FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MOHAMMED MOSTAFA ALTAYAR, Nos. 17-73308 AKA Mohammed Mastafa Majid, 18-71754 Petitioner, Agency No. v. A212-377-363 WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 24, 2019 San Francisco, California Filed January 14, 2020 Before: J. Clifford Wallace and Daniel A. Bress, Circuit Judges, and Robert S. Lasnik, * District Judge. Opinion by Judge Bress * The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 2 ALTAYAR V. BARR 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.” ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ALTAYAR V. BARR 3 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 ...
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