Eduard Safaryan v. William Barr

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EDUARD SAFARYAN, No. 16-74039 Petitioner, Agency No. v. A075-726-744 WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 9, 2019 Pasadena, California Filed September 17, 2020 Before: Carlos T. Bea, Daniel P. Collins, and Daniel A. Bress, Circuit Judges. Opinion by Judge Collins 2 SAFARYAN V. BARR SUMMARY * Immigration Denying Eduard Safaryan’s petition for review of a decision of the Board of Immigration Appeals, the panel: 1) deferred to Matter of Wu, 27 I. & N. Dec. 8 (BIA 2017), in which the BIA held that a conviction under California Penal Code § 245(a)(1), which proscribes certain aggravated forms of assault, is categorically a crime involving moral turpitude; and 2) concluded that Safaryan was inadmissible based on his § 245(a)(1) conviction, and therefore, ineligible for adjustment of status absent a waiver. In Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc), this court overruled the precedent on which the BIA had relied in concluding that § 245(a)(1) is a crime involving moral turpitude, concluded that the issue was now an open one in this circuit, and remanded to the BIA to decide the issue in the first instance. The BIA did not issue a published decision in Ceron, but while Safaryan’s petition for review was pending in this court, the BIA issued a published decision in Matter of Wu, holding that § 245(a)(1) is categorically a crime involving moral turpitude. The panel concluded that Matter of Wu was entitled to deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). First, the panel reviewed de novo the agency’s articulation of the elements of the offense, noting that, at the time of Safaryan’s offense, * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SAFARYAN V. BARR 3 § 245(a)(1) imposed criminal punishment on “[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.” The panel also summarized the relevant California law concerning the actus reus and mens rea of the offense. As to actus reus, the panel explained that simple assault does not require actual harm or even physical contact, but that the aggravators in § 245(a)(1) add an additional element, requiring either “force likely to produce great bodily injury” or the use of a “deadly weapon or instrument.” As to mens rea, the panel noted that the California Supreme Court has held that 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. Next, the panel considered whether § 245(a)(1) falls within the generic ...

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