Altayar v. Barr, No. 17-73308 (9th Cir. 2020)
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The Ninth Circuit denied a petition for review of the BIA's determination that petitioner committed a crime involving moral turpitude. The panel held that an aggravated assault conviction under Arizona Revised Statutes 13-1203(A)(2) and 13-1204(A)(2) qualifies as a crime involving moral turpitude that made petitioner removable.
In this case, the parties have treated both the basic and aggravated assault provisions as divisible, and the panel agreed that such an approach comported with circuit and state precedent. In consideration of the charging document, plea agreement, and plea colloquy together, the panel held that it was clear petitioner was convicted under sections 13-1203(A)(2) and 13-1204(A)(2). The panel was satisfied that under its cases, an aggravated assault conviction under sections 13-1203(A)(2) and 13-1204(A)(2) involving the use of a deadly weapon or dangerous instrument qualifies as a crime involving moral turpitude.
Court Description: Immigration. Denying Mohammed Mostafa Altayar’s petition for review of a decision of the Board of Immigration Appeals, the panel held that his aggravated assault conviction under Arizona Revised Statutes (“A.R.S.”) §§ 13-1203(A)(2) and 13-1204(A)(2) qualifies as a crime involving moral turpitude that made him removable. Aggravated assault in Arizona arises from the interplay of two separate provisions, A.R.S. § 13-1203(A), which describes basic assault, and A.R.S. § 13-1204(A), which describes aggravated assault. The panel agreed that the parties’ approach of treating both statutes as divisible comported with this court’s case law and Arizona precedent. Reviewing the judicially noticeable documents in the record, the panel concluded that Altayar had been convicted of aggravated assault under A.R.S. § 13-1203(A)(2), which contemplates intentionally placing another person in reasonable apprehension of imminent physical injury, and § 13-1204(A)(2), which provides that a person commits aggravated assault if the person uses a deadly weapon or dangerous instrument. The panel rejected Altayar’s contention that the plea colloquy, in which his counsel used the word “reckless” in describing Altayar’s misconduct, created ambiguity whether he was convicted under § 13- 1203(A)(2), which has a means rea of “intentionally.” ALTAYAR V. BARR 3 Considering the charging the document, the plea agreement, and plea colloquy together, the panel concluded it that it was clear that Altayar had been convicted under A.R.S. §§ 13- 1203(A)(2) and 13-1204(A)(2). Next, the panel turned to the question whether an aggravated assault conviction under A.R.S. §§ 13- 1203(A)(2) and 13-1204(A)(2) is a crime involving moral turpitude. The panel noted that, under this court’s cases, a crime involving moral turpitude is a crime that (1) is vile, base, or depraved and (2) violates accepted moral standards. The panel also observed that, under this court’s precedents, the assault statutes that have been held to be crimes involving moral turpitude are those that include as an element some aggravating dimension sufficient to increase the culpability of an assault or battery and so to transform the offense into one categorically a crime involving moral turpitude. The panel concluded that, consistent with this court’s precedents and the BIA’s longstanding decisions, the BIA could properly regard an aggravated assault with a deadly weapon or dangerous instrument as substantially more turpitudinous than a mere simple assault. The panel further explained that the intent element of A.R.S. § 13- 1203(A)(2)—which requires intentionally placing another person in reasonable apprehension of imminent physical injury—is another factor supporting the BIA’s categorization of Altayar’s offense as a crime involving moral turpitude. Finally, the panel concluded that aggravated assault under A.R.S. §§ 13-1203(A)(2) and 13- 1204(A)(2) involves serious contemplated harm, another factor that supports characterizing it as a crime involving moral turpitude. In this respect, the panel explained that the reasonable apprehension of imminent physical injury is not 4 ALTAYAR V. BARR merely of any injury, but a serious physical injury or even death. Accordingly, the panel held that aggravated assault under A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2) is a crime involving moral turpitude. In a separate unpublished memorandum disposition, the panel denied Altayar’s petitions for review as to the agency’s determinations that he was ineligible for asylum and related relief, as well as the denial of his motion to reopen.
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