                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 06 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BAUDEL VELAZQUEZ-SOBERANES,                      No. 11-73668

              Petitioner,                        Agency No. A079-220-140

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted October 7, 2014
                               Phoenix, Arizona

Before: D.W. NELSON, SILVERMAN, and M. SMITH, Circuit Judges.

       Baudel Velazquez-Soberanes (“Velazquez-Soberanes”) petitions for review

of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of a final

order of removal. The BIA held that Velazquez-Soberanes had been convicted of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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two or more crimes involving moral turpitude (“CIMTs”) and was thus removable.

We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.

      Velazquez-Soberanes is a native and citizen of Mexico, born in Guasave,

Mexico in 1977, who entered the U.S. without inspection in 1992. Velazquez-

Soberanes was granted status as a lawful permanent resident on February 24, 2004.

On September 10, 2010, the Department of Homeland Security (“DHS”) served

Velazquez-Soberanes with a Notice to Appear, charging him with removability

under 8 U.S.C. § 1227(a)(2)(E)(i) as a person convicted of a crime of domestic

violence, stalking, or child abuse after entry into the U.S. On October 6, 2010, the

DHS filed Additional Charges of Inadmissability/ Deportability, charging

Velazquez-Soberanes with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) as a

person convicted of two or more CIMTs after entry into the U.S. and under 8

U.S.C. § 1227(a)(2)(A)(I) as a person convicted of a CIMT within five years of

admission to the U.S.

      At a hearing on October 6, 2010, Velazquez-Soberanes admitted he was a

native and citizen of Mexico but denied removability. On November 15, 2010, the

Immigration Judge (“IJ”) sustained most of DHS’s allegations as to Velazquez-

Soberanes’s convictions and subsequently issued an order of removal against

Velazquez-Soberanes as a person convicted of a crime of domestic violence, a

                                          2
CIMT within five years of admission, and two or more CIMTs after entry.

Velazquez-Soberanes appealed to the BIA, which remanded the case to the IJ to

explain his reasoning properly.

      On remand, the IJ again issued an order of removal against Velazquez-

Soberanes based on the same grounds. Of relevance here, the IJ found the

convictions for felony endangerment, resisting arrest, and unlawful flight all to be

CIMTs, thus resulting in two or more CIMTs under 8 U.S.C. § 1227(a)(2)(A)(ii).

Velazquez-Soberanes timely appealed the decision again to the BIA, conceding his

conviction for resisting arrest was a CIMT but challenging the designation of his

convictions for unlawful flight and endangerment as CIMTs. The BIA dismissed

the appeal, holding felony endangerment in Arizona to be categorically a CIMT

and declining to reach the issue of whether unlawful flight is a CIMT.

Additionally, the BIA’s decision was limited to affirming that Velazquez-

Soberanes had been convicted of two CIMTs under 8 U.S.C. § 1227(a)(2)(A)(ii).

      Where the BIA’s decision is unpublished and not directly controlled by a

published opinion, as is the case here, we may afford the BIA’s decision deference

under Skidmore v. Swift & Co., 323 U.S. 134 (1944), depending in part on its

persuasive value. Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.

2009) (en banc). We hold that the BIA’s decision here is persuasive and warrants

                                          3
Skidmore deference. In an opinion filed contemporaneous with this memorandum,

we held that the BIA reasonably interpreted the INA to include felony

endangerment in Arizona as a CIMT and thus deferred to the BIA’s decision in that

case under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984). Leal v. Holder, ___ F.3d ____ (9th Cir. [Date], 2014). Our

reasoning in that case is equally applicable here.

      As we have previously explained, CIMTs may be premised on reckless

conduct where there is “serious resulting harm.” Ceron v. Holder, 747 F.3d 773,

783 (9th Cir. 2014) (en banc) (quoting In re Solon, 24 I. & N. Dec. 239, 242 (BIA

2007)). Recklessly placing another person in substantial, actual risk of imminent

death, as is required for felony endangerment, State v. Carreon, 107 P.3d 900, 909

(Ariz. 2005) (en banc), is “base, vile, and depraved conduct” that qualifies this

crime as a CIMT, Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010). Because

a required element of felony endangerment is substantial, actual risk of imminent

death to another person, there is no “realistic possibility” that the statute will be

applied to non-turpitudinous conduct. See Turijan v. Holder, 744 F.3d 617, 620

(9th Cir. 2014). Although not addressed by the BIA in this case, we held in Leal

that the BIA reasonably interpreted the INA to conclude that voluntary intoxication

to the point of unawareness of risk could serve as a proxy for traditional

                                            4
recklessness to find felony endangerment is a CIMT. We thus see no reason to

remand to the BIA for consideration of that issue. The BIA’s interpretation of the

INA is persuasive.

      PETITION FOR REVIEW DENIED.




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