On October 11, 2019, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent contesting the pretermission of his application for cancellation of removal under INA §240A(b) and the denial of his applications for asylum and withholding of removal. Respondent, who had entered the U.S. without inspection, was convicted of menacing in violation of section 163.190 of the Oregon Revised Statutes and subsequently charged with inadmissibility under INA §212(a)(6)(A)(i) as one in the U.S. without permission. The Immigration Judge (IJ) found that the conviction was categorically a crime involving moral turpitude (CIMT) and pretermitted the cancellation application; she also denied the asylum request as untimely and the withholding application on the ground that Respondent failed to meet his burden of proof.
In its analysis, the BIA initially noted the Respondent’s contention that his §163.190 conviction is not categorically a CIMT and that his cancellation request was therefore improperly pretermitted. Utilizing a de novo standard of review, the Board stated that to be cancellation-eligible, one must demonstrate by a preponderance of the evidence that he was not convicted of a CIMT per INA §212(a)(2)(A)(i)(I). It also ruled that a CIMT requires both reprehensible conduct and a culpable mental state. Next, the BIA found that 163.190 has always provided that one commits the crime of “menacing” if, by word or conduct, he “intentionally attempts to place another person in fear of imminent serious physical injury.” This latter phrase means injury creating “a substantial risk of death” or causing “serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”
Respondent and amici argued that 163.190 is an “apprehension-only” simple assault law not requiring the actual infliction of injury on a victim, i.e., to violate the statute one need only cause a victim to experience apprehension of imminent injury and that, per precedents, such assaults are not turpitudinous. Disagreeing, the Board found the question here to be whether an assault law that requires one to act with the specific intent to cause another to apprehend or fear imminent serious physical injury is turpitudinous. As such, the BIA concurred with the IJ that 163.190 is categorically a CIMT because the specific intent to cause fear of imminent serious physical injury “involves a culpable mental state and reprehensible conduct.” This finding, concluded the opinion, comports with the Board’s own case law and controlling jurisprudence in The Ninth Circuit, where jurisdiction of this case arose.
Further, explained the BIA, Oregon courts require that, for a conviction under the menacing statute, the State must prove a defendant’s intent “to engage in particular conduct” and “cause a particular result”, namely, intentionally attempting to place another in fear of imminent serious physical injury. Also, noted the Board, 163.190 requires that one take a “substantial step” towards achieving his objective. This specific intent to create fear, found the decision, reflects a vicious motive, indicative of moral turpitude.
Turning to the level of harm required to complete the crime of menacing in Oregon, the BIA next noted Respondent’s argument that while threatening to cause another to fear imminent serious physical injury is distasteful, it is not turpituduous because “a violator of section 163.190 is not required to actually cause, or intend to cause, any harm to the victim.” Yet the non-turpitudinous assault statutes relied upon by Respondent do not require the specific intent to place another in apprehension of imminent serious physical injury, held the Board. It is the “seriousness of the threatened physical injury” in 163.190 that distinguishes it from the simple assault statutes previously cited by the BIA in Matter of Solon, 24 I&N Dec. 239 (BIA 2007), wherein the Board found that simple assault offenses require only general intent and may be committed without evil intent. Thus, held the BIA, “Matter of Solon does not preclude us from holding that intentionally causing fear of imminent serious physical injury ‘reflects a level of immorality that is greater than that associated with a simple offensive touching’, and is therefore morally turpitudinous.”
Accordingly, the Board held that section 163.190 menacing is categorically a CIMT and concluded that the element of actual inflicted fear is not necessary to determine that a crime categorically involves moral turpitude because the statute requires “evil or malicious intent” and the level of threatened harm is “serious and immediate.”
Lastly, the BIA agreed with the IJ that Respondent is ineligible for political asylum because he did not file his application within 1 year of arrival in the U.S. and did not demonstrate that an exception to the filing deadline applies. Similarly, the Board found no clear error in the IJ’s finding that Respondent’s experience of witnessing violence against his family does not bear a nexus to a protected ground but, rather, is reflective of indiscriminate violence in Mexico. The BIA also held that Respondent failed to meet his burden of establishing that a cognizable particular social group will be “a reason” for any future threat to his life or freedom in Mexico. Matter of J-P-G-, 27 I&N Dec. 642 (BIA 2019).
