WU

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 (BIA 2017)                               Interim Decision #3888




                      Matter of Jing WU, Respondent
                              Decided April 13, 2017

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


  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, 

 (9th Cir. 2014) (en banc), distinguished.
FOR RESPONDENT: Lien L. Uy, Esquire, 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. The Department of Homeland
Security (“DHS”) filed a motion to reconsider, which the Immigration
Judge denied on July 17, 2015. The DHS has appealed from that 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 proceedings, charging that the respondent is removable under
section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 

(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. The
Immigration Judge determined that the respondent’s conviction did not
render him removable as charged and she terminated the proceedings.
   On appeal, the DHS contends that because section 245(a)(1) of the
California Penal Code categorically defines a crime involving moral

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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. 

(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, 

, 833 (BIA 2016) (citation
omitted). “To involve moral turpitude, a crime requires two essential
elements: reprehensible conduct and a culpable mental state.” Id. at 834.
    The parties agree that at the relevant time, section 245(a)(1) of the
California Penal Code punished

      [a]ny person who commits 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 the 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 was a crime involving
moral turpitude and concluded that it was. See Gonzales v. Barber, 

 (9th Cir. 1953), aff’d on other grounds, 

 (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, 

, 777–78 (9th Cir. 2014) (en banc).
Moreover, since we ultimately 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 

(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 we 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,

 (BIA 2007) (regarding the treatment of a sentencing enhancement
as an element of the underlying offense).


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Matter of G-R-, 

, 740 (BIA 1946, A.G. 1947). However,
the Ninth Circuit has recently explained 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, 

 (9th Cir. 2014) (en banc). Specifically, the court in Ceron concluded
that the reasoning employed in Barber and Matter of G-R- “runs counter to
today’s categorical analysis” as embodied in Taylor v. United States, 

 (1990). 

 The 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, 

 (Cal. 2001), which “only recently defined
with precision the requisite mental state for assault” under section
245(a)(1). Ceron, 

.
    Because we are entitled to deference with respect to whether a particular
offense involves moral turpitude, the court in Ceron remanded that case
so that we could “determine in the first instance whether California
Penal Code section 245(a)(1) categorically constitutes a crime involving
moral turpitude” under the framework set forth in Taylor. 

 at 785
(citing Marmolejo-Campos v. Holder, 

 (9th Cir. 2009)
(en banc)). The 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”
involves 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, in which
we examine whether the elements 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
defining 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, 

 (9th Cir. 2015) (stating
that a State statute does not categorically define a crime involving moral
turpitude if there is a “realistic probability” that the elements of that statute
would be applied “to conduct that falls beyond the scope of the generic
federal offense”).
    It is well established that a simple assault or battery that only
requires offensive touching or threatened offensive touching of another

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committed with general intent that does not result in serious bodily
harm is not considered to involve moral turpitude. 3 See, e.g., Matter of
Ahortalejo-Guzman, 

 (BIA 2011); Matter of Fualaau,

 (BIA 1996). However, this 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
indicates the perpetrator’s moral depravity.” Matter of Ahortalejo-Guzman,

 (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, 

 (BIA 1988).
    In this way, we have determined that an assault statute that 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, 

 (BIA 2007). 4 Conversely, we have held that an assault statute
prohibiting a perpetrator from causing injury to another “with criminal
negligence” does not define a crime involving moral turpitude. See Matter
of Perez-Contreras, 

, 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 offenses that require a state of mind
falling between specific intent and criminal negligence—for instance,
general intent and recklessness—are morally turpitudinous if they
“necessarily involve[] aggravating factors that significantly increase[] their
culpability” relative to simple assault. Matter of Sanudo, 

 (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, 

,
612–14 (BIA 1976), aff’d sub nom. Medina-Luna v. INS, 

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


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(7th Cir. 1977) (unpublished table decision); see also Weedin v. Tayokichi
Yamada, 

 (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-, 

, 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 involved 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, 

 (emphasis added).
    With respect to section 245(a)(1), the 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
weapon or instrument, or (b) force likely to produce great bodily injury to
another; (2) the defendant did the act willfully; and (3) when 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
875 (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, 

. We therefore
must determine whether a violation of section 245(a)(1) necessarily
requires a culpable mental state that falls within the definition of a crime
involving moral turpitude. For the below reasons, we conclude that it does.
    California has variously defined “assault” as an “unlawful attempt . . . to
commit a violent injury on the person of another,” 

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

 (Cal. 1994), superseded by
statute on other grounds as recognized in People v. Conley, 

,
441 n.4 (Cal. 2016). Given these divergent definitions, it was unclear
whether California assault entailed a specific intent to commit battery. The
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.”


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 P.3d at 202 (citation omitted). 5 In other words, according 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 previous
      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.

 (emphases added) (footnotes and citations omitted).
    The 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 

(a) (2006). 6 See United States v. Jimenez-Arzate, 

,
1064–65 (9th Cir.) (per curiam), cert. denied, 

 (2015)
(mem.); United States v. Grajeda, 

, 1193–97 (9th Cir.
2009); 7 United States v. Heron-Salinas, 

 (9th Cir. 2009).
While the “use of physical force” issue differs from the question presented
here, these 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 in 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 ultimately
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.” Section 2L1.2 of the United States Sentencing Guidelines is
identical to § 16(a) in all relevant respects. United States v. Grajeda, 

 (9th Cir. 2009).
7
   Grajeda, 581 F.3d at 1191–92 & n.5, addressed the same version of section 245(a)(1)
that is at issue here.


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assault requires merely criminally negligent conduct, and thus does not
have as an element the intentional use of force.” Grajeda, 

 (emphasis added). 8
   The Ninth Circuit rejected the defendant’s position, stating that the
California Supreme Court’s decision in Williams reflects that

      section 245(a)(1) requires 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 neatly 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 . . . .

 (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
involves 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 person 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 proof of active employment of force and cannot be satisfied by
negligent or accidental conduct. Leocal v. Ashcroft, 

, 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, 

 (9th Cir. 2006) (en banc).
9
   More recently, in Jimenez-Arzate, 781 F.3d at 1064–65, the 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 . . .)

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    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 another person. See People
v. Aguilar, 

 (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 likely’ theory. The jury’s analytical process [is] the same in either
event.”); People v. Parrish, 

 (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,

; see also Matter of Kim, 

(BIA 2017) (noting that California defines “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
deemed turpitudinous in Medina. See Matter of Ahortalejo-Guzman,

. It is this “building together of elements” 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, 

 (BIA 1999).
    Finally, while we 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 conduct 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 under the influence of
alcohol, that his driver’s license had been suspended and that he was not permitted to
drive.” Matter of Torres-Varela, 

 (BIA 2001) (citing Matter of
Lopez-Meza, 

 (BIA 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, 

 (Cal. 1997) (stating that, for 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)).


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states we discussed in our prior decisions analyzing whether an assault
or battery offense involves moral turpitude, we are not aware of any cases
in which this 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, 

.

                             III. CONCLUSION
    Having considered the issues raised by the Ninth Circuit in Ceron, we
conclude that the respondent’s conviction for assault under section
245(a)(1) of the California Penal Code renders him 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 to 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, 

, 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.




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