Lakhwinder Latter-Singh v. Eric H. Holder Jr.

Filing

FILED OPINION (MARSHA S. BERZON, JAY S. BYBEE and THOMAS J. WHELAN) DISMISSED IN PART; DENIED IN PART. Judge: MSB , Judge: JSB Authoring, Judge: TJW . FILED AND ENTERED JUDGMENT. [8072863]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAKHWINDER LATTER-SINGH, AKA
Lakhwinder Latter-Latter,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.




No. 08-71277
Agency No.
A072-141-045
OPINION



On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 2, 2011—San Francisco, California
Filed February 17, 2012
Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges,
and Thomas J. Whelan, Senior District Judge.*
Opinion by Judge Bybee

*The Honorable Thomas J. Whelan, Senior District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.

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COUNSEL
James Todd Bennett, El Cerrito, California, for the petitioner.
Puneet Cheema and Mona Maria Yousif, United States
Department of Justice, Civil Division, Washington, D.C., for
the respondent.

OPINION
BYBEE, Circuit Judge:
Petitioner Lakhwinder Latter-Singh (“Singh”), a native and
citizen of India, petitions for review of the Board of Immigration Appeals’s (“BIA”) order dismissing his appeal. Singh
claims that the BIA wrongly determined that a violation of
California Penal Code § 422 constitutes a crime involving
moral turpitude (or “CIMT”), thus rendering him removable.
Although we previously determined that a violation of § 422
is an aggravated felony, see Rosales-Rosales v. Ashcroft, 347
F.3d 714, 717 (9th Cir. 2003), we have not yet decided
whether § 422 is categorically a crime involving moral turpitude. We do so now and answer the question in the affirmative. We also address and reject Singh’s other claimed errors.
I
Singh entered the United States illegally in January 1993
and received a grant of asylum in September of that year.

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Singh never obtained legal permanent residency in the United
States.
Singh came to the attention of asylum officers after he was
convicted for making threats “with intent to terrorize” in violation of California Penal Code § 422. In March 2004, the
Department of Homeland Security (“DHS”) commenced
removal proceedings against Singh by serving him with a
Notice to Appear (“NTA”). The NTA alleged, among other
things, that Singh was subject to removal from the United
States pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien
convicted of a crime involving moral turpitude.
Singh sought relief from removal by: (1) submitting a new
application for asylum; (2) applying for withholding of
removal and relief under the Convention Against Torture
(“CAT”); and (3) seeking to adjust his status under § 209(b)
of the INA in conjunction with a waiver of inadmissibility
under § 209(c), 8 U.S.C. § 1159(b)-(c). In 2007, after fourteen
days of hearings and testimony, the immigration judge (“IJ”)
denied Singh’s application for adjustment of status and a
§ 209(c) waiver, as well as Singh’s application for asylum,
withholding of removal, and relief under CAT, and ordered
Singh removed to India.
The BIA affirmed the IJ’s order and determined that
Singh’s conviction under § 422 rendered him removable,
because § 422 categorically constitutes a crime involving
moral turpitude. To reach this conclusion, the BIA relied on
Rosales-Rosales, 347 F.3d at 717, where we determined that
the full range of conduct embraced by § 422 constitutes an
aggravated felony because the statute necessarily requires a
showing of willful violence. The BIA also noted that § 422
specifically requires willfulness of conduct to implicate criminal liability. The BIA therefore denied Singh his requested
relief.
A petition for this court’s review followed.

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II
Although 8 U.S.C. § 1252(a)(2)(C) generally precludes
judicial review of orders against aliens removable on criminal
grounds, we have jurisdiction to review both “constitutional
claims [and] questions of law” arising from removal orders.
8 U.S.C. § 1252(a)(2)(D). “Whether a crime involves moral
turpitude is such a question of law.” Mendoza v. Holder, 623
F.3d 1299, 1302 (9th Cir. 2010). We therefore have jurisdiction to resolve the moral turpitude question, and we conduct
our review de novo. See Galeana-Mendoza v. Gonzales, 465
F.3d 1054, 1057 (9th Cir. 2006).
III
[1] To determine whether a crime is categorically one of
moral turpitude, we examine “whether the full range of conduct encompassed by the criminal statute constitutes a crime
of moral turpitude.” See Mendoza, 623 F.3d at 1302. If the
full range of conduct under the statute fits the definition of a
crime involving moral turpitude, then any conviction under
the statute can subject an alien to removability. As we
explained in Marmolejo-Campos v. Holder, 558 F.3d 903,
907 (9th Cir. 2009) (en banc), a two-step inquiry applies to a
determination of the proper weight to give the BIA’s conclusion that a particular crime is (or is not) a crime involving
moral turpitude. First, after the BIA determines the offense
the petitioner has been convicted of, the BIA must interpret
the applicable state statute to ascertain the elements of the
offense. Id. Because the BIA has no special expertise in the
interpretation of state criminal statutes, we review this determination de novo. See id.
Second, once the BIA has identified the relevant offense
elements, it must determine whether the offense constitutes a
crime involving moral turpitude as defined by the INA. Id. at
907. To do so, the BIA should assess “the character, gravity,
and moral significance of the conduct.” Id. at 910. We have

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recognized the BIA’s special role in interpreting the INA, and
as a result, we will afford deference to the BIA’s conclusion
regarding whether the statute under which Singh was convicted categorically criminalizes turpitudinous conduct. Id. at
908.
The level of deference in turn depends on the character of
the BIA’s opinion. If the BIA issues or relies on a precedential determination to conclude that a particular crime is a
crime involving moral turpitude, we accord it Chevron deference, see Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984); otherwise, we defer to the
BIA’s determination only to the extent that it has the power
to persuade (i.e. Skidmore deference), see Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944). See Marmolejo-Campos,
558 F.3d at 909; see also Saavedra-Figueroa v. Holder, 625
F.3d 621, 625 (9th Cir. 2010). The decision here falls into the
latter category, so we apply Skidmore deference to the second
part of the moral turpitude analysis. Our deference will
depend on “the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, [and] its consistency with
earlier and later pronouncements.” Skidmore, 323 U.S. at 140.
A
We begin by identifying the elements of Singh’s crime of
conviction. Singh was convicted under California Penal Code
§ 422, which provides, in relevant part:
Any person who willfully threatens to commit a
crime which will result in death or great bodily
injury to another person, with the specific intent that
the statement . . . is to be taken as a threat, even if
there is no intent of actually carrying it out, which,
on its face and under the circumstances in which it
is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate

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prospect of execution of the threat, and thereby
causes that person reasonably to be in sustained fear
for his or her own safety or for his or her immediate
family’s safety, shall be punished by imprisonment
in the county jail not to exceed one year, or by
imprisonment in the state prison.
Cal. Penal Code § 422.
[2] As California courts have explained, the elements of
the completed crime under § 422 are: (1) willfully threatening
to commit a crime that will result in death or great bodily
injury to another person; (2) specific intent that the statement
be taken as a threat; (3) the threat was “on its face and under
the circumstances so unequivocal, unconditional, immediate,
and specific as to convey to the person threatened, a gravity
of purpose and an immediate prospect of execution of the
threat”; (4) the threat “caused the victim to be in sustained
fear for his or her own safety or for his or her immediate family’s safety”; and (5) the “victim’s fear was reasonable under
the circumstances.” People v. Jackson, 100 Cal. Rptr. 3d 539,
543 (Ct. App. 2009).
[3] Although the BIA’s analysis is terse and exhibits “less
than ideal clarity,” we can uphold its decision “if the agency’s
path may be reasonably discerned.” Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86
(1974). Here, the BIA properly identified and interpreted
§ 422 and its analysis is accorded some deference. The BIA
correctly observed that § 422 requires “willful” conduct, and,
based on that determination, and on this court’s holding that
a violation of § 422 categorically constitutes a crime of violence, the BIA held that § 422 “requires sufficient mens rea.”1
1
This is not the first time that the BIA has found that a § 422 violation
is a crime involving moral turpitude in an unpublished opinion. See, e.g.,
In re Edik Azarian, 2009 WL 1103497 (BIA Apr. 3, 2009) (“Section 422
. . . not only requires the intentional transmission of threats, but also contemplates a degree of threat that causes another person to feel sustained
fear. As such, it is a crime so contrary to social mores that it necessarily
involves moral turpitude.”); see also In re Noe Majen Chicas, 2008 WL
762770 (BIA Feb. 27, 2008) (same).

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There was no error in the BIA’s identification of the elements
of the California crime.
B
[4] Having identified the elements of Singh’s conviction,
we next compare these elements with the definition of a crime
involving moral turpitude to determine whether they satisfy
that definition. See Uppal v. Holder, 605 F.3d 712, 714 (9th
Cir. 2010). 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.” Saavedra-Figueroa, 625 F.3d at 626. The
BIA has emphasized that “evil or malicious intent is . . . the
essence of moral turpitude,” In re Flores, 17 I. & N. Dec. 225,
227 (BIA 1980), and, therefore, one test “to determine if a
crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.” In re Ajami, 22
I. & N. Dec. 949, 950 (BIA 1999). We have upheld this
emphasis on evil intent. See Mendoza, 623 F.3d at 1302.
Although we have held that criminal threats alone, without
any attendant serious physical harm, do not necessarily implicate moral turpitude, see Fernandez-Ruiz v. Gonzales, 468
F.3d 1159, 1167 (9th Cir. 2006), we conclude that, unlike in
Fernandez-Ruiz, the particular threat crime at issue here is
categorically a crime involving moral turpitude for three reasons.
[5] First, the underlying conduct threatened is itself a
crime of moral turpitude. Section 422 criminalizes only those
statements that threaten “death or great bodily injury.” Cal.
Penal Code § 422. The “intentional infliction” of such an
injury constitutes a crime of moral turpitude. See, e.g.,
Galeana-Mendoza, 465 F.3d at 1061; Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1195 (9th Cir. 2006).

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That was not true of the statute in Fernandez-Ruiz, which
involved a simple assault. See Fernandez-Ruiz, 468 F.3d at
1165. It was also not true in Uppal v. Holder, in which we
analyzed Canada’s aggravated assault statute and determined
that it did not implicate turpitudinous conduct. 605 F.3d at
719. The statute in Uppal did not “involv[e] a specific intent
to injure or a special trust relationship and [did] not requir[e]
that the assault cause death or even serious bodily injury.” Id.
(emphasis omitted).
We began our analysis in Uppal from the established proposition that “simple assault battery convictions are not categorically CIMT convictions because the required mens rea for
[such crimes] is usually the intent to touch another offensively, not the ‘evil’ intent typically required for a CIMT.” Id.
at 716. Such offenses, however, may be transformed into
crimes involving moral turpitude “if they necessarily
involve[ ] aggravating factors that significantly increase[ ]
their culpability,” such as “the intentional infliction of serious
bodily injury on another.” Galeana-Mendoza, 465 F.3d at
1061 (quoting In re Sanudo, 23 I. & N. Dec. 968, 973 (BIA
2006)). The distinction, as the Uppal court explained, is
“ ‘some aggravating dimension’ sufficient to increase the culpability . . . [and] transform the offense into one categorically
a CIMT,” “one that says something about the turpitude or
blameworthiness inherent in the action.” 605 F.3d at 717. We
concluded that “an assault statute not involving a specific
intent to injure or a special trust relationship and not requiring
that the assault cause death or even serious bodily injury cannot qualify as a categorical CIMT.” Id. at 719.
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” made with the specific intent that the victim
believe that the threat will be carried out. Id.; see also Cal.
Penal Code § 422. The crime threatened, therefore, would, if
carried out, be a crime of moral turpitude under our caselaw.

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[6] Second, § 422 criminalizes only that conduct which
results in substantial harm by being “so unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of
execution of the threat,” as to “caus[e] the threatened “person
reasonably to be in sustained fear for his or her own safety or
for his or her immediate family’s safety.” Cal. Pen. Code
§ 422. The statute does not criminalize “emotional outbursts”
or “mere angry utterances or ranting soliloquies, however violent,” but rather proscribes a narrow category of speech that
“instill[s] fear in others.” In re Ryan D., 123 Cal. Rptr. 193,
198 (Ct. App. 2002) (internal quotation marks omitted); see
also People v. Wilson, 112 Cal. Rptr. 3d 542, 555 (Ct. App.
2010) (“[A] criminal threat is a specific and narrow class of
communication, and the expression of an intent to inflict serious evil upon another person.” (internal quotation marks
omitted)). Compare People v. Fierro, 103 Cal. Rptr. 3d 858,
862-63 (Ct. App. 2010) (internal quotation marks omitted)
(finding that substantial evidence supported jury’s finding of
reasonable, sustained fear where victim testified that threats
caused him to fear for his safety for fifteen minutes), with In
re Ricky T., 105 Cal. Rptr. 2d 165, 170 (Ct. App. 2001) (finding no sustained fear, and therefore no violation of § 422,
where a student threatened to “get” a teacher, but teacher sent
student to the school office and did not report incident until
the next day). The crime at issue in Fernandez-Ruiz did not
have a similar requirement that the person threatened be in
sustained fear of immediate danger to his or his family’s
safety.
[7] Finally, the mens rea required by § 422 constitutes the
evil intent required to render conduct morally turpitudinous.
The BIA has held, in the context of a criminal stalking statute,
that the intentional transmission of a “threat to kill another or
inflict physical injury against the victim,” such as the conduct
criminalized by § 422, is “evidence of a vicious motive or a
corrupt mind.” In re Ajami, 22 I. & N. Dec. at 952 (reviewing
case law and concluding that “threatening behavior can be an

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element of a crime involving moral turpitude” (quotation
marks omitted)).2 To reach this conclusion, the BIA cited previous opinions in which it found that intentionally threatening
behavior indicated a crime involving moral turpitude. Id. (citing, inter alia, In re F—, 3 I. & N. Dec. 361 (BIA 1949)
(involving the mailing of menacing letters that threatened violence to the recipient)).
[8] The BIA is entitled to place great weight on the presence or absence of a mens rea element when determining
whether a crime involves moral turpitude. See MarmolejoCampos, 558 F.3d at 916 (affirming BIA decision where,
“after assessing the statutory definition and the nature of the
crime, the BIA concluded that given the mens rea involved,
the crime was one of moral turpitude”) (citation omitted)
(internal quotation marks omitted). Section 422 requires not
only that a person threaten death or great bodily harm, but
also that such threats be made both “willfully” and “with the
specific intent that the statement . . . be taken as a threat.” Cal.
Penal Code § 422; see Wilson, 112 Cal. Rptr. 3d at 562; see
also Rosales-Rosales, 347 F.3d at 717 (“[T]he mens rea
required by [§ 422]—willfulness—is volitional in nature.”).
The 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. As such,
we conclude that § 422 is categorically a crime involving
moral turpitude.
We find support for our conclusion in Chanmouny v. Ashcroft, 376 F.3d 810, 814-15 (8th Cir. 2004), where the Eighth
Circuit concluded that a conviction under Minnesota’s “terrorist threat” statute constituted a crime involving moral turpitude. That statute criminalized “threaten[ing], directly or
indirectly, to commit any crime of violence with purpose to
2

Although this court does not afford the BIA’s unpublished decision in
this case Chevron deference, we do afford published opinions, like Ajami,
such deference. See Saavedra-Figueroa, 625 F.3d at 625.

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terrorize another.” Id. at 812 (quoting Minn. Stat. § 609.703
subdiv. (1)).3 Noting that the Minnesota Supreme Court had
interpreted the statute to require the “objective or intention”
to “cause extreme fear,” the Eighth Circuit reasoned that the
crime “falls within the category of offenses requiring a
vicious motive or evil intent.” Chanmouny, 376 F.3d at 814
(internal quotation marks omitted). Distinguishing simple
assault statutes as “general intent” crimes, the court “agree[d]
with the IJ that a violation of the Minnesota terroristic threat
statute committed with the purpose to terrorize . . . includes
the requisite depravity and breach of duties owed between
persons to satisfy the moral turpitude standard.” Id. at 814-15.
The court therefore found that the act of threatening with the
purpose to terrorize constituted a crime involving moral turpitude. Id. at 815. We find that reasoning persuasive, and adopt
it here.
[9] Because § 422 criminalizes only the willful threatening
of a crime that itself constitutes a crime of moral turpitude
with the intent and result of instilling sustained and imminent
grave fear in another, we conclude that it is categorically a
crime involving moral turpitude within the meaning of
§ 1182(a)(2)(A)(i)(I). As a result, Singh is ineligible for
admission to the United States. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I).4
3

In Chanmouny, the Minnesota statute at issue criminalized both threats
made with the purpose to terrorize and those made with “a reckless disregard of the risk of causing such terror.” 376 F.3d at 812. The Eighth Circuit, however, reviewed the record of the petitioner’s conviction and
determined that he had been convicted of making threats with the purpose
of terrorizing, and therefore only analyzed that portion of the statute to
determine whether a conviction constituted a crime involving moral turpitude. See id. at 813-14.
4
Although the consideration is not of great weight given the different
roles of the CIMT designation under the INA and California law, we note
that our holding today brings us in line with the conclusion reached by
California courts that a violation of § 422 is a crime involving moral turpitude. In People v. Thornton, 4 Cal. Rptr. 2d 519 (Ct. App. 1992), for

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IV
[10] Singh’s remaining arguments have no merit. Singh
argues that the BIA erred in denying him a waiver of inadmissibility under § 209(c) of the Immigration and Nationality
Act, 8 U.S.C. § 1159(c), because it acted ultra vires. But the
BIA acted within its power by imposing a higher standard for
the issuance of a waiver for Singh because of his conviction
for a violent and dangerous crime. Cf. Mejia v. Gonzales, 499
F.3d 991, 995-96 (9th Cir. 2007) (heightened standard for a
waiver is “rationally related to the national immigration policy of not admitting aliens who could be a danger to society”).
Because the BIA acted within its power, we are without jurisdiction to review the discretionary use of that power. See
Robleto-Pastora v. Holder, 591 F.3d 1051, 1058 (9th Cir.
2010) (“Section 209(c) provides . . . the Attorney General
with discretion to waive inadmissibility”); 8 U.S.C.
§ 1252(a)(2)(B).
[11] Singh argues that the BIA applied the wrong standard
when it found he committed a particularly serious crime. That
is not the case. The BIA considered and applied the correct
factors to determine whether Singh was convicted of a particularly serious crime. See In re Frentescu, 18 I. & N. Dec. 244,
247 (BIA 1982) (identifying the factors relevant to the particularly serious crime determination), superseded in part by
statute, 8 U.S.C. § 1253(h). Specifically, the BIA noted that
Singh had been convicted of a particularly serious crime, cited
example, the California Court of Appeal was asked to consider whether a
violation of § 422 constituted a crime involving moral turpitude such that
a past criminal conviction for that offense could be used to impeach a
criminal defendant. Id. at 521. Reasoning that because § 422 “does not
punish casual statements which a reasonable person would ignore,” but
rather criminalizes “[t]he knowing infliction of mental terror,” the Thornton court concluded that the conduct described in § 422 “violates generally
accepted standards of moral behavior,” and therefore is a crime of moral
turpitude. Id. at 522

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the relevant portion of the INA, and then considered, as
required, “the nature of [Singh’s] conviction, the circumstances and underlying facts of the conviction,” and the type
of sentence imposed. Id.
[12] Singh also challenges the denial of relief under CAT.
Substantial evidence supports the BIA’s conclusion that conditions in India have changed such that Singh may safely
return. Sikhs such as Singh are a powerful minority group in
India. The current prime minister of India is a Sikh, and the
record reflects that abuses by police and military have
decreased in frequency and intensity. CAT relief is therefore
unavailable.5
[13] Finally, Singh claims that the order terminating his
asylee status was invalid. None of the objections Singh raises
have merit. The IJ held a hearing on Singh’s asylee status in
conjunction with his removal hearing and ordered Singh’s
asylee status terminated. Thereafter, Singh won on appeal to
the BIA, which resulted in a remand order and an instruction
to the IJ to explain its termination order. The IJ did so, and
after hearing Singh’s arguments as to why the IJ should not
terminate his status, the IJ issued a new order terminating
Singh’s status. Singh has failed to show error in the process.
PETITION DISMISSED IN PART, DENIED IN PART.

5

Also, the BIA resolved Singh’s request for withholding of removal
under CAT by considering whether it was more likely than not that he
would be tortured if returned to India and then holding that Singh did not
qualify for “protection” under CAT.