2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-19-2010 

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D ock e t N o . 08-3306

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w . v i l l a no v a . e du/thir dc ir c uit_2010/231NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 08-3306

_____________ LAZARO JAVIER LARIOS, Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent

_______________ On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA-1 :A73-559-938) Immigration Judge: Honora ble Eugene Pugliese

_______________ Argued October 6, 2010 Before: FUENTES, JO RDAN and ALDISERT, Circuit Judges

. (Filed: November 19, 2010)

_______________ Regis Fernandez Sojee Kim [ARGUED] 18 Green Street – 3 rd Fl. Newark, NJ 07102 Counsel for PetitionerPaul Fiorino Allen W. Hausman Thomas W. Hussey Jeffrey R. Leist Tracey McDonald Ernesto H. Molina, Jr. Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, DC 20044 Anthony P. Nicastro [ARGUED] United States Department of Justice Office of Immigration 8040N 1331 Pennsylvania Avenue, NW Washington, DC 20530 Counsel for Respondent

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Lazaro Javier Larios appeals an order of the Board of I mmigration Appeals (“BIA”) affirming the denial of his app lication for cancellation of removal. The Immigration Judge (“IJ”) denied his application because of Larios’s 1998 conviction for terroristic threats under N.J. A NN . § 2C:12-3, which both th e IJ and the BIA concluded was a crime involving moral turpitude. Larios disputes that conclusion. Larios asserts that § 2C:12-3 encompasses both crimes that qualify as morally turpitudinous as well as crimes that do not. Because we hold that § 2C:12-3(a) is a divisible statute requiring the application of the modified ca tegorical approach, we will remand to allow an analysis of3 Larios’s record of convicti on to determine if his conduct constituted a crime of moral turpitude. I. Factual Background Larios is a citizen and native of El Salvador, who entered the United States without inspection on or around November 1, 1986. After entering the United States, he moved to New Jersey to live with his brothe r and sister-in-law. On April 26, 1999, Larios pled guilty in New Jersey Superior Cour t to terroristic threat s in the third degree, under § 2C:12-3, and unlawf ul possession of a weapon, under New Jersey Statute § 2C:39-50. The plea arose from an incident that occurred at approximately 3:00 a.m. on May 22, 1998, while Larios was standing outs ide a bar in West New York, New Jersey. A man named Paillaman approached Larios and asked him for directions to another bar. In response, Larios pulled a knife from hi s pocket, waved it in Paillaman’s face, and demanded all of Paillaman’s m oney. Paillaman got away and called the police, who subsequently arrested Larios. After his plea, Larios was sentenced to three years probation and a $200 fine. On January 9, 2006, an asylum officer w ith the Department of Homeland Security (“DHS”) interviewed Larios in connection with an application for asylum that Larios had filed on July 31, 1995. The DHS officer dete rmined that Larios was not eligible for asylum, and, on January 23, 2006, DHS char ged him with being removable pursuant to § 212(a)(6)(A)(i) of the Immigration and Na tionality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), as an alien present in the United States without being admitted or paroled. Larios4 conceded that he had entered the United States illegally and was therefore removable, but he sought to have the Attorney General cancel his removal and adjust his status pursuant to 8 U.S.C. § 1229b(b), which allows for discretionary relief to nonpermanent resident aliens who meet certain e ligibility requirements. On October 18, 2006, the IJ denied La rios’s application for cancellation of removal. The IJ determined that Larios was statutorily ineligible for cancellation pursuant to § 1229b(b)(1)(C) be cause his conviction for terroristic threats constituted a crime of moral turpitude unde r 8 U.S.C. § 1182(a)(2). New Jersey Criminal Statute § 2C:12-3, titled “Terroristic Threat s,” provides in pertinent part: 1 a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconv enience, or in reckless disregard of the risk of causin g such terror or in convenience. ...
N.J. S TAT

. A NN . § 2C:12-3(a). In the IJ’s view, that section of the statute involves acts of moral turpitude. 2

1 It is undisputed that Larios pled guilty to terroristic threats in the third degree in violation of § 2C:12-3. The IJ noted that subsections (a) and (b) both criminalize terroristic threats in the thir d degree and that, “[i]n the present case the Court does not have the indightment [sic] fo r the third degree terroristic threats charge. ... [Larios’s conviction] was a downgraded charge and ... there was no written indightment [sic] or information or other type of charging document to reflect that there was a new charge.” (AR at 62.) The IJ therefore found it unclear from the record whethe r Larios pled guilty to subsection (a) or (b). However, the plea tran script specifically states that Larios pled to terroristic threats under subsection (a). 2 Because the IJ found the record to be uncle ar as to which section Larios pled, the IJ explored subsection (a) a nd (b) and found that both se ctions cover turpitudinous conduct.5 On July 9, 2008, th e BIA adopted and affirmed th e IJ’s decision and dismissed Larios’s appeal. The BIA expl ained that, because “the intentional transmission of threats is evidence of a vicious motive or a corrupt mind” (AR at 2), “[Larios’s] conviction ... does involve moral turpitude.” (AR at 3.) Larios then submitted this timely petition for review. II. Discussion 3
A. Standard of Review Because the BIA not only adopted and affi rmed the decision of the IJ, but also provided its own reasoning for its decision, we review both the decision of the IJ and that of the BIA. Hashmi v. Att’y Gen. , 531 F.3d 256, 259 (3d Ci r. 2008). We review the BIA’s legal determinations de novo. Partyka v. Att’y Gen. , 417 F.3d 408, 411 (3d Cir. 2005). However, “[w]e ... afford Chevron deference to the BIA’s definition of moral turpitude,” Knapik v. Ashcroft , 384 F.3d 84, 87 n.3 (3d Cir. 2 004), as well as to “BIA[] determination[s] that reckless endangermen t crimes may involve moral turpitude.” Id. at 88. On the other hand, “in determining what the elements are of a particular criminal statute deemed to impli cate moral turpitude, we do not defer to the BIA.” Id. Because, “we owe no deference to the IJ ’s interpretation of a state cr iminal statute,” we will parse the elements of the statute ourselves and then apply to that the BIA’s conception of what constitutes a crime of moral turpitude. Partyka , 417 F.3d at 411.

3 We have jurisdiction to review the BI A’s final order of removal pursuant to 8 U.S.C. § 1252(a).6 B. Overview of Applicable Law Pursuant to 8 U.S.C. § 1229b(b), a nonp ermanent resident alien may file an application with the Attorney General for discretionary cancellation of removal and adjustment of status. The burden is on the a lien to establish eligib ility for such relief by a preponderance of the evidence. 8 U.S.C. § 1229a(c)(4)(A); 8 C. F.R. § 1240.8(d); see also Jean-Louis v. Att’y Gen. , 582 F.3d 462, 464 n.2 (3d Ci r. 2009) (“An alien bears the burden of establishing his eligibility for discretionary cancellation of removal.”). An alien who has committed a crime involving moral turpitude is ineligible for discretionary cancellation of removal and ad justment of status under § 1229b(b). 8 U.S.C. § 1182(a)(2)(A)(i) (pr oviding that “any alien convicte d of, or who admits having committed, or who admits comm itting acts which constitute the essential elements of ... a crime involving moral turpitude (other than a purely political offense) ... is inadmissible”). “In determining whether a state law conviction constitutes a [crime involving moral turpit ude] ... we have historically a pplied a categorical approach, focusing on the underlying criminal statut e rather than the alien’s specific act.” JeanLouis , 582 F.3d at 465. Under the categorical approach, “we read th e applicable statute to ascertain the least culpable conduct ne cessary to sustain a conviction under the
statute.” Partyka , 417 F.3d at 411. As a general rule , a criminal statute is determined to define a crime as categorically involving mora l turpitude “only if all of the conduct [the statute] prohibits is turpitudinous.” Id. If all of the conduct pr ohibited by the statute involves moral turpitude, the defendant’s conviction under that statute was necessarily7 one for a crime involving moral turpitude and our analysis ends. In re Ajami , 22 I. & N. Dec. 949 (BIA 1999). It is only if “a statute covers both turpitudinous and nonturpitudinous acts” that we turn to a modifi ed categorical approach and “look to the record of conviction to determine whether the alien was convicted under that part of the statute defining a crime involving moral turpitude.” Partyka , 417 F.3d at 411. In considering whether a stat ute encompasses turpitudinous conduct, we have held that “the hallmark of moral turpitude is a reprehensible act committed with an appreciable level of consciousness or deliberation.” 4 Partyka , 417 F.3d at 414. While the Immigration and Nationality Act (“INA”) does not define “moral turpitude,” Partyka , 417 F.3d at 413, the BIA has defined it as “c onduct that is inherently base, vile, or depraved, contrary to the accep ted rules of morality and th e duties owed other persons, either individually or to society in general.” Knapik , 384 F.3d at 89 (citing Matter of Franklin , 20 I. & N. Dec. 867, 868 (BIA 1994)). An act is turpitudinous if it “is accompanied by a vicious mo tive or a corrupt mind.” Partyka , 417 F.3d at 413.

4 Crimes that are committed without “ev il intent” or unaccompanied by “a vicious or corrupt mind” have been found not to involve moral turpitude. Partyka , 417 F.3d at 413; see also United States v. Rebelo , 646 F. Supp. 2d 682, 692 (D.N.J. 2009) (noting that negligent assault with a deadly weapon under N.J. S TAT

. A NN

. § 2C:12-1a(2) does not constitute a crime involving moral turpitude); In Matter of Perez-Contreras , 20 I. & N. Dec. 615, 619 (BIA 1992) (finding that assault committed with criminal negligence does not constitute a crime of moral turpitude).8 C. Application Applying the foregoing to the statute at issue in this case, we ask whether § 2C:12-3(a) prohibits both turpitudinous and non-turpitudinous cond uct. Section 2C:12- 3(a) prohibits threats to commit a “crime of violence.” Therefore, to ascertain whether the least culpable conduct necessary to sust ain a conviction under § 2C:12-3(a) involves moral turpitude, we may begin by determin ing what actions qua lify as crimes of violence. 5 Then, if the least culp able conduct constituting a “crime of violence” is nonturpitudinous, the statute can rightly be considered as being divisible. Though the parties have not directed ou r attention to, nor ha ve we found, any provision of the New Jersey Criminal Code or relevant precedent from the New Jersey Courts that defines a “crime of violence,” 6 we have previously analyzed a nearly

5 Larios does not argue that a threat cann ot be a crime of moral turpitude, and several BIA cases have found that moral turpitu de is implicated in threatening behavior. See In re Ajami , 22 I. & N. Dec. at 952 (“We find that the intentional transmission of threats is evidence of a vici ous motive or a corrupt mind” and that the “respondent was [thus] convicted of a crime involving moral turpitude.”); Matter of B- , 6 I. & N. Dec. 98 (BIA 1954) (finding crimes invol ving usury by intimidation and threats of bodily harm to involve moral turpitude); Matter of C- , 5 I. & N. Dec. 370 (BIA 1953) (finding threats to take property by force to involve moral turpitude); Matter of F- , 3 I. & N. Dec. 361 (C.O. 1948; BIA 1949) (finding the mailing of menacing letters demanding property and threatening violence to involve moral turpitude); see De Leon-Ochoa v. Att’y Gen. , --- F.3d ----, 2010 WL 3817082, at *7 (3d Cir. 20 10) (Aldisert, J.) (“[A]ccording to the Board’s own internal policies, ‘[u]npublished decisions are binding on the parties to the decision but are not considered precedent for unrelated cases. ’”).
6 One unpublished case lists cr imes of violence as used in § 2C:12-3 to include simple assault, kidnapping, se xual assaults, robbery, carjack ing, arson, and burglary. State ex rel. M.R. , No. FJ-21-475-06, 2008 WL 4841015, at *5 (N.J. Super. Ct. App. Div. Nov. 10, 2008). In another case the New Je rsey Supreme Court referenced in passing9 r.

at

use

s

. identical statute from Pennsylvania. In Bovkun v. Ashcroft , 283 F.3d 166, 170 (3d Ci 2002) (citation omitted), we consid ered 18 Pa. Cons. Stat. § 2706 7 and looked to 18 U.S.C. § 16 for illumination of the meaning of “c rime of violence.” We determined th the term “crime of violence,” as used in the Pennsylvania statute, is, as described in 18 U.S.C. § 16, an offense that has as an elemen t “the use, attempted use, or threatened of physical force against the pe rson or property of another.” Bovkun, 283 F.3d at 170. We likewise adopt that definiti on of the term for the purposes of analyzing New Jersey’ § 2C:12-3(a) Using that definition, it appears that in New Jersey simple assault is encompassed within the meaning of “crime of vi olence,” as it, in turn, is de fined as “(1) attempt[ing] to cause or purposely, knowingly, or recklessly caus[ing] bodily injury to another; or, (2) negligently caus[ing] bodily injury to another with a deadly weapon; or, (3) attempt[ing] by physical menace to put another in fear of imminent serious bodily injury.” N.J. S TAT

. A NN . § 2C:12-1(a). Simple assault, however, is not generally understood to be a crime of moral turpitude. See e.g., In re Sejas , 24 I. & N. Dec. 236, 237 (BIA 2007) (noting that “as a general rule, a simple assault and battery offense does not involve moral “crimes involving violence,” a nd cited simple assault, deat h by automobile, aggravated assault with a deadly weapon, terroristic threats, reckless endangerment, and aggravated arson. In re Witherspoon, 3 A.3d 496, 504 (N.J. 2010) (d iscussing those crimes in the context of attorney disbarment). 7 Terroristic Threats, 18 Pa. Cons. Stat. § 2 706 (1998) provides: “A person is guilty of a misdemeanor of the first degree if he th reatens to commit any crime of violence with intent to terrorize another or to cause evacu ation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of ca using such terror or inconvenience.”10 turpitude”); Fualaau , 21 I. & N. Dec 475, 477 (BIA 1996) (holding that simple assault is not a crime of moral turpitude). It thus appear s that the term “crime of violence,” as used in § 2C:12-3(a), includes si mple assault, which is a no n-turpitudinous crime. Because a conviction under § 2C:12-3(a) can be sustained by proving a threat to commit simple assault, and because simple assault is itself non-turpitudinous, we conclude that the threat is likewise non-turp itudinous. Thus, § 2C:1 2-3(a) is divisible, because it encompasses both turpitudinous an d non-turpitudinous co nduct, which means that Larios’s conviction shoul d have been evaluated under the modified categorical approach, rather than th e categorical approach. III. Conclusion For the foregoing reasons, Larios’s convic tion for terroristic th reats in the third degree must be analyzed under the modified categorical approach to determine if it constitutes a crime involving moral turpitude. On ly then can it be determined if he is statutorily ineligible for cancellation of re moval under 8 U.S.C. § 1229b(b). We will therefore remand so that the appropriate im migration authorities can engage in that analysis of his record of conviction.