In all my years of immigration law practice, I have never argued before the Board of Immigration Appeals (BIA)—until today. At the moment you read this, I may well be standing before the panel for the first time, fighting to protect my client from unjustified deportation.
My client—G, came to the United States in 1992. Soon after, he met his wife, and together they raised two daughters. In 2011, G pled guilty to the offense of menacing under Oregon Revised Statute § 163.190. Upon placement into removal proceedings he indicated his intent to seek two forms of legal relief: cancellation of removal and asylum. Yet in 2015, the immigration judge denied his application for cancellation of removal, finding that the menacing conviction was categorically a CIMT. This finding was contrary to established BIA and 9th Circuit case law. On G’s behalf, I appealed his case to the BIA.
Section 163.190 criminalizes when an individual “by word or conduct” intentionally attempts to place another person in fear of imminent serious physical injury. Thus, to be convicted under this statute, an individual need not successfully create any fear. In fact, the alleged victim doesn’t even have to be aware of the threat.
In 2015, the American Immigration Lawyers Association (AILA) submitted an amicus curiae brief in G’s case, arguing that the assaults covered under Section 163.190 are simple assaults. This is a crucial classification in the CIMT analysis, for as the BIA recently noted in Matter of Wu, 27 I. & N. Dec. 8 (BIA 2017), simple assaults generally do not involve moral turpitude. AILA argued that, historically and statutorily, menacing constitutes a subtype of common-law simple assault, noting that multiple states criminalize identical or nearly identical conduct as simple assault. Section 163.190 is identical to numerous statutes which the BIA has previously found to be simple assault statutes, including the one the Oregon legislature used as the model for Section 163.190.
In Matter of Wu, however, the BIA found that simple assault or battery can be elevated to a CIMT when the conduct is accompanied by some aggravating factor “that indicates the perpetrator’s moral depravity.” The statute examined in that case criminalized assault with a deadly weapon or force likely to produce great bodily injury. In Matter of Wu, the BIA held that this “use of a deadly or dangerous weapon” element magnified the danger posed by the assault, bringing it within the realm of a CIMT.
In G’s case, we are arguing that a conviction under Section 163.190 is not a CIMT because it involves neither depraved actions nor actual harm. Relying on the recent decision in Matter of Wu, we note that Oregon lacks “aggravating” factors which elevate simple assault statutes into a CIMT such as use of a dangerous weapon, actual bodily harm, or a pattern of repeated threats. Moreover, it is legally significant that the behavior attempts to cause fear in a person, not actual bodily injury. Because the statute does not require the actor to cause any harm nor possess an intent to cause harm, it does not criminalize conduct that qualifies as a CIMT.
The Department of Homeland Security argues that Section 163.190 is a CIMT because it criminalizes both an intent to place the person in fear of great bodily injury and an intent to threaten a person. Moreover, the Government argues that it does not matter in the CIMT analysis that Oregon’s menacing statute does not require any actual fear. The Government also disputes AILA’s characterization of Oregon’s menacing statute as simple assault, noting that Oregon’s statute contains a specific intent to create fear of great bodily harm to the victim, which is more than what is required of simple assault. For these reasons, the Government concludes that ORS § 163.190 is categorically a CIMT.
As I said, this is a new experience for me. In my entire time practicing immigration law, this is the first time that I will orally argue an appeal before the BIA. But this case is important, not only because of what it will mean for other cases but in particular for my client. It will mean that G can go home to his family secure in the knowledge that justice was served. That his children will be able to live without fear that their dad will be taken away summarily for unjust cause. The BIA can and must get this right. My client’s fate, and the fate of his family, hinges on the decision.
For those of you interested in learning more about the intersection of immigration law and criminal law, several panels at the AILA Annual Conference June 13-16, 2018 will dive into this subject, including a panel with Mary Kramer, author of Immigration Consequences of Criminal Activity. And keep an eye out for more information on AILA’s website.