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.