2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-17-2004

Knapik v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-2787

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Knapik v. Atty Gen USA" (2004). 2004 Decisions. Paper 278.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/278
PRECEDENTIAL

UNITED STATES 

COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-2787

 

JAN KNAPIK,

Petitioner

v.

*JOHN ASHCROFT, Attorney General

of the United States

Respondent

 

On Petition for Review 

of a Final Order of the 

Board of Immigration Appeals

(No. A74-902-513)

 

Argued June 25, 2004

Before: AMBRO, BECKER and

GREENBERG, Circuit Judges

(Opinion filed : September 17, 2004)

Steven Lyons, Esquire (Argued)

Martin C. Liu and Associates, PLLC

627 Greenwich St., 12th Floor

New York, NY 10014

Attorney for Petitioner

Peter D. Keisler

Assistant Attorney General, Civil Division

Emily Anne Radford, Esquire

Assistant Director

Douglas E. Ginsburg, Esquire

John M. McAdams, Jr., Esquire

Aviva L. Poczter, Esquire

Nicole Nardone, Esquire (Argued)

Department of Justice Civil Division

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent 

 

 

OPINION OF THE COURT 

 

AMBRO, Circuit Judge

Jan Knapik challenges the decision

of the Board of Immigration Appeals

(BIA) that his conviction for attempted

reckless endangerment is a crime

invo lving moral turpitude under

§ 237(a)(2)(A)(i) of the Immigration and

Nationality Act (“INA”), 8 U.S.C.

§ 1227(a)(2)(A)(i). Knapik argues that

crimes with a mens rea no greater than

recklessness cannot involve moral

turpitude because such crimes require

intent. He also argues that, even assuming

reckless endangerment is a crime

involving moral turpitude, attempted

reckless endangerment is not. For the

reasons that follow, we affirm the BIA’s

determination that the reckless

endangerment statute in this case defines a
2

crime involving moral turpitude, but we

agree with Knapik that his conviction for

attempted reckless endangerment is not

such a crime. 

I. Factual and Procedural Background

Knapik is a citizen of Slovakia. He

legally entered the United States in June

1995. On September 16, 1996, he adjusted

his status to that of lawful permanent

resident. He resides in New Jersey with

his father and sister who are both lawful

permanent residents. In August 2000,

Knapik pled guilty to the crime of

attempted reckless endangerment in the

first degree in violation of New York

Penal Law § 120.25.1 The plea arose from

an incident in which, while intoxicated,

Knapik drove at an excessive rate of speed

against the flow of traffic on the Staten

Island Expressway. He pled guilty, was

sentenced to and served four months in

jail. 

In April 2000, the Immigration and

Nationalization Service (INS)2 served

Knapik with a notice to appear, charging

him with removability under 8 U.S.C.

§ 1227(a)(2)(A)(i), which allows the

Attorney General to order the removal of

any alien who has been convicted of a

crime involving moral turpitude within

five years of admission and for which a

sentence of one year or more may be

imposed. At the removal hearing, the

Immigration Judge (“IJ”) held that

Knapik’s conviction constitutes a crime

involving moral turpitude and ordered him

removed from the United States. Knapik

timely appealed to the BIA.

In May 2003, the BIA affirmed the

IJ’s decision. The BIA first observed that

attempt offenses are crimes involving

moral turpitude if the underlying offense

involves moral turpitude. The BIA next

addressed the issue of criminal

recklessness. Relying on prior decisions,

it concluded that moral turpitude can lie in

criminally reckless behavior. The BIA

also examined the aggravating factors in

New York’s reckless endangerment

statute, analogized to prior BIA cases

involving manslaughter and assault with a

deadly weapon, and distinguished prior

BIA cases involving simple assault. Taken

together, the BIA concluded that the

elements of depravity, recklessness and

grave risk of death to another person are

sufficient to establish moral turpitude. 

Knapik timely filed a petition for

review of the BIA’s decision. We have

1 Section 120.25 provides: “A

person is guilty of reckless endangerment

in the first degree when, under

circumstances evincing a depraved

indifference to human life, he recklessly

engages in conduct which creates a grave

risk of death to another person.”

2 On March 1, 2003, the INS ceased

to exist as an independent agency within

the United States Department of Justice

and the INS’s functions were transferred to

the Department of Homeland Security.

See Homeland Security Act of 2002, Pub.

L. No. 107-296, §§ 441, 451, 471, 116

Stat. 2135 (2002). The BIA remains

within the Department of Justice.
3

jurisdiction to review final orders of

removal pursuant to 8 U.S.C. § 1252(a).

II. Standard of Review

Under Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S.

837 (1984), we review an agency’s

construction of a statute it administers

under a two-step inquiry. If congressional

intent is clear from the statute’s language,

we must give effect to it as written. Id. at

842-43. If Congress’s intent is silent or

ambiguous, we must decide if the agency’s

action is based on “a permissible

construction of the statute.” Id. at 843.

We afford deference, however, only

when an agency construes or interprets a

statute it administers. See id. at 843-44.

In Francis v. Reno, we refused to afford

Chevron deference to the BIA’s

interpretation of the term “felony” as used

in 18 U.S.C. § 16 because it is a general

criminal statute not implicating the BIA’s

expertise. 269 F.3d 162, 168 (3d Cir.

2001). In Sandoval v. Reno, we declined

to give deference to the BIA’s decision as

to the effective date of a statute because

the “issue [of] a statute's effective date is

not one that implicates agency expertise in

a meaningful way. . . .” 166 F.3d 225, 239

(3d Cir. 1999). Accordingly, we must

decide which aspects of the BIA’s decision

are entitled to Chevron deference. 

Knapik argues that Chevron

deference applies only to what “moral

turpitude” means,3 not to what crimes that

term encompasses. Particularly, he

contends the BIA’s determination that

recklessness crimes may constitute moral

turpitude is not entitled to deference. The

First, Second, Fifth and Eighth Circuits,

however, have concluded that courts

should defer not only to the BIA’s

definition of moral turpitude but also to its

determination that the elements of a

criminal statute satisfy that definition. See

Cabral v. INS, 15 F.3d 193, 195 (1st Cir.

1994) (“We therefore inquire whether the

agency interpretation was arbitrary,

capricious, or clearly contrary to the

statute.”); Michel v. INS, 206 F.3d 253,

263 (2d Cir. 2000) (stating that “in order to

affirm the BIA’s determination [in regard

to moral turpitude], we need only conclude

that its interpretation is reasonable and that

it ‘considered the matter in a detailed and

reasoned fashion’” (citation omitted));

Hamdan v. INS, 98 F.3d 183, 184-85 (5th

Cir. 1996) (“We accord deference to the

BIA’s interpretation of questions such as

those before us here” — i.e., whether

Hamden’srecord of conviction “support[s]

a finding of moral turpitude.”); Franklin v.

3 We clearly afford Chevron

deference to the BIA’s definition of

“moral turpitude.” The term is not defined

in the INA, and “legislative history leaves

no doubt . . . that Congress left the term

‘crime involving moral turpitude’ to future

administrative and judicial interpretation.”

Cabral v. INS, 15 F.3d 193, 195 (1st Cir.

1994); see also Jordan v. De George, 341

U.S. 223, 234 (1951) (Jackson, J.,

dissenting) (stating that “Congress did not

see fit to state what meaning it attributes to

the phrase ‘crime involving moral

turpitude’”).
4

INS, 72 F.3d 571, 572 (8th Cir. 1995)

(stating “we must decide whether the BIA

has reasonably interpreted its statutory

mandate to deport aliens convicted of

crimes involving moral turpitude”). In

contrast, the Ninth Circuit reviews de novo

whether a particular criminal statute

involves moral turpitude. See, e.g.,

Rodriguez-Herrera v. INS, 52 F.3d 238,

240 n.4 (9th Cir. 1995); cf. Franklin, 72

F.3d at 578 (Bennett, J., dissenting)

(recognizing “a split of authority, or, at

least, a fundamental difference in approach

to or perception of the issue”). 

We adopt the majority position and

conclude that the BIA’s determination that

reckless endangerment crimesmay involve

moral turpitude is entitled to Chevron

deference. This issue goes to the heart of

the administrative scheme established

under the INA. In this context, the BIA’s

conclusions as to reckless endangerment

implicate BIA expertise.

But in determining what the

elements are of a particular criminal

statute deemed to implicate moral

turpitude, we do not defer to the BIA. See

Michel, 206 F.3d at 262 (stating that when

“the BIA is interpreting state or federal

criminal laws, we must review its decision

de novo” (citing Hamdan, 98 F.3d at 185)).

As discussed below, it is unclear what the

elements of attempted reckless

endangerment (as opposed to reckless

endangerment) even are. This is not an

issue that implicates the BIA’s expertise,

and we decline to afford Chevron

deference to the BIA’s decision relating to

this matter. Our review of this issue is

thus de novo.

III. Analysis

An alien, even if a lawful

permanent resident, is subject to removal

if he or she has been convicted of a crime

“involving moral turpitude” within five

years of the date of admission and the

conviction is one for which a sentence of

one year or longer may be imposed. 8

U.S.C. § 1227(a)(2)(A)(i)(I)-(II). As for

the length of sentence requirement, though

Knapik received but a four month

s ente nce, first degree reckless

endangerment is a class D felony, N.Y.

Penal Law § 120.25, punishable by up to

seven years imprisonment, id. at §

70.00(2)(d).

Thus the only issue we must decide

i s whether attempted re ckless

endangerment in the first degree is a crime

involving moral turpitude. This inquiry

entails a categorical approach, focusing on

the underlying criminal statute “rather than

the alien’s specific act.” De LeonReynoso v. Ashcroft, 293 F.3d 633, 635

(3d Cir. 2002) (citing Alleyne v. INS, 879

F.2d 1177, 1185 (3d Cir. 1989)); see also

Rodriguez-Herrera, 52 F.3d at 239-40

(stating that, in analyzing whether a crime

involves moral turpitude, “we must focus

on the crime categorically as defined by

the statute, and not on the specific conduct

of Rodriguez-Herrera”). Accordingly, “we

look to the elements of the statutory state

offense, not to the specific facts. We rely

on ‘what the convicting court must

necessarily have found to support the

conviction and not to other conduct in

which the defendant may have engaged in

connection with the offense.’” Wilson v.

Ashcroft, 350 F.3d 377, 381-82 (3d. Cir.
5

2003) (quoting Steele v. Blackman, 236

F.3d 130, 135 (3d Cir.2001)).4 

Following the categorical approach,

and in light of our deferential review on

the issue, the BIA did not act unreasonably

in determining that New York’s reckless

endangerment statute defines a crime

involving moral turpitude. But reviewing

de novo the BIA’s conclusions as to

attempted reckless endangerment, we

conclude that the categorical nature of the

moral turpitude inquiry compels the

conclusion that this crime does not involve

moral turpitude.

A. Reckless Endangerment

The BIA in this case defined moral

turpitude as conduct that is inherently

base, vile, or depraved, contrary to the

accepted rules of morality and the duties

owed other persons, either individually or

to society in general. The BIA also noted

that moral turpitude normally includes

only acts that are malum in se (i.e., an act

that is inherently immoral). These

statements are in accord with longestablished BIA principles, see, e.g.,

Matter of Franklin, 20 I. & N. Dec. 867,

868 (BIA 1994); Matter of Danesh, 19 I. &

N. Dec. 669, 670 (BIA 1988), and

decisions of our Court, see, e.g., De LeonReynoso, 293 F.3d at 636 (quoting with

approval the following definitions of

moral turpitude: (1) “[c]onduct that is

contrary to justice, honesty, or morality”;

and (2) “anything done contrary to justice,

honesty, principle, or good morals”

(citations omitted)). As such, the BIA’s

definition of moral turpitude was

reasonable.

Applying the BIA’s definition, the

New York statute under which Knapik was

convicted does not contain an intent

requirement. To repeat, N.Y. Penal Law

§ 120.25 provides that a “person is guilty

of reckless endangerment in the first

degree when, under circumstances

evincing a depraved indifference to human

life, he recklessly engages in conduct

which creates a grave risk of death to

another person.” 

Knapik correctly notes that a strain

of BIA decisions equates moral turpitude

with evil intent. Matter of Khourn, 21 I. &

N. Dec. 1041, 1046 (BIA 1997) (stating

the BIA “has held that ‘evil intent’ is a

requisite element for a crime involving

moral turpitude” (citing Matter of Serna,

20 I. & N. Dec. 579, 582 (BIA 1992)).

Matter of Flores, 17 I. & N. Dec. 225, 227

(BIA 1980) (stating “evil or malicious

intent is said to be the essence of moral

turpitude”); Matter of Abreu-Semino, 12 I.

& N. Dec. 775, 777 (BIA 1968)

(concluding “crimes in which evil intent is

not an element, no matter how serious the

act or how harmful the consequences, do

4 Wilson is not a moral turpitude

case. The language quoted related to

determining whether Wilson’s state drug

conviction constituted an “aggravated

felony” under 8 U.S.C. § 1101(a)(43). See

Wilson, 350 F.3d at 380-82. While

aggravated felony cases may be irrelevant

to the moral turpitude inquiry, we

nonetheless have endorsed a categorical

approach for both types of cases. In this

context, we believe the discussion in

Wilson and similar cases is instructive.
6

not involve moral turpitude”). 

In this vein, prior to 1976 the BIA

was of the opinion that criminally reckless

conduct was not so debased as to involve

moral turpitude. See, e.g., Matter of

Gantus-Bobadilla, 13 I. & N. Dec. 777

(BIA 1971). But in Matter of Medina the

BIA reconsidered its position and

concluded “that moral turpitude can lie in

criminally reckless conduct.” 15 I. & N.

Dec. 611, 613 (BIA 1976). Examining the

Illinois definition of recklessness, the BIA

found persuasive that a

person acting recklessly

must consciously disregard a

substantial and unjustifiable

risk, and such disregard

must constitute a gross

deviation from the standard

of care which a reasonable

person would exercise in the

situation. This definition of

recklessness requires an

actual awareness of the risk

created by the criminal

violator’s action.

Id. at 613-14 (emphasis in text). 

In the twenty-eight years since

Medina, the BIA consistently has

interpreted moral turpitude to include

recklessness crimes if certain statutory

aggravating factors are present. For

example, the BIA limits moral turpitude to

crimes in which a defendant consciously

disregards a substantial risk of serious

harm or death to another. Thus

recklessness crimes for assault with a

deadly weapon, Matter of Medina, or

manslaughter, Matter of Franklin, 20 I. &

N. Dec. at 870-71, and Matter of Wojtkow,

18 I. & N. Dec. 111, 113 (BIA 1981),

involve moral turpitude. Simple assault

does not. Matter of Fualaau, 21 I. & N.

Dec. 475, 478 (BIA 1996).

We hold that the BIA did not act

unreasonably in concluding New York’s

first degree reckless endangerment statute

is a crime involving moral turpitude. First

degree reckless endangerment is a much

more severe offense than drunk driving,

which almost certainly does not involve

moral turpitude. See Matter of LopezMeza, 22 I. & N. Dec. 1188 (BIA 1999)

(expressing opinion that “a simple DUI

offense” will almost never rise to the level

of moral turpitude); cf. Dalton v. Ashcroft,

257 F.3d 200, 205-06 (2d Cir. 2001)

(concluding that New York’s “driving

while intoxicated” statute does not

constitute a “crime of violence” under the

INA). New York Penal Law § 120.25

contains aggravating factors, requiring that

a defendant create a “grave risk of death to

another person” “under circumstances

evincing a depraved indifference to human

life.” In this context, the BIA could

reasonably conclude that the elements of

depravity, recklessness and grave risk of

death,when considered together, implicate

accepted rules of morality and the duties

owed to society. Cf. Franklin, 72 F.3d at

573 (“In the framework of our deferential

review, we cannot say the BIA has gone

beyond the bounds of reasonableness in

finding that an alien who recklessly causes

the death of her child by consciously

disregarding a substantial and unjustifiable

risk to life has committed a crime that
7

involves moral turpitude.”).5

B. Attempted Reckless Endangerment

We do not disagree with previous

BIA decisions concluding attempt offenses

can be crimes involving moral turpitude.

See, e.g., Matter of Davis, 20 I. & N. Dec.

536, 545 (BIA 1992) (stating “[t]here is no

distinction for immigration purposes in

respect to moral turpitude, between the

commission of the substantive crime and

the attempt to commit it” (citation

omitted)). We also take no issue with

previous BIA decisions that it cannot go

behind a valid final record of conviction

— i.e., that the BIA cannot examine the

particular facts of a case. See, e.g., Matter

of C-, 20 I. & N. Dec. 529, 532 (BIA

1992). In its opinion in this case, however,

the BIA glosses over the peculiar conflict

between attempt crimes and recklessness.6

Under New York law, a “person is

guilty of an attempt to commit a crime

when, with intent to commit a crime, he

[or she] engages in conduct which tends to

effect the commission of such crime.”

People v. Kassebaum, 744 N.E. 2d 694,

698 (N.Y. 2001) (emphasis added)

(quoting N.Y. Penal Law § 110.00). Yet

by its very nature acting recklessly is

inconsistent with the mens rea required for

attempt. A person cannot intend to

commit a criminally reckless act. He or

she either acts recklessly or does not.

Addressing the statute at issue in our case,

the New York Appellate Division agreed

with this sentiment, concluding that the

“crime of att empted r eckle ss

endangerment is nonexistent since it is a

nonintent offense.” People v. Trepanier,

84 A.D. 2d 374, 380 (N.Y. App. Div.

1982) (affirming the lower court’s decision

to dismiss the indictment as to this charge).

Further, New York courts have concluded

in other contexts that the concept of an

attempted recklessness crime is

nonsensical. See, e.g., People v. Terry,

104 A.D. 2d 572, 573 (N.Y. App. Div.

1984) (stating “one cannot legally be

found guilty of attempted murder in the

second degree by reckless conduct”). 

The only contrary authority in New

York is People v. Foster, 19 N.Y.2d 150

(1967). Foster was charged with

manslaughter in the first degree and

ultimately pled guilty to attempted

manslaughter in the second degree. On

appeal, Foster argued his conviction had

no basis in law and violated due process.

The New York Court of Appeals rejected

this argument, concluding that Foster

knowingly accepted his plea “in

satisfaction of an indictment charging a

crime carrying a heavier penalty. In such

5

 We also reject Knapik’s

contention that his conviction is

distinguishable from manslaughter or

assault with a deadly weapon because the

reckless endangerment statute does not

require injury to an individual. With

regard to reckless acts, moral turpitude

inheres in the conscious disregard of a

substantial and unjustifiable risk of severe

harm or death. Knapik’s good fortune in

not injuring or killing anyone does not

change the quality of his actions.

6

 As noted previously, we exercise

de novo review in resolving this issue.
8

case, there is no violation of defendant’s

right to due process.” Id. at 153. 

Our c ase , how eve r, is

distinguishable from Foster. The concern

driving Foster was manipulation of the

state criminal process — i.e., a defendant

may not induce a plea agreement, receive

a reduced sentence and then challenge his

or her conviction. See id. at 153-54 (“The

defendant declined to risk his chances with

a jury. He induced the proceeding of

which he now complains. . . . While there

may be question whether a plea to

attempted manslaughter is technically and

logically consistent, such a plea should be

sustained on the ground that it was sought

by [the] defendant and freely taken as part

of a bargain which was struck for the

defendant’s benefit.” (emphasis added)).

In contrast, Knapik’s plea did not decrease

the level of the charged offense or subject

him to a less severe sentence. He was

charged with first degree reckless

endangerment and he pled guilty to

attempted first degree reckless

endangerment. More importantly, we are

not reviewing a due process challenge to a

state court conviction; we are assessing the

immigration implic ations of that

conviction. 

As noted previously, the moral

turpitude inquiry is categorical. De LeonR eyn oso , 293 F.3d at 635 ;

Rodriguez-Herrera, 52 F.3d at 239-40.

Under the categorical approach, we have

cautioned against going “beyond the

offense as charged and scrutiniz[ing] the

underlying facts” of a case to determine

whether a crime involves moral turpitude.

Valansi v. Ashcroft, 278 F.3d 203, 214 (3d

Cir. 2002) (quoting Drakes v. Zimski, 240

F.3d 246, 248 (3d Cir. 2001)).7 This

means, in the context of our case, that the

elements of the underlying offense must

necessarily establish that all convictions

involve moral turpitude. Wilson, 350 F.3d

at 381-82. See also Michel, 206 F.3d at

263; Okoroha v. INS, 715 F.2d 380, 382

(8th Cir. 1983).8 Attempted reckless

7 Valansi, like Wilson (see note 4

and accompanying text), is an aggravated

felony, not moral turpitude, case.

8

In an opinion issued the same day

as the opinion in this case, we engaged in

an extensive analysis of the categorical

approach as applied in aggravated felony

cases. See Singh v. Ashcroft, No. 03-

1532, __ F.3d __ (3d Cir. Sept. __, 2004).

Singh noted that while most prior Third

Circuit cases had employed the “formal

categorical approach” from Taylor v.

United States, 495 U.S. 575, 600 (1990) —

which focuses exclusively on the statutory

elements of the underlying offense —

others deemed it permissible to look

beyond the statutory elements of the

underlying offense. 

In reconciling these cases, Singh

delineated two situations in which the

formal categorical approach properly may

be abandoned. The first is when the terms

of the statute on which removal is based

invites inquiry into the facts of the

underlying conviction. For example,

Nugent v. Ashcroft, 367 F.3d 162 (3d Cir.

2004), and Munroe v. Ashcroft, 353 F.3d

225 (3d Cir. 2003), concerned 8 U.S.C.
9

endangerment is not a crime involving

moral turpitude because, categorically

speaking, the concept makes no sense.

Attempt (necessarily requiring intent to

commit a crime) is inconsistent with

recklessness (which, by definition, implies

acting without intent). Terry, 104 A.D. 2d

at 573; Trepanier, 84 A.D. 2d at 380. Put

differently, we cannot say that a conviction

for attempted reckless endangerment

necessarily involves moral turpitude

without also abandoning the categorical

approach.9

§ 1101(a)(43)(M)(i), which defines an

aggravated felony as an offense that

“involves fraud or deceit in which the loss

to the victim or victims exceeds $10,000.”

In both cases, however, the relevant

criminal statute did not include a “loss

greater than $10,000” element. See

Nugent, 367 F.3d at 168 n.2 (quoting 18

Pa. Cons. Stat. § 3922(a)); Munroe, 353

F.3d at 226 (citing N.J. Stat. Ann. § 2C:20-

4). Nonetheless, both Nugent and Munroe

found it proper to examine the amount of

loss established. See Nugent, 367 F.3d at

175 (noting the parties had “stipulated that

Nugent’s state conviction was based on a

bad check amounting to only $4,831.26”;

Munroe, 252 F.3d at 226 (looking to the

indictment and record of conviction). 

The second exception to the

categorical approach is when the

underlying criminal statute is written in the

disjunctive (i.e., the statute criminalizes

similar but legally distinct conduct) such

that some, but not all, convictions under

the statute place the alien within the

removal category for immigration

purposes. Valansi was such a case. 278

F.3d at 214-17 (in entering plea for

embezzlement of monies from her

employer bank, petitioner avoided

admitting that she intended to defraud,

thus not qualifying as an aggravated felony

for removal purposes). See also Hamdan,

98 F.3d at 187-89 (granting the petition for

review and remanding for further

examination of the record of conviction

because (1) the Louisiana kidnapping

statute under which Hamdan was

convicted is divided into discrete

subsections, and (2) it was unclear from

the BIA’s decision which subsection it

believed Hamdan was convicted under and

which subsections implicated moral

turpitude). 

Examination of these cases further

supports our position in this case. Both

Nugent and Munroe dealt with a provision

of the INA, 8 U.S.C. § 1101(a)(43)(M)(i),

not relevant to the moral turpitude inquiry.

And unlike the statutes at issue in Valansi

and Hamdan, New York’s reckless

endangerment statute is written neither in

the disjunctive nor in subsections.

Accordingly, the Government has supplied

(and we can think of) no principled reason

not to apply the formal categorical

approach.

9

 While the Government does not

ask us specifically to abandon the

categorical approach in cases such as ours

(i.e., when it counsels against deportation),

that would be the effect. Under the
10

* * * * *

In this context, we affirm the BIA’s

decision that New York Penal Law

§ 120.25, reckless endangerment in the

first degree, is a crime involving moral

turpitude, but we reverse the BIA’s

conclusion that Knapik’s state conviction

for attempted reckless endangerment in the

first degree is a crime involving moral

turpitude. Therefore, we grant Knapik’s

petition for review and reverse the BIA’s

order of removal.

categorical approach, courts and the BIA

have long declined to consider arguments

that, despite the elements of an offense, an

alien’s individual conduct did not fit

within a particular INA-defined

deportation category. See, e.g., Alleyne,

879 F.2d at 1185 (citations omitted);

Okabe v. INS, 671 F.2d 863, 864-65 (5th

Cir. 1982); Matter of C-, 20 I. & N. Dec. at

532 (citations omitted). Now that “the

shoe is on the other foot,” it would be

perverse irony to allow the Government to

use the categorical approach in petitioner

appeals but to abandon that approach when

the Government appeals.