August 11, 2009; withdrawn and opinion filed May 21, 2010
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A076-841-745.
The opinion of the court was delivered by: Thompson, Senior Circuit Judge
Argued and Submitted February 10, 2009-San Francisco, California
Before: David R. Thompson, Marsha S. Berzon and N. Randy Smith, Circuit Judges.
Opinion by Judge Thompson; Partial Concurrence and Partial Dissent by Judge Berzon
Jaspal Singh Uppal, a native and citizen of India, petitions for review of the Board of Immigration Appeal's (BIA) order dismissing his appeal. Uppal contends the BIA erred in concluding that he had committed a crime which categorically involved moral turpitude, thus rendering him inadmissible at the time of his adjustment of status, and subject to removal. Uppal also claims he was denied due process of law, and contends the BIA abused its discretion in handling his appeal. The petition for review is DENIED.
Jaspal Singh Uppal, a native and citizen of India, entered the United States illegally around February 1, 1997, near Blaine, Washington. On July 31, 1998, he was granted asylum. On February 4, 2004, he was accorded status as a permanent resident.
On April 11, 2006, the Department of Homeland Security ("DHS") issued Uppal a Notice to Appear. The Notice charged Uppal as removable under 8 U.S.C. § 1227(a)(1)(A). DHS alleged Uppal was inadmissible at the time of his entry and/ or adjustment of status on two grounds: 1) he had been convicted of a crime involving moral turpitude, and 2) he attempted to obtain immigration benefits through fraud or misrepresentation of a material fact. 8 U.S.C. § 1182(a)(2)(A)(i)(I); 8 U.S.C. § 1182(a)(6)(C)(i).
The Notice alleged that on February 21, 1995, Uppal was convicted of aggravated assault in violation of § 268(2) of the Criminal Code of Canada. As a result, Uppal was allegedly deported from Canada to India. In his application for asylum, Uppal made no mention of this conviction or his status as a Canadian permanent resident.
Uppal filed a formal motion to terminate the removal proceedings. On January 9, 2007, without holding an evidentiary hearing, the IJ issued a final order denying Uppal's motion. The IJ held that, as a matter of law, Uppal's conviction under § 268 of the Criminal Code of Canada (on occasion hereafter "§ 268") constituted a categorical crime involving moral turpitude ("CIMT"). The IJ also concluded that Uppal had committed immigration fraud by concealing both the conviction and his status as a Canadian permanent resident from U.S. immigration officials.
Uppal timely appealed the IJ's order to the BIA. In a one-panel-member unpublished decision, the BIA affirmed the IJ's order. The BIA undertook a de novo review of the moral turpitude issue, and concluded that the IJ was correct in concluding that a § 268 offense constituted a categorical crime involving moral turpitude which rendered Uppal inadmissible at the time of his adjustment of status. In light of this, the BIA found him removable and declined to reach the immigration fraud issue.
Uppal then timely filed this petition for review. The government moved for summary denial of the petition; we denied the motion.
We have jurisdiction to review this final order of removal under 8 U.S.C. § 1252(a)(1). Though our jurisdiction to review orders of removal against "criminal aliens" is limited by 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review constitutional challenges and questions of law. 8 U.S.C. § 1252(a)(2)(C) and (D). Whether a crime involves moral turpitude is a question of law which is not subject to the jurisdiction-stripping provision of § 1252(a)(2)(C). NicanorRomero v. Mukasey, 523 F.3d 992, 996 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009).
I. Does Uppal's conviction under § 268 of the Criminal Code of Canada constitute a "crime involving moral turpitude"?
To determine whether a petitioner's conviction constitutes a crime involving moral turpitude, the BIA looks first to the statute itself, and applies the "categorical" inquiry adopted by the Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687, 696 (A.G. 2008); see also Marmolejo-Campos, 558 F.3d at 912. This inquiry requires "categorical comparison of the elements of the statute of conviction to the generic definition of moral turpitude." Nicanor-Romero, 523 F.3d at 999 (internal quotation marks and citation omitted). If there is a "realistic probability, not a theoretical possibility" that § 268 would be applied to conduct that falls outside the generic definition of a crime involving moral turpitude, then the offense is not a categorical crime involving moral turpitude. SilvaTrevino, 24 I. & N. Dec. at 697-98.
Here, in a one-panel-member unpublished decision, the BIA held that Uppal's offense under § 268 of the Criminal Code of Canada constituted a categorical crime involving moral turpitude. We review the BIA's interpretation of the elements of § 268 de novo. Marmolejo-Campos, 558 F.3d at 907. The BIA "has no special expertise" or "special administrative competence to interpret the petitioner's statute of conviction," thus we owe no deference to the BIA on this issue. Id.
By contrast, when the BIA determines whether a specific offense constitutes a CIMT, "it assesses the character, gravity, and moral significance of the conduct, drawing upon its expertise as the single body charged with adjudicating all federal immigration cases." Marmolejo-Campos, 558 F.3d at 910. This is "precisely the type of agency action" entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and Skidmore v Swift & Co., 323 U.S. 134 (1944). Id.
Thus, our review of the BIA's determination that § 268 constitutes a CIMT is "governed by the same traditional principles of administrative deference we apply to the BIA's interpretation of other ambiguous terms in the INA." Id. at 911. Because the BIA's unpublished decision does not bind future parties, or rely on any published BIA decision interpreting § 268, we accord Skidmore deference to the BIA's determination that § 268 constitutes a categorical CIMT. Id.
 With this framework in mind, we turn to our de novo review of the elements of § 268. A person commits "aggravated assault" under § 268 of the Canada Criminal Code if he "wounds, maims, disfigures, or endangers the life of" another. Canada Criminal Code, R.S.C., ch. C-46 § 268(1) (1985). Uppal contends that § 268 encompasses negligent and unintentional conduct, and thus cannot qualify as a categorical crime involving moral turpitude.
 To discern § 268's mens rea requirement, we must read § 268 together with § 265, which establishes a base-level mens rea requirement for all assault ...