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Altayar v. Barr

United States Court of Appeals, Ninth Circuit

January 14, 2020

Mohammed Mostafa Altayar, AKA Mohammed Mastafa Majid, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted October 24, 2019 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A212-377-363

          Benjamin T. Wiesinger (argued), Pope & Associates, PC, Phoenix, Arizona, for Petitioner.

          Sabatino F. Leo (argued), Senior Litigation Counsel; Anthony P. Nicastro, Assistant Director; Joseph H. Hunt, Assistant Attorney General; United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C.; for Respondent.

          Before: J. Clifford Wallace and Daniel A. Bress, Circuit Judges, and Robert S. Lasnik, [*] District Judge.

         SUMMARY[**]

         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." 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 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.

          OPINION

          BRESS, CIRCUIT JUDGE:

         The question in this case is whether an Arizona aggravated assault conviction for "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury" while "us[ing] a deadly weapon or dangerous instrument," A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2), qualifies as "a crime involving moral turpitude," 8 U.S.C. § 1227(a)(2)(A)(i), thus rendering an alien deportable. Consistent with our precedents, we hold that such a conviction so qualifies.

         I.

         Petitioner Mohammed Mostafa Altayar is an Iraqi citizen who was admitted to the United States as a refugee in 2011 and became a lawful permanent resident in 2012. On April 13, 2014, Altayar was working at Sandy's Smoke Shop in the Phoenix area and standing out front with his friend and customer, Tracie Gomez. Erick Villasenor walked by them and allegedly touched Gomez's buttocks.

         Things quickly got out of hand. Altayar called Villasenor a "faggot," and Villasenor then punched Altayar in the face. Altayar drew a firearm and Villasenor fled. Altayar and his brother Mohannad chased Villasenor and caught him at a nearby Shell Gas station. Video surveillance footage (which is no longer available) reportedly showed Altayar pointing his gun at Villasenor after Villasenor had been detained. Villasenor also confirmed this to the police. Villasenor's brother and an acquaintance, who were both standing nearby, saw the commotion and ran to intervene, but Altayar waved his gun at both men, who then backed away with their hands up. Before long, the smoke shop's security guard arrived at the parking lot and placed Villasenor in handcuffs, believing Villasenor had robbed the store. Once Villasenor was restrained, Altayar holstered his firearm and kicked Villasenor in the head. Police responded to the scene, questioned witnesses, reviewed footage from the gas station's security cameras, and placed Altayar under arrest.

         Altayar was charged in Arizona state court with four counts of aggravated assault and one count of disorderly conduct. "Count 1" charged Altayar with "Aggravated Assault, A Class 3 Dangerous Felony." Count 1 alleged that Altayar, "on or about the 13th day of April, 2014, using a handgun, a deadly weapon or dangerous instrument, intentionally placed ERICK VILLASENOR in reasonable apprehension of imminent physical injury, in ...


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