NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOEL NOLASCO-RODRIGUEZ, No. 23-3951 Agency No. Petitioner, A208-444-334 v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted December 2, 2024 Portland, Oregon
Before: TASHIMA, NGUYEN, and SUNG, Circuit Judges.
Joel Nolasco-Rodriguez (“Nolasco-Rodriguez”), a native and citizen of
Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal. He argues that the BIA erred when it determined that his
conviction for reckless assault on a pregnant person under Oregon Revised Statute
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 163.160(3)(d) is categorically a crime involving moral turpitude (“CIMT”). We
have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.
1. The BIA determined that Nolasco-Rodriguez waived his challenge to the
dispositive issue of whether he had the good moral character required for
cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(B). We disagree. A conviction
for a CIMT categorically bars a finding of good moral character, and the sole basis
for the conclusion by the immigration judge (“IJ”) that Nolasco-Rodriguez lacked
good moral character was the IJ’s finding that the criminal conviction was a CIMT.
See 8 U.S.C. § 1101(f)(3). Nolasco-Rodriguez challenged the CIMT finding on
appeal to the BIA. Because Nolasco-Rodriguez challenged the sole basis for the
IJ’s conclusion that he lacked good moral character, he did not waive or forfeit the
issue.
2. We turn next to the BIA’s conclusion that Nolasco-Rodriguez’s conviction
for reckless assault on a pregnant person is categorically a CIMT, which we review
de novo. Murillo-Chavez v. Bondi, 128 F.4th 1076, 1086 (9th Cir. 2025).
We evaluate whether an offense is a CIMT using the categorical approach.
At step one, we must “identify the elements of the statute of conviction.” Ceron v.
Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc) (quoting Castrijon-Garcia v.
Holder, 704 F.3d 1205, 1208 (9th Cir. 2013)). At step two, we must “compare the
elements of the statute of conviction to the generic definition of a crime of moral
2 turpitude and decide whether the conviction meets that definition.” Id. (quoting
Castrijon-Garcia, 704 F.3d at 1208). A CIMT “requires two essential elements:
reprehensible conduct and a culpable mental state.” Flores-Vasquez v. Garland, 80
F.4th 921, 926 (9th Cir. 2023) (quoting Matter of J-G-P-, 27 I. & N. Dec. 642, 644
(B.I.A. 2019)). A conviction constitutes a CIMT only “if the full range of conduct
encompassed by the statute, including the least egregious conduct prosecuted under
the statute, is a crime of moral turpitude.” Id. at 925 (quoting Barragan-Lopez v.
Mukasey, 508 F.3d 899, 903 (9th Cir. 2007)). “If there is a ‘realistic
probability’ that the statute of conviction would be applied to non-turpitudinous
conduct, there is no categorical match.” Id. (quoting Fugow v. Barr, 943 F.3d 456,
458 (9th Cir. 2019)).
The material elements of § 163.160(3)(d) require, at minimum, that the
defendant: (1) recklessly (2) caused physical injury (3) with knowledge that the
victim is pregnant.1 The first two elements, which constitute simple assault, are not
a categorical CIMT. See Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165 (9th
Cir. 2006). The government argues, however, that the additional element of
1 Oregon law defines “physical injury” as an “impairment of physical condition or substantial pain.” Or. Rev. Stat. § 161.015(7). The Oregon Court of Appeals has characterized this as “a relatively low bar.” State v. Stone, 532 P.3d 90, 95 (Or. Ct. App. 2023). For example, “the combination of pain, swelling and bruising” can constitute physical injury. State ex rel. Juvenile Dep’t v. Salmon, 730 P.2d 1285, 1287 (Or. Ct. App. 1986).
3 knowledge that the victim was pregnant turns simple assault into a CIMT. In
Fernandez-Ruiz, however, we rejected a similar conclusion by the BIA. Fernandez-
Ruiz’s domestic assault conviction required “recklessly causing any physical injury
to another person” and a domestic relationship between the victim and defendant.
Id. at 1164. While the BIA recognized that simple assault (recklessly causing
physical injury) is not a CIMT, the BIA concluded that domestic assault was a
CIMT because of “the additional element of the domestic relationship.” Id. at
1165. We held that assault is not a CIMT, even when there is a special relationship
between the defendant and victim, unless it requires both 1) a mens rea of
willfulness (i.e., more than recklessness), and 2) more than minor injury. Id. at
1166-67.
Fernandez-Ruiz controls this case. While we agree with the government that
society views a pregnant person as someone who needs special protection, the
same is true of a domestic partner. See Galeana-Mendoza v. Gonzales, 465 F.3d
1054, 1061 (9th Cir. 2006) (stating that “domestic partner[s]” are persons “whom
society views as deserving special protection”). In Fernandez-Ruiz, we squarely
held that the aggravating factor of a domestic relationship between the defendant
and victim did not turn assault with a reckless state of mind into a CIMT. 468 F.3d
at 1166-67. Because Nolasco-Rodriguez, like Fernandez-Ruiz, was convicted of
simple assault with a mens rea of recklessness, his offense is not a CIMT.
4 The government relies on Matter of Sanudo, 23 I. & N. Dec. 968 (B.I.A.
2006), and Matter of Wu, 27 I. & N. Dec. 8 (B.I.A. 2017), for the proposition that
“an assault that involves an aggravating factor may be turpitudinous.” For several
reasons, this reliance is misplaced.
To begin, we no longer give the BIA’s interpretations of the statutory term
“crime involving moral turpitude” Chevron deference; at most, we give them
Skidmore deference. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 402,
412-13 (2024).2 Even assuming Skidmore deference applies, neither case changes
the outcome here.
In Matter of Sanudo, when the BIA explained that a protected class of
victims could be an aggravating factor, it specifically noted that these crimes could
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOEL NOLASCO-RODRIGUEZ, No. 23-3951 Agency No. Petitioner, A208-444-334 v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted December 2, 2024 Portland, Oregon
Before: TASHIMA, NGUYEN, and SUNG, Circuit Judges.
Joel Nolasco-Rodriguez (“Nolasco-Rodriguez”), a native and citizen of
Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal. He argues that the BIA erred when it determined that his
conviction for reckless assault on a pregnant person under Oregon Revised Statute
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 163.160(3)(d) is categorically a crime involving moral turpitude (“CIMT”). We
have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.
1. The BIA determined that Nolasco-Rodriguez waived his challenge to the
dispositive issue of whether he had the good moral character required for
cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(B). We disagree. A conviction
for a CIMT categorically bars a finding of good moral character, and the sole basis
for the conclusion by the immigration judge (“IJ”) that Nolasco-Rodriguez lacked
good moral character was the IJ’s finding that the criminal conviction was a CIMT.
See 8 U.S.C. § 1101(f)(3). Nolasco-Rodriguez challenged the CIMT finding on
appeal to the BIA. Because Nolasco-Rodriguez challenged the sole basis for the
IJ’s conclusion that he lacked good moral character, he did not waive or forfeit the
issue.
2. We turn next to the BIA’s conclusion that Nolasco-Rodriguez’s conviction
for reckless assault on a pregnant person is categorically a CIMT, which we review
de novo. Murillo-Chavez v. Bondi, 128 F.4th 1076, 1086 (9th Cir. 2025).
We evaluate whether an offense is a CIMT using the categorical approach.
At step one, we must “identify the elements of the statute of conviction.” Ceron v.
Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc) (quoting Castrijon-Garcia v.
Holder, 704 F.3d 1205, 1208 (9th Cir. 2013)). At step two, we must “compare the
elements of the statute of conviction to the generic definition of a crime of moral
2 turpitude and decide whether the conviction meets that definition.” Id. (quoting
Castrijon-Garcia, 704 F.3d at 1208). A CIMT “requires two essential elements:
reprehensible conduct and a culpable mental state.” Flores-Vasquez v. Garland, 80
F.4th 921, 926 (9th Cir. 2023) (quoting Matter of J-G-P-, 27 I. & N. Dec. 642, 644
(B.I.A. 2019)). A conviction constitutes a CIMT only “if the full range of conduct
encompassed by the statute, including the least egregious conduct prosecuted under
the statute, is a crime of moral turpitude.” Id. at 925 (quoting Barragan-Lopez v.
Mukasey, 508 F.3d 899, 903 (9th Cir. 2007)). “If there is a ‘realistic
probability’ that the statute of conviction would be applied to non-turpitudinous
conduct, there is no categorical match.” Id. (quoting Fugow v. Barr, 943 F.3d 456,
458 (9th Cir. 2019)).
The material elements of § 163.160(3)(d) require, at minimum, that the
defendant: (1) recklessly (2) caused physical injury (3) with knowledge that the
victim is pregnant.1 The first two elements, which constitute simple assault, are not
a categorical CIMT. See Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165 (9th
Cir. 2006). The government argues, however, that the additional element of
1 Oregon law defines “physical injury” as an “impairment of physical condition or substantial pain.” Or. Rev. Stat. § 161.015(7). The Oregon Court of Appeals has characterized this as “a relatively low bar.” State v. Stone, 532 P.3d 90, 95 (Or. Ct. App. 2023). For example, “the combination of pain, swelling and bruising” can constitute physical injury. State ex rel. Juvenile Dep’t v. Salmon, 730 P.2d 1285, 1287 (Or. Ct. App. 1986).
3 knowledge that the victim was pregnant turns simple assault into a CIMT. In
Fernandez-Ruiz, however, we rejected a similar conclusion by the BIA. Fernandez-
Ruiz’s domestic assault conviction required “recklessly causing any physical injury
to another person” and a domestic relationship between the victim and defendant.
Id. at 1164. While the BIA recognized that simple assault (recklessly causing
physical injury) is not a CIMT, the BIA concluded that domestic assault was a
CIMT because of “the additional element of the domestic relationship.” Id. at
1165. We held that assault is not a CIMT, even when there is a special relationship
between the defendant and victim, unless it requires both 1) a mens rea of
willfulness (i.e., more than recklessness), and 2) more than minor injury. Id. at
1166-67.
Fernandez-Ruiz controls this case. While we agree with the government that
society views a pregnant person as someone who needs special protection, the
same is true of a domestic partner. See Galeana-Mendoza v. Gonzales, 465 F.3d
1054, 1061 (9th Cir. 2006) (stating that “domestic partner[s]” are persons “whom
society views as deserving special protection”). In Fernandez-Ruiz, we squarely
held that the aggravating factor of a domestic relationship between the defendant
and victim did not turn assault with a reckless state of mind into a CIMT. 468 F.3d
at 1166-67. Because Nolasco-Rodriguez, like Fernandez-Ruiz, was convicted of
simple assault with a mens rea of recklessness, his offense is not a CIMT.
4 The government relies on Matter of Sanudo, 23 I. & N. Dec. 968 (B.I.A.
2006), and Matter of Wu, 27 I. & N. Dec. 8 (B.I.A. 2017), for the proposition that
“an assault that involves an aggravating factor may be turpitudinous.” For several
reasons, this reliance is misplaced.
To begin, we no longer give the BIA’s interpretations of the statutory term
“crime involving moral turpitude” Chevron deference; at most, we give them
Skidmore deference. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 402,
412-13 (2024).2 Even assuming Skidmore deference applies, neither case changes
the outcome here.
In Matter of Sanudo, when the BIA explained that a protected class of
victims could be an aggravating factor, it specifically noted that these crimes could
be CIMTs “because the intentional or knowing infliction of injury on such persons
reflects a degenerate willingness on the part of the offender to prey on the
vulnerable.” 23 I. & N. Dec. at 972. The BIA’s emphasis on an intentional or
knowing mental state undermines the government’s argument here.
2 In Safaryan v. Barr, 975 F.3d 976, 988 (9th Cir. 2020), we concluded that Matter of Wu is entitled to Chevron deference. Although the holdings of cases applying Chevron deference remain precedential until overruled, because Chevron deference no longer applies following Loper Bright, 603 U.S. at 412, “we are not compelled to use them as analytical building blocks in every case,” and we must instead “exercise our independent judgment.” Murillo-Chavez, 128 F.4th at 1087 (quotation marks omitted).
5 In Matter of Wu, the BIA explained that “assault and battery offenses that
require a state of mind falling between specific intent and criminal negligence—for
instance, general intent and recklessness—are morally turpitudinous if they
‘necessarily involve aggravating factors that significantly increase their
culpability’ relative to simple assault.” 27 I. & N. Dec. at 11 (cleaned up) (quoting
Matter of Sanudo, 23 I. & N. Dec. at 971). The BIA ultimately concluded that the
California statute at issue “falls within the definition of a [CIMT]” because it
“requires that a perpetrator willfully engage in dangerous conduct, by means of
either an object employed in a manner likely to cause great bodily injury or force
that is, in and of itself, likely to cause such an injury,” and “further requires that a
perpetrator have knowledge . . . of the facts that make such an injury likely.” Id. at
14 (emphasis added). Aggravating factors based on the victim’s status do not
necessarily require that the defendant willfully engage in dangerous conduct likely
to cause great bodily injury.
Because we agree with Nolasco-Rodriguez that his conviction under
§ 163.160(3)(d) is not a categorical CIMT, we also hold that the IJ’s determination
that he lacks good moral character is not supported by substantial evidence.
PETITION FOR REVIEW GRANTED; REMANDED.3
3 Respondent shall bear all costs on appeal.