Uppal v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JASPAL SINGH UPPAL,  No. 07-72614
Petitioner,
Agency No.
v.
 A076-841-745
ERIC H. HOLDER Jr., Attorney
ORDER AND
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 10, 2009—San Francisco, California

Filed May 21, 2010

Before: David R. Thompson, Marsha S. Berzon and
N. Randy Smith, Circuit Judges.

Opinion by Judge Berzon

7303
 UPPAL v. HOLDER 7305

COUNSEL

Martin Avila Robles, Immigration Practice Group, P.C., San
Francisco, California, for the petitioner.

Tiffany Walters Kleinert, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Washington, D.C.,
for the respondent.

ORDER

The Opinion and Concurrence in Part/Dissent in Part filed
August 11, 2009, Slip Op. 10849, and appearing at 576 F.3d
1014 (9th Cir. 2009), are withdrawn. They may not be cited
7306 UPPAL v. HOLDER
as precedent by or to this court or any district court of the
Ninth Circuit.

The superseding opinion will be filed concurrently with this
order. The parties may file an additional petition for rehearing
or rehearing en banc.

OPINION

BERZON, Circuit Judge:

Jaspal Singh Uppal, a native and citizen of India, petitions
for review of the Board of Immigration Appeal’s (BIA) order
dismissing his appeal. Uppal contends the BIA erred in con-
cluding that he had committed a crime which categorically
involved moral turpitude, thus rendering him inadmissible at
the time of his adjustment of status, and subject to removal.
We agree and grant the petition.

BACKGROUND

Jaspal Singh Uppal entered the United States illegally
around February 1, 1997, near Blaine, Washington. He was
granted asylum in 1998 and accorded status as a permanent
resident in 2004.

On April 11, 2006, the Department of Homeland Security
(“DHS”) issued Uppal a Notice to Appear. The Notice
charged Uppal as removable under 8 U.S.C. § 1227(a)(1)(A),
alleging that Uppal was inadmissible at the time of his entry
and/or adjustment of status on two grounds: 1) he had been
convicted of a crime involving moral turpitude, and 2) he
attempted to obtain immigration benefits through fraud or
misrepresentation of a material fact. 8 U.S.C.
§ 1182(a)(2)(A)(i)(I); (a)(6)(C)(i).
 UPPAL v. HOLDER 7307
Specifically, the Notice alleged that on February 21, 1995,
Uppal was convicted of aggravated assault in violation of § 2681
of the Canada Criminal Code and deported from Canada to
India as a result. The Notice further alleged that Uppal’s
application for asylum made no mention of this conviction or
his status as a Canadian permanent resident.

On receiving the Notice, Uppal filed a formal motion to ter-
minate the removal proceedings. Without holding an evidenti-
ary hearing the IJ issued a final order denying the motion.
Uppal’s conviction under § 268 of the Criminal Code of Can-
ada (on occasion hereafter “§ 268”), the IJ held, constituted a
categorical crime involving moral turpitude (“CIMT”). The IJ
also concluded that Uppal had committed immigration fraud
by concealing both the conviction and his status as a Canadian
permanent resident from U.S. immigration officials.

Uppal timely appealed the IJ’s order to the BIA. In a one-
panel-member, unpublished decision, the BIA affirmed the
IJ’s order. Undertaking a de novo review of the moral turpi-
tude issue, the BIA concluded that the IJ was correct in deter-
mining that a § 268 offense constituted a categorical CIMT,
rendering Uppal inadmissible at the time of his adjustment of
status. The BIA reasoned that Uppal “was convicted of having
committed aggravated assault by, in the process of commit-
ting an assault, wounding, maiming, disfiguring or endanger-
ing the life of the victim.” Basing its conclusion on its
interpretation of the statutory language of § 268, the BIA
determined that “the crime cannot be committed negligently
or carelessly; rather, [the crime] requires willfulness of the
action which inflicts significant injury.” As the BIA found
Uppal removable on that basis alone, it did not reach the
immigration fraud issue.
1
The Notice to Appear alleged that Uppal was convicted of violating
§ 268(2) of the Canada Criminal Code. As that subsection refers only to
the maximum punishment applicable to aggravated assault, we construe
the allegation as one of prior conviction under subsection 268(1), which
sets forth the elements of the crime.
7308 UPPAL v. HOLDER
Uppal timely filed this petition for review.

JURISDICTION

We have jurisdiction to review this final order of removal
under 8 U.S.C. § 1252(a)(1). Although our jurisdiction to
review orders of removal against “criminal aliens” is limited
by 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review
constitutional challenges and questions of law. See 8 U.S.C.
§ 1252(a)(2)(C), (a)(2)(D). Whether a crime involves moral
turpitude is a question of law not subject to the jurisdiction-
stripping provision of § 1252(a)(2)(C). Tall v. Mukasey, 517
F.3d 1115, 1118-19 (9th Cir. 2008).

DISCUSSION

The determination whether a conviction under a criminal
statute is categorically a CIMT involves two steps, to which
different standards of review apply. See Marmolejo-Campos
v. Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en banc). First,
the BIA must identify the elements of the statute necessary to
secure a conviction. Because “[t]he BIA has no special exper-
tise by virtue of its statutory responsibilities in construing
state or federal criminal statutes,” we review its conclusion in
that regard de novo. Id. at 907. Second, once it identifies the
elements of the statute, the BIA must compare those elements
to the generic definition of a crime involving moral turpitude
and decide whether they meet the definition. Id. at 908; see
also Morales-Garcia v. Holder, 567 F.3d 1058, 1064 (9th Cir.
2009). Because the BIA does have expertise in making this
determination, we defer to its conclusion if warranted, follow-
ing the Chevron framework if the decision is a published deci-
sion (or an unpublished decision directly controlled by a
published decision interpreting the same statute), and follow-
ing the Skidmore framework if the decision is unpublished
(and not directly controlled by any published decision inter-
preting the same statute). Marmolejo-Campos, 558 F.3d at
909-11; see also Chevron U.S.A., Inc. v. Natural Res. Def.
 UPPAL v. HOLDER 7309
Council, Inc., 467 U.S. 837, 843 (1984); Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944). As the decision here is of the
latter variety, our deference analysis on the second prong of
the CIMT inquiry must proceed under Skidmore.

1. The Elements of § 268

[1] We turn to the first step of the inquiry: identifying the
elements of Canada Criminal Code § 268 (aggravated
assault). A person commits “aggravated assault” under § 268
of the Canada Criminal Code if he “wounds, maims, disfig-
ures, or endangers the life of” another. Can. Crim. Code,
R.S.C., ch. C-46 § 268(1) (1985). As the statute thus requires
either injury or the “endanger[ment] of the life of” the victim,
it can be satisfied even if no actual injury occurs.

Canadian case law interpreting § 268 leaves no doubt that
there need be no actual harm. As the Canadian Supreme Court
explained: “There is no prerequisite that any harm must actu-
ally have resulted. This first requirement of § 268(1) is satis-
fied by the significant risk to the li[fe] of the [victim]
occasioned by the [application of force].” R. v. Cuerrier,
[1998] 2 S.C.R. 371, ¶ 95 (Can.).

[2] Although it is difficult to tell for sure from the BIA’s
terse analysis whether the BIA correctly identified the ele-
ments of § 268, most likely it did not. The BIA’s decision
quotes the statute’s actus reus language—“wound[ing], maim-
[ing], disfigur[ing], or endanger[ing] the life of the
complainant”—correctly, but it then goes on to paraphrase the
statute as requiring “willfulness of the action which inflicts
significant injury“ (emphasis added), suggesting that it has
overlooked the endangerment alternative. We therefore con-
clude that the BIA misapprehended the actus reus elements
required for a conviction under § 268. Because the BIA failed
to identify the elements of § 268 correctly, its CIMT analysis,
in which it compares the elements it has identified to the
generic definition of moral turpitude, is misdirected and so
7310 UPPAL v. HOLDER
merits no deference from this Court. See Morales-Garcia, 567
F.3d at 1066 n.4.

2. Comparison of § 268 to the CIMT definition

[3] Even if we misread the BIA’s opinion as premised on
the erroneous understanding that § 268 requires actual injury,
we still could not defer to the BIA’s conclusion that § 268 is
categorically a CIMT. Under Skidmore, the measure of defer-
ence afforded to the agency “depends upon the thoroughness
evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking
power to control.” 323 U.S. at 140. When this standard is
applied, the second step of the BIA’s CIMT analysis does not
warrant deference. That analysis is neither thoroughly rea-
soned nor consistent with prior BIA and Ninth Circuit case
law. In addition, there is a head-on conflict between the BIA’s
analysis and this Court’s recent decision in Morales-Garcia v.
Holder, 567 F.3d 1058, as well as a general conflict with the
BIA’s own case law.

To see why the BIA’s CIMT analysis cannot stand, we
begin by eludicating § 268’s mens rea requirement. To do so,
we must read § 268 together with § 265, which establishes a
base-level mens rea requirement for all assault offenses under
the Criminal Code of Canada:

A person commits an assault when

(a) without the consent of another person,
he applies force intentionally to that other
person, directly or indirectly;

(b) he attempts or threatens, by an act or a
gesture, to apply force to another person, if
he has, or causes that other person to
 UPPAL v. HOLDER 7311
believe on reasonable grounds that he has,
present ability to effect his purpose; or

(c) while openly wearing or carrying a
weapon or an imitation thereof, he accosts
or impedes another person or begs.

Can. Crim. Code, R.S.C., ch. C-46 § 265(1) (1985); Cuerrier,
2 S.C.R. 371, ¶¶ 94-95.

[4] The mens rea required for a conviction under § 268
thus includes the base-level mens rea required for simple
assault: (1) the force must be intentionally applied; and (2) the
force must be applied without the victim’s consent, with the
perpetrator “intentionally or recklessly [disregarding the lack
of consent] or being wil[l]fully blind to the fact that the victim
does not consent.” R. v. Williams, [2003] 2 S.C.R. 134, ¶ 22
(Can.). In addition to the base-level mens rea requirement, a
conviction for aggravated assault requires that the “risk of
bodily harm” resulting from the application of force be “ob-
jective[ly] fores[eeable.]” Id. As this summary indicates, a
conviction for aggravated assault under § 268 does not require
that the perpetrator specifically intend to inflict serious physi-
cal injury, or any injury at all. Indeed, under § 268, a perpetra-
tor need not even recklessly disregard the risk of bodily harm
or endangerment resulting from the assault. Instead, § 268
requires only that a reasonable person would know that the
assault carries a risk of bodily injury or endangerment, which
is a negligence standard. See Marmolejo-Campos, 558 F.3d at
912.

Once again, this understanding is confirmed by case law.
As the Canadian Supreme Court noted in R. v. Godin, “[i]t is
not necessary that there be an intent to wound or maim or dis-
figure [under § 268]. The section pertains to an assault that
has the consequences of wounding, maiming or disfiguring.”
[1994] 2 S.C.R. 484, ¶ 2 (emphasis added); see also R. v. L.,
[1992] 59 O.A.C. 130, ¶¶ 8-10 (Ont. Ct. App.) (“[T]he essen-
7312 UPPAL v. HOLDER
tial intent required for an assault . . . remains the same for all
forms of assault, including aggravated assault. Parliament . . .
never intended that, on an indictment charging ‘aggravated
assault,’ the prosecution would be required to prove that the
accused intended to wound, maim or disfigure the complain-
ant or endanger his life. . . . Aggravated assault is . . . a crime
of general intent.” (internal quotation marks and citations
omitted)) (interpreting the former § 245.2, which is identical
to the current § 268). Likewise, in R. v. Brodie, the British
Columbia Court of Appeal affirmed an aggravated assault
conviction in which the defendant had forcefully pushed the
victim in a driveway, causing the victim to fall and resulting
in life-long brain damage. See [1995] 60 B.C.A.C. 153, ¶¶ 5,
12. The court noted that “a reasonable person who contem-
plated pushing another over . . . would be bound to foresee
that such conduct would expose the victim to risk of bodily
harm.” Id. ¶ 10 (emphasis added).

[5] Comparing the requisite mens rea under § 268 with the
case law concerning assaults as CIMTs, it becomes clear that
a § 268 conviction cannot categorically be a CIMT. Under
well-established law, simple assault and battery convictions
are not categorically CIMT convictions because the required
mens rea for simple assault or battery is usually the intent to
touch another offensively, not the “evil” intent typically
required for a CIMT.2
2
See Matter of Solon, 24 I. & N. Dec. 239, 241 (BIA 2007) (“Offenses
characterized as ‘simple assaults’ are generally not considered to be
crimes involving moral turpitude. This is so because they require general
intent only and may be committed without the evil intent, depraved or
vicious motive, or corrupt mind associated with moral turpitude.” (internal
citation omitted)); Matter of Fualaau, 21 I. & N. Dec. 475, 477 (BIA
1996) (defining a CIMT as “ ‘an act which is per se morally reprehensible
and intrinsically wrong, or malum in se, so it is the nature of the act itself
and not the statutory prohibition of it which renders a crime one of moral
turpitude.’ ” (quoting Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA
1994))); Matter of B-, 5 I. & N. Dec. 538, 540-41 (BIA 1953) (holding a
simple assault committed “knowingly” upon a prison guard involved no
evil intent and so was not a CIMT).
 UPPAL v. HOLDER 7313
Some assault statutes, though, have been held to be CIMTs.
Those statutes include as an element “some aggravating
dimension” sufficient to increase the culpability of an assault
or battery and so to transform the offense into one categori-
cally a CIMT. The “aggravating dimensions” recognized as
sufficiently increasing the culpability of an assault to turn an
assault into a CIMT have been the use of a deadly weapon,
Matter of Medina, 15 I. & N. Dec. 611 (BIA 1976), and a vic-
tim who has a special status or trust relationship vis à vis the
perpetrator, such as a domestic partner or spouse, In re Tran,
21 I. & N. Dec. at 291, a child, Guerrero de Nodahl v. I.N.S.,
407 F.2d 1405 (9th Cir. 1969), or a peace officer, Matter of
Danesh, 19 I. & N. Dec. 669 (BIA 1988). As these categories
of cases illustrate, to rise to the level of moral turpitude, an
assault crime must involve a particular type of aggravating
factor, one that says something about the turpitude or blame-
worthiness inherent in the action. See generally Nunez v.
Holder, 594 F.3d 1124, 1131 & n.4 (9th Cir. 2010).

The only precedential BIA case of which we are aware in
which an assault offense was held categorically a CIMT
despite the absence of a special protected status or trust rela-
tionship or the use of a deadly weapon is Matter of Franklin,

See also, generally, Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068
(9th Cir. 2007) (en banc) (defining non-fraud CIMTs as involving conduct
that is “inherently base, vile, or depraved” and “contrary to the [accepted]
private and social duties man owes to his fellow men or to society in gen-
eral” (emphasis added)); Fernandez-Ruiz v. Gonzales, 468 F.3d 1159,
1165-66 (9th Cir. 2006) (discussing the requirement that a crime involve
a showing of “ ‘willfulness’ or ‘evil intent’ ” to be classified as a CIMT,
as opposed to “general intent” or “reckless[ness]”); Notash v. Gonzales,
427 F.3d 693, 698 (9th Cir. 2005) (holding that an act done deliberately
and with knowledge does not necessarily involve the “evil intent” required
for CIMT purposes); Goldeshtein v. I.N.S., 8 F.3d 645, 648 (9th Cir. 1993)
(rejecting the argument that “evil intent exists if a conviction requires
proof that a defendant did a forbidden act ‘willfully,’ ” where “willfully”
was defined to mean “deliberately and with knowledge”).
7314 UPPAL v. HOLDER
20 I. & N. Dec. 867 (BIA 1994). In Franklin, the BIA held
that an involuntary manslaughter statute was categorically a
CIMT because the statute had as elements both extreme reck-
lessness and the death of another person, a result serious
enough to raise the offense to a CIMT even without a show-
ing of specific evil intent. Franklin, 20 I. & N. Dec. at 870.3

Consistently with these general trends in the BIA’s case
law, this Court recently reversed the BIA and held that Cali-
fornia Penal Code section 273.5, which penalizes the “will-
ful[ ] inflict[ion] upon a person who is his or her spouse,
former spouse, cohabitant, former cohabitant, or the mother or
father of his or her child, corporal injury resulting in a trau-
matic condition,” is not categorically a CIMT. See Morales-
Garcia, 567 F.3d at 1060, 1063. The Court so held because
the statute did not require any special trust relationship — the
victim could be merely a “former cohabitant”; it also
observed that the resulting harm, a “traumatic condition,”
could encompass “a wound or external or internal injury
[even] . . . of a minor . . . nature.” Id. at 1063.
3
In Matter of Fualaau, a case involving reckless assault, the BIA hinted
that something short of death—perhaps “serious bodily injury”—might be
sufficient. See 21 I. & N. Dec. at 477 (indicating that reckless assault was
not categorically a CIMT because it did not require “serious bodily inju-
ry”). Moreover, some of our sister circuits consider serious bodily injury
resulting from assault an aggravating factor where the mens rea standard
requires recklessness. See Godinez-Arroyo v. Mukasey, 540 F.3d 848, 849,
851 (8th Cir. 2008) (affirming an unpublished BIA opinion that held a
conviction for “second-degree assault . . . for recklessly causing serious
physical injury to another person” was a CIMT (internal quotation marks
and alterations omitted)); Pichardo v. I.N.S., 104 F.3d 756, 760 (5th Cir.
1997) (determining that an aggravated assault statute requiring “serious
bodily injury” to any person or “bodily injury” to a police officer or
inflicted with a deadly weapon constituted a CIMT because it contained
the elements of “bodily injury together with a minimum mens rea of reck-
lessness”). Because the criminal provision at issue here requires neither
recklessness with respect to harm nor serious bodily injury, these deci-
sions are not useful guides.
 UPPAL v. HOLDER 7315
There is no way to square the BIA’s opinion in this case
with Morales-Garcia. As in Morales-Garcia, the statute at
issue in Uppal’s case requires no special trust relationship
between the victim and the perpetrator. And it does not
require that serious physical injury, much less death, result.
Under § 268, it is sufficient to “endanger the life of” the vic-
tim, even if the victim sustains no bodily injury at all. See
Cuerrier, 2 S.C.R. 371, ¶ 95.

Nor can the BIA’s conclusion with respect to § 268 find
support in the context of non-assault cases in which the BIA
and courts of appeal have held that certain endangerment
crimes constitute a CIMT even without resulting injury. This
line of cases requires actual knowledge of a factor indicating
risk of harm and conscious disregard of it, whereas § 268
requires only negligence. In Marmolejo-Campos v. Holder,
for example, we held, after applying the modified categorical
approach, that a conviction for driving or physically control-
ling a car while under the influence and with a suspended or
restricted license constituted a CIMT. 558 F.3d at 917. How-
ever, we emphasized that the petitioner had “actual knowl-
edge” that his license was invalid at the time of his crimes,
and so demonstrated a subjectively culpable mental state. Id.
at 913 n.12; see also Keungne v. U.S. Att’y Gen., 561 F.3d
1281, 1286-87 (11th Cir. 2009); Knapik v. Ashcroft, 384 F.3d
84, 90 n.5 (3d Cir. 2004); Matter of Lopez-Meza, 22 I. & N.
Dec. 1188, 1194, 1196 (BIA 1999), rejected on other grounds
by Hernandez-Martinez v. Ashcroft, 329 F.3d 1117, 1118-19
(9th Cir. 2003). In contrast, § 268 requires only that the risk
of harm resulting from the assault be “objective[ly] fores[ee-
able],” [1994] R. v. Godin, 2 S.C.R. 484, ¶ 2, not that the per-
petrator actually have subjective knowledge of a factor
indicating risk to another.

[6] Given these considerations, this case does not fall
within the scope of Franklin, in which the unintended result
was death; the special factor assault cases; or the endanger-
ment cases requiring actual knowledge and conscious disre-
7316 UPPAL v. HOLDER
gard of the risk of harm. And outside of these exceptions, the
BIA’s case law uniformly indicates that an assault statute
requiring only general intent cannot be categorically a CIMT.
For example, in Matter of Muceros, A42-998-610 (BIA May
11, 2000) (index decision),4 the BIA held that a conviction
under California Penal Code section 243(d) for “battery . . .
[in which] serious injury is inflicted” is not categorically a
CIMT, because

the level of intent involved only extends to touching
the victim. No evil intent is required. The victims
are not a specially protected class of persons or those
who have a special relationship to the perpetrator.
. . . We recognize the argument that the element of
“serious bodily injury” presents an aggravating fac-
tor which elevates the respondent’s crime to one
involving moral turpitude. [But] [w]e adopt the rea-
soning of the California Courts in this regard, which
have held that “[s]ince section 243 does not require
an intention to do any act which would be judged to
be evil by generally accepted community standards
of morality, battery is not a crime of moral turpitude
[for impeachment purposes] even though it may
unintentionally result in serious bodily injury.”

Id. at *5-*6 (internal citation omitted). Similarly, in Matter of
Solon, the BIA gave dispositive significance to the distinction
between general and specific intent in holding that a New
4
All decisions designated to serve as precedent are published in bound
volumes of the reporter entitled Administrative Decisions Under the Immi-
gration & Nationality Laws of the United States (or “I. & N. Dec.”). Sepa-
rately, the Executive Office of Immigration Review periodically compiles
certain unpublished decisions as so-called “indexed decisions,” which are
meant to serve as useful but non-binding guidance for EOIR staff. See BIA
PRAC. MAN., Ch. 1.4(d) (rev. July 30, 2004), available at http://
www.usdoj.gov/eoir/vll/qapracmanual/pracmanual/chap1.pdf. Indexed
decisions are, nevertheless, non-precedential.
 UPPAL v. HOLDER 7317
York conviction for assault in the third degree is categorically
a CIMT:

[S]ection 120.00(1) of the revised New York Penal
Law . . . provides that a person is guilty of assault
in the third degree when, “[w]ith intent to cause
physical injury to another person, he causes such
injury to such person or to a third person.” . . . [The
statute] requires “intent to cause physical injury.” . . .
Thus, the statute under which the respondent was
convicted requires the specific intent to cause physi-
cal injury, as opposed to the general intent associated
with simple assault. Therefore, the inclusion of the
specific intent element distinguishes third-degree
assault under section 120.00(1) of the New York
Penal Law from the general-intent simple assaults,
which are not considered to involve moral turpitude.

24 I. & N. Dec. 239, 243-44 (BIA 2007) (internal citations
omitted).

This Court, too, has taken note of the distinction between
general and specific intent in the assault and battery contexts.
See Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1059-61
(9th Cir. 2006) (holding that a conviction under a domestic
battery statute that applied to a wide range of relationships
and required neither injury nor an intent to injure did not cate-
gorically qualify as a crime involving moral turpitude);
Grageda v. I.N.S., 12 F.3d 919, 922 (9th Cir. 1993) (holding
that “when a person willfully beats his or her spouse severely
enough to cause ‘a traumatic condition,’ he or she has com-
mitted an act of baseness or depravity contrary to accepted
moral standards [and has categorically committed a crime
involving moral turpitude]” and noting that this “conclusion
follows from Guerrero de Nodahl[, 407 F.2d at 1406,]
because the injurious act under section 273.5(a) must be will-
ful, meaning that the person intended to cause the harm”); cf.
Morales-Garcia, 567 F.3d at 1066 n.5 (noting that “Grageda
7318 UPPAL v. HOLDER
interpreted the statute to require that the defendant ‘intended
to cause the harm,’ although later California cases appear to
require only the general intent to commit the act that results
in injury[ ]” (internal citation omitted) and expressing no
opinion on whether general intent would be sufficient).

[7] As a result, under the BIA’s case law and our own, an
assault statute not involving a specific intent to injure or a
special trust relationship and not requiring that the assault
cause death or even serious bodily injury cannot qualify as a
categorical CIMT.

Conclusion

[8] The BIA may have misconstrued the statutory ele-
ments. Whether it did or not, it applied a CIMT analysis
inconsistent with our case law and its own. We therefore grant
the petition and remand for application of the modified cate-
gorical approach. Of course, the BIA may also reach on
remand the immigration fraud issue it has not yet addressed.

GRANTED and REMANDED.