal. Penal Code

§ 417.26 (emphasis added). A laser scope, as defined in

§ 417.25(b), is “capable of being attached to a firearm and

capable of projecting a laser light on objects at a distance,”

but a “laser pointer” is defined in § 417.25(c) as merely “any

hand held laser beam device or demonstration laser product.” 

Cal. Penal Code § 417.25 (emphasis added). Such handheld

laser demonstration devices are certainly not associated with

“deadly weapons.”

 

1

 The full text of Cal. Penal Code § 417.26 states that:

(a) Any person who aims or points a laser scope as

defined in subdivision (b) of Section 417.25, or a laser

pointer, as defined in subdivision (c) of that section, at

a peace officer with the specific intent to cause the

officer apprehension or fear of bodily harm and who

knows or reasonably should know that the person at

whom he or she is aiming or pointing is a peace officer,

is guilty of a misdemeanor punishable by imprisonment

in a county jail for a term not exceeding six months.

(b) Any person who commits a second or subsequent

violation of subdivision (a) shall be punished by

imprisonment in a county jail for not more than one

year.

Cal. Penal Code § 417.26.
COQUICO V. LYNCH 7

2

Further, though a laser pointer projects a light beam—as

laser targeting systems do—California’s legislature has made

clear that laser pointers, and the beams they project, are

innocuous. Under Cal. Penal Code § 417.27, shining a laser

pointer “directly or indirectly into the eye [] of another person

or into a moving vehicle with the intent to harass or annoy”

is punished merely by a fine of $50 or four hours of

community service. Cal. Penal Code §§ 417.27(c), 417.27(e). 

Further, § 417.27 permits the possession of laser pointers on

elementaryschool premises for instructional or school-related

purposes. Cal. Penal Code § 417.27(b). If the California

legislature considered laser pointers, and the pointers’ beams,

to give “the appearance or facade of the use of a deadly

weapon,” it would not have allowed students to take them to

school, nor would it have imposed such minor penalties for

their use “with the intent to harass or annoy.”

Not only do other Cal. Penal Code provisions show that

using a laser pointer is not equivalent to terrorizing someone

with a laser targeting device, but § 417.26 does not include

any “appears-to-be-a-deadly-weapon” element. If California

wanted § 417.26 to include such an element, it could have

done so, as it did in § 417.4, which prohibits drawing an

“imitation firearm . . . in such a way as to cause a reasonable

person apprehension or fear of bodily harm.” Cal. Penal

Code § 417.4. “Imitation firearms” are defined as those “so

substantially similar in coloration and overall appearance to

an existing firearm as to lead a reasonable person to perceive

that the device is a firearm.” Cal. Penal Code § 16700(a)

(emphasis added). The California legislature could have

drafted § 417.26 as an analogue to § 417.4, and required the

laser pointer be used in such a way as to lead reasonable
8 COQUICO V. LYNCH

persons to believe they were being targeted by a firearm. It

did not.

Therefore, the BIA’s importation of an “appearance of a

deadly weapon” element into § 417.26 is incorrect.

3

As the BIA has failed to identify the elements of the

crime correctly, its CIMT analysis is not entitled to deference. 

Uppal, 605 F.3d at 715 (“Because the BIA failed to identify

the elements of [the state crime] correctly, its CIMT analysis,

in which it compares the elements it has identified to the

generic definition of moral turpitude, is misdirected and so

merits no deference from this Court.”).2

III

Having concluded the BIA’s analysis is inaccurate, we

must proceed to analyze the CIMT issue de novo. Although

the contours of what qualifies as a morally turpitudinous act

may be ambiguous, we know that a crime involving moral

2 Further, the BIA’s inaccurate description of the IJ’s reasoning casts

additional doubt on the BIA’s analysis. The BIA claimed that the “bulk

of the Immigration Judge’s decision” discussed “whether a conviction

under []§ 417.26 involves moral turpitude under the analysis set forth in

Matter of Silva-Trevino.” In truth, the IJ’s cursory analysis of § 417.26

was limited to her statement that “[c]ase law has held that possession of

weapons which are insidious instruments normally used for criminal

purposes is indicative of a readiness to do evil,” and a citation to a

California case involving illegal possession of a sawed-off shotgun. See

People v. Garrett, 241 Cal. Rptr. 10 (Cal. Ct. App. 1987). Thus, the

BIA’s characterization of such statement as a discussion of the turpitude

of § 417.26 in light of Matter of Silva-Trevino is inaccurate and calls into

question its own analysis of § 417.26.
COQUICO V. LYNCH 9

turpitude is “generally a crime that (1) is vile, base, or

depraved and (2) violates accepted moral standards.” Ceron,

747 F.3d at 779.

A

To provide substance to these broad principles, we look

to the elements of other CIMTs that we have already

identified. Gonzalez-Cervantes v. Holder, 709 F.3d 1265,

1269 (9th Cir. 2013).

Here, a CIMT that serves as a helpful point of comparison

is Cal. Penal Code § 422, prohibiting “threats with intent to

terrorize.” See Latter-Singh v. Holder, 668 F.3d 1156, 1158

(9th Cir. 2012) (internal quotation marks omitted). Like

§ 417.26, § 422 prohibits threatening conduct.3 However, a

closer comparison reveals that § 422 prohibits conduct which

is far more grave than that regulated by § 417.26.

 

3

 The specific elements of § 422 are:

(1) willfully threatening to commit a crime that will

result in death or great bodily injury to another person;

(2) specific intent that the statement be taken as a

threat; (3) the threat was “on its face and under the

circumstances so unequivocal, unconditional,

immediate, and specific as to convey to the person

threatened, a gravity of purpose and an immediate

prospect of execution of the threat”; (4) the threat

“caused the victim to be in sustained fear for his or her

own safety or for his or her immediate family’s safety”;

and (5) the “victim’s fear was reasonable under the

circumstances.”

Latter-Singh, 668 F.3d at 1160 (citation omitted).
10 COQUICO V. LYNCH

Indeed, the differences between the statutes are stark. 

Under § 422 the threat must be of “a crime which will result

in death or great bodily injury,” but § 417.26 only requires

that the perpetrator intend the officer apprehend or fear

“bodily harm”; § 422 requires that the victim be “in sustained

fear” while § 417.26 does not require the victim even be

aware the laser was directed at him or her; § 422 requires the

threat be so serious that the victim’s fear is reasonable, but

§ 417.26 has no requirement that the victim even experience

fear. Cal. Penal Code §§ 417.26(a), 422(a).

B

Such differences are critical to the CIMT inquiry, as

evidenced by the analysis of § 422 employed in Latter-Singh. 

In that case, we established that § 422 is a CIMT by

contrasting it with an Arizona “simple assault” statute that we

concluded was not morally turpitudinous in Fernandez-Ruiz

v. Gonzales, 468 F.3d 1159 (9th Cir. 2006). Latter-Singh,

668 F.3d at 1161–62. Our decision was based on such

contrast, which revealed that § 422 involved more

turpitudinous conduct than the simple assault statute.

Here, comparing § 422, § 417.26, and Arizona’s simple

assault statute reveals that § 417.26 has more in common with

non-turpitudinous simple assault than with the morally

turpitudinous “threats with intent to terrorize” of § 422. See

Latter-Singh, 668 F.3d at 1158.

First, the threat in Latter-Singh had to be of “death or

great bodily injury,” which was not the case in FernandezRuiz and similarly is not the case in § 417.26. Id. at 1161

(citing Fernandez-Ruiz, 468 F.3d at 1165).
COQUICO V. LYNCH 11

Second, the threat in Latter-Singh required “the

threatened person reasonably to be in sustained fearfor his or

her own safety,” whereas the threat in Fernandez-Ruiz carried

no such “sustained fear” requirement. 668 F.3d at 1162

(emphasis added). Section 417.26 also does not require the

victim be in “sustained fear”—indeed it does not require that

the victim experience any fear at all, merely that the

perpetrator intend apprehension or fear. Cal. Penal Code

§ 417.26.

Third, Latter-Singh noted that § 422 required an “intent

to instill great fear of seriously bodily injury or death” and

equated such intent with “the purpose to terrorize.” 668 F.3d

at 1163 (internal quotation marks omitted). In contrast,

§ 417.26 requires only the intent to place the victim in

“apprehension or fear of bodily harm.” Cal. Penal Code

§ 417.26. This is not equivalent to the intent to “terrorize”

that was of “the requisite depravity . . . to satisfy the moral

turpitude standard” in Latter-Singh. See 668 F.3d at 1163

(internal quotation marks omitted).4

4 Our precedent casts doubt on whether an intent to cause “apprehension

or fear,” rather than intent to injure, can ever be a CIMT. In Uppal, we

held that “an assault statute not involving a specific intent to injure or a

special trust relationship and not requiring that the assault cause death or

even serious bodily injury cannot qualify as a categorical CIMT.” 

605 F.3d at 719. Similarly, in Galeana-Mendoza v. Gonzales, 465 F.3d

1054 (9th Cir. 2006), we stated that when an act cannot “be characterized

as inherently grave, base, or depraved,” then “[a]dding to these acts an

intent to commit them does not change that conclusion.” Id. at 1061

(quoting Mei v. Ashcroft, 393 F.3d 737, 741 (9th Cir. 2004), for the

proposition that “if the crime is trivial, even a deliberate intent to commit

it will not demonstrate an intent so ‘evil’ as to make the crime one of

moral turpitude”).
12 COQUICO V. LYNCH

The conclusion we must draw from this comparison is

that § 417.26 can be violated by conduct that bears a striking

resemblance to non-turpitudinous simple assault, and little

similarity to turpitudinous terrorizing threats.

Thus, our decisions in Latter-Singh and Fernandez-Ruiz

reveal that a violation of § 417.26 is not categorically a crime

involving moral turpitude.5

IV

“Finally, where, as here, the government has not asked us

to apply the modified categorical approach, we consider only

whether the categorical approach is satisfied.” Latu v.

5 The Government also asserts that § 417.26 is a CIMT merely because

it must be committed against a peace officer. Such assertion is incorrect.

As explained by the BIA’s own precedential decision in Matter of

Sanudo—a decision it misapplied in its dismissal of Coquico’s appeal—

even crimes committed against peace officers have only been found to be

a CIMT when they “require proof of the actual infliction ofsome tangible

harm on a victim.” Matter of Sanudo, 23 I.&N. Dec. 968, 972 (BIA

2006). See Garcia-Meza v. Mukasey, 516 F.3d 535, 537 (7th Cir. 2008)

(explaining that the BIA has suggested “that battery of a police officer

without causing harm is not a crime of moral turpitude,” and that even

when the victim is a member of the special class of peace officers that

“special status alone may not be enough”).
COQUICO V. LYNCH 13

Mukasey, 547 F.3d 1070, 1076 (9th Cir. 2008) (internal

quotation marks omitted).6 Because the categorical approach

is not satisfied, we grant the petition.7

PETITIONFORREVIEWGRANTED;REMANDED

for further proceedings consistent with this opinion.

6 Because we end our analysis at the categorical approach, we need not

decide whether § 417.26 is divisible under Descamps v. United States,

133 S. Ct. 2276 (2013).

7 This is not a case where it is necessary to remand to the BIA for

application of the modified categorical approach. Not only has the BIA

“already addressed—albeit under the categorical approach, rather than the

modified categorical approach” whether § 417.26 involves moral

turpitude, but, moreover, this case involves the interpretation of a state

statute, and thus “does not involve an issue the law commits to the

agency’s expertise.” Fernandez-Ruiz, 466 F.3d at 1133–34; see also Latu,

547 F.3d at 1076.