AGUILAR-MENDEZ , 28 I. & N. Dec. 262 ( 2021 )

Cite as 28 I&N Dec. 262 (BIA 2021) Interim Decision #4012
Matter of Juan Pablo AGUILAR-MENDEZ, Respondent
Decided March 12, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The respondent’s conviction for assault by means of force likely to produce great bodily
injury in violation of section 245(a)(4) of the California Penal Code is categorically one
for a crime involving moral turpitude. Matter of Wu, 27 I&N Dec. 8 (BIA 2017), followed.
FOR RESPONDENT: Hector R. Ortega, Esquire, Montebello, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jean Lin, Assistant Chief
Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
LIEBOWITZ, Appellate Immigration Judge; GELLER, Temporary Appellate Immigration
Judge.
MALPHRUS, Deputy Chief Appellate Immigration Judge:
In a decision dated March 13, 2018, an Immigration Judge denied the
respondent’s application for cancellation of removal under section
240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)
(2018), and his request for voluntary departure pursuant to section 240B(b)
of the Act, 8 U.S.C. § 1229c(b) (2018). The respondent has appealed from
this decision. The appeal will be dismissed in part, and the record will be
remanded for further consideration of his request for voluntary departure.
The respondent has also filed a motion to terminate his removal proceedings,
which will be denied.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States without being admitted or paroled. On September 2, 2014, he was
placed in removal proceedings after he was personally served with a notice
to appear. Although this notice to appear did not specify the time or date of
the respondent’s initial removal hearing, the record reflects that he was
served with a notice of hearing on September 5, 2014, which informed him
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that his initial hearing was scheduled to take place at 8:30 a.m. on
September 23, 2014, at the Los Angeles, California, Immigration Court. 1
The respondent appeared at the scheduled hearing with counsel. He
conceded proper service of the notice to appear, admitted the factual
allegations contained in the notice to appear, and conceded that his entry
without admission or parole rendered him removable as charged. He then
applied for cancellation of removal under section 240A(b)(1) of the Act.
On July 11, 2014, the respondent was convicted of assault by means of
force likely to produce great bodily injury in violation of section 245(a)(4)
of the California Penal Code. The Immigration Judge concluded that this
offense was a conviction for a crime involving moral turpitude under section
212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2018), which
rendered the respondent statutorily ineligible for cancellation of removal.
The Immigration Judge also denied the respondent’s request for voluntary
departure.
The respondent argues on appeal that he is eligible for cancellation of
removal because his conviction for assault under California law is not one
for a crime involving moral turpitude. He also contends that he is eligible
for voluntary departure and warrants this benefit as a matter of discretion.
During the pendency of his appeal, he filed a motion to terminate, arguing
that his notice to appear was defective and did not vest the Immigration Judge
with jurisdiction over his removal proceedings because it failed to specify
the time and date of his initial hearing. We review these questions of law,
discretion, and judgment de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).
II. ANALYSIS
A. Cancellation of Removal
To establish eligibility for cancellation of removal, the respondent must
demonstrate, among other things, that he has not been convicted of a crime
involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act.
Section 240A(b)(1)(C) of the Act; see also 8 C.F.R. § 1240.8(d) (2020). To
determine whether the respondent’s assault conviction is one for a crime
involving moral turpitude, we use the categorical approach, examining
whether the elements defining section 245(a)(4) “fit[] within the generic
definition of a crime involving moral turpitude.” Matter of Silva-Trevino, 26
I&N Dec. 826, 831 (BIA 2016) (applying the categorical approach
articulated in Moncrieffe v. Holder, 569 U.S. 184, 190 (2013), in the moral
turpitude context); see also Safaryan v. Barr, 975 F.3d 976, 985 (9th Cir.
1
We note that the notice to appear and notice of hearing specified the address of the Los
Angeles Immigration Court.
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2020). An “element” of a statute is conduct that must be “‘necessarily’
involved” in an offense. Moncrieffe, 569 U.S. at 190 (citation omitted).
“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 Wu,
27 I&N Dec. 8, 9 (BIA 2017) (quoting Matter of Silva-Trevino, 26 I&N Dec.
at 833). “To involve moral turpitude, a crime requires two essential elements:
reprehensible conduct and a culpable mental state.” Id. (quoting Matter of
Silva-Trevino, 26 I&N Dec. at 834).
At all relevant times, the respondent’s statute of conviction provided:
Any person who commits an assault 2 upon the person of another by any means of
force likely to produce great bodily injury shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county jail for not exceeding one
year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine
and imprisonment.
Cal. Penal Code § 245(a)(4) (West 2014).
In Matter of Wu, we considered a previous version of this statute, which
punished “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.” Cal. Penal Code § 245(a)(1) (West 2011) (emphasis
added). We held that all forms of assault proscribed by this statute (including
assault by means of force likely to produce great bodily injury) necessarily
involve reprehensible conduct and a culpable mental state falling within the
definition of a crime involving moral turpitude. Matter of Wu, 27 I&N Dec.
at 14–15.
In 2012, the California Legislature removed “the distinct offense of
assault by means likely to produce great bodily injury” from former section
245(a)(1) and placed it in a new and separate section—namely, section
245(a)(4), the respondent’s statute of conviction. Safaryan, 975 F.3d at 980
n.1; see also Matter of Wu, 27 I&N Dec. at 9 n.2. Although the respondent
was convicted under section 245(a)(4), rather than former section 245(a)(1),
the operative language of both statutes is identical. Thus, our reasoning in
Matter of Wu regarding the elements of former section 245(a)(1) applies with
equal force to section 245(a)(4). See Safaryan, 975 F.3d at 984 n.3 (noting
the similarity of these statutes and stating that its decision to uphold our
determination in Wu regarding “the prior version of § 245(a)(1) is necessarily
dispositive of . . . § 245(a)(4) as currently codified” (emphasis added)).
2
At the time of the respondent’s offense, California defined “assault” as “an unlawful
attempt, coupled with a present ability, to commit a violent injury on the person of another.”
Cal. Penal Code § 240 (West 2014).
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Like a conviction under former section 245(a)(1), a violation of the
respondent’s statute of conviction must involve “an intentional ‘violent
act’ . . . with force likely to cause serious bodily injury that ‘by its nature will
directly and immediately cause’ the application of physical force to another.”
Matter of Wu, 27 I&N Dec. at 14 (citation omitted). In Wu, we concluded
that such conduct necessarily involves “a culpable mental state greater than
recklessness or criminal negligence” falling squarely “within the definition
of a crime involving moral turpitude.” Id.
Additionally, like former section 245(a)(1), a violation of the
respondent’s statute of conviction must involve an aggravating factor that
renders an assault offense under that provision reprehensible. Id. at 15; see
also Matter of Sanudo, 23 I&N Dec. 968, 971 (BIA 2006) (recognizing that
assault offenses may be classified as reprehensible, and thus crimes involving
moral turpitude, if they necessarily involve an aggravating factor, such as the
intentional infliction of serious bodily injury on another). Specifically,
section 245(a)(4) “require[s] that a perpetrator willfully use . . . 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.” 3 Matter of Wu, 27 I&N Dec. at 15 (footnote omitted); see
also Safaryan, 975 F.3d at 988. We explained in Wu that there is no
meaningful difference between “a person who willfully commits such
dangerous conduct with knowledge of all the facts that make it dangerous”
and “one who commits [such] conduct with the knowledge that it is
dangerous.” Matter of Wu, 27 I&N Dec. at 14; see also Safaryan, 975 F.3d
at 987 (finding our conclusion in this regard to be reasonable because
committing “a violent act . . . by use of ‘force likely to produce great bodily
injury,’ presents an objectively obvious risk of substantial harm”).
“Weighing the dangerous conduct necessarily involved in a violation of
[section 245(a)(4)] along with the culpable mental state needed to commit
such a violation,” we conclude, as we did with respect to former section
245(a)(1), that the conduct criminalized under the respondent’s statute of
conviction “‘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 Wu, 27 I&N Dec. at 15.
The circuit courts, including the United States Court of Appeals for the
Ninth Circuit, in whose jurisdiction this case arises, have observed that the
phrase “moral turpitude” is the “quintessential example of an ambiguous
phrase,” and they have accorded deference to our determinations that “certain
3
For purposes of assault under section 245(a)(4), “[g]reat bodily injury is bodily injury
which is significant or substantial, not insignificant, trivial or moderate.” People
v. Drayton, 255 Cal. Rptr. 3d 361, 362 (Ct. App. 2019) (citation omitted).
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conduct is morally turpitudinous in [our] precedential decision[s].”
Marmolejo-Campos v. Holder, 558 F.3d 903, 909, 911 (9th Cir. 2009)
(en banc); see also, e.g., Nunez-Vasquez v. Barr, 965 F.3d 272, 279 (4th Cir.
2020) (same). Our case-by-case determinations in this regard promote the
consistent application of the immigration laws nationwide. See Immigration
Reform and Control Act of 1986, Pub. L. No. 99-603, § 151(1), 100 Stat.
3359, 3384 (stating that “the immigration laws of the United States should
be enforced . . . uniformly”).
Significantly, the Ninth Circuit has accorded deference to our holding in
Matter of Wu that assault by means of force likely to produce great bodily
injury under former section 245(a)(1) is categorically a crime involving
moral turpitude. Safaryan, 975 F.3d at 987. As noted, the elements of that
offense are identical to those of the respondent’s statute of conviction. See
id. at 984 n.3. Thus, our holding in Matter of Wu controls here, and the
Immigration Judge correctly determined, based on that holding, that the
respondent’s conviction for assault by means of force likely to produce great
bodily injury in violation of section 245(a)(4) of the California Penal Code
is categorically a conviction for a crime involving moral turpitude. We will
therefore affirm the Immigration Judge’s determination that this conviction
renders the respondent statutorily ineligible for cancellation of removal
pursuant to section 240A(b)(1)(C) of the Act.
B. Voluntary Departure
The respondent also challenges the Immigration Judge’s decision to deny
his request for voluntary departure. The Immigration Judge stated in his
decision, without elaboration, that he was denying voluntary departure in the
exercise of discretion. 4 However, he did not make findings of fact regarding
the relevant favorable and unfavorable factors in making this discretionary
determination. See Matter of Arguelles, 22 I&N Dec. 811, 817 (BIA 1999)
(outlining the favorable and unfavorable factors an Immigration Judge
should consider in assessing whether voluntary departure is warranted in the
exercise of discretion); see also 8 C.F.R. § 1003.1(d)(3)(i) (limiting this
Board’s fact-finding ability on appeal). We will therefore remand the record
for the Immigration Judge to make all necessary findings of fact regarding
the favorable and unfavorable factors in this case and determine whether or
4
The Immigration Judge’s decision does not clearly address whether the respondent has
been a person of good moral character during the 5-year period immediately preceding the
entry of a final administrative order in this case. See Matter of Ortega-Cabrera, 23 I&N
Dec. 793, 795 & n.1 (BIA 2005). However, since the respondent’s conviction was entered
more than 5 years ago, it falls outside the good moral character period and does not bar
him from seeking voluntary departure pursuant to section 240B(b)(1)(B) of the Act.
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not the respondent’s request for voluntary departure warrants a favorable
exercise of discretion. See Campos-Granillo v. INS, 12 F.3d 849, 852–53
(9th Cir. 1994) (remanding for an Immigration Judge to make all necessary
findings regarding the favorable and unfavorable factors relating to a request
for voluntary departure).
C. Termination
Finally, the respondent’s arguments in support of termination are
foreclosed by intervening precedents from the Ninth Circuit and this Board,
holding that a notice to appear that fails to specify the time or place of an
alien’s initial removal hearing vests an Immigration Judge with jurisdiction
over proceedings, so long as a notice of hearing specifying this information
is later served on the alien. See Aguilar Fermin v. Barr, 958 F.3d 887, 895
(9th Cir.), cert. denied, 141 S. Ct. 664 (2020); Karingithi v. Whitaker, 913
F.3d 1158, 1162 (9th Cir. 2019), cert. denied, Karingithi v. Barr, 140 S. Ct.
1106 (2020); Matter of Rosales Vargas & Rosales Rosales, 27 I&N Dec. 745,
753–54 (BIA 2020); Matter of Bermudez-Cota, 27 I&N Dec. 441, 447 (BIA
2018). Here, the respondent was served with a notice of hearing specifying
the time and place of his removal hearing, and jurisdiction properly vested in
his case.
Additionally, the respondent has not shown that the notice to appear in
this case violated his right to due process. See United States
v. Bastide-Hernandez, 986 F.3d 1245, 1248 (9th Cir. 2021) (“While a
defective [notice to appear] does not affect jurisdiction, it can create due
process violations.”); see also, e.g., LaChance v. Erickson, 522 U.S. 262, 266
(1998) (“The core of due process is the right to notice and a meaningful
opportunity to be heard.”). Although, as noted, the notice to appear in this
case did not specify the time and date of his initial hearing, the respondent
was served with notices of hearing specifying this information, and he
appeared for his initial hearing and each of his subsequent hearings, as
scheduled. Because the respondent has not demonstrated, in accordance with
the applicable circuit standard, that the deficiency in his notice to appear
“potentially affected” the outcome of his case, we are not persuaded that it
violated his right to due process. Gomez-Velazco v. Sessions, 879 F.3d 989,
993 (9th Cir. 2018) (stating that an alien claiming a violation of due process
must demonstrate that the alleged violation “potentially affected” the
outcome of immigration proceedings).
Thus, there is no basis for terminating the respondent’s proceedings or
remanding the record. See Matter of Sanchez-Herbert, 26 I&N Dec.
43, 45 (BIA 2012). Accordingly, the motion to terminate is denied, the
respondent’s appeal from the Immigration Judge’s decision denying his
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application for cancellation of removal is dismissed, and the record is
remanded for further consideration of his request for voluntary departure.
ORDER: The motion to terminate is denied, and the respondent’s
appeal is dismissed in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and the
entry of a new decision.
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