               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JOHN WESLEY LIWANAG COQUICO,             No. 09-73867
                     Petitioner,
                                         Agency No.
                v.                      A045-903-122

LORETTA E. LYNCH, Attorney
General,                                   OPINION
                      Respondent.


       On Petition for Review of an Order of the
           Board of Immigration Appeals

                Argued and Submitted
      October 7, 2014—San Francisco, California

                 Filed June 17, 2015

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain and M. Margaret McKeown, Circuit Judges.

            Opinion by Judge O’Scannlain
2                       COQUICO V. LYNCH

                           SUMMARY*


                           Immigration

    The panel granted John Coquico’s petition for review of
the Board of Immigration Appeals’ decision finding that his
conviction for misdemeanor unlawful laser activity, in
violation of California Penal Code § 417.26, is a categorical
crime involving moral turpitude.

   The panel concluded that § 417.26 can be violated by
conduct which resembles non-turpitudinous simple assault
and has little similarity to turpitudinous terrorizing threats,
and held that a violation does not constitute a categorical
CIMT. Because the government did not ask the court to
apply the modified categorical approach, the panel considered
only whether the categorical approach was satisfied, and
remanded for further proceedings consistent with the opinion.


                            COUNSEL

Heliodoro Moreno, Jr., Law Offices of Robert B. Jobe, San
Francisco, CA, argued the cause for the petitioner. Robert B.
Jobe, Law Offices of Robert B. Jobe, San Francisco,
California, filed the briefs for the petitioner.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    COQUICO V. LYNCH                        3

Juria L. Jones, Office of Immigration Litigation, United
States Department of Justice, Washington, DC, argued the
cause for respondent. Tony West, Assistant Attorney
General, U.S. Department of Justice, Civil Division,
Washington, DC, filed the briefs for the petitioner. With him
on the briefs were Michelle G. Latour, Assistant Director, and
Phillip M. Truman, Trial Attorney, U.S. Department of
Justice, Office of Immigration Litigation, Washington, DC.


                         OPINION

O’SCANNLAIN, Circuit Judge:

    We must decide whether “unlawful laser activity” under
state law is a crime involving moral turpitude.

                              I

    On September 1, 2006, John Coquico, a citizen of the
Philippines, was convicted of misdemeanor “unlawful laser
activity” in violation of California Penal Code (“Cal. Penal
Code”) § 417.26, after using a laser device in the hallway of
the Alameda County criminal courthouse. A year later, he
was also convicted of second degree robbery in violation of
Cal. Penal Code § 211, and the Department of Homeland
Security (“DHS”) sought his removal under the Immigration
and Nationality Act (“INA”) as an alien convicted of two or
more crimes involving moral turpitude (“CIMT”). See INA
§ 237(a)(2)(A)(ii), codified at 8 U.S.C. § 1227(a)(2)(A)(ii).

   Though an Immigration Judge (“IJ”) agreed with the DHS
and found Coquico removable, on appeal the Board of
Immigration Appeals (“BIA”) found the IJ’s reasoning
4                    COQUICO V. LYNCH

insufficient and remanded the case so she could provide “a
more complete explanation” of her findings.

    On remand, the IJ again found Coquico removable due to
his convictions under Cal. Penal Code § 211 and § 417.26.
Most relevant here, she asserted that “unlawful laser activity”
under § 417.26 was a CIMT because it involved the
“possession of weapons which are insidious instruments
normally used for criminal purposes,” and that possessing
such weapons was “indicative of a readiness to do evil.”
Coquico appealed this decision to the BIA.

    On November 24, 2009, the BIA dismissed Coquico’s
appeal, concluding his conviction under § 417.26 was a
CIMT because “the crime is committed against a peace
officer and the nature of the crime involves using a device
which gives the appearance or facade of the use of a deadly
weapon.” The BIA also concluded § 211 was a CIMT.

   Coquico does not challenge the conclusion that the
robbery is a CIMT. However, he continues to argue that
“unlawful laser activity” is not morally turpitudinous.

                              II

    While we lack jurisdiction to review “any final order of
removal against an alien who is removable by reason of
having committed a criminal offense,” including a crime of
moral turpitude, 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A),
we retain jurisdiction over “constitutional claims or questions
of law.” Id. § 1252(a)(2)(D). Whether a crime involves
moral turpitude is a question of law not subject to the
jurisdiction-stripping provision of § 1252(a)(2)(C). Uppal v.
Holder, 605 F.3d 712, 714 (9th Cir. 2010).
                     COQUICO V. LYNCH                        5

    Determining “whether a conviction under a criminal
statute is categorically a crime of moral turpitude involves
two steps.” 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) (internal quotation marks
omitted)). “The first step is to identify the elements of the
statute of conviction.” Id. “The second step is to compare
the elements of the statute of conviction to the generic
definition of a crime of moral turpitude and decide whether
the conviction meets that definition.” Id.

                              A

    We begin our examination of the conviction under
§ 417.26 by considering what weight to give the BIA’s
analysis of the statute. Though we review the BIA’s
construction of state law de novo, Ceron, 747 F.3d at 778, we
review the BIA’s unpublished interpretation of immigration
law, including the definition of a CIMT, with Skidmore
deference. Id. “Under Skidmore, the measure of deference
afforded to the agency varies ‘depend[ing] upon the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.’” Marmolejo-Campos
v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en banc)
(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

                              1

     Here, the BIA’s decision suffers from several defects, the
first of which is its incorrect description of § 417.26 as
requiring the use of “a device which gives the appearance or
facade of the use of a deadly weapon.” Not only does § 417.2
6                            COQUICO V. LYNCH

not discuss “deadly weapons,” but its prohibition of the use
of any laser pointer—not just laser targeting devices—belies
the claim that it only regulates instruments that appear
deadly.1 By including laser pointers within its ambit,
§ 417.26 goes beyond the regulation of laser targeting
systems that could be integrated with deadly firearms. The
statute prohibits aiming or pointing “a laser scope as defined
in subdivision (b) of Section 417.25, or a laser pointer, as
defined in subdivision (c) of that section.” Cal. Penal Code
§ 417.26 (emphasis added). A laser scope, as defined in
§ 417.25(b), is “capable of being attached to a firearm and
capable of projecting a laser light on objects at a distance,”
but a “laser pointer” is defined in § 417.25(c) as merely “any
hand held laser beam device or demonstration laser product.”
Cal. Penal Code § 417.25 (emphasis added). Such handheld
laser demonstration devices are certainly not associated with
“deadly weapons.”


    1
        The full text of Cal. Penal Code § 417.26 states that:

             (a) Any person who aims or points a laser scope as
             defined in subdivision (b) of Section 417.25, or a laser
             pointer, as defined in subdivision (c) of that section, at
             a peace officer with the specific intent to cause the
             officer apprehension or fear of bodily harm and who
             knows or reasonably should know that the person at
             whom he or she is aiming or pointing is a peace officer,
             is guilty of a misdemeanor punishable by imprisonment
             in a county jail for a term not exceeding six months.

             (b) Any person who commits a second or subsequent
             violation of subdivision (a) shall be punished by
             imprisonment in a county jail for not more than one
             year.

Cal. Penal Code § 417.26.
                     COQUICO V. LYNCH                          7

                               2

    Further, though a laser pointer projects a light beam—as
laser targeting systems do—California’s legislature has made
clear that laser pointers, and the beams they project, are
innocuous. Under Cal. Penal Code § 417.27, shining a laser
pointer “directly or indirectly into the eye [] of another person
or into a moving vehicle with the intent to harass or annoy”
is punished merely by a fine of $50 or four hours of
community service. Cal. Penal Code §§ 417.27(c), 417.27(e).
Further, § 417.27 permits the possession of laser pointers on
elementary school premises for instructional or school-related
purposes. Cal. Penal Code § 417.27(b). If the California
legislature considered laser pointers, and the pointers’ beams,
to give “the appearance or facade of the use of a deadly
weapon,” it would not have allowed students to take them to
school, nor would it have imposed such minor penalties for
their use “with the intent to harass or annoy.”

    Not only do other Cal. Penal Code provisions show that
using a laser pointer is not equivalent to terrorizing someone
with a laser targeting device, but § 417.26 does not include
any “appears-to-be-a-deadly-weapon” element. If California
wanted § 417.26 to include such an element, it could have
done so, as it did in § 417.4, which prohibits drawing an
“imitation firearm . . . in such a way as to cause a reasonable
person apprehension or fear of bodily harm.” Cal. Penal
Code § 417.4. “Imitation firearms” are defined as those “so
substantially similar in coloration and overall appearance to
an existing firearm as to lead a reasonable person to perceive
that the device is a firearm.” Cal. Penal Code § 16700(a)
(emphasis added). The California legislature could have
drafted § 417.26 as an analogue to § 417.4, and required the
laser pointer be used in such a way as to lead reasonable
8                        COQUICO V. LYNCH

persons to believe they were being targeted by a firearm. It
did not.

   Therefore, the BIA’s importation of an “appearance of a
deadly weapon” element into § 417.26 is incorrect.

                                     3

    As the BIA has failed to identify the elements of the
crime correctly, its CIMT analysis is not entitled to deference.
Uppal, 605 F.3d at 715 (“Because the BIA failed to identify
the elements of [the state crime] correctly, its CIMT analysis,
in which it compares the elements it has identified to the
generic definition of moral turpitude, is misdirected and so
merits no deference from this Court.”).2

                                    III

    Having concluded the BIA’s analysis is inaccurate, we
must proceed to analyze the CIMT issue de novo. Although
the contours of what qualifies as a morally turpitudinous act
may be ambiguous, we know that a crime involving moral

    2
    Further, the BIA’s inaccurate description of the IJ’s reasoning casts
additional doubt on the BIA’s analysis. The BIA claimed that the “bulk
of the Immigration Judge’s decision” discussed “whether a conviction
under []§ 417.26 involves moral turpitude under the analysis set forth in
Matter of Silva-Trevino.” In truth, the IJ’s cursory analysis of § 417.26
was limited to her statement that “[c]ase law has held that possession of
weapons which are insidious instruments normally used for criminal
purposes is indicative of a readiness to do evil,” and a citation to a
California case involving illegal possession of a sawed-off shotgun. See
People v. Garrett, 241 Cal. Rptr. 10 (Cal. Ct. App. 1987). Thus, the
BIA’s characterization of such statement as a discussion of the turpitude
of § 417.26 in light of Matter of Silva-Trevino is inaccurate and calls into
question its own analysis of § 417.26.
                          COQUICO V. LYNCH                            9

turpitude is “generally a crime that (1) is vile, base, or
depraved and (2) violates accepted moral standards.” Ceron,
747 F.3d at 779.

                                     A

    To provide substance to these broad principles, we look
to the elements of other CIMTs that we have already
identified. Gonzalez-Cervantes v. Holder, 709 F.3d 1265,
1269 (9th Cir. 2013).

     Here, a CIMT that serves as a helpful point of comparison
is Cal. Penal Code § 422, prohibiting “threats with intent to
terrorize.” See Latter-Singh v. Holder, 668 F.3d 1156, 1158
(9th Cir. 2012) (internal quotation marks omitted). Like
§ 417.26, § 422 prohibits threatening conduct.3 However, a
closer comparison reveals that § 422 prohibits conduct which
is far more grave than that regulated by § 417.26.



 3
     The specific elements of § 422 are:

          (1) willfully threatening to commit a crime that will
          result in death or great bodily injury to another person;
          (2) specific intent that the statement be taken as a
          threat; (3) the threat was “on its face and under the
          circumstances 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”; (4) the threat
          “caused the victim to be in sustained fear for his or her
          own safety or for his or her immediate family’s safety”;
          and (5) the “victim’s fear was reasonable under the
          circumstances.”

Latter-Singh, 668 F.3d at 1160 (citation omitted).
10                   COQUICO V. LYNCH

    Indeed, the differences between the statutes are stark.
Under § 422 the threat must be of “a crime which will result
in death or great bodily injury,” but § 417.26 only requires
that the perpetrator intend the officer apprehend or fear
“bodily harm”; § 422 requires that the victim be “in sustained
fear” while § 417.26 does not require the victim even be
aware the laser was directed at him or her; § 422 requires the
threat be so serious that the victim’s fear is reasonable, but
§ 417.26 has no requirement that the victim even experience
fear. Cal. Penal Code §§ 417.26(a), 422(a).

                              B

    Such differences are critical to the CIMT inquiry, as
evidenced by the analysis of § 422 employed in Latter-Singh.
In that case, we established that § 422 is a CIMT by
contrasting it with an Arizona “simple assault” statute that we
concluded was not morally turpitudinous in Fernandez-Ruiz
v. Gonzales, 468 F.3d 1159 (9th Cir. 2006). Latter-Singh,
668 F.3d at 1161–62. Our decision was based on such
contrast, which revealed that § 422 involved more
turpitudinous conduct than the simple assault statute.

    Here, comparing § 422, § 417.26, and Arizona’s simple
assault statute reveals that § 417.26 has more in common with
non-turpitudinous simple assault than with the morally
turpitudinous “threats with intent to terrorize” of § 422. See
Latter-Singh, 668 F.3d at 1158.

     First, the threat in Latter-Singh had to be of “death or
great bodily injury,” which was not the case in Fernandez-
Ruiz and similarly is not the case in § 417.26. Id. at 1161
(citing Fernandez-Ruiz, 468 F.3d at 1165).
                         COQUICO V. LYNCH                                11

    Second, the threat in Latter-Singh required “the
threatened person reasonably to be in sustained fear for his or
her own safety,” whereas the threat in Fernandez-Ruiz carried
no such “sustained fear” requirement. 668 F.3d at 1162
(emphasis added). Section 417.26 also does not require the
victim be in “sustained fear”—indeed it does not require that
the victim experience any fear at all, merely that the
perpetrator intend apprehension or fear. Cal. Penal Code
§ 417.26.

    Third, Latter-Singh noted that § 422 required an “intent
to instill great fear of seriously bodily injury or death” and
equated such intent with “the purpose to terrorize.” 668 F.3d
at 1163 (internal quotation marks omitted). In contrast,
§ 417.26 requires only the intent to place the victim in
“apprehension or fear of bodily harm.” Cal. Penal Code
§ 417.26. This is not equivalent to the intent to “terrorize”
that was of “the requisite depravity . . . to satisfy the moral
turpitude standard” in Latter-Singh. See 668 F.3d at 1163
(internal quotation marks omitted).4




 4
   Our precedent casts doubt on whether an intent to cause “apprehension
or fear,” rather than intent to injure, can ever be a CIMT. In Uppal, we
held that “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 at 719. Similarly, in Galeana-Mendoza v. Gonzales, 465 F.3d
1054 (9th Cir. 2006), we stated that when an act cannot “be characterized
as inherently grave, base, or depraved,” then “[a]dding to these acts an
intent to commit them does not change that conclusion.” Id. at 1061
(quoting Mei v. Ashcroft, 393 F.3d 737, 741 (9th Cir. 2004), for the
proposition that “if the crime is trivial, even a deliberate intent to commit
it will not demonstrate an intent so ‘evil’ as to make the crime one of
moral turpitude”).
12                      COQUICO V. LYNCH

    The conclusion we must draw from this comparison is
that § 417.26 can be violated by conduct that bears a striking
resemblance to non-turpitudinous simple assault, and little
similarity to turpitudinous terrorizing threats.

    Thus, our decisions in Latter-Singh and Fernandez-Ruiz
reveal that a violation of § 417.26 is not categorically a crime
involving moral turpitude.5

                                   IV

    “Finally, where, as here, the government has not asked us
to apply the modified categorical approach, we consider only
whether the categorical approach is satisfied.” Latu v.




 5
    The Government also asserts that § 417.26 is a CIMT merely because
it must be committed against a peace officer. Such assertion is incorrect.

    As explained by the BIA’s own precedential decision in Matter of
Sanudo—a decision it misapplied in its dismissal of Coquico’s appeal—
even crimes committed against peace officers have only been found to be
a CIMT when they “require proof of the actual infliction of some tangible
harm on a victim.” Matter of Sanudo, 23 I.&N. Dec. 968, 972 (BIA
2006). See Garcia-Meza v. Mukasey, 516 F.3d 535, 537 (7th Cir. 2008)
(explaining that the BIA has suggested “that battery of a police officer
without causing harm is not a crime of moral turpitude,” and that even
when the victim is a member of the special class of peace officers that
“special status alone may not be enough”).
                        COQUICO V. LYNCH                              13

Mukasey, 547 F.3d 1070, 1076 (9th Cir. 2008) (internal
quotation marks omitted).6 Because the categorical approach
is not satisfied, we grant the petition.7

    PETITION FOR REVIEW GRANTED; REMANDED
for further proceedings consistent with this opinion.




 6
   Because we end our analysis at the categorical approach, we need not
decide whether § 417.26 is divisible under Descamps v. United States,
133 S. Ct. 2276 (2013).
     7
     This is not a case where it is necessary to remand to the BIA for
application of the modified categorical approach. Not only has the BIA
“already addressed—albeit under the categorical approach, rather than the
modified categorical approach” whether § 417.26 involves moral
turpitude, but, moreover, this case involves the interpretation of a state
statute, and thus “does not involve an issue the law commits to the
agency’s expertise.” Fernandez-Ruiz, 466 F.3d at 1133–34; see also Latu,
547 F.3d at 1076.
