FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS FLORES-VASQUEZ, No. 20-73447
Petitioner, Agency No.
A208-080-952
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 9, 2022
Portland, Oregon
Filed August 31, 2023
Before: Patrick J. Bumatay and Gabriel P. Sanchez, Circuit
Judges, and M. Miller Baker, * International Trade Judge.
Opinion by Judge Sanchez;
Dissent by Judge Baker
*
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
2 FLORES-VASQUEZ V. GARLAND
SUMMARY **
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ (BIA) dismissal of an appeal of an
immigration judge’s order denying petitioner Jose Luis
Flores-Vasquez’s application for cancellation of removal,
asylum, withholding of removal, and protection under the
Convention Against Torture.
The panel held that a conviction under Oregon Revised
Statute § 163.190 does not constitute a crime involving
moral turpitude (CIMT). The panel explained that in the
BIA’s precedential decision in Matter of J-G-P-, 27 I. & N.
Dec. 642 (BIA 2019), which held that § 163.190
categorically qualifies as a CIMT, the BIA erred in its
analysis of this court’s prior caselaw. The panel remanded
for further consideration of petitioner’s application for
cancellation of removal.
In an unpublished disposition, the panel denied a petition
for review as to the denial of asylum, withholding of removal
and protection under the Convention Against Torture.
Dissenting, Judge Baker disagreed with the majority’s
determination that the BIA’s interpretation of a CIMT in
Matter of J-G-P- conflicts with this court’s prior caselaw and
is therefore unreasonable. Judge Baker would apply Chevron
deference to Matter of J-G-P-, because the term “moral
turpitude” is ambiguous, and the BIA’s construction of it is
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FLORES-VASQUEZ V. GARLAND 3
not arbitrary, capricious, or manifestly contrary to the
statute.
COUNSEL
Jonathan C. Gonzales (argued) and Jeffrey C. Gonzales,
Gonzales Gonzales & Gonzales, Portland, Oregon, for
Petitioner.
Christina R. Zeidan (argued), Trial Attorney; John S. Hogan,
Assistant Director; Brian M. Boynton, Acting Assistant
Attorney General; Civil Division, Office of Immigration
Litigation, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
SANCHEZ, Circuit Judge:
Jose Luis Flores-Vasquez (“Flores-Vasquez”), a native
and citizen of Mexico, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing his appeal.
He argues that the BIA erred in finding that his prior
menacing conviction under Oregon Revised Statute
§ 163.190 constitutes a crime involving moral turpitude
(“CIMT”), rendering him ineligible for cancellation of
removal. We agree and grant this portion of the petition. 1
1
Flores-Vasquez’s other claims are addressed in an unpublished
memorandum disposition filed concurrently with this opinion.
4 FLORES-VASQUEZ V. GARLAND
I.
Flores-Vasquez entered the United States without
inspection in 1991. He visited Mexico for a few weeks
before returning to the United States without inspection in
1998 and has not left the country since. Flores-Vasquez’s
wife is a lawful permanent resident, and they share five adult
children who are all United States citizens.
In 2015, Flores-Vasquez was convicted of “menacing
constituting domestic violence,” a misdemeanor under
O.R.S. § 163.190, for threatening his wife with a bread knife.
Flores-Vasquez pleaded guilty and was sentenced to four
weekends in jail, one year of domestic violence classes, and
a two-year restraining order. Soon after, the Department of
Homeland Security initiated removal proceedings against
Flores-Vasquez. The Immigration Judge (“IJ”) ordered
Flores-Vasquez removed, finding that menacing under
O.R.S. § 163.190 “is categorically a crime involving moral
turpitude,” rendering Flores-Vasquez ineligible for
cancellation of removal. The BIA upheld the IJ’s decision,
citing its holding in Matter of J-G-P-, 27 I. & N. Dec. 642
(BIA 2019) “that a conviction under § 163.190 categorically
qualifies as a CIMT.”
II.
A conviction for a crime of moral turpitude renders an
alien statutorily ineligible for cancellation of removal. 8
U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2). Although “[w]e lack
jurisdiction to review a final order of removal based on a
petitioner’s conviction of a CIMT,” we “retain jurisdiction
to determine whether a petitioner’s conviction is in fact a
CIMT as defined in the Immigration and Nationality Act
(‘INA’).” Betansos v. Barr, 928 F.3d 1133, 1137 (9th Cir.
2019).
FLORES-VASQUEZ V. GARLAND 5
“Generally, when determining whether a petitioner’s
conviction is categorically a CIMT, we undertake a two-step
process.” Id. First, we identify the elements of the statute.
Coquico v. Lynch, 789 F.3d 1049, 1051 (9th Cir. 2015).
Second, “we engage in the categorical approach and
compare the elements of the statute of conviction to the
generic definition of a [CIMT] and decide whether the
conviction meets that definition.” Betansos, 928 F.3d at
1137 (internal quotation marks omitted).
“We use the categorical approach to determine whether
a conviction qualifies as a CIMT.” Fugow v. Barr, 943 F.3d
456, 458 (9th Cir. 2019). Under this approach, “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). A
conviction constitutes a crime of moral turpitude only “if the
full range of conduct encompassed by the statute, including
the least egregious conduct prosecuted under the statute, is a
crime of moral turpitude.” Barragan-Lopez v. Mukasey, 508
F.3d 899, 903 (9th Cir. 2007) (internal quotation marks
omitted). “If there is a ‘realistic probability’ that the statute
of conviction would be applied to non-turpitudinous
conduct, there is no categorical match.” Fugow, 943 F.3d at
458 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007)). 2
“Because the BIA has no special expertise in the
interpretation of state criminal statutes, we review [the
elements of the statute] de novo.” Latter-Singh v. Holder,
2
“[W]here, as here, the government has not asked us to apply the
modified categorical approach, we consider only whether the categorical
approach is satisfied.” Latu v. Mukasey, 547 F.3d 1070, 1076 (9th Cir.
2008) (internal quotation marks omitted).
6 FLORES-VASQUEZ V. GARLAND
668 F.3d 1156, 1159 (9th Cir. 2012). However, we afford
deference to the BIA’s determination whether a state law is
categorically a crime involving moral turpitude. See id. at
1159–60. Where, as here, the BIA issues or relies on a
published decision to reach its conclusion, we apply
Chevron deference and “defer to the agency’s decision so
long as it is reasonable.” Reyes v. Garland, 11 F.4th 985,
993 (9th Cir. 2021) (citing Chevron U.S.A., Inc., v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 845 (1984)).
A.
We begin by identifying the elements of the Oregon
menacing statute. Under Oregon law, “[a] person commits
the crime of menacing if by word or conduct the person
intentionally attempts to place another person in fear of
imminent serious physical injury.” O.R.S. § 163.190.
“[T]he material elements of the offense of menacing are: (1)
intentionally (2) attempting (3) by word or conduct (4) to
place another person in fear of imminent serious physical
injury.” State v. Anderson, 641 P.2d 40, 41 (Or. Ct. App.
1982). 3
The Oregon menacing statute is derived from the
common law crime of simple assault. See State v. Garcias,
679 P.2d 1354, 1356 (Or. 1984) (en banc). Assault in
Oregon occurs “when one intentionally, or with another
specified mental state, causes some degree of physical injury
3
Oregon law defines several of these terms. A person acts
“intentionally” when the person “acts with a conscious objective to cause
the result or to engage in the conduct so described.” O.R.S. § 161.085(7).
“Serious physical injury” means “physical injury which creates a
substantial risk of death or which causes serious and protracted
disfigurement, protracted impairment of health or protracted loss or
impairment of the function of any bodily organ.” O.R.S. § 161.015(8).
FLORES-VASQUEZ V. GARLAND 7
to another. . . . As thus defined, assault includes only acts
performed with the intent to cause injury and does not
encompass conduct intended to create apprehension, but not
necessarily injury.” Id. Menacing was enacted as a separate
offense to reach this other form of proscribed behavior—the
intent to place another in fear of injury without intending to
injure. 4 Id. Accordingly, the Oregon menacing statute
prohibits words or conduct intended to place others in fear
of imminent serious physical injury where actual injury is
neither intended nor accomplished. See Anderson, 641 P.2d
at 41 (“Menacing covers any situation where the actor
attempts to place another person in fear of imminent serious
bodily harm and where serious injury is neither intended nor
inflicted.”); Garcias, 679 P.2d at 1356.
The Oregon menacing statute does not require that the
intended victim experience any actual fear. “Because the
victim’s subjective state of mind is not a defined element of
the offense, the standard is whether a ‘reasonable person’
would have been placed in the requisite state of fear.” State
v. C.S., 365 P.3d 535, 538 (Or. Ct. App. 2015) (citing
Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report
(“Commentary”) § 95, 96 (July 1970) (“‘Physical menace’
implies such conduct as would cause fear to a reasonable
man. The standard to be applied is an objective one.”)); see
also State v. Lee, 23 P.3d 999, 1002 (Or. Ct. App. 2001) (“It
bears emphasis that the statute requires proof of an intent to
4
The Oregon menacing statute also borrowed from the Model Penal
Code definition of simple assault. Id. at 1356–57; see Model Penal Code
§ 211.1(1)(c) (Am. Law Inst. 2018) (defining simple assault in part as
“attempt[ing] by physical menace to put another in fear of imminent
serious bodily injury”).
8 FLORES-VASQUEZ V. GARLAND
create fear, not that the actor create actual fear in a victim.”)
(emphasis in original).
B.
Having identified the elements of the Oregon menacing
statute, we next compare these elements with the federal
definition of a crime involving moral turpitude to determine
whether there is a categorical match. Orellana v. Barr, 967
F.3d 927, 934 (9th Cir. 2020). As the BIA observed in its
precedential decision Matter of J-G-P-, 27 I. & N. Dec. 642
(BIA 2019), “the term ‘moral turpitude’ generally refers to
conduct that is ‘inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties
owed between persons or to society in general.’” Id. at 643
(quoting Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833
(BIA 2016)). A crime involving moral turpitude “requires
two essential elements: reprehensible conduct and a culpable
mental state.” Id. at 644.
Ninth Circuit and BIA precedent have long recognized
that conviction for simple assault does not involve moral
turpitude. See Fernandez-Ruiz v. Gonzales, 468 F.3d 1159,
1165 (9th Cir. 2006); Uppal v. Holder, 605 F.3d 712, 718
(9th Cir. 2010) (“[T]he BIA’s caselaw uniformly indicates
that an assault statute requiring only general intent cannot be
categorically a CIMT.”); In re Solon, 24 I. & N. Dec. 239,
241 (BIA 2007) (“Many simple assault statutes prohibit a
wide range of conduct or harm, including de minimis
conduct or harm, such as offensive or provocative physical
contact or insults, which is not ordinarily considered to be
inherently vile, depraved, or morally reprehensible.”);
Matter of Jing Wu, 27 I. & N. Dec. 8, 10–11 (BIA 2017) (“It
is well established that a simple assault or battery that only
requires offensive touching or threatened offensive touching
FLORES-VASQUEZ V. GARLAND 9
of another committed with general intent that does not result
in serious bodily harm is not considered to involve moral
turpitude.”). For an assault statute to constitute a CIMT, the
statute must “contain[] elements that deviate from those
associated with simple assault and battery” and “involve[]
some aggravating factor that indicates the perpetrator’s
moral depravity.” Id. (emphasis in original).
In Matter of J-G-P-, the BIA concluded that the Oregon
menacing statute constituted a crime involving moral
turpitude because it requires a specific rather than general
intent to cause fear in another, and the “level of harm”
contemplated by the statute is the intent to cause a victim to
be “in apprehension of imminent serious physical injury.”
27 I. & N. Dec. at 644–46 (emphasis in original). Matter of
J-G-P- recognized that the Oregon menacing statute does not
require that a victim experience any actual fear or injury, but
it concluded that this element “is not necessary to determine
that a crime categorically involves moral turpitude because
section 163.190 requires evil or malicious intent, and the
level of threatened harm . . . is serious and immediate.” Id.
at 647. The BIA acknowledged that “there is some tension
between this conclusion and the decision of the Ninth Circuit
in Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1167 (9th
Cir. 2006),” but concluded its holding “comports with the
holding in Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir.
2012), and is not precluded by Coquico v. Lynch, 789 F.3d
1049 (9th Cir. 2015).” Matter of J-P-G-, 27 I. & N. Dec. at
647–648. We conclude the BIA erred in its analysis of our
prior caselaw.
In Fernandez-Ruiz, we held that the BIA erred when it
determined that conviction under Arizona’s simple assault
statute constituted a crime involving moral turpitude. 468
F.3d at 1167–68. The statute lacked two “crucial” elements
10 FLORES-VASQUEZ V. GARLAND
needed to make a CIMT finding. 5 Id. at 1167. First, the
statute did not require a willful or intentional act, only a
reckless one. Id. at 1166. Second, the Arizona statute
“contains absolutely no element of injury whatsoever”
because it “prohibits conduct that merely places another
person ‘in reasonable apprehension of’ physical injury.” Id.
at 1167 (quoting A.R.S. § 13-1203(A)(2)). Because a simple
assault statute that criminalizes “physical contacts that result
in the most minor of injuries or threats that cause no injury
at all . . . includes within it acts that are not necessarily base,
vile or depraved,” we concluded that a conviction under the
Arizona statute could not constitute a CIMT. Id.
In Latter-Singh, on the other hand, we held that a
California statute criminalizing “threats ‘with intent to
terrorize’” constituted a crime involving moral turpitude.
668 F.3d at 1158, 1162 (analyzing California Penal Code
(“CPC”) § 422). Three critical factors distinguished the
California threat statue from the Arizona statute in
Fernandez-Ruiz. First, we noted that “[a] conviction under
§ 422 requires both proof of the ‘specific intent to injure’
required of crimes involving moral turpitude as well as proof
of a threat of ‘death[] or serious bodily injury,’” factors that
were not present in Fernandez-Ruiz. Id. at 1161 (citing
Fernandez-Ruiz, 468 F.3d at 1165, 1167). Second, we
concluded that the mens rea element for § 422 evinced an
evil intent because it requires not only that a person threaten
5
Arizona’s simple assault statute concerning threatening conduct is
almost identically worded to the Oregon menacing statute and prohibits
“intentionally placing another person in reasonable apprehension of
imminent physical injury.” The statutes differ in only one material
respect: the intent to place another in fear of physical injury rather than
serious physical injury. Compare A.R.S. § 13-1203(A)(2) with O.R.S.
§ 163.190.
FLORES-VASQUEZ V. GARLAND 11
death or great bodily injury, but that “such threats be made
both ‘willfully’ and ‘with the specific intent that the
statement . . . be taken as a threat.’” Id. at 1163 (citing
§ 422) (emphasis in original).
Third, we observed that Ҥ 422 criminalizes only that
conduct which results in substantial harm” by requiring that
the threat be “so unequivocal, unconditional, immediate, and
specific” that it cause the victim “to be in sustained fear for
his or her own safety” or the safety of an immediate family
member. Id. at 1162 (emphasis added). This element
distinguished § 422 from the Arizona assault statute, which
“did not have a similar requirement that the person
threatened be in sustained fear of immediate danger to his or
his family’s safety.” Id. (emphasis in original).
In Coquico, we held that a California statute prohibiting
“unlawful laser activity” was not a CIMT, reasoning it had
more in common with the simple assault statute in
Fernandez-Ruiz than with the terrorizing threats statute in
Latter-Singh. 789 F.3d at 1051, 1053–55 (analyzing CPC
§ 417.26). Unlike the statute in Latter-Singh, Arizona’s
assault statute and § 417.26 criminalized threatening conduct
that did not require the victim be in “sustained fear” for his
or her safety. Id. at 1054. In fact, § 417.26 does not “require
that the victim experience any fear at all, merely that the
perpetrator intend apprehension or fear.” Id. (emphasis in
original). 6 We concluded that the act of shining a laser
pointer at another person, even if accompanied by an intent
6
Coquico also observed that “[o]ur precedent casts doubt on whether an
intent to cause ‘apprehension or fear,’ rather than intent to injure, can
ever be a CIMT,” discussing Uppal, 605 F.3d at 719 and Galeana-
Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006). 789 F.3d at 1054
n.4.
12 FLORES-VASQUEZ V. GARLAND
to place that person in fear of bodily harm, was not a CIMT.
Id. at 1054–55.
The BIA erred in concluding that the “element of actual
inflicted fear” is not necessary to determine that a crime
categorically involves moral turpitude. Cf. Matter of J-G-
P-, 27 I. & N. Dec. at 647. This conclusion is directly at
odds with our precedent, which explains that at least in the
context of assault crimes, a CIMT determination requires
both an evil or malicious intent and the infliction of actual
substantial harm on another. In Latter-Singh, we explained
that the injury required under § 422—that the victim
experience sustained fear from the threat—ensured that the
statute criminalized only “conduct which results in
substantial harm” and excluded non-turpitudinous conduct
such as “emotional outbursts” or “mere angry utterances or
ranting soliloquies, however violent.” 668 F.3d at 1162. In
Coquico we noted that all three elements listed in Latter-
Singh are “critical to the CIMT inquiry,” 789 F.3d at 1054,
and in Fernandez-Ruiz, we held that “threats that cause no
injury at all . . . includes within it acts that are not necessarily
base, vile, or depraved,” 468 F.3d at 1167. Our precedent is
consistent with Solon, which observed:
[A]t least in the context of assault crimes, 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.
Solon, 24 I. & N. Dec. at 242 (emphasis added).
FLORES-VASQUEZ V. GARLAND 13
Like Arizona’s simple assault statute, Oregon’s
menacing statute encompasses “threats that cause no injury
at all,” Fernandez-Ruiz, 468 F.3d at 1167, and unlike CPC
§ 422, it is not limited to “conduct which results in
substantial harm,” Latter-Singh, 668 F.3d at 1162.
Therefore, the statute “includes within it acts that are not
necessarily base, vile, or depraved.” Fernandez-Ruiz, 468
F.3d at 1167.
As discussed above, the Oregon menacing statute
prohibits words or conduct that is intended to place others in
fear of imminent serious physical injury, but it does not
require any intent to cause injury or that the victim
experience any actual fear or injury as a result of the criminal
act. Garcias, 679 P.2d at 1356; Anderson, 641 P.2d at 41;
C.S., 365 P.3d at 538; Lee, 23 P.3d at 1002. Indeed, the
menacing statute is capacious enough to cover
circumstances where “(1) The victim apprehends the danger
but does not fear it”; “(2) The actor’s conduct is such as
would cause fear to a reasonable man but the intended victim
is aware that the actor will not inflict the threatened harm”;
or “(3) The intended victim is unaware of the actor’s threat,
e.g., he is blind and does not know the actor is pointing a gun
at him.” Garcias, 679 P.2d at 1360 n.11 (quoting
Commentary § 95).
The menacing statute has been interpreted by state
appellate courts to encompass even unsuccessful attempts to
cause fear in another. For example, in one case, the Oregon
Court of Appeals affirmed the juvenile court’s finding that a
youth “committed acts that would constitute the crime of
menacing if she were an adult.” State ex rel. Juv. Dep’t of
Klamath Cnty. v. Dompeling, 17 P.3d 535, 535 (Or. Ct. App.
2000). The youth became “very upset” when her mother
unplugged a telephone to keep her from using it. Id. The
14 FLORES-VASQUEZ V. GARLAND
mother testified that her daughter said, “I wish you were
dead, I um, I could stab you right now” and then a minute
later stated, “I thought about doing it while you were in your
sleep.” Id. at 535–36. In another case, the Oregon Court of
Appeals held that “[b]ecause laser devices are used to sight
weapons,” the act of “shining a laser beam onto the forehead
of an elderly couple” who were unaware of the beam could
constitute menacing under § 163.190. State v. Santacruz-
Betancourt, 969 P.2d 1040, 1043 (Or. Ct. App. 1998).
These cases demonstrate the breadth of the conduct
criminalized under Oregon’s menacing statute. The
daughter’s angry statements in Dompeling are exactly the
kind of “emotional outburst” or “mere angry utterance[]”
that Latter-Singh characterized as non-turpitudinous
behavior because the victim need not experience sustained
fear of immediate danger. Latter-Singh, 668 F.3d at 1162.
And the laser-pointing activity in Santacruz-Betancourt is
materially indistinguishable from the laser statute that we
held was categorically not a crime involving moral turpitude
in Coquico, 789 F.3d at 1054. Because “there is a ‘realistic
possibility’ that [O.R.S. § 163.190] would be applied to non-
turpitudionous conduct, there is no categorical match.” See
Fugow, 943 F.3d at 458 (quoting Gonzales, 549 U.S. at 193).
We conclude that Flores-Vasquez’s conviction under O.R.S.
§ 163.190 does not constitute a crime involving moral
turpitude. 7
7
Because we grant the petition and remand on cancellation of removal
grounds, we need not reach the question whether the agency violated
Flores-Vasquez’s due process rights when denying his post-conclusion
voluntary departure request. However, we note that on remand, the
government is required to make a “good faith effort” to present a witness
FLORES-VASQUEZ V. GARLAND 15
Although, as the dissent notes, an agency may “alter[] its
views from one reasonable interpretation to another,” the
BIA in Matter of J-G-P- announced no new rule. Instead, it
stated that its analysis “comports with [the BIA’s] case law
and the controlling jurisprudence of the United State Court
of Appeals for the Ninth Circuit” and discussed our
decisions at length. Matter of J-G-P-, 27 I. & N. Dec. at 644,
648–50. And as we discussed above, the principles distilled
from our prior precedent are derived in part from BIA case
law which has long held that simple assault offenses
involving only offensive touching or threatened offensive
touching without injury are not crimes involving moral
turpitude. See In re Solon, 24 I. & N. Dec. at 242; Matter of
Jing Wu, 27 I. & N. Dec. at 10–11; In re Sanudo, 23 I. & N.
Dec. 968, 972–973 (BIA 2006). Our dissenting colleague’s
reliance on Betansos is therefore inapt. There, we upheld the
BIA’s decision under Chevron as reasonable even as it
directly contradicted our earlier ruling that indecent
exposure is not a crime of moral turpitude. See Betansos,
928 F.3d at 1142. Here, in contrast, Matter of J-G-P- does
not purport to reassess longstanding BIA and Ninth Circuit
precedent concerning simple assault offenses, and because it
misapplied that precedent, its conclusion is unreasonable.
See id.
PETITION FOR REVIEW GRANTED;
REMANDED.
before relying on the witness’s affidavit. Alcaraz-Enriquez v. Garland,
19 F.4th 1224, 1231 (9th Cir. 2021); see also Cinapian v. Holder, 567
F.3d 1067, 1074 (9th Cir. 2009); Saidane v. I.N.S., 129 F.3d 1063, 1065
(9th Cir. 1997).
16 FLORES-VASQUEZ V. GARLAND
BAKER, Judge, dissenting:
My colleagues read three of our decisions as standing for
the proposition that “at least in the context of assault crimes,
a [crime of moral turpitude] determination requires both an
evil or malicious intent and the infliction of actual
substantial harm on another.” Opinion at 12 (emphasis in
original); see also id. at 9–12 (citing Fernandez-Ruiz v.
Gonzales, 468 F.3d 1159 (9th Cir. 2006); Latter-Singh v.
Holder, 668 F.3d 1156 (9th Cir. 2012); and Coquico v.
Lynch, 789 F.3d 1049 (9th Cir. 2015)). They then conclude
that the Board of Immigration Appeals’ contrary
interpretation of the term “crime of moral turpitude” in
Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019), is
unreasonable because it conflicts with those decisions.
Opinion at 12. Under settled Supreme Court and circuit
precedent, however, we cannot replace the BIA’s reasonable
interpretation of this ambiguous term with our own.
As the majority acknowledges, id. at 5, we use a two-part
test to determine whether a criminal statute categorically
outlines a crime of moral turpitude:
The first step is to identify the elements of the
statute of conviction. 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.
Coquico, 789 F.3d at 1051 (cleaned up) (quoting Ceron v.
Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc)). No
one questions the elements of the offense for which Flores-
Vasquez was convicted, “menacing constituting domestic
FLORES-VASQUEZ V. GARLAND 17
violence,” ORS § 163.190, or that it encompasses conduct
that does not create any actual substantial harm. The entire
controversy therefore turns on whether the elements of this
offense satisfy the definition of a “crime of moral turpitude.”
While we review the BIA’s construction of the statute de
novo, Coquico, 789 F.3d at 1051, we must accord Chevron
deference to the BIA in its determination of whether the
elements of the crime constitute morally turpitudinous
conduct when, as here, it relies on a precedential
determination. Latter-Singh, 668 F.3d at 1160 (citing
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837 (1984)). 1 Although my colleagues profess this
standard, see Opinion at 6 (citing Reyes v. Garland, 11 F.4th
985, 993 (9th Cir. 2021)), they fail to practice it.
Chevron demands that we ask two questions:
First, always, is the question whether
Congress has directly spoken to the precise
question at issue. If . . . the court determines
Congress has not directly addressed the
precise question at issue, . . . the question for
the court is whether the agency’s answer is
based on a permissible construction of the
statute.
467 U.S. at 842–43.
1
I acknowledge that Chevron may not be long for this jurisprudential
world. See Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023)
(granting certiorari on the second question presented); see also S. Ct. No.
22-451, Pet. for Cert. at i (Nov. 10, 2022) (asking “[w]hether the Court
should overrule Chevron . . . .”). Nevertheless, at least for now, Chevron
is with us and binding.
18 FLORES-VASQUEZ V. GARLAND
As to Chevron’s first question, “[w]e have stated that the
term ‘moral turpitude’ ‘falls well short of clarity’ and ‘is
perhaps the quintessential example of an ambiguous
phrase.’ ” Betansos v. Barr, 928 F.3d 1133, 1139 (9th Cir.
2019) (quoting Marmolejo-Campos v. Holder, 558 F.3d 903,
909 (9th Cir. 2009) (en banc)). Turning therefore to the
second question, we must uphold the BIA’s construction so
long as it is not “arbitrary, capricious, or manifestly contrary
to the statute.” Chevron, 467 U.S. at 844.
Chevron teaches—for better or worse—that agencies,
not the courts, fill statutory gaps left by ambiguous language.
See id. at 843–44. A prior judicial reading can trump an
agency interpretation of a statute only if the former
construed unambiguous terms which “leave[ ] no room for
agency discretion.” Nat’l Cable & Telecommc’ns Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 982 (2005). But
where multiple plausible interpretations exist, we cannot
allow a “judicial precedent to foreclose an agency from
interpreting an ambiguous statute” because doing so “would
allow a court’s interpretation to override an agency’s.” Id.
Everyone agrees that the term “crime of moral turpitude”
is ambiguous. No Ninth Circuit decision has held that it
unambiguously requires an element involving “the infliction
of actual substantial harm on another,” Opinion at 12, nor
could one. Therefore, we must defer to the BIA’s decision in
J-G-P- unless it is unreasonable on its own terms, even if we
previously adopted a conflicting construction. Brand X, 545
U.S. at 981, 984–85 (upholding the FCC’s subsequent
construction of “telecommunications service” that disagreed
with ours in AT&T Corp. v. City of Portland, 216 F.3d 871,
873 (9th Cir. 2000)).
FLORES-VASQUEZ V. GARLAND 19
This is the approach that we recently used in construing
the term “crime of moral turpitude.” In Betansos, an alien
appealed an Immigration Judge’s (IJ’s) conclusion that he
was ineligible for cancellation of removal. The IJ held, and
the BIA affirmed, that his conviction for indecent exposure
qualified as a crime of moral turpitude, relying on a
published decision for that characterization. 928 F.3d at
1135–36 (citing Matter of Cortes Medina, 26 I. & N. Dec.
79, 79 (BIA 2013)). Cortes Medina directly contradicted our
earlier ruling that indecent exposure is not a crime of moral
turpitude. See Nunez v. Holder, 594 F.3d 1124, 1127 (9th
Cir. 2010). Still, we upheld the BIA’s decision as reasonable
and declined to supplant the agency’s interpretation with our
own. Betansos, 928 F.3d at 1142 (“Reasonable minds can
differ when deciding whether certain crimes are morally
turpitudinous. Indeed, we did so in Nunez. However,
pursuant to Brand X, we must defer to the BIA’s decision in
Cortes Medina.”).
The majority does the exact opposite here. It distills
principles from three earlier cases in which we applied our
own definition of “crime of moral turpitude,” granting
limited to no deference to the BIA’s views. See Fernandez-
Ruiz, 468 F.3d at 1163 (applying de novo review to this
question); Latter-Singh, 668 F.3d at 1160 (applying
Skidmore deference to this question); Coquico, 789 F.3d at
1051 (also applying Skidmore deference). And insofar as
these opinions do rely on the BIA’s precedents, we cannot
use our decisions to prevent the agency from altering its
views from one reasonable interpretation to another.
Chevron, 467 U.S. at 863 (“An initial agency interpretation
is not instantly carved in stone.”).
The majority improperly “allow[s] a judicial precedent
to foreclose an agency from interpreting an ambiguous
20 FLORES-VASQUEZ V. GARLAND
statute.” Brand X, 545 U.S. at 982. “This is directly at odds
with our en banc court’s recognition that the agency gets to
tell us what ambiguous statutory terms like ‘moral turpitude’
mean, not the other way around.” Reyes, 11 F.4th at 1004
(VanDyke, J., dissenting) (citing Garfias-Rodriguez v.
Holder, 702 F.3d 504, 523 (9th Cir. 2012) (en banc)). As far
as I can tell, in J-G-P- the BIA provided a thorough analysis
that reasonably applied its precedent to the elements of the
Oregon menacing statute. We should therefore defer to the
BIA’s decision here applying J-G-P-. Cf. Rivera v. Lynch,
816 F.3d 1064, 1071 (9th Cir. 2016) (withholding deference
because the BIA provided “no reasoning whatsoever”);
Uppal v. Holder, 605 F.3d 712, 715 (9th Cir. 2010)
(“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.”).
I would reach the same conclusion even if, instead of
deferring to the agency, our task here were to ascertain
whether J-G-P- is consistent with our precedent. In J-G-P-
the BIA relied on Latter-Singh as support for the proposition
that “evil or malicious intent is the essence of moral
turpitude, which in our view, properly places the focus on a
violator’s intent to cause fear of serious physical injury,
rather than on his victim’s subjective fear, in assessing the
reprehensibility of his actions.” 27 I. & N. Dec. at 649
(cleaned up) (emphasis added) (citing Latter-Singh, 668
F.3d at 1161). Latter-Singh plainly focused on intent to
cause fear, not on actually causing fear: “The intent to instill
great fear of serious bodily injury or death in another
constitutes the ‘vicious motive or corrupt mind’
FLORES-VASQUEZ V. GARLAND 21
demonstrative of a crime involving moral turpitude.” 668
F.3d at 1163 (emphasis added).
My reading of Latter-Singh differs from my colleagues’
because I do not conclude that it hinged on the California
statute’s 2 requirement that the victim actually fear for his, or
his immediate family’s, safety—rather, my reading is that
intent is dispositive. We referred, multiple times, to the
importance of the perpetrator’s intent to make the victim fear
that the threat will be carried out. 668 F.3d at 1162 (“[T]he
mens rea required by § 422 constitutes the evil intent
required to render conduct morally turpitudinous.”); id.
(“[T]he intentional transmission of a threat to kill another or
inflict physical injury against the victim is evidence of a
vicious motive or a corrupt mind.”) (cleaned up); id. at 1163
(“The intent to instill great fear or serious bodily injury or
death in another constitutes the vicious motive or corrupt
mind demonstrative of a crime involving moral turpitude. As
such, we conclude that § 422 is categorically a crime
involving moral turpitude.”) 3 (cleaned up).
In this case, by comparison, the Oregon statute at issue
criminalizes “intentionally attempt[ing] to place another
person in fear of imminent serious physical injury.” ORS
§ 163.190(1) (emphasis added). The statute on its face does
not require success (i.e., it refers to “attempting” to cause
fear, not actually causing fear), and as the state courts have
noted, the victim’s subjective state of mind is simply
2
Cal. Penal Code § 422.
3
I acknowledge that later in the opinion, we referred to the combination
of “the intent and result of instilling sustained and imminent grave fear
in another.” Id. By that point, however, we had already concluded,
without reference to the “result,” that § 422 proscribed a crime of moral
turpitude.
22 FLORES-VASQUEZ V. GARLAND
irrelevant—“it is only necessary that a reasonable person
would have been placed in the requisite state of fear.” State
v. Anderson, 641 P.2d 40, 41 (Or. App. 1982) (emphasis
added). The BIA’s point in J-G-P- was that intending to
place a reasonable person in fear of imminent serious injury
inherently reflects the malicious intent needed for a crime of
moral turpitude.
As to Fernandez-Ruiz, my colleagues correctly note that
the Arizona simple assault statute at issue there did not
require a willful or intentional act—recklessness was
enough. Here, in contrast, the Oregon “menacing” statute
requires intent: “A person commits the crime of menacing if
by word or conduct he intentionally attempts to place
another person in fear of imminent serious physical injury.”
ORS § 163.190(1) (emphasis added). The BIA emphasized
in J-G-P- that its reasoning depended on the combination of
the element of intent and the element of “imminent serious
physical injury,” with “serious physical injury” defined in
another Oregon statute as meaning “physical injury which
creates a substantial risk of death or which causes serious
and protracted disfigurement, protracted impairment of
health[,] or protracted loss or impairment of the function of
any bodily organ.” 27 I. & N. Dec. at 644 (quoting ORS
§ 161.015(8)).
Compare that to the Arizona simple assault statute in
Fernandez-Ruiz, which criminalized “recklessly causing any
physical injury to another person” or “intentionally placing
another person in reasonable apprehension of imminent
physical injury.” 468 F.3d at 1164 (emphasis added)
(quoting ARS § 13-1203(A)(1)–(2)). “Imminent physical
injury” is a fundamentally different matter from the sort of
“serious physical injury” defined by the Oregon statute. In
J-G-P- the BIA repeatedly emphasized the word “serious”
FLORES-VASQUEZ V. GARLAND 23
in “imminent serious physical injury” to distinguish the case
from other simple assault statutes that did not involve crimes
of moral turpitude and concluded, “[W]e consider the
specific intent to cause fear of imminent serious injury to be
quite different from a general intent to cause any
apprehension or fear, however slight.” 27 I. & N. Dec. at
650.
As to Coquico, we stated that “[o]ur precedent casts
doubt on whether an intent to cause ‘apprehension or fear,’
rather than intent to injure, can ever be a” crime involving
moral turpitude. 789 F.3d at 1054 n.4 (emphasis in original).
That footnote also explained that where an underlying act is
not “inherently grave, base, or depraved,” causing fear of it
cannot be considered “evil” for purposes of moral turpitude.
Id.
In J-G-P- the Board specifically considered that footnote
but found it to be both dicta and irreconcilable with Latter-
Singh, “which concluded that a criminal threat can
categorically involve moral turpitude.” 27 I. & N. Dec. at
650. As noted above, Latter-Singh did indeed state that
“[t]he intent to instill great fear of serious bodily injury or
death in another constitutes the ‘vicious motive or corrupt
mind’ demonstrative of a crime involving moral turpitude.”
668 F.3d at 1163.
The BIA is correct in observing that the footnote in
Coquico cannot necessarily be squared with our holding in
Latter-Singh if both are considered essential holdings. My
colleagues reject J-G-P- in light of those two decisions and
Fernandez-Ruiz. For the reasons discussed above, I believe
J-G-P- is consistent with—and therefore reasonable in view
of—both Fernandez-Ruiz and Latter-Singh. As for Coquico,
I believe the Board reasonably concluded that footnote 4 was
24 FLORES-VASQUEZ V. GARLAND
dicta. To the extent the footnote is accorded more weight,
creating a possible conflict with Latter-Singh, I note that
Coquico is dated June 2015, Latter-Singh is dated February
2012, and Fernandez-Ruiz is dated November 2006. Under
those circumstances, it was reasonable for the BIA to adopt
the rule announced in our two earlier opinions. If we were to
address the issue in a context not requiring deference to an
agency, the law of the circuit rule would dictate that we
follow the earlier-issued opinion(s). See Hart v. Massanari,
266 F.3d 1155, 1171 (9th Cir. 2001). While the BIA did not
discuss that principle, I cannot conclude that it would be
unreasonable for it to follow the earlier opinion when we
would do the same.
I respectfully dissent.