Making threats with intent to terrorize in violation of Cal. Pen. Code § 422 is categorically a crime involving moral turpitude. The BIA properly identified and interpreted § 422 and its analysis is accorded some deference. The BIA correctly observed that § 422 requires “willful” conduct, and, based on that determination, and on this court’s holding that a violation of § 422 categorically constitutes a crime of violence, the BIA held that § 422 “requires sufficient mens rea.”

Although  criminal threats alone, without any attendant serious physical harm, do not necessarily implicate moral turpitude, the particular threat crime at issue here is categorically a crime involving moral turpitude for three reasons:

First, the underlying conduct threatened is itself a crime of moral turpitude. Section 422 criminalizes only those statements that threaten “death or great bodily injury.” Cal. Penal Code § 422. The “intentional infliction” of such an injury constitutes a crime of moral turpitude. Second, § 422 criminalizes only that conduct which results in substantial harm by being “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” as to “caus[e] the threatened “person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” The statute does not criminalize “emotional outbursts” or “mere angry utterances or ranting soliloquies, however violent,” but rather proscribes a narrow category of speech that “instill[s] fear in others.”  Finally, the mens rea required by § 422 constitutes the evil intent required to render conduct morally turpitudinous.

Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and Thomas J. Whelan, Senior District Judge

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/17/08-71277.pdf

The BIA erred in holding that, although Petitioner was thirteen or fourteen years old at the time of the relevant offense, the Federal Juvenile Delinquency Act (“FJDA”), did not apply to Petitioner’s conviction because Petitioner was charged as an adult and received his conviction after reaching majority age.  Petitioner’s conviction constituted a juvenile adjudication. Petitioner was also eligible for a waiver under former section 212(c) (under Judulang v. Holder, 132 S. Ct. 476, 485-86 (2011).

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/13/07-72316.pdf

The government motion to remand this case in light of the Supreme Court’s decision in Judulang v. Holder, 132 S.
Ct. 476 (2011) is granted.

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/09/07-71613.pdf

Where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA. The IJ wrongly held that Mendoza-Pablo had not been persecuted because he had never personally “witnessed any atrocities” and he was never “personally challenged or confronted” by the Guatemalan military forces that attacked Todos Santos.

A. Wallace Tashima and Johnnie B. Rawlinson, Circuit Judges, and Jed S. Rakoff, Senior District Judge

Dissenting in part, concurring in part, Rawlinson: “I agree in principle that an infant may be subjected to persecution. However, I do not agree that the facts of this case compel a conclusion that Petitioner Juan Ubaldo MendozaPablo was subjected to persecution as an infant.”

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/07/07-73592.pdf

David Aranda Rodriguez has filed a petition for rehearing en banc in this consolidated matter. Rodriguez has had a longterm presence in the United States and has two United States citizen daughters, one of whom suffers from asthma. He does not appear to have any criminal convictions. In light of ICE Director John Morton’s June 17, 2011 memo regarding prosecutorial discretion, and the November 17, 2011 follow-up memo providing guidance to ICE Attorneys, the government shall advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to Petitioner’s pending petition for rehearing.

William C. Canby, Jr., Diarmuid F. O’Scannlain, and Raymond C. Fisher

Dissenting, O’Scannlain

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/06/06-74444.pdf

The San Agustins have filed a petition for panel rehearing in this matter. The San Agustins have had a long-term presence in the United States and have two United States citizen children. They do not appear to have any criminal convictions. In light of ICE Director John Morton’s June 17, 2011 memo regarding prosecutorial discretion, and the November 17, 2011 follow-up memo providing guidance to ICE Attorneys, the government shall advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court.

William C. Canby, Jr., Diarmuid F. O’Scannlain, and Raymond C. Fisher, Circuit Judges

Dissenting, O’Scannlain

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/06/09-72910.pdf

Anthony Jex and Gilda Middleton have filed a petition for rehearing en banc in this matter. Petitioners have had a longterm presence in the United States and have a United States citizen daughter. It appears that petitioners are the beneficiary and derivative beneficiary of an approved I-130 visa petition. They do not appear to have any criminal convictions. In light of ICE Director John Morton’s June 17, 2011 memo regarding prosecutorial discretion, and the November 17, 2011 follow-up memo providing guidance to ICE Attorneys, the government shall advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to Petitioners’ pending petition for rehearing.

William C. Canby, Jr., Diarmuid F. O’Scannlain, and Raymond C. Fisher, Circuit Judges

Dissenting, O’Scannlain

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/06/09-74038.pdf

Eliot Pocasangre has filed a motion for reconsideration and remand, which we treat as a petition for panel rehearing. Pocasangre entered the United States at the age of 15 and has been in the United States for over 5 years. He does not appear to have any criminal convictions. In light of ICE Director John Morton’s June 17, 2011 memo regarding prosecutorial discretion, and the November 7, 2011 follow-up memo providing guidance to ICE Attorneys, the government shall advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to Petitioner’s pending petition for rehearing.

Dissenting, O’Scannlain

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/06/10-70629.pdf

“Luis Mata-Fasardo has filed a petition for panel rehearing in this matter. Mata-Fasardo has had a long-term presence in the United States and has two United States citizen children. He does not appear to have any criminal convictions. In light of ICE Director John Morton’s June 17, 2011 memo regarding prosecutorial discretion, and the November 17, 2011 follow-up memo providing guidance to ICE Attorneys, the government shall advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to Petitioner’s pending petition for rehearing.”

Dissenting, O’Scannlain: “Today the majority instructs the Attorney General to tell us whether he will prosecute a specific case notwithstanding his brief defending the Board of Immigration Appeals’s decision denying the petitioner relief. We have only the slimmest authority even to review the exercise of prosecutorial discretion, see; . . . we certainly lack authority to demand a preemptive peek into whether and when (and no doubt, before
long, why) the executive branch will exercise such discretion.”

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/06/10-71869.pdf

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/09/09-71571o.pdf

unpublished mem: http://www.ca9.uscourts.gov/datastore/memoranda/2011/09/07/09-71571.pdf