Your removal order said “aggravated felony” and the conviction behind it was California assault with a deadly weapon. In January the Ninth Circuit, sitting en banc, held that that offense does not require the intentional use of force — and overruled twenty years of its own precedent saying it did.
The decision is United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026) (en banc). The Supreme Court denied certiorari on May 18, 2026. If you were charged as an aggravated felon, denied cancellation, denied bond, or removed on the strength of a Penal Code § 245(a)(1) conviction, the legal ground under that order has shifted. What follows is what the court actually held, what it did not hold, and what has to be filed and when.
What the Ninth Circuit actually decided
Federal law defines a “crime of violence” in part as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” In Borden v. United States, 593 U.S. 420 (2021), the Supreme Court held that this elements clause is satisfied only by offenses requiring a mental state more culpable than recklessness. Force applied recklessly is not force used “against the person of another” within the meaning of the clause.
The en banc court in Gomez applied Borden to California Penal Code § 245(a)(1). It looked to how the California Supreme Court defines the offense and concluded that § 245(a)(1) “does not require an intent to apply force, knowledge that an action will cause force to be applied to another, or even subjective awareness of a risk that such force will result.” The statute’s “intentional act” element requires only that the act be volitional. Knowing the facts that make an act likely to cause harm is not the same as knowing harm is practically certain.
So the court held: § 245(a)(1) is not a crime of violence under the elements clause, and it is not generic aggravated assault under the enumerated-offenses clause either, because that requires a mens rea greater than extreme recklessness. It expressly overruled its pre-Borden decisions to the contrary — the line running through United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), and United States v. Vasquez-Gonzalez, 901 F.3d 1060 (9th Cir. 2018).
Read the next paragraph carefully, because this is where most of the commentary on this case has been sloppy.
Gomez was a federal sentencing appeal. The clause it construed was U.S.S.G. § 4B1.2(a), and the overruling is framed in guidelines terms. The aggravated felony definition at INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), runs instead through 18 U.S.C. § 16(a) — and since § 16(b) was struck down as unconstitutionally vague in Sessions v. Dimaya, 584 U.S. 148 (2018), § 16(a) is all that is left of it. The text of § 16(a) and the text of the guidelines elements clause are materially identical, and Vasquez-Gonzalez — one of the decisions Gomez overruled — was itself a § 16(a) case. The argument that § 245(a)(1) is no longer an aggravated felony crime of violence is therefore a strong one, built on the en banc court’s own mens rea analysis. It is not yet a square published holding in the immigration context. Expect DHS to fight it, and expect to have to make the record for it.
What this is worth in immigration court
The aggravated felony label is the single most destructive classification in the Act. Remove it and a case changes shape:
- Cancellation of removal for permanent residents under INA § 240A(a) is barred by an aggravated felony conviction. Strike the aggravated felony and the application is back on the table.
- Asylum is barred because an aggravated felony is a per se particularly serious crime. INA § 208(b)(2)(B)(i).
- Mandatory detention under INA § 236(c) frequently rests on the aggravated felony charge. Bond eligibility can follow from defeating it.
- Voluntary departure and most other discretionary relief become available again.
- Reinstatement and § 1326 prosecutions — a prior removal order grounded on an invalid aggravated felony finding can be collaterally attacked in a criminal reentry case under 8 U.S.C. § 1326(d).
The procedure, and the deadlines that matter
If you are in proceedings now. Object on the record. Do not assume the issue is preserved. Gomez also overruled the Ninth Circuit’s “pure question of law” exception to Rule 52 plain-error review, which is precisely why Mr. Gomez himself lost: the court found the error, called the question close, and affirmed his sentence anyway because he had not objected below. An unpreserved argument in a removal case is worth far less than a preserved one.
If your case is on appeal or on petition for review. Brief it. The en banc decision is intervening authority in your favor.
If you already have a final order. You get one motion to reopen, and it is due within 90 days of the final administrative order. INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). A later change in the case law is not one of the statutory exceptions to that deadline. That leaves the Board’s own authority to reopen on its own motion at any time under 8 C.F.R. § 1003.2(a) — and the standard there is demanding. Under Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999), a change in the law qualifies as an exceptional situation only where the change is “fundamental in nature and not merely an incremental development.” An en banc decision overruling the circuit’s own settled precedent is the best version of that argument available. It is still discretionary, and it is still denied more often than granted.
If you have already been removed. The regulation at 8 C.F.R. § 1003.2(d) says a motion to reopen shall not be made by a person who has departed the United States. In the Ninth Circuit that departure bar does not hold. Martinez Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010), held the regulation invalid as applied to a petitioner who was involuntarily removed, and Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015), rejected the argument that departure strips the immigration judge and the Board of jurisdiction over the motion. Being outside the country is a complication. It is not the end of the case.
The mistakes that kill these cases
Thinking “not an aggravated felony” means “not removable.” It does not. Section 245(a)(1) remains a crime involving moral turpitude — the Board so held in Matter of Wu, and the Ninth Circuit addressed that holding in Safaryan v. Barr, 975 F.3d 976 (9th Cir. 2020). A single CIMT with a potential sentence of a year or more still carries deportability under INA § 237(a)(2)(A)(i), and two CIMTs not arising out of a single scheme carry it under § 237(a)(2)(A)(ii). Defeating the aggravated felony charge restores eligibility for relief. It does not by itself end the case.
Overlooking the domestic violence ground. If the offense was committed against a spouse, a cohabitant, or someone in a protected domestic relationship, DHS will charge INA § 237(a)(2)(E)(i). This August the Board confirmed in Matter of Boye, 29 I&N Dec. 826 (BIA 2026), that removability for a crime of domestic violence under that section does not require any term of imprisonment at all. The one-year sentence threshold that matters so much to the aggravated felony analysis does nothing for you here.
Going back to the sentencing judge for a “clarification” order. Boye also held that a Georgia sentence clarification order issued by a different judge, six years after the original sentence and after removal proceedings had already started, was not valid for immigration purposes. A post-hoc order that looks like it was obtained for immigration reasons will be treated as exactly that. Vacatur on a legal defect in the underlying proceeding is a different matter, and it is often the stronger route.
Waiting. The 90-day window closes on its own. Sua sponte reopening is discretionary and gets harder to justify the longer the order sits.
Assuming the conviction record is clear enough. Section 245(a)(1) was amended in 2011, and the categorical analysis depends on the version under which the plea was taken. Pull the complete record of conviction — complaint, plea transcript, abstract, minute order — before anyone files anything.
What to do now
Find the removal order or the decision denying relief and identify the exact charge of removability and the exact statute of conviction. Order the complete record of conviction from the superior court. Count the days from the date of the final administrative order. Then have an immigration attorney who does removal defense read all of it together, because whether this decision helps you turns on which charge was sustained and when.
If you or a family member is detained, or there is a removal order based on an assault conviction, the timeline is short and it is already running. Call (562) 495-0554 or book a free consultation at blerner.timetap.com. Consultations on removal, detention, and deportation matters are free.
Related: Deported? Here Is the Legal Way Back — and the Order the Filings Have to Go In · The Ultimate Guide to Cancellation of Removal and Deportation Defense · Detained and Married to a U.S. Citizen? The BIA Just Made Your Bond Hearing About the I-130 You Haven’t Filed
This article is general information about United States immigration law and is not legal advice. Reading it does not create an attorney-client relationship. Immigration outcomes depend on the specific facts of each case. Law Offices of Brian D. Lerner, A Professional Corporation, 3233 E. Broadway, Long Beach, CA 90803. Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law, The State Bar of California Board of Legal Specialization.