Jose Flores-Vasquez v. Merrick Garland
___ F.4th ___ (9th Cir. 2023) (2023)
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Rule of Law:
A conviction under Oregon Revised Statute § 163.190 for menacing does not constitute a crime involving moral turpitude (CIMT) because the statute's elements do not require an intent to cause injury or that the victim experience actual or sustained fear, thus encompassing conduct that is not inherently base, vile, or depraved.
Facts:
- Jose Luis Flores-Vasquez entered the United States without inspection in 1991.
- Flores-Vasquez visited Mexico for a few weeks and returned to the United States without inspection in 1998, and has remained in the country since.
- Flores-Vasquez's wife is a lawful permanent resident, and they share five adult children who are all United States citizens.
- In 2015, Flores-Vasquez was convicted of 'menacing constituting domestic violence,' a misdemeanor under O.R.S. § 163.190, for threatening his wife with a bread knife.
- Flores-Vasquez pleaded guilty to the menacing charge and was sentenced to four weekends in jail, one year of domestic violence classes, and a two-year restraining order.
Procedural Posture:
- Jose Luis Flores-Vasquez was convicted of menacing under O.R.S. § 163.190 in state court.
- The Department of Homeland Security initiated removal proceedings against Flores-Vasquez.
- An Immigration Judge (IJ) ordered Flores-Vasquez removed, finding his menacing conviction to be a crime involving moral turpitude (CIMT) and thus rendering him ineligible for cancellation of removal.
- Flores-Vasquez appealed the IJ’s decision to the Board of Immigration Appeals (BIA).
- The BIA upheld the IJ’s decision, affirming that the conviction under O.R.S. § 163.190 categorically qualified as a CIMT, citing its own precedential decision in Matter of J-G-P-.
- Flores-Vasquez then filed a petition for review of the BIA's order with the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a conviction under Oregon Revised Statute § 163.190 for menacing categorically constitute a crime involving moral turpitude (CIMT), rendering an individual ineligible for cancellation of removal?
Opinions:
Majority - Sanchez
No, a conviction under Oregon Revised Statute § 163.190 for menacing does not constitute a crime involving moral turpitude (CIMT), and therefore does not render an individual ineligible for cancellation of removal. Applying the categorical approach, the Ninth Circuit compared the elements of O.R.S. § 163.190 to the generic definition of a CIMT. The court determined that the Board of Immigration Appeals (BIA) erred in its prior precedential decision, Matter of J-G-P-, by misinterpreting Ninth Circuit caselaw. Ninth Circuit precedent (Fernandez-Ruiz, Latter-Singh, Coquico) establishes that for assault-related crimes to be classified as CIMTs, there must be both an evil or malicious intent and the infliction of actual substantial harm on another, such as sustained fear. The Oregon menacing statute, while requiring an intent to place another in fear of imminent serious physical injury, does not require an intent to cause injury or that the victim experience any actual or sustained fear. The statute is broad enough to cover non-turpitudinous conduct, such as 'emotional outbursts' or actions where the victim is unaware of or does not actually fear the threat, as illustrated by Oregon state cases involving angry statements and laser-pointing activity without the victim's awareness. Because there is a 'realistic probability' that O.R.S. § 163.190 could be applied to non-turpitudinous conduct, there is no categorical match to a CIMT.
Dissenting - Baker
No, the majority improperly supplants the BIA's reasonable interpretation of an ambiguous term with its own. Judge Baker argues that the term 'moral turpitude' is ambiguous, and under Chevron and Brand X deference, the BIA's construction must be upheld as long as it is reasonable, even if it conflicts with a prior judicial interpretation, unless that judicial interpretation addressed an unambiguous statutory term. The BIA's decision in Matter of J-G-P- provided a thorough and reasonable analysis. Judge Baker contends that Latter-Singh, one of the precedents cited by the majority, actually focused on the perpetrator's intent to instill great fear of serious bodily injury or death, rather than requiring the victim's actual experience of sustained fear, which is consistent with the Oregon menacing statute's focus on an intentional attempt to cause fear. He distinguishes Fernandez-Ruiz by noting that the Oregon statute requires intent and the threat of serious physical injury, unlike the Arizona statute, which allowed for recklessness and less severe 'physical injury.' For Coquico, the dissent views the relevant footnote as dicta and notes that Latter-Singh (an earlier Ninth Circuit decision) should take precedence if there is a conflict. Therefore, the BIA's conclusion in J-G-P- should have been deemed reasonable and granted deference.
Analysis:
This case significantly clarifies the Ninth Circuit's application of the categorical approach for determining whether a state conviction, particularly for assault-like offenses, constitutes a crime involving moral turpitude (CIMT) under federal immigration law. It firmly establishes that for such crimes, the standard requires not only a culpable mental state but also the infliction of actual substantial harm (e.g., sustained fear) on the victim, beyond mere intent to cause fear. The ruling also underscores the limits of Chevron deference to agency interpretations when the BIA's reasoning is found to misapply controlling Circuit precedent, even when the BIA claims consistency with that precedent. This decision will likely compel the BIA to re-evaluate its classifications of various state statutes as CIMTs, particularly those that do not explicitly require actual harm or sustained fear, potentially impacting numerous removal cases involving similar offenses.
