concurring in part and dissenting in part:
I cannot agree with Part I of the majority opinion, in which the majority defers to the BIA’s holding that a violation of Canada Criminal Code § 268 is categorically a crime involving moral turpitude (CIMT). I would conclude that it is not and remand to the agency to decide whether, under the modified categorical approach, Uppal’s conviction qualifies as a CIMT. I therefore dissent from the majority’s holding to the contrary.
As we recently explained in Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc), the determination that a conviction under a criminal statute is categorically a CIMT involves two steps, to which different standards of review apply. First, the BIA must identify the elements of the statute necessary to secure a conviction. Because “[t]he BIA has no special expertise 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we defer to its conclusion if warranted, following the Chevron framework if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute), and following the Skidmore framework if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute). See Marmolejo-Campos, 558 F.3d at 909-11; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).
1. The BIA incorrectly identified the elements of § 268
I turn to the first step of the inquiry: identifying the elements of Canada Criminal Code § 268 (aggravated assault). As the majority notes, the mens rea required for a conviction under § 268 is the same as the 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 mens rea requirement, a conviction for aggravated assault requires that the “risk of bodily harm” resulting from the application of force must be “objectively] foreseeable.]” Id. Finally, to establish aggravated assault, the application of force must actually result in “wound[ing], maimfing], disfiguring], or endangering] the life of’ the victim. Can.Crim.Code, R.S.C., ch. C-46, s. 268 (1985).
The majority, quoting this statutory language, jumps to the conclusion that “ § 268’s actus reus requires ‘infliction of significant injury.’” Maj. Op. at 1018 (emphasis added and brackets omitted). Not *1025so. The statute requires either significant injury or the “endanger[ment] of the life of’ the victim, and so can be satisfied even if no actual injury occurs.
Were this fact not clear from the language of the statute itself, Canadian case law interpreting § 268 leaves no doubt. As the Canadian Supreme Court explained: “There is no prerequisite that any harm must actually have resulted. This first requirement of § 268(1) is satisfied 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.).
Although it is difficult to tell for sure from the BIA’s terse analysis whether the BIA correctly identified the elements of § 268, the only reasonable conclusion is that it did not. The BIA’s decision quotes the statute’s actus reus language — “wound[ing], maimfing], disfigur[ing], or endangering] the life of the complainant”- — correctly, but it then goes on to paraphrase the statute as requiring “willfulness of the action which inflicts the serious injury” (emphasis added), suggesting that it has overlooked the endangerment alternative. I therefore conclude that the BIA misapprehended the 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 merits no deference from this Court. See Morales-Garcia, 567 F.3d at 1066 n. 4. Given the BIA’s error, we should remand to the BIA to consider whether, on a proper understanding of the elements of the crime, a Canadian aggravated assault conviction is categorically a CIMT.
2. The BIA’s reasoning does not merit deference
There is a second problem with the majority’s CIMT ruling: Even if the BIA had correctly identified the elements of § 268, I would conclude that the second step of its CIMT analysis does not warrant deference, because it is neither thoroughly reasoned nor consistent with prior BIA or Ninth Circuit case law. See Skidmore, 323 U.S. at 140, 65 S.Ct. 161 (explaining that the measure of deference afforded to the agency varies “depending] 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”). In addition, there is a head-on conflict between the majority’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.
As the majority correctly notes, a conviction for aggravated assault under § 268 does not require that the perpetrator specifically intended to inflict serious physical injury or intended to inflict any injury at ah. See R. v. Godin, [1994] 2 S.C.R. 484, ¶ 2 (Can.) (“It is not necessary that there be an intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring.” (emphasis added)); R. v. L., [1992] 59 O.A.C. 130, ¶¶ 8-10 (Ont.Ct.App.) (“[T]he essential 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 complainant or endanger his life.... Aggravated assault is ... a crime of general intent.” *1026(internal quotation marks and citations omitted)) (interpreting the former § 245.2, which is identical to the current § 268).
It is settled law that simple assault and battery convictions are not categorically CIMT convictions. That is so because the required mens rea for simple assault or battery is usually the intent to touch another offensively — not exactly what one would call an “evil” intent, which is typically required for a CIMT.1
It is true, as the BIA states, that the presence of “some aggravating dimension” has, as to certain statutes, been held sufficient to increase the culpability of an assault or battery, so making the offense categorically a CIMT. Those statutes, however, involved either the use of a deadly weapon, see Matter of Medina, 15 I. & N. Dec. 611 (BIA 1976), or a victim who has a special status or trust relationship vis a vis the perpetrator, such as a domestic partner or spouse, see In re Tran, 21 I. & N. Dec. at 291, a child, Guerrero de Nodahl v. INS, 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, a crime must involve a particular type of aggravating factor, one that says something about the turpitude or blameworthiness inherent in the action.
The only BIA case of which I am aware in which an assault offense was found to be categorically a CIMT despite the absence of a special protected status or trust relationship or the use of a deadly weapon is Matter of Franklin, 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 recklessness and the death of another person — a result serious enough to raise the offense to a CIMT even without a showing of specific evil intent. Franklin, 20 I. & N. Dec. 867.2
*1027Consistently with these general trends in the BIA’s case law, this Court recently reversed the BIA and held that California Penal Code § 273.5, which penalizes the “willful[ ] infliction] 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 traumatic 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.
I see no way to square the majority 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, even if the “endangering]” language is disregarded, “wounding” is enough, without any requirement that the wound be other than minor; a finger cut requiring only a band-aid would suffice.
With the exception of Franklin, where the unintended result was death, and the special factor cases, the BIA’s case law uniformly indicates that a statute cannot be categorically a CIMT if the mental state element does not require an intent to injure. For example, in In re Muceros, A42-998-610 (BIA May 11, 2000) (index decision),3 the BIA held that a conviction under California Penal Code § 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.... We recognize the argument that the element of “serious bodily injury” presents an aggravating factor which elevates the respondent’s crime to one involving moral turpitude. [But][w]e adopt the reasoning 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 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.” *1028... Thus, the statute under which the respondent was convicted requires the specific intent to cause physical 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. at 243-44 (internal citations omitted).
This Court, too, has taken note of the distinction between general and specific intent in the assault and battery contexts. See Grageda v. INS, 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 committed 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 willful, meaning that the person intended to cause the harm”). Cf. Morales-Garcia, 567 F.3d at 1066 n. 5 (noting that “Grageda 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).
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, cannot qualify as a categorical CIMT.
Conclusion
As I explain in the first part of this separate opinion, we should not be deciding the CIMT issue on the merits at all, because the BIA misconstrued the statutory elements and so did not itself decide the hard CIMT issue actually raised. I would therefore remand to the agency to do so. Alternatively, I would simply grant the petition and remand for application of the modified categorical approach.
For these reasons, I respectfully dissent in part.
. 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 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); 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))).
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 general” (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. INS, 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”).
. In Matter of Fualaau, the BIA hinted that something short of death — perhaps "serious bodily injury” — might be sufficient. See Matter of Fualaau, 21 I. & N. Dec. at 477 (indicating that reckless assault was not categorically a CIMT because it did not require "serious bodily injury”). As far as I know, there is no case so holding.
. All decisions designated to serve as precedent are published in bound volumes of the reporter entitled Administrative Decisions Under the Immigration & Nationality Laws of the United States (or "I. & N. Dec.”). Separately, the Executive Office of Immigration Review periodically compiles certain unpublished decisions as so-called "indexed decisions,” which are meant to serve as useful but nonbinding guidance for EOIR staff. See BIA PRAC. MAN., Ch. 1.4(d) (rev. July 30, 2004), available at http://www.usdoj.gov/eoir/vlI/ qapracmanual/pracmanual/chap 1 .pdf. Indexed decisions are, nevertheless, non-precedential. Id.