NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 15

- 2781 and 15

- 3068

_____________

JHONATHAN VICTORIA JAVIER,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATE S OF AMERICA,

Respondent

______________

On Petition for Review of a Decision of the Board of Immigration Appeals

(A059

- 303

- 967)

Immigration Judge: Walter Durling

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

March 21, 201 6

______________

Before: GREENAWAY, JR., VANASKIE, and SHWARTZ, Circuit Judges

.

(Opinion Filed: June 9, 2016 )

______________

OPINION *

______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.2

GREENAWAY, JR., Circuit Judge

.

Jhonathan Victoria Ja vier petitions for review of two order s of the Board of

Immigration Appeals (“BIA ”) affirming the Immigration Judge’s (“IJ’s”) order of

removal. For the reasons that follow, we will dismiss for lack of jurisdiction the petition

for review of the BIA’s order dated July 13, 2015 and deny the petitio n for review of the

BIA’s order date d August 19, 2015

.

I. BACKGROUND

Javier is a citizen and native of the Dominican Republic. In 2009, he entered the

United States as a lawful permanent resident. In July 2013, Javier was arrested for

carrying a fi rearm in public, in violation of 1 8 Pa. Cons. Stat. § 6108, and for making

terroristic threats, in violation of 18 Pa. Cons. Stat. § 2706(a)(1). He was convicted of

both charges in the Court of Common Pleas of Philadelphia County, Pennsylvania, in

March 2014.

La ter in 2014

, the Department of Homeland Security issued Javier a notice to

appear, charging him with removability due to his convictions. Following a removal

hearing held on April 2, 2015, 1 the IJ issued an oral decision concluding that Javier was

removab le pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) as an alien convicted of a “crime

1 At Javier’s request, the IJ continued his removal proceedings while Javier p ursued post

conviction relief in state court. At the April 2, 2015 hearing, Javier informed the IJ that

his requests for post

- conviction relief had been denied.3

involving moral turpitude ” based on his conviction for terroristic threats. 2 The IJ also

concluded that Javier was removable pursuant to 8 U.S.C. § 1227(a)(2)(C) as an alien

conv icted of a “ firearm offense” based on his conviction for carrying a firearm in public.

Javier appealed to the BIA. In a n order dated August 19, 2015, the BIA affirmed

the IJ ’s order of removal and dismissed Javier’s appeal based solely on Javier’s terror istic

threats c onviction. 3 The BIA explained that the offense defined by 18 Pa. Cons. Stat.

§ 2706(a)(1) involves “an intentional action whose goal is to inflict [] psychological

distress [that follows an invasion of the victim’s sense of personal securit y which]

violates the norms of society to such a degree as to constitut e moral turpitude.” A.R. 4

(citing Commonwealth v. Tizer

, 684 A.2 d 597, 600 (Pa. Super. 1996) )

. The BIA

concluded that it “need not address the question of whether [Javier’s] convicti on for

carrying firearms in public in violation of Pennsylvania law a lso renders [him]

2 Section 122 7(a)(2)(A)(i) also requires that the “ crime involving moral turpitude ” be one

for which “ a sentence of one year or longer may be imposed ” and that the crime be

“ committed within five years

. . . after the [ alien ’ s ] date of admission. ” 8 U.S.C.

§ 1 22 7(a)(2)(A)(i). These requirements are not at issue in this petition.

3 Javier filed a notice of appeal of the IJ ’ s April 2, 2015 order but did not submit a brief

until July 10, 2015, three days before the BIA issued its opinion. On July 13, 2015, the

BIA summarily affirmed the IJ ’ s decision on the basis that Javier ’ s notice of appeal was

insufficient to apprise the BIA of the grounds for Javier ’ s appeal. Javier then resubmitted

his brief along with a motion for reconsideration explaining the reasons for the delay in

transmitting his brief. In its August 19, 2015 order

, the BIA explained that it had

accepted Javier ’ s reasons and sua sponte reopened Javier ’ s appeal to consider the

arguments in his brief. Javier has petitioned for review of both the BIA ’ s July 13, 201 5

and August 19, 2015 orders ; by Order dated August 26, 2015, we consolid ated Javier ’ s

petitions.4

removable.” Id. Javier then submitted this timely petition

, arguing that the BIA erred as

a matter of law in concluding that a section 2706(a)(1) offense is categorica lly a “crime

involving moral turpitude ” and that the IJ erred as a matter of law in concluding that a

section 6108 offense is categorically a “ firearm offense. ”

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the BIA’s final order of re moval pursuant to 8

U.S.C. § 1252(a). We “review the administrative record on which the final removal order

is based.” Li Hua Yuan v. Att’y Gen.

, 642 F.3d 420, 425 (3d Cir. 2011) (quoting Zhang v.

Gonzales

, 405 F.3d 150, 155 (3d Cir. 2005))

. “[T]hat mea ns reviewing only the BIA’s

decision” unless the BIA’s decision “specifically references the IJ’s decision.” Id. 4

We review legal det erminations by the BIA de novo, “subject to established

principles of deference.” Wang v. Ashcroft

, 368 F.3d 347, 349 (3 d Cir. 2004)

. We afford

deference to the BIA’ s definition of moral turpitude

, but w e owe no deference to the

BIA’s interpretat ion of a state criminal statute

. See Knapik v. Ashcroft

, 384 F.3d 84, 87

n.3

, 88 (3d Cir. 2004)

.

III. ANALYSIS

“In determining wheth er a st ate law conviction constitutes a [ crime involving

moral turpitude]

. . . we [] have historically applied a ‘ categorical ’ approach, ‘ focusing on

4 Thus, c ontrary to Javier’ s assertion, we lack jurisdiction to review the IJ’s decision that

18 Pa. Cons. Stat. § 6108 constitutes a “ firearm offense ” because the BIA did not

reference the IJ’s decision on this issue. We also lac k jurisdiction to review the BIA’s

July 13, 2015 order dismissing Javier’s appeal because it is not a fina l order of removal;

the BIA reopened Javier’s case

. Therefore, we will dismiss for lack of jurisdiction

Javier’s petition for review of the BIA’s Jul y 13, 2015 order.5

the underlying criminal statute rather than the alien’s specific act. ’ ” Jean

- Louis v. Att’ y

Gen.

, 582 F.3 d 462, 465 (3d Cir. 2009) (quoting Knapik

, 384 F.3d at 88)

. Under the

categorical approach, “we read the applicable statute to ascertain the least culpable

conduct necessary to sustain a conviction under the statute.” Partyka v. Att’y Gen.

, 4 17

F.3d 408, 411 (3d Cir. 2005). I f “a statute covers both turpitudinous and non

turpitudinous acts” then we turn to a modified categorical approach and “look to the

record of conviction to determine whether the alien was convicted under that part of the

statute defi ning a crime involving moral turpitude.” Id. “The modified categorical

approach still ‘retains the categorical approach’s central feature: a focus on the elements,

rather than the facts

, of a crime.’” United States v. Brown

, 765 F.3d 185, 190 (3d Cir.

2014) ( quoting Descamps v. United States

, 133 S. Ct. 2276, 2285 (2013)).

As a general rule, a criminal statute is determined to define a crime as

categorically involving “ moral turpitude only if all of the conduct [the statute] prohibits is

turpitudinous. ” Partyka

, 417 F.3d at 411 (quoting Smalley v. Ashcroft

, 354 F.3d 332, 336

(5th Cir. 2003))

. “[T]he hallmark of moral turpitude is a reprehensible act committed

with an appreciable level of consciousness or deliberation.” Mahn v. Att’y Gen.

, 767

F.3d 17 0, 174 (3d Cir. 2014) (quoting Partyka

, 417 F.3d at 414 )

. Although the

Immigration and Nationality Act does not define “moral turpitude,” “ the BIA and this

Circuit ha ve defined morally turpitudinous conduct as ‘ conduct that is inherently base,

vile, or de praved, contrary to the accepted rules of morality and the duties owed to other

persons, either individually or to society in general. ’ ” Id. (quoting Knapik

, 384 F.3d at

89 )

. An act is turpitudinous if it “is accompanied by a vicious motive or a corrupt mind.”6

Partyka

, 417 F.3d at 413 (quoting Matter of Franklin

, 20 I. & N. Dec. 867, 868 (BIA

1994)).

Here, Title 18, Section 2706(a) of the Pen nsylvania Consolidated Statutes is

divisible into three variations of the same offense

— i.e., subsections (a)(1), (a)(2), and

(a)(3)

. See Brown

, 765 F.3d at 19 1

– 9 2. Javier was convicted under section 2706(a)(1).

S ee A.R. 230 (Order of Sentence stating that Javier was convicted under “18 § 1706 §§

A1,” which the O rder entitle d “Terroristic Threats W/ Int To Terroriz e Another” ).

Section 2706(a)(1) states that “[a] person commits the crime of terroristic threats if the

person communicates, either directly or indirectly, a threat to : [] commit any crime of

violence with intent to terrorize another.” 18 Pa. Cons. Stat. § 2706(a)(1)

. As discussed

below, because of this specific intent requirement, we need not look any further to

determine that a violation of section 2706(a)(1) is a “ crime involving moral turpitude. ”

Cf. Commonwealth v. Walker

, 836 A.2d 999, 1001 (Pa. S uper. 2003) (“[O]ne commits

terroristic threats [] by threatening a crime of violence with specific intent to cause terror

(subsection 1), or by threatening anything that causes terror with reckless disregard of the

risk of causing terror (subsection 3). ” )

. 5

J avier argues that “crime of violence” encompasses simple assault, which he

contends is a non

- turpitudinous cri me. Therefore, he contends

, the statute encompasses

5 Javier argues that the BIA erred by not applying the modified categorical approach to

evaluate whether his conviction constituted a crime involving moral turpitude. This

argument is unavailing. Under either the categorical approach or modified categorical

approach, we would still conclude that Javier was convicted of a crime involving moral

turpitude.7

the non

- turpitudinous crime of threatening to commit simple assault and the District

Cou rt erred in concluding that section 2706(a)(1) is categorically a “crime involving

moral turpitude

. ”

We disagree. Our focus in determining whether section 2706(a)(1) is categorically

a crime involving moral turpitude is not the threatened “crime of viole nce,” but the

communication of the threat and its requisite scienter

. After all, t he harm that section

2706 (a)(1) seeks to prevent is not the “crime of violence,” but rather the consequences of

the threat

— i.e., “ the psychological dist ress that follows fro m an invasion of another’s

sense of personal security.” Commonwealth v. Fenton

, 750 A.2d 863, 865 (Pa. Super.

2000 ) (quoting Tizer

, 684 A.2d at 600)

. And s ection 2706(a)(1) unambiguo usly requires

that the threat be communicated with a specific “intent to terrorize.” 18 Pa. Cons. Stat.

§ 2706(a)(1) ; Walker

, 836 A.2d at 1001

.

A threat communicated with intent to terrorize is of a differen t character than

simple assault

, and therefore we do not equate such a threat with simple assault. See

Chanmouny v. As hcroft

, 376 F.3d 810, 814

– 15 (8th Cir. 2004) (reasoning that Minnesota

terroristic threat statute’s “requisite intent to terrorize [] serves to distinguish

Chanmouny’s offense from simple assault” because “[s]imple assault typically is a

general intent cri me, and it is thus different in character”)

. W e conclude that a threat

communicated with a specific intent to terrorize is an act “accompanied by a vicious

motive or a corrupt mind ” so as to be categorically morally turpitudinous. See Partyka

,8

417 F.3d a t 413

. Because the BIA did not legally err by so concluding, we will deny

Javier’s petition. 6

IV. CONCLUSION

For the forego ing reasons, we will dismiss for lack of jurisdiction the petition for

review of the BIA’s order dated July 13, 2015 and deny the petit ion for review of the

BIA’s order dated August 19, 2015

.

6 Javier’s reliance on Larios v. Attorney General

, 402 F. App’x 705 (3d Cir. 2010), is

unavailing. There, a panel of this Court found t hat an analogous New Jersey terroristic

threat statute encompassed non

- turpitudinous conduct because it could be applied to a

threat to commit simple assault. Id. at 709. The panel reasoned that because simple

assault is non

- turpitudinous, a threat to co mmit simple assault is non

- turpitudinous. Id.

Larios is a not precedential opinion which we are not bound to follow. We disagree with

the panel’s focus on the “crime of violence,” rather than the criminalized conduct itself

—

which requires a malicious sc ienter. It has long been established that “moral turpitude

normally inheres in the intent.” See, e.g.

, Jean

- Louis

, 582 F.3d at 469 (quoting Matter of

Abreu

- Semino

, 12 I. & N. Dec. 775, 777 (BIA 1968)); see also Michel v. INS

, 206 F.3d

253, 263 (2d Cir. 2 000) (“[C]orrupt scienter is the touchstone of moral turpitude.”).

Therefore, we focus on t he intent required by section 2706 (a)(1) and agree with the BIA

that the offense as defined under section 2706(a)(1) is categorically a crime involving

moral turpit ude.