Ruben Ceron v. Eric H. Holder Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUBEN ADOLFO CERON, AKA No. 08-70836

Ruben Ceron-Casco,

Petitioner, Agency No.

A073-969-493

v.

ERIC H. HOLDER, JR., Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc

December 11, 2013—San Francisco, California

Filed March 31, 2014

Before: Alex Kozinski, Chief Judge, and Stephen

Reinhardt, Barry G. Silverman, Susan P. Graber, Ronald

M. Gould, Richard A. Paez, Richard R. Clifton, Carlos T.

Bea, N. Randy Smith, Mary H. Murguia, and Andrew D.

Hurwitz, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge Bea

2 CERON V. HOLDER

SUMMARY*

Immigration

The en banc court granted Ruben Adolfo Ceron’s petition

for review of the Board of Immigration Appeals’ decision

finding that his conviction for assault with a deadly weapon

other than a firearm, in violation of California Penal Code

§ 245(a)(1), is a categorical crime involving moral turpitude.

The en banc court held that even though a wobbler

offense, the conviction was for “a crime for which a sentence

of one year or longer may be imposed” because even if it was

a misdemeanor the maximum penalty was incarceration for

one year. The en banc court overruled Garcia-Lopez v.

Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003) and Ferreira v.

Ashcroft, 382 F.3d 1045, 1051 (9th Cir. 2004), to the extent

that they misstated California law as to the maximum penalty

for state law misdemeanor convictions.

The en banc court found that the development of federal

and state law over the intervening six decades has

undermined the reasoning of Gonzales v. Barber, 207 F.2d

398 (9th Cir. 1953), and Matter of G-R-, 2 I. & N. Dec. 733

(BIA 1946, A.G. 1947), which held that a conviction under

CPC § 245 involved moral turpitude. The court found that

the reasoning in those cases runs counter to the Taylor v.

United States, 495 U.S. 575 (1990), categorical approach, and

that significant developments in California law concerning

the intent element of assault have undermined their reasoning.

*

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

been prepared by court staff for the convenience of the reader.

CERON V. HOLDER 3

The court held thus that Barber is no longer good law for the

proposition that § 245(a)(1) categorically describes a CIMT,

and that G-R- is unpersuasive and not worthy of deference on

the point. The court further held that Carr v. INS, 86 F.3d

949 (9th Cir. 1996), is no longer good law for its holding that

CPC § 245(a)(2) is not a categorical CIMT.

The court remanded for the BIA to determine in the first

instance whether § 245(a)(1) constitutes a categorical CIMT.

Judge Bea concurred with the majority’s analysis on its

holding that the conviction was for “a crime for which a

sentence of one year or longer may be imposed.” Judge Bea,

however, would deny the petition for review, and dissented

from the majority’s application of the Navarro-Lopez v.

Gonzales, 503 F.3d 1063, (9th Cir. 2007), framework

analyzing whether a crime falls into the category of crimes

involving moral turpitude. Judge Bea wrote that a CIMT has

no elements, and he would rather look to the weight of federal

and state court authority pursuant to Jordan v. De George,

341 U.S. 223 (1951), to find that assault with a deadly

weapon is a CIMT.

COUNSEL

Mario Acosta, Jr. (argued), Law Office of Mario Acosta, Jr.,

PLC, Los Angeles, California; and Elsa I. Martinez, Law

Office of Elsa Martinez, PLC, Los Angeles, California, for

Petitioner.

Bryan S. Beier (argued), Carol Federighi, and Cindy S.

Ferrier, Senior Litigation Counsel, Stuart F. Delery, Assistant

Attorney General, Tony West, Assistant Attorney General,

4 CERON V. HOLDER

and Joseph O’Connell, Trial Attorney, Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C., for Respondent.

Vincent J. Brunkow and Kara Hartzler, Federal Defenders of

San Diego, Inc., San Diego, California; Charles Roth,

National Immigrant Justice Center, Chicago, Illinois, and

Matt Adams, Northwest Immigrant Rights Project, Seattle,

Washington; and Thomas E. Gorman, Keker & Van Nest

LLP, San Francisco, California, for Amici Curiae.

OPINION

GRABER, Circuit Judge:

Petitioner Ruben Adolfo Ceron seeks review of the Board

of Immigration Appeals’ (“BIA”) decision that his conviction

for assault with a deadly weapon, in violation of California

Penal Code section 245(a)(1), is a removable offense under

8 U.S.C. § 1227(a)(2)(A)(i) because it is (I) “a crime

involving moral turpitude” (II) “for which a sentence of one

year or longer may be imposed.” Reviewing de novo whether

Petitioner’s conviction meets those requirements, Blanco v.

Mukasey, 518 F.3d 714, 718 (9th Cir. 2008); Garcia-Lopez v.

Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003), we grant the

petition and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Petitioner is a native and citizen of El Salvador and a

lawful permanent resident of the United States. In 2006, he

pleaded nolo contendere in California state court to having

violated California Penal Code section 245(a)(1), which

CERON V. HOLDER 5

proscribes “an assault upon the person of another with a

deadly weapon or instrument other than a firearm.”1 The

state court suspended the imposition of a sentence and

imposed, instead, 36 months of probation. As a term and

condition of probation, the state court prescribed a 364-day

jail term and gave Petitioner credit for the 364 days that he

actually served in the county jail.

The federal government issued Petitioner a notice to

appear, alleging that he was removable pursuant to 8 U.S.C.

§ 1227(a)(2)(A)(i) because he had been convicted of a crime

involving moral turpitude for which a sentence of one year or

longer could have been imposed. The immigration judge

sustained the charge of removability and ordered Petitioner

removed.

The BIA issued its own decision and dismissed

Petitioner’s appeal. The BIA first held that, whether

Petitioner’s conviction was for a misdemeanor or for a felony,

the state statute permits a sentence of imprisonment of at least

one year. The BIA next held that a conviction for an assault

with a deadly weapon under California Penal Code section

245(a)(1) categorically constitutes a crime involving moral

turpitude.

1

At the time of Petitioner’s offense, section 245(a)(1) also prohibited an

assault “by any means of force likely to produce great bodily injury.” Cal.

Penal Code § 245(a)(1) (2006). Petitioner argued to the BIA that the

judicially noticeable documents proved that he was not convicted of that

prong, and the BIA agreed. The record and the law support that

conclusion because the statute is “divisible.” Descamps v. United States,

133 S. Ct. 2276, 2285 (2013). For simplicity, we refer in this opinion to

the present-day version of section 245(a)(1), which is identical to the 2006

version except that it no longer includes the irrelevant prong.

6 CERON V. HOLDER

Petitioner timely petitioned for review. A three-judge

panel denied the petition. Ceron v. Holder, 712 F.3d 426 (9th

Cir. 2013). We then granted rehearing en banc. 730 F.3d

1133 (9th Cir. 2013).

DISCUSSION

Title 8 U.S.C. § 1227(a)(2)(A)(i), titled “Crimes of moral

turpitude,” provides:

Any alien who—

(I) is convicted of a crime involving moral

turpitude committed within five years (or 10

years in the case of an alien provided lawful

permanent resident status under section

1255(j) of this title) after the date of

admission, and

(II) is convicted of a crime for which a

sentence of one year or longer may be

imposed,

is deportable.

Petitioner argues that his conviction met neither statutory

requirement. We first address whether his conviction was for

“a crime for which a sentence of one year or longer may be

imposed.” Id. § 1227(a)(2)(A)(i)(II). We then address

whether California Penal Code section 245(a)(1) categorically

defines “a crime involving moral turpitude.” Id.

§ 1227(a)(2)(A)(i)(I).

CERON V. HOLDER 7

A. “Sentence of One Year or Longer”

California Penal Code section 245(a)(1) directs that

Petitioner “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.” Consulting the statutory text, the state

court could have imposed a sentence of up to four years in

state prison, which plainly is “a sentence of one year or

longer.” 8 U.S.C. § 1227(a)(2)(A)(i)(II). In California,

however, the analysis is not quite that simple.

Statutes such as section 245(a)(1) are known in California

as “wobblers” because the state court can treat a conviction

under section 245(a)(1) either as a felony or as a

misdemeanor. See, e.g., Ewing v. California, 538 U.S. 11,

16–17 (2003) (describing “wobblers”). If the conviction is a

felony, then the “state prison” provision applies and the

maximum penalty is four years in state prison. Ceron,

712 F.3d at 430; Cal. Penal Code § 17(a). But if the

conviction is a misdemeanor, then the “county jail” provision

applies and the maximum penalty is one year in county jail.

Ceron, 712 F.3d at 430; Cal. Penal Code § 17(a).

For our purposes, it does not matter whether Petitioner’s

conviction was a felony or a misdemeanor. If it was a felony,

then the maximum penalty was imprisonment for four years

in the state prison. If it was a misdemeanor, then the

maximum penalty was incarceration for one year in the

county jail. In either event—four years or one year—the state

court could have imposed “a sentence of one year or longer.”

8 U.S.C. § 1227(a)(2)(A)(i)(II). Petitioner’s conviction meets

the federal statutory requirement either way. In summary, the

BIA correctly held that Petitioner’s conviction was for “a

8 CERON V. HOLDER

crime for which a sentence of one year or longer may be

imposed.” Id.

In reaching that conclusion, we overrule two of our earlier

cases, which misstated California law. In Garcia-Lopez,

334 F.3d at 846, we wrote: “Because the offense of which he

was convicted was a misdemeanor, Garcia-Lopez’s maximum

possible penalty under California law was less than six

months. See Cal. Penal Code § 19 (West 1992).” Similarly,

in Ferreira v. Ashcroft, 382 F.3d 1045, 1051 (9th Cir. 2004),

we held that, “[u]nder California law, the maximum penalty

for a misdemeanor is six months’ imprisonment.” (Citing

Garcia-Lopez, 334 F.3d at 846.)

Those decisions misunderstood how the state law

operates. California Penal Code section 19 specifies a

general statutory maximum penalty of six months’

imprisonment in the county jail for all misdemeanors,

“[e]xcept in cases where a different punishment is prescribed

by any law of this state.” (Emphasis added.) That is,

whenever the criminal statute in question prescribes a

different maximum penalty, the six-month default maximum

simply does not apply. For example, as described above,

section 245(a)(1) specifies a maximum imprisonment for

misdemeanor convictions of one year in the county jail.

Therefore, the default statutory maximum of six months,

prescribed by section 19, is inapplicable. Although the

criminal statutes at issue in Garcia-Lopez and Ferreira also

prescribed different maximum terms for misdemeanor

convictions, we erroneously held that section 19’s default six-

month maximum applied. See Ceron, 712 F.3d at 430–32

(describing this issue in detail). Accordingly, we overrule

that aspect of those cases.

CERON V. HOLDER 9

B. “Crime Involving Moral Turpitude”

We next analyze whether California Penal Code section

245(a)(1) categorically defines “a crime involving moral

turpitude.” 8 U.S.C. § 1227(a)(2)(A)(i)(I). “The

determination whether a conviction under a criminal statute

is categorically a crime of moral turpitude involves two steps

. . . .” Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th

Cir. 2013) (internal quotation marks and brackets omitted).

“The first step is to identify the elements of the statute of

conviction.” Id. Because the BIA lacks expertise in

identifying the elements of state statutes, we review the first

step de novo. 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. Because the BIA has

expertise in that task, we defer to its conclusion if warranted,

following the Chevron framework if the decision is published

or directly controlled by a published decision, and otherwise

following the Skidmore framework. Id.

Accordingly, we begin by discussing the elements of

California Penal Code section 245(a)(1). We then discuss

whether we must defer to the BIA’s decision in this case that

section 245(a)(1) categorically constitutes a crime involving

moral turpitude.

1. Elements of California Penal Code section

245(a)(1)

California Penal Code section 245(a)(1) prohibits “an

assault upon the person of another with a deadly weapon or

instrument other than a firearm.” A “deadly weapon or

instrument” is “one that is used in such a manner as to be

10 CERON V. HOLDER

capable of producing death or great bodily injury.” People v.

Aguilar, 945 P.2d 1204, 1210 (Cal. 1997) (emphasis omitted).

The weapon “must be an object extrinsic to the human body.

Bare hands or feet, therefore, cannot be deadly weapons . . . .”

Id. An assault does not require actual harm or even physical

contact. See id. at 1207 (“One may commit an assault

without making actual physical contact with the person of the

victim; . . . whether the victim in fact suffers any harm is

immaterial.”).

Assault is “a general intent crime.” People v. Williams,

29 P.3d 197, 203 (Cal. 2001). An assault “requires an

intentional act and actual knowledge of those facts sufficient

to establish that the act by its nature will probably and

directly result in the application of physical force against

another.” Id. at 204. “[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.” Id. at 203. “For example, a defendant who honestly

believes that his act was not likely to result in a battery is still

guilty of assault if a reasonable person, viewing the facts

known to defendant, would find that the act would directly,

naturally and probably result in a battery.” Id. at 203 n.3. An

“assault does not require a specific intent to cause injury or a

subjective awareness of the risk that an injury might occur.”

Id. at 204.

The Supreme Court of California intended its 2001

decision in Williams to “clarify the mental state for assault.”

Id. at 202. The court discussed the “confusion” that had

existed during the preceding decades regarding the precise

CERON V. HOLDER 11

mental state required for assault. Id. The Williams court’s

nuanced definition—quoted above—resulted from a synthesis

of numerous earlier cases, many of which conflicted on the

issue of the mental state required to convict a defendant of

assault. See id. at 200–03 (discussing the jurisprudential

history at length). One clear example is that, as late as 1968,

the California Court of Appeal had held—erroneously under

the Williams formulation—that “it is now settled that assault

is a specific intent crime.” People v. Fanning, 71 Cal. Rptr.

641, 644 (Ct. App. 1968); cf. Williams, 29 P.3d at 203

(“Assault is still a general intent crime . . . .” (citations

omitted)); see also Williams, 29 P.3d at 200–03 (discussing

confusion in the cases); People v. Hood, 462 P.2d 370,

374–78 (Cal. 1969) (discussing the confusion in pre-1969

cases). In sum, until recently, the requisite mental state for

assault in California was ill defined. With both the Williams

definition and that history in mind, we turn to the second step

in the analysis: whether California Penal Code section

245(a)(1) categorically involves moral turpitude.

2. Categorical Analysis

“Although the immigration statutes do not specifically

define offenses constituting crimes involving moral turpitude,

a crime involving moral turpitude is generally a crime that

(1) is vile, base, or depraved and (2) violates accepted moral

standards.” Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th

Cir. 2012) (internal quotation marks omitted). In this case,

the BIA held:

It has long been settled in the Ninth

Circuit that the offense of assault with a

deadly weapon in violation of Cal. Penal Code

§ 245(a)(1) is a crime involving moral

12 CERON V. HOLDER

turpitude. Gonzales v. Barber, 207 F.2d 398,

400 (9th Cir. 1953), aff’d on other grounds,

347 U.S. 637 (1954). This Board, from its

earliest days, has held likewise. Matter of G-

R-, 2 I & N Dec. 733 (BIA 1946, A.G. 1947).

Under then-existing law, the BIA’s analysis was sound.

We held in Barber in 1953 that a conviction under California

Penal Code section 245—which then encompassed a range of

aggravated assaults, including assault with a deadly weapon

and assault with a firearm—“per se” involves moral

turpitude. Barber, 207 F.2d at 400; see Cal. Penal Code

§ 245 (Deering supp. 1933). Similarly, the BIA held in In re

G-R- in 1946 that the alien’s conviction under section 245

involved moral turpitude. 2 I. & N. Dec. at 740. The

development of both federal law and state law over the

intervening six decades, however, has undermined the

reasoning of those cases.

In federal law, the Supreme Court announced in

1990—decades after Barber and In re G-R- were

decided—the now-commonplace “categorical approach” to

determining whether a conviction meets a federal definition.

Taylor v. United States, 495 U.S. 575 (1990); see also Nunez

v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010) (“To

determine if a crime involves moral turpitude, we first apply

the categorical approach.”). Relevant here,”we do not look

to the facts of the underlying conviction, but rather to the

state statute defining the conviction.” United States v.

Laurico-Yeno, 590 F.3d 818, 821 (9th Cir. 2010). “In order

for a violation of the state statute to qualify [under the federal

definition], the full range of conduct covered by the state

statute must fall within the scope of the federal statutory

provision.” Id. (internal quotation marks and brackets

CERON V. HOLDER 13

omitted). The label or title that a state assigns to a crime is

insufficient, Taylor, 495 U.S. at 590–92; the fact that other

state statutes with the same title qualify under the relevant

federal definition does not resolve whether the state statute at

hand qualifies under the federal definition, see, e.g., United

States v. Kelly, 422 F.3d 889, 894–95 (9th Cir. 2005) (holding

that, even though eluding statutes in three other states

categorically met the federal definition of a crime of violence,

the Washington statute did not categorically meet the federal

definition).

The reasoning in In re G-R- and Barber runs counter to

today’s categorical analysis. In In re G-R-, the BIA examined

the underlying facts of the alien’s conviction—now

prohibited by the categorical approach—to decide that it

involved moral turpitude. 2 I. & N. Dec. at 740. In its

decision, the BIA discussed a case involving different facts in

which a state court had ruled that a section 245 conviction

“did not involve moral turpitude.” Id. The state court’s

conclusion did not affect the BIA’s own conclusion because

of the underlying facts of the alien’s conviction: “We find no

facts in the case before us, however, . . . which would warrant

such a conclusion. And we cannot conclude that [the state

court’s] decision makes it necessary for us to hold that the

crime of assault with a deadly weapon in California never

involves moral turpitude.” Id. In today’s parlance, the BIA

held that it need not determine whether section 245

categorically describes a crime involving moral turpitude,

because the facts of the case before it involved moral

turpitude. Whatever validity that analysis had in 1946,

today’s categorical approach mandates a match between the

federal definition and “the full range of conduct covered by

the state statute.” Laurico-Yeno, 590 F.3d at 821. In sum, In

14 CERON V. HOLDER

re G-R- did not hold that California Penal Code section 245

categorically constitutes a crime involving moral turpitude.

In Barber, 207 F.2d at 400, we held, in full: “In the

federal law, assault with a deadly weapon is such a crime

[involving moral turpitude].” We cited four cases in support

of that conclusion, but each involved interpretation of an

assault statute from a state other than California: United

States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933)

(New York); United States ex rel. Mazzillo v. Day, 15 F.2d

391 (S.D.N.Y. 1926) (same); United States ex rel. Ciccerelli

v. Curran, 12 F.2d 394 (2d Cir. 1926) (same); Weedin v.

Tayokichi Yamada, 4 F.2d 455 (9th Cir. 1925) (Washington).

As noted above, the fact that other assault statutes qualify

under the federal definition is, today, insufficient to establish

that the assault statute at issue necessarily qualifies. Kelly,

422 F.3d at 894–95. In short, our reasoning in Barber, which

relied entirely on other state statutes, was insufficient to

support the conclusion that this particular state statute

categorically involved moral turpitude.

State law developments, too, have undermined the

reasoning of In re G-R- and Barber. As discussed above, the

California courts only recently defined with precision the

requisite mental state for assault. Indeed, when In re G-R-

and Barber were decided, the California cases were unclear,

if not contradictory, about that element of the crime. We find

it implausible, at best, that the BIA in In re G-R- or we in

Barber discerned the nuanced definition of the requisite

mental state that the California Supreme Court announced

decades later in Williams.

Of course, not every change in state law necessarily

undermines our precedent or BIA precedent. But “intent [is]

CERON V. HOLDER 15

a crucial element in determining whether a crime involves

moral turpitude.” In re Solon, 24 I. & N. Dec. 239, 242

(B.I.A. 2007). The significant developments in California

law over the past six decades concerning the intent element

of assault have weakened significantly the reasoning of

Barber and In re G-R-. Because of the foregoing changes at

both the federal and state levels, we conclude that Barber is

no longer good law for the proposition that California Penal

Code section 245(a)(1) categorically describes a crime

involving moral turpitude, and we hold that In re G-R- is

unpersuasive and not worthy of deference on this point,

see Castrijon-Garcia, 704 F.3d at 1208, 1210–11.

Similarly, we are not persuaded that Carr v. INS, 86 F.3d

949 (9th Cir. 1996), offers a reasoned alternative. In Carr,

we held that a conviction under California Penal Code section

245(a)(2)—assault with a firearm—is not a crime involving

moral turpitude. Id. at 951. As an initial matter, that holding

directly contradicted our binding holding in Barber. In

Barber, 207 F.2d at 400, as noted, we had held expressly that

California Penal Code section 245, which then encompassed

a wide range of aggravated assaults including assault with a

firearm, was “per se” a crime involving moral turpitude.

Because Carr was a three-judge panel opinion, it violated our

rule that, in the absence of an intervening Supreme Court or

en banc precedent that fatally undermines the case in

question, a three-judge panel is bound by an earlier

precedential decision. United States v. Gay, 967 F.2d 322,

327 (9th Cir. 1992); see generally Miller v. Gammie,

335 F.3d 889, 899–900 (9th Cir. 2003) (en banc) (distilling

our cases concerning the precedential effect of decisions by

three-judge panels). There was no such intervening precedent

between Barber and Carr.

16 CERON V. HOLDER

Carr’s reasoning, in full, was:

[The petitioner’s conviction under California

Penal Code section 245(a)(2)] is not a crime

of moral turpitude. See Komarenko v. INS,

35 F.3d 432, 435 (9th Cir. 1994) (precluding

an alien convicted of violating California

Penal Code § 245(a)(2)—the same statute

pursuant to which [the petitioner] was

convicted—from seeking a discretionary

deportation waiver available to those

convicted of crimes of moral turpitude);

Gonzalez-Alvarado v. INS, 39 F.3d 245, 246

(9th Cir. 1994) (“[t]ypically, crimes of moral

turpitude involve fraud” as well as “acts of

baseness or depravity contrary to accepted

moral standards” (quotations omitted)).

Carr, 86 F.3d at 951 (last alteration in original). The second

citation—to Gonzalez-Alvarado—simply recites the

definition of a crime involving moral turpitude, so that

citation does not provide any reasoning germane to section

245(a)(2). The first citation—to Komarenko—and its

corresponding parenthetical suggest that we already had

decided that section 245(a)(2) is not a crime involving moral

turpitude. But Komarenko did not decide that issue. Instead,

we held there that two provisions of the immigration statutes

did not contain “substantially identical” lists of crimes, and

we declined to consider the petitioner’s specific conviction on

the ground that it was irrelevant. Komarenko, 35 F.3d at

434–35; see also id. at 435 (declining “to speculate whether

the I.N.S. would have” concluded that the petitioner’s

conviction was a crime involving moral turpitude). To the

extent that we commented at all in Komarenko, we

CERON V. HOLDER 17

acknowledged that the petitioner’s conviction “could be a

crime of moral turpitude.” Id. at 435 (emphasis added).

In sum, Carr failed to cite Barber—a case directly on

point and contrary to its conclusion—and the only support for

Carr’s holding is its citation to cases that did not reach the

issue. We therefore hold that Carr is no longer good law for

the proposition that California Penal Code section 245(a)(2)

does not categorically define a crime involving moral

turpitude.2

We have found no other decision—by us or by the

BIA—that has analyzed whether California Penal Code

section 245(a)(1) categorically defines a crime involving

moral turpitude. Turning to related precedents, we find no

obvious answer to that question.

“Assault may or may not involve moral turpitude.” In re

Solon, 24 I. & N. Dec. at 241. Intent is “a crucial element in

determining whether a crime involves moral turpitude.” Id.

at 242. “‘[S]imple assaults’ are generally not considered to

be crimes involving moral turpitude . . . because they require

general intent only . . . .” Id. at 241 (citations omitted).

2

To the extent that other cases have cited Carr for the proposition that

a conviction under section 245(a)(2) does not involve moral turpitude,

those cases, too, are overruled in that limited way. See Castrijon–Garcia

v. Holder, 704 F.3d 1205, 1212 (9th Cir. 2013) (citing Carr for the

proposition that assault with a deadly weapon is not a crime involving

moral turpitude); Robles–Urrea v. Holder, 678 F.3d 702, 708 (9th Cir.

2012) (same); Nicanor–Romero v. Mukasey, 523 F.3d 992, 1018 n.6 (9th

Cir. 2008) (same); Navarro–Lopez v. Gonzales, 503 F.3d 1063, 1074–75

(9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority)

(same). We need not, and do not, decide whether any other conclusions

reached in those cases are affected by our decision today.

18 CERON V. HOLDER

Similarly, “not all crimes involving the injurious touching of

another person reflect moral depravity on the part of the

offender [because some require only] de minimis conduct or

harm, such as offensive or provocative physical conduct or

insults.” Id. (citation omitted). “[N]either the offender’s

state of mind nor the resulting level of harm, alone, is

determinative of moral turpitude.” Id.

The BIA has summarized that

a finding of moral turpitude involves an

assessment of both the state of mind and the

level of harm required to complete the

offense. Thus, intentional conduct resulting in

a meaningful level of harm, which must be

more than mere offensive touching, may be

considered morally turpitudinous. However,

as the level of conscious behavior decreases,

i.e., from intentional to reckless conduct,

more serious resulting harm is required in

order to find that the crime involves moral

turpitude. Moreover, where no conscious

behavior is required, there can be no finding

of moral turpitude, regardless of the resulting

harm.

Id. at 242.

The “presence of an aggravating factor,” such as “serious

physical injury or the use of a deadly weapon,” “can be

important in determining whether a particular assault amounts

to a crime involving moral turpitude.” Id. at 245; see also In

re Sejas, 24 I. & N. Dec. 236, 237 (B.I.A. 2007) (“Although

as a general rule, a simple assault and battery offense does not

CERON V. HOLDER 19

involve moral turpitude, an aggravating factor can alter our

determination.”). But “the need for, and the nature of, any

aggravating factor is affected by the mental state required for

the conviction.” In re Solon, 24 I. & N. Dec. at 245. For

example, in In re Sejas, 24 I. & N. Dec. at 238, the BIA held

that, although the assault statute at issue contained an

aggravating factor—assault against a member of one’s family

or household—the statute nevertheless was not categorically

a crime involving moral turpitude because it “does not require

the actual infliction of physical injury and may include any

touching, however slight.”

Turning more specifically to crimes of assault with a

deadly weapon, we find guidance that points in both

directions, leaving us uncertain whether a conviction under

California Penal Code section 245(a)(1) categorically

involves moral turpitude. On the one hand, the BIA’s

statements concerning the use of a deadly weapon suggest

that that factor weighs heavily in its analysis. For example,

in In re O-, 3 I. & N. Dec. 193, 197 (B.I.A. 1948), the BIA

long ago held that “an assault aggravated by the use of a

dangerous or deadly weapon is contrary to accepted standards

of morality in a civilized society. . . . [S]uch conduct may be

looked upon as always having been inherently base . . . .” See

also id. at 198 (noting that “assault with a deadly weapon in

general has been held to be a crime involving moral

turpitude”); In re Ahortalejo-Guzman, 25 I. & N. Dec. 465,

466 (B.I.A. 2011) (noting that “the use of a deadly weapon”

is an “aggravating factor that indicates the perpetrator’s moral

depravity” such that the general rule that simple assaults do

not involve moral turpitude does not apply). Because

California Penal Code section 245(a)(1) requires the

intentional use of a deadly weapon or instrument, Williams,

29 P.3d at 204, the BIA’s reasoning in In re O- and In re

20 CERON V. HOLDER

Ahortalejo-Guzman suggests that a conviction under the

California statute necessarily involves moral turpitude.

On the other hand, it is not clear that the use of a deadly

weapon is sufficient. Other factors, such as the fact that

California Penal Code section 245(a)(1) requires neither

physical injury nor even physical contact, Aguilar, 945 P.2d

at 1207, suggest that the crime does not categorically involve

moral turpitude. Additionally, the BIA has made clear that

the presence of an aggravating factor is not always

dispositive. See, e.g., In re Sejas, 24 I. & N. Dec. at 238

(holding that a Virginia assault statute did not categorically

involve moral turpitude despite the presence of an

aggravating factor).

Perhaps most importantly, “the need for, and the nature

of, any aggravating factor is affected by the mental state

required for the conviction.” In re Solon, 24 I. & N. Dec. at

245. California Penal Code section 245(a)(1) is a general

intent crime and does not require a specific intent to injure.

Williams, 29 P.3d at 203. Nor does the statute require that the

offender actually perceive the risk created by his or her

actions. Id. The offender must commit an intentional act and

must have knowledge of the circumstances that would lead a

reasonable person to perceive the risk, but the offender’s

subjective appreciation of the risk is not required. Id.

On this point, the BIA’s decision in In re Medina, 15 I. &

N. Dec. 611 (B.I.A. 1976), which involved an Illinois statute

criminalizing assault with a deadly weapon, is instructive.

The BIA concluded that, even though the statute permitted a

conviction with only a “recklessness” mental state, the statute

nevertheless involved moral turpitude. Id. at 613–14. Crucial

to the BIA’s analysis, however, was that the “person acting

CERON V. HOLDER 21

recklessly must consciously disregard a substantial and

unjustifiable risk.” Id. (emphasis added); see also id. at 614

(“This definition of recklessness requires an actual awareness

of the risk created by the criminal violator’s action. . . . [T]he

violator must show a willingness to commit the act in

disregard of the perceived risk.” (emphases added)). Neither

In re Medina nor any other BIA decision instructs us

definitively on how the BIA would assess 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.

Given the circumstances, the prudent course of action is

to remand this case to the BIA to consider the issue in the

first instance. The BIA understandably followed In re G-R-

and Barber—the controlling precedents at the time of its

decision. By holding today that those cases are no longer

good law, we have created error in the BIA’s decision and

have thwarted the ordinary procedure through which the BIA

has the first opportunity to assess whether a crime involves

moral turpitude. Cf. Gonzales v. Thomas, 547 U.S. 183

(2006) (per curiam); SEC v. Chenery Corp., 318 U.S. 80

(1943).

That first opportunity to decide is especially important

because, as we have noted, we ordinarily defer to the BIA’s

determination whether a state statute categorically constitutes

a crime involving moral turpitude. Castrijon-Garcia,

704 F.3d at 1208. Moreover, were we to decide the issue, and

were the BIA to disagree with us in a later case, we ultimately

would have to decide whether the BIA’s decision warrants

deference. See, e.g., Garfias-Rodriguez v. Holder, 702 F.3d

504, 513–14 (9th Cir. 2012) (en banc) (concluding that,

22 CERON V. HOLDER

pursuant to Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005), our prior construction

of immigration provisions did not survive a contrary reading

by the BIA). In other words, eventually we will have to

decide whether to defer to the BIA’s decision. If we resolved

the question ourselves today, we would create uncertainty

while awaiting a future case that raises the same issue.

Particularly in light of our own role in creating the BIA’s

error, we see no persuasive justification for taking that course

of action. We note, however, that a prompt decision from the

BIA could help to limit the number of individuals who decide

to plead guilty without proper guidance as to the immigration

consequences of that decision.

Accordingly, we grant the petition and remand to the BIA

to determine in the first instance whether California Penal

Code section 245(a)(1) categorically constitutes a crime

involving moral turpitude. We reiterate that our level of

deference will depend on whether the BIA publishes its

decision. See Marmolejo-Campos v. Holder, 558 F.3d 903,

909 (9th Cir. 2009) (en banc) (holding that Chevron

deference applies to published decisions but Skidmore

deference applies to unpublished decisions).

This en banc court retains jurisdiction over future

petitions for review in this case.

Petition GRANTED and case REMANDED for

further proceedings.

CERON V. HOLDER 23

BEA, Circuit Judge, with whom Circuit Judge GOULD joins,

dissenting:

A.

I concur with the analysis in part A of the majority

opinion which holds that the “BIA correctly held that

Petitioner’s conviction was for ‘a crime for which a sentence

of one year or longer may be imposed.’” Majority Op. at

7–8. However, as I previously explained in dissent in

Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1084 (9th Cir.

2007), this court is bound by Jordan v. De George,1 the

1

In Jordan v. De George, 341 U.S. 223, 224–25 (1951), De George was

an alien twice found guilty of conspiring to defraud the United States of

taxes due on alcoholic beverages and was ordered deported for twice

having committed a “crime involving moral turpitude,” each carrying a

sentence of imprisonment of over one year. The IJ ordered De George to

be deported and the BIA affirmed. Id. at 226. De George filed a federal

habeas petition, claiming the crimes did not involve moral turpitude. Id.

The district court denied the petition. Id. The Court of Appeals for the

Seventh Circuit reversed, finding that crimes involving moral turpitude

were meant only to include crimes of violence, not evading taxes on

alcohol. Id. at 226. The Supreme Court granted certiorari and reversed.

The Court stated:

In deciding the case before the Court, we look to the

manner in which the term “moral turpitude” has been

applied by judicial decision. Without exception, federal

and state courts have held that a crime in which fraud is

an ingredient involves moral turpitude. In the

construction of the specific section of the Statute before

us, a court of appeals has stated that fraud has

ordinarily been the test to determine whether crimes not

of the gravest character involve moral turpitude.

Id. at 227. The Court supported its holding that a crime involving fraud

also involves moral turpitude by surveying federal and state cases. Id. It

24 CERON V. HOLDER

only Supreme Court case that analyzes whether a crime falls

into the Immigration and Naturalization Act’s category of

“crimes involving moral turpitude.” Jordan v. De George

gives us instruction which just does not jibe with the Taylor

analysis employed in Navarro-Lopez.

In Navarro-Lopez, this court used the Taylor categorical

approach to compare the elements of the California crime of

accessory after the fact to “the generic elements of a crime

involving moral turpitude.” Navarro-Lopez, 503 F.3d at 1068

(9th Cir. 2007). The court then defined the generic elements

of a crime involving moral turpitude as involving “conduct

that is inherently base, vile, or depraved, and contrary to the

private and social duties man owes to his fellow men or to

society in general” and found that the California crime of

accessory after the fact did not fall under this generic

found that in every deportation case where fraud had been

proved—including the crimes of forgery, using the mails to defraud,

execution of chattel mortgage with intent to defraud, concealing assets,

issuing checks with intent to defraud—the court had held involved moral

turpitude. Id. at 227–29. Further, the Court found that two courts of

appeal had previously held that the crime in question had been held to be

a crime involving moral turpitude. Id. at 228. The Court concluded:

in view of these decisions, it can be concluded that

fraud has consistently been regarded as such a

contaminating component in any crime that American

courts have, without exception, included such crimes

within the scope of moral turpitude. It is therefore

clear, under an unbroken course of judicial decisions,

that the crime of conspiring to defraud the United States

is a ‘crime involving moral turpitude.’

Id. at 229.

CERON V. HOLDER 25

definition. Id. at 1068, 1073. The majority now again applies

the Navarro-Lopez framework to this case.

I respectfully submit that again the majority’s approach is

incorrect. “Vile, base, depraved and violates accepted moral

standards” are not the elements of a generic crime for which

we can use Taylor. The elements of a generic crime are

objectively observable—action, intent, circumstances—not

judgments that label such facts. Whether conduct is

“depraved” is not objectively observable. Instead, “vile, base,

depraved and violates accepted moral standards” is the

viewer’s description of crimes bearing the appellation

“crimes involving moral turpitude.” This description of the

appellation “crimes involving moral turpitude” requires

subjective evaluation of the elements of the state statutory

crime to determine whether the crime requires conduct which

was “depraved” or “contrary to accepted moral standards.”

In the federal criminal law, found in Title 18 of the United

States Code, there is no “crime involving moral turpitude.”

It would thus be impossible to indict a person for having

committed a “crime involving moral turpitude,” quite apart

from considerations of unconstitutional vagueness. In a

word, a “crime involving moral turpitude” has no elements.

One cannot apply Taylor to compare the elements of a

state statutory crime (assault with a deadly weapon) to the

description (“vile, base, or depraved and violates accepted

social standards”) of an appellation (“crimes involving moral

turpitude”). There is no objective matching as is the case

when determining if both the federal definition and the state

crime involve the same mens rea or the same element of risk

of injury to another. Applying Taylor to determine whether

a crime involves moral turpitude is like comparing apples

26 CERON V. HOLDER

(objective elements of a crime) to oranges (subjective

evaluation of aspects of a crime). This distinction is precisely

why, in De George, the Court ruled that stare decisis is the

correct method of determination of what crimes fall into the

appellation of “crimes involving moral turpitude.”

Under De George I would look to the weight of federal

and state court authority, just as the BIA here did and just as

our circuit did in Barber, and find that assault with a deadly

weapon is a crime involving moral turpitude. Thus I would

deny the petition for review.

B.

The majority holds that on remand the BIA must apply

the Taylor categorical approach. However, if I were

somehow to apply the Taylor categorical approach, I would

do so differently from the majority, but still deny the petition.

“Crimes involving moral turpitude” is a category

analogous to the categories of “crimes of violence,”

“aggravated felonies,” and “violent felonies.” See Leocal v.

Ashcroft, 543 U.S. 1, 3–5 (2004) (crimes of violence)2;

2

In Leocal v. Ashcroft, a Haitian citizen who was a lawful permanent

resident of the United States was convicted of driving under the influence

of alcohol (DUI) and causing serious bodily injury under Florida law and

sentenced to 2.5 years in prison. 543 U.S. 1, 3–4 (2004). The INS

initiated removal proceedings against him pursuant to INA § 237(a),

which states that any alien who is convicted of an “aggravated felony”

may be removed. Id. at 4. Section 1101(a)(43) of the INA defines

“aggravated felony” as including a “crime of violence.” Id. at 4–5. A

“crime of violence” is defined in 18 U.S.C. § 16. The immigration judge

found that a Florida DUI offense was a crime of violence. Id. at 5. The

BIA affirmed. Id. at 5. The Eleventh Circuit denied Leocal’s petition for

CERON V. HOLDER 27

Kawashima v. Holder, 132 S. Ct. 1166, 1170–73 (2012)

(aggravated felonies)3; Moncrieffe v. Holder, 133 S. Ct. 1678,

1683, 1687 (2013) (“aggravated felonies”)4; James v. U.S.,

review. Id. The Supreme Court granted certiorari and reversed. Id. at 6.

The Court examined the statute and held that a violation of Florida’s DUI

statute is not a crime of violence. Id. at 10.

3

In Kawashima v. Holder, a husband and wife from Japan who were

lawful residents of the United States pleaded guilty to submitting a false

tax return. 132 S. Ct. 1166, 1170 (2012). Following the convictions, the

INS charged the Kawashimas with being deportable as aliens who had

committed an aggravated felony. Id. In the INA, “categories of offenses

that qualify as ‘aggravated felonies’ for the purpose of deportation”

include an offense that “involves fraud or deceit in which the loss to the

victim or victims exceeds $10,000 or is a tax evasion in which the revenue

loss to the Government exceeds $10,000.” Id. at 1171. The IJ ordered the

couple’s removal, and the BIA affirmed. Id. On appeal, the Ninth Circuit

held that Kawashimas had both committed an aggravated felony, granted

the petition, and remanded the case to the BIA. Id. The Supreme Court

granted certiorari and affirmed the Ninth Circuit. The Court used a

categorical approach and found that the tax crime involved fraud or deceit.

Id. at 1173.

4

Adrian Moncrieffe was a Jamaican citizen who came to the United

States illegally. Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013).

Moncrieffe was convicted under a Georgia statute for possession of drugs.

Id. Subsequently, DHS started deportation proceedings, arguing that the

Georgia conviction constituted an “aggravated felony.” Id. at 1682. The

INA defines an “aggravated felony” as including “illicit trafficking in a

controlled substance.” Id. at 1683. An IJ ordered Moncrieffe removed.

Id. The BIA affirmed. Id. The Eleventh Circuit denied Moncrieffe’s

petition for review, finding that the Georgia statute was equivalent to a

federal drug felony. Id. The Supreme Court granted certiorari and

reversed. Id. The Supreme Court applied the categorical approach, noting

that this “categorical approach has a long pedigree in our Nation’s

immigration law.” Id. at 1685. But the Court also stated that the

categorical approach applies to “generic crimes.” Id. at 1691. The court

compared the Georgia crime with the generic crime of “illicit trafficking

28 CERON V. HOLDER

550 U.S. 192, 195, 203–04 (2007) ( “violent felonies”).5

However, for each of these categories Congress either defined

the category or gave examples of crimes that fall into the

category. Id. But Congress has neither given examples of

“crimes involving moral turpitude” nor defined required

elements for this category. All we have are judicial decisions

which describe which crimes involve moral turpitude. See De

George, 341 U.S. at 227.

Thus, if we are to use the Taylor categorical analysis to

determine whether California Penal Code § 245(a)(1) is a

crime involving moral turpitude, I think we would have to

take a two step approach. First, we would have to determine

whether there is a general federal crime of assault with a

deadly weapon not including a firearm with which to

compare California Penal Code § 245(a)(1). There is no

in a controlled substance” and found that Moncrieffe was not convicted of

an aggravated felony. Id. at 1687.

5

Alphonso James pleaded guilty to one count of possessing a firearm

after being convicted of a felony. James, 550 U.S. at 195. James had

three prior felony convictions including a Florida conviction for attempted

burglary. Id. at 196. The district court held that attempted burglary was

a violent felony and James was subject to a mandatory sentence under the

Armed Career Criminal Act. Id. The Eleventh Circuit affirmed. Id. The

Supreme Court granted certiorari. Id. The Supreme Court held that a

“violent felony” is defined by 18 U.S.C. § 924(e)(1) as a crime “that has

as an element the use, attempted use, or threatened use of physical force

against the person of another or is burglary, arson, extortion, involves the

use of explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” Id. at 196. The Court applied

the Taylor categorical approach and found that the Florida crime of

attempted burglary posed a serious risk of physical injury to another. Id.

at 204.

CERON V. HOLDER 29

federal statute comparable to § 245(a)(1).6 That is the first

impediment to the use of Taylor. Second, if there were an

equivalent federal crime, we would need to search for judicial

decisions to determine whether a case had held that federal

crime to be, or not to be, a crime involving moral turpitude.

Again, there is not such a case—even as to the federal crime

of assault with a deadly weapon including a firearm,

18 U.S.C. § 113(a)(3). That is the second impediment against

using the Taylor categorical approach. Absent such

precedent as to an equivalent federal crime, I would examine

precedent regarding whether equivalent state crimes had been

held to be crimes involving moral turpitude, as required by

De George, 341 U.S. at 227, and compare the elements of

those crimes to the crime in question here, § 245(a)(1). That

is more productive. We have already held that § 245(a) is a

crime involving moral turpitude,7 and while the majority finds

6

Title 18 U.S.C. § 113(a)(3) codifies assault with a deadly weapon, but

includes firearms, unlike California Penal Code § 245(a)(1) which

excludes firearms.

7

The majority overrules Barber because Barber relies on four federal

cases for the proposition that assault with a deadly weapon is a crime

involving moral turpitude under federal law and “the fact that other assault

statutes qualify under the federal definition is, today, insufficient to

establish that the assault statute at issue necessarily qualifies.” Majority

Op. at 14. It is true that the court in Barber did not compare the elements

of § 245 to the elements of the federal cases it cited. Rather, in Barber we

considered that, “[h]ere we are faced with the federal question of whether

the crime involves such moral turpitude as to show that the alien has a

criminal heart and a criminal tendency—as to show him to be a confirmed

criminal.” That question is similar to the one the majority asks today.

Further, if this court overrules all moral turpitude precedent prior to 1990,

when the Supreme Court decided Taylor, because the cases did not

compare elements of two crimes as required by Taylor, there will be no

guideposts by which to judge what crimes qualify under the common-law

30 CERON V. HOLDER

it “implausible” that this court in Barber discerned the correct

mens rea, the majority can point to nothing in the Barber

opinion to prove their assumption. Barber, 207 F.2d at 400;

Majority Op. at 14. Thus, I would deny the petition.

C.

The majority skips this analysis of previous judicial

decisions and simply determines that crimes that necessarily

include conduct which it finds is “vile, base, or depraved and

against accepted social standards” fall into the category of

“crimes involving moral turpitude.” This approach ignores

De George, is impossible to apply objectively, and is not

binding on the BIA because the Ninth Circuit is defining a

category left undefined in the INA by Congress. See

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 843–44 (1984) (“If Congress has explicitly left

a gap for the agency to fill, there is an express delegation of

authority to the agency to elucidate a specific provision of the

statute by regulation.”). Thus, on remand, if the BIA cannot

find that an equivalent federal or state crime of assault with

a deadly weapon has been held, or not held, to be a crime

involving moral turpitude, it can create its own definition of

a crime involving moral turpitude for purposes of the INA.

term “moral turpitude.” We cannot do that consistent with Jordan v. De

George, supra.