FILED NOT FOR PUBLICATION NOV 13 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TUMAINE UTOLITI, Nos. 23-2767 24-5970 Petitioner, Agency No. v. A217-057-349
PAMELA BONDI, Attorney General, MEMORANDUM* Respondent.
On Petition for Review of Orders of the Board of Immigration Appeals
Argued & Submitted October 9, 2025 San Francisco, California
Before: S.R. THOMAS, NGUYEN, and BRESS, Circuit Judges. Partial Concurrence and Partial Dissent by Judge BRESS.
Tumaine Utoliti petitions for review of two orders of the Board of
Immigration Appeals (“BIA”), which have been consolidated for our
consideration. The first petition, No. 23-2767, seeks review of the agency decision
denying petitioner’s application for relief under the Convention Against Torture
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (“CAT”) and related relief. The second petition, No. 24-5970, seeks review of the
BIA’s denial of petitioner’s motion to reopen on grounds of ineffective assistance
of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny the first
petition, and grant the second petition. Because the parties are familiar with the
history of the case, we need not recount it here.
I
A
In petition 23-2767, substantial evidence supports the BIA’s determination
that Utoliti failed to establish that he was “more likely than not” to be tortured if
removed to Uganda and, thus, was ineligible for protection under CAT as codified
in 8 C.F.R. § 1208.17. The agency agreed that Utoliti had been previously tortured
in Uganda. However, substantial evidence supports the BIA’s conclusion that
Utoliti’s circumstances have significantly changed since he left Uganda as a child
refugee. Nuru v. Gonzales, 404 F.3d 1207, 1218 (9th Cir. 2005) (noting that
changed circumstances can render a petitioner ineligible for CAT relief). If Utoliti
was returned to Uganda, he would be entering under the permission of the
government and no longer living within a refugee camp. Contrary to Utoliti’s
contentions, neither the BIA nor the IJ improperly weighed the facts of the case.
2 B
The BIA properly concluded that Utoliti was not denied his due process
rights before the immigration judge (“IJ”). The BIA properly concluded that
Utoliti had waived his right to counsel in his removal hearing with the IJ and thus
did not experience a violation of his due process rights on those grounds. Utoliti
provided a knowing and voluntary affirmative waiver to his right to counsel in his
hearing, indicating that he understood his rights. Utoliti was asked by the IJ
several times whether he understood his rights and was offered additional
opportunities to pause the hearing until he found counsel; yet each time, Utoliti
told the IJ that he wished to continue with the hearing. Collectively, Utoliti’s
words and actions indicate he knowingly and voluntarily waived his right to
counsel. As such, the IJ did not violate the petitioner’s due process rights in
continuing the proceedings without counsel.
The BIA also properly concluded that the IJ had sufficiently developed the
record in Utoliti’s case, and thus, had not violated Utoliti’s right to a fair hearing.
When a noncitizen in a removal proceeding is pro se, “the IJ has an obligation to
fully develop the record,” providing a “scrupulous[] and conscientious[] probe into
. . . all the relevant facts.” Zamorano v. Garland, 2 F.4th 1213, 1226 (9th Cir.
2021) (citation modified). Here, the record shows that the IJ asked probative and
3 thorough questions about various aspects of the claim to both Utoliti and his
mother during his hearing. The questioning was sufficient to satisfy the IJ’s
obligation to develop the record. See Zetino v. Holder, 622 F.3d 1007, 1014–15
(9th Cir. 2010) (as amended) (holding an IJ’s inquiry sufficient under similar
circumstances). Thus, the proceeding was not “so fundamentally unfair that [the
petitioner] was prevented from reasonably presenting his case.” Ibarra-Flores v.
Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006) (citation modified).
C
Utoliti failed to exhaust his challenges to the IJ’s determinations that his
conviction was a crime involving moral turpitude (“CIMT”) and a particularly
serious crime (“PSC”), as he had not raised either issue with the BIA upon appeal.
Thus, Utoliti's claims are not exhausted, and because the government has properly
raised exhaustion in its briefing, we cannot consider them. Suate-Orellana v.
Garland, 101 F.4th 624, 629 (9th Cir. 2024) (holding that this court "must enforce"
the exhaustion requirement "if a party 'properly raise[s]' it." (quoting Fort Bend
Cnty. v. Davis, 587 U.S. 541, 549 (2019))).
4 II
In the second petition, No. 24-5970, we conclude that the BIA erred in
denying Utoliti’s motion to reopen. Utoliti claims that his counsel was ineffective
in not challenging his PSC or CIMT determinations from the IJ upon appeal to the
BIA.
The BIA erred in concluding that Utoliti had failed to comply with the BIA’s
Matter of Lozada requirements. See 19 I. & N. Dec. 637, 638 (BIA 1988). The
BIA faulted Utoliti for not filing a bar complaint against his attorney, as required
by Lozada. However, the Lozada requirements “are not sacrosanct,” and these
requirements need not be applied when ineffective assistance of counsel is clear
and obvious. Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir. 2006). Here, counsel
supplied an affidavit admitting his mistakes in Utoliti’s case under the penalty of
perjury. The declaration is sufficient to “explain why no such complaint was
filed.” Iturribarria v. I.N.S., 321 F.3d 889, 900 (9th Cir. 2003); see also Correa-
Rivera v. Holder, 706 F.3d 1128, 1133 (9th Cir. 2013) (explaining that
demonstration of exposure to a malpractice claim is sufficient).
5 B
Having met the Lozada requirements, Utoliti is also required to show that
there has been “inadequate performance and prejudice” to the extent that his
ineffective counsel “may have affected the outcome of the proceedings.”
Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (citation
modified).
The BIA erred in concluding that Utoliti failed to establish prejudice in its
determination that his counsel could not have succeeded in challenging the IJ’s
conclusion that his crime qualified as a CIMT. A CIMT is a removable offense
under 8 U.S.C. § 1227(a)(2)(A)(i). CIMTs include “two essential elements:
reprehensible conduct and a culpable mental state.” Matter of Silva-Trevino,
26 I. & N. Dec. 826, 834 (BIA 2016). To determine whether a crime is a CIMT,
we employ the categorical approach as set forth in Taylor v. United States,
495 U.S. 575, 600–02 (1990). However, when the relevant statute used for
conviction is overbroad and divisible, we apply the modified categorical approach
as a tool to compare the elements of a statute of conviction to those of the generic
offense. See Descamps v. United States, 570 U.S. 254, 263–65 (2013). Under
both the categorical and modified categorical approaches, we determine “whether
6 the elements of the offense of conviction (as opposed to the facts underlying the
conviction) constitute a crime involving moral turpitude.” Altayar v. Barr,
947 F.3d 544, 549 (9th Cir. 2020). To qualify as a CIMT, “the full range of
conduct encompassed by the criminal statute [must] constitute[] a crime of moral
turpitude.” Id. (quoting Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1086
(9th Cir. 2017)).
In Altayar v. Barr, we held that A.R.S. § 13-1203(A) and A.R.S.
§ 13-1204(A) were divisible and, as such, the modified categorical approach
should be utilized to determine whether a conviction under those statutes is a
CIMT. See id. at 549–50. As a part of our analysis in Altayar, we specifically
weighed the mens rea and “contemplated bodily harm associated” with the applied
statutes. Id. at 554. In Altayar, we held that “as the level of conscious behavior
decreases, i.e., from intentional to reckless conduct, more serious resulting harm is
required in order to find that the crime involves moral turpitude.” Id. at 554
(quoting Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir. 2014) (citation modified)).
In Altayar, the petitioner was convicted under A.R.S. § 13-1203(A)(2), which
requires “[i]ntentionally placing another person in reasonable apprehension of
imminent physical injury.” Id. at 549-50. In contrast, Utoliti pled guilty under
A.R.S. § 13-1203(A)(3), which requires only “[k]nowingly touching another
7 person with the intent to injure, insult or provoke such person.”
A.R.S. § 13-1203(A)(3). Thus, Utoliti was convicted under a lower mens rea, and
of less serious resulting harm, than the petitioner in Altayar. In Uppal v. Holder,
we held that, “under the BIA’s case law and our own, an assault statute not
involving a specific intent to injure or a special trust relationship and not requiring
that the assault cause death or even serious bodily injury cannot qualify as a
categorical CIMT.” 605 F.3d 712, 719 (9th Cir. 2010). As such, insult or
provocation, including with the use of a deadly weapon or dangerous instrument, is
not enough to make a conviction a CIMT.
We are required to consider whether “the full range of conduct encompassed
by” A.R.S. § 13-1203(A)(3) constitutes a CIMT. Altayar, 947 F.3d at 549.
(quoting Lozano-Arredondo, 866 F.3d at 1086). Because the conduct proscribed in
A.R.S. § 13-1203(A)(3)—knowingly touching another with the intent to insult or
provoke, including with the use of a deadly weapon or dangerous instrument— “is
broader than” the definition of a CIMT, Utoliti's conviction is not a categorical
CIMT. Id. at 550 (quoting Leal v. Holder, 771 F.3d 1140, 1145 (9th Cir. 2014)).
Thus, the BIA erred in holding that Utoliti could not establish prejudice by his
counsel’s failure to raise the issue.
8 2
The BIA also erred in determining that Utoliti’s counsel could not have
succeeded in challenging the IJ’s determination that the crime constituted a
“particularly serious crime,” disqualifying him from relief. If a conviction is a
PSC, the noncitizen is ineligible for asylum or withholding relief. Dominguez v.
Barr, 975 F.3d 725, 740 (9th Cir. 2020). For asylum purposes, a conviction
constitutes a per se PSC when it is an aggravated felony. Id. For withholding of
removal claims, “aggravated felonies are only per se particularly serious crimes
when punished by a term of incarceration of at least five years.” Id.
Utoliti did not commit an aggravated felony; thus, his conviction was not a
per se PSC barring him from asylum-based relief. An aggravated felony requires a
“term of imprisonment [of] at least one year” per 8 U.S.C. § § 1101(a)(43)(F), and
Utoliti was only imprisoned for 121 days with three years of probation.
A conviction may constitute a non per se PSC thereby disqualifying the
petitioner from withholding of removal and asylum-based relief upon a review of
the factors laid out in the Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA
1982). “‘[A] crime is particularly serious if the nature of the conviction, the
underlying facts and circumstances[,] and the sentence imposed justify the
presumption that the convicted immigrant is a danger to the community.’” Gomez-
9 Sanchez v. Sessions, 892 F.3d 985, 991 (9th Cir. 2018) (quoting Alphonsus v.
Holder, 705 F.3d 1031, 1041 (9th Cir. 2013) (citation modified)). An analysis of
the Frentescu factors is done on a case-by-case basis and can include any relevant
and reliable evidence, such as conviction records, sentencing information, and
beyond. See Anaya-Ortiz v. Holder, 594 F.3d 673, 677–79 (9th Cir. 2010).
Here, the plea agreement and the sentence imposed specifically state that the
offense was “a non-dangerous, non-repetitive offense under the criminal code.”
Thus, the criminal records do not establish that Utoliti was “a danger to the
community.” The BIA did not appear to take this determination into account in its
analysis, nor did it conduct a factual examination. The BIA simply conducted an
elements-based approach, and used the wrong elements of Utoliti's conviction.
Specifically, the BIA stated that “the elements of the attempted aggravated assault
conviction, which required that the respondent attempted to intentionally place
another person in reasonable apprehension of imminent physical injury with the
use of a deadly weapon or dangerous instrument, bring the crime into the ambit of
a particularly serious crime.” However, the BIA appears to import the language
“intentionally place another person in reasonable apprehension of imminent
physical injury” from A.R.S. § 13-1203(a)(2), which Utoliti was not convicted
under. A.R.S. § 13-1203(a)(3), the correct subsection of the statute, requires only
10 “knowingly touching another person with the intent to injure, insult, or provoke
such person.” Because the BIA misconstrued the elements of the conviction and
relied heavily on the elements in its analysis, the BIA abused its discretion in
finding that Utoliti was convicted of a PSC. Thus, Utoliti was prejudiced by his
previous counsel’s failure to appeal the IJ’s initial PSC determination.
III
In sum, the petition to review the BIA’s dismissal of appeal on order of
removal in case No. 23-2767 is denied, and the petition to review the denial of the
motion to reopen in case No. 24-5970 is granted. The petition for review in case
No. 24-5970 is remanded to the BIA for further proceedings consistent with this
disposition.
PETITION FILED IN CASE NO. 23-2767 DENIED. PETITION FILED IN CASE NO. 24-5970 GRANTED AND REMANDED.
11 FILED Utoliti v. Bondi, Nos. 23-2767 & 24-5970 NOV 13 2025 MOLLY C. DWYER, CLERK BRESS, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree that Utoliti’s first petition for review should be denied. But I would
also deny Utoliti’s second petition because the BIA did not err in concluding that
Utoliti was not prejudiced by his counsel’s failure to argue the crime involving moral
turpitude (“CIMT”) and particularly serious crime (“PSC”) issues. Utoliti’s crime
of conviction was both a CIMT and a PSC, so the BIA did not abuse its discretion in
denying his motion to reopen. The majority errs in concluding otherwise.
Utoliti was convicted of attempted aggravated assault under Ariz. Rev. Stat.
§ 13-1203(A)(3) and § 13-1204(A)(2). Section 13-1203(A)(3) provides that a
person commits assault by “[k]nowingly touching another person with the intent to
injure, insult or provoke such person.” Section 13-1204(A)(2) provides that
aggravated assault is committed “[i]f the person uses a deadly weapon or dangerous
instrument” while committing the assault. Arizona law defines a deadly weapon as
“anything designed for lethal use,” Ariz. Rev. Stat. § 13-105(14), and a dangerous
instrument as “anything that . . . is readily capable of causing death or serious
physical injury.” Id. § 13-105(15). Under the modified categorical approach,
Utoliti’s crime of conviction is a CIMT under our precedents, making him removable
under 8 U.S.C. § 1227(a)(2)(A)(i).
1 In Altayar v. Barr, 947 F.3d 544 (9th Cir. 2020), we held that a different part
of the Arizona assault statute that criminalized “[i]ntentionally placing another
person in reasonable apprehension of imminent physical injury,” Ariz. Rev. Stat.
§ 13-1203(A)(2), was a CIMT when combined with the same “deadly weapon or
dangerous instrument” aggravator under which Utoliti was convicted. Altayar, 947
F.3d at 551–55. The majority concludes here that § 13-1203(A)(3), which
criminalizes “[k]nowingly touching another person with the intent to injure, insult
or provoke such person,” is less turpitudinous than § 13-1203(A)(2). The majority
points to two factors: the supposedly lower mens rea required under § 13-1203(A)(3)
and a theoretically lower level of contemplated bodily harm. Setting aside that
Altayar did not create a floor for what qualifies as a CIMT, neither factor is sufficient
to take this case outside of Altayar’s reasoning.
As an initial matter, the mens rea requirements in § 13-1203(A)(2) and § 13-
1203(A)(3) are not materially different. While the mens rea for “touching another
person” is “knowingly” instead of “intentionally,” the mens rea for “injur[ing],
insult[ing], or provok[ing]” is “with intent to,” which is equivalent to “intentionally”
under Arizona law. Ariz. Rev. Stat. § 13-105(10)(a). There is little difference
between a perpetrator “knowingly” or “intentionally” touching another person using
a deadly weapon or dangerous instrument. Instead, the crux of § 13-1203(A)(3)—
from which the most contemplated harm arises—is touching “with the intent to
2 injure, insult, or provoke,” because an intent to injure, provoke, or insult through the
touch of a deadly weapon risks imminent escalation into a potentially deadly
confrontation. That part of the statutory provision has a mens rea of “intent,” just
like § 13-1203(A)(2), the section at issue in Altayar. Therefore, the mens rea
element in § 13-1203(A)(3) is only marginally lessened, if at all, as compared to
Altayar.
The level of contemplated bodily harm does not change the analysis. While
the majority focuses on the fact that the least-culpable conduct under § 13-
1203(A)(3) is to “touch[ ] . . . with the intent to . . . insult, or provoke,” id., that
conduct still “expose[s] the [victim] to a risk of serious bodily injury” when done
using a deadly weapon or dangerous instrument. Altayar, 947 F.3d at 554 (quoting
Fugow v. Barr, 943 F.3d 456, 459 (9th Cir. 2019)). In Altayar, it was the § 13-
1204(A)(2) deadly weapon or dangerous instrument aggravator that made the critical
difference in distinguishing the crime of conviction from simple assault. Id. at 552
(“[T]he BIA could properly regard an aggravated assault with a deadly weapon or
dangerous instrument as substantially more turpitudinous than a mere simple
assault.”). So too here. As the majority would have it, brandishing a knife at a
person with the intent to cause fear of imminent physical harm would be a CIMT
under the combination of statutory provisions at issue in Altayar, yet touching a
3 person while using the same knife, with an intent to injure, provoke, or insult, would
not. The law does not demand that illogical result.
Indeed, if anything, the statute of conviction here contemplates a greater risk
of harm because it actually requires the defendant to “[k]nowingly touch” the victim
while using a deadly weapon or dangerous instrument. Ariz. Rev. Stat. §§ 13-
1203(A)(3), 13-1204(A)(2). Our decision in Uppal v. Holder, 605 F.3d 712 (9th Cir.
2010), on which the majority relies, does not change matters because it recognizes
that assault statutes involving aggravating factors—including “the use of a deadly
weapon”—have qualified as CIMTs. Id. at 717.
For these reasons, Utoliti’s crime of conviction was a CIMT.
II
The majority also concludes that counsel’s failure to raise the PSC issue was
prejudicial. The majority’s reasoning is again mistaken. Utoliti’s crime was a PSC,
rendering him ineligible for asylum and withholding of removal. Delgado v. Holder,
648 F.3d 1095, 1101–02 (9th Cir. 2011).
For convictions that are not per se particularly serious crimes, the BIA
considers the crime of conviction under Matter of Frentescu, 18 I. & N. Dec. 244
(BIA 1982), looking to “such factors as the nature of the conviction, the
circumstances and underlying facts of the conviction, the type of sentence imposed,
and, most importantly, whether the type and circumstances of the crime indicate that
4 the [individual] will be a danger to the community.” Id. at 247. In evaluating the
agency’s PSC decision, “our review is limited to ensuring that the agency relied on
the appropriate factors and proper evidence to reach this conclusion. We may not
reweigh the evidence and reach our own determination about the crime’s
seriousness.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)
(internal citations and quotations omitted).
Here, the IJ properly considered the Frentescu factors and did not err in
finding that Utoliti’s conviction was a PSC based on Utoliti driving a vehicle at high
speed while drunk, attempting to hit police officers while doing so, and fleeing
afterwards. The BIA likewise considered the facts of Utoliti’s crime and agreed that
it was a PSC. There is no basis for rejecting the agency’s evaluation of Utoliti’s
disturbing criminal misconduct.
The majority’s reasons for granting the petition on this point are unsound. The
majority first decides that the BIA “simply conducted an elements-based approach.”
But the “elements-based approach” that the majority takes issue with was merely to
determine whether the crime could be brought “into the ambit of a particularly
serious crime.” Under our precedents, the BIA must examine “the elements of the
offense” to make that determination. Anaya-Ortiz v. Holder, 594 F.3d 673, 677 (9th
Cir. 2010) (quoting Matter of N-A-M-, 24 I. &. N. Dec. 336, 342 (BIA 2007)). While
the majority’s argument would have force if the ambit analysis was the only analysis
5 conducted by the agency, the BIA properly conducted a Frentescu analysis
afterwards by considering “(1) the nature of the conviction, (2) the type of sentence
imposed and (3) the circumstances and underlying facts of conviction.” The BIA
specifically discussed the facts of Utoliti’s case, which belies the majority’s assertion
that the agency failed to “conduct a factual examination.”
The majority suggests that the BIA’s ambit analysis was flawed because the
agency quoted language from § 13-1203(A)(2) instead of § 13-1203(A)(3) when
making its ambit determination. But this mistake appears to be a scrivener’s error.
In its earlier analysis on whether Utoliti’s conviction was a CIMT, the BIA
thoroughly analyzed the elements of Utoliti’s conviction based on § 13-1203(A)(3)
and determined that it qualified. The record, read as a whole, indicates that the BIA
understood that Utoliti was convicted under § 13-1203(A)(3) and analyzed his
conviction as such. The majority does not suggest that § 13-1203(A)(3) cannot fall
within the ambit of a PSC. Therefore, the BIA did not abuse its discretion, and even
if it did, the error was harmless.
Finally, the majority suggests that the BIA failed to consider the plea
agreement’s characterization of Utoliti’s offense as a “non-dangerous, non-repetitive
offense.” As an initial matter, it appears that Utoliti never raised this argument
before the BIA in his motion to reopen. But even if we consider this untimely
argument, the majority ignores what these classifications mean under Arizona law.
6 Utoliti’s plea agreement stated that his offenses were “non-dangerous, non-repetitive
offenses under the criminal code.” (emphasis added). Put simply, these statements
are simply boilerplate statutory classifications—not a case-specific evaluation of his
conviction.
For instance, under Ariz. Rev. Stat. § 13-105(13), a “dangerous offense” is “an
offense involving the discharge, use or threatening exhibition of a deadly weapon or
dangerous instrument or the intentional or knowing infliction of serious physical
injury on another person.” Id. The “non-dangerous” designation in the plea
agreement simply reflects the fact that neither of the statutory provisions under
which Utoliti was convicted—§ 13-1203(A)(3) and § 13-1204(A)—necessarily
involved the “discharge, use, or threatening exhibition” of such a weapon or
instrument. Ariz. Rev. Stat. § 13-105(13). But that does not mean that Utoliti’s
crime was not particularly serious under the Frentescu factors.
The “non-repetitive” designation, meanwhile, has nothing to do with the
offense itself—the designation is based on whether the offender is a repeat offender.
Ariz. Rev. Stat. § 13-703. Utoliti was a first-time offender, which presumably
explains why the plea agreement characterized his offense as “non-repetitive.”
Accordingly, nothing in the plea agreement undermines the agency’s PSC
determination.
* * *
7 For the foregoing reasons, I respectfully dissent from the decision to grant
Utoliti’s second petition for review.