NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-1399

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MANUEL CASTILLO-LOPEZ,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

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On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A200-864-012)

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

November 6, 2018

Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges.

(Filed: November 8, 2018)

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OPINION*

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

not constitute binding precedent.
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HARDIMAN, Circuit Judge.

Manuel Castillo-Lopez petitions for review of a decision of the Board of 

Immigration Appeals. The BIA deemed Castillo-Lopez ineligible for cancellation of 

removal because his New Jersey criminal conviction was a crime involving moral 

turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). For the reasons that follow, we 

will deny the petition for review.

I1

In 2012, Castillo-Lopez was convicted of aggravated assault after he recklessly 

caused bodily injury to a uniformed police officer in violation of N.J. Stat. § 2C:12-

1b(5)(a). Applying the modified categorical approach, the BIA deemed that conviction a 

CIMT, which made Castillo-Lopez ineligible for cancellation of removal. In his petition 

for review, Castillo-Lopez offers three challenges which we will address in turn.

A

Castillo-Lopez first claims N.J. Stat. § 2C:12-1b(5) is indivisible and thus not 

categorically a CIMT. This argument is foreclosed by our decision in United States v. 

Abdullah, -- F.3d --, 2018 WL 4702225, at *4 (3d Cir. Oct. 2, 2018). In that case, we 

stated that § 2C:12-1b not only is divisible into three alternative degrees of conduct, but

 1 Whether Castillo-Lopez’s crime of conviction was a CIMT is a question of law, 

which we have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). See Mayorga v. 

Att’y Gen., 757 F.3d 126, 128 n.2 (3d Cir. 2014). We review de novo the BIA’s 

unpublished, single-member decision, which is not entitled to Chevron deference. See

Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014). 
3

is also “further divisible into a number of different third-degree aggravated assault 

offenses.” Id. And, as in Abdullah, the Model Criminal Jury Charge for § 2C:12-1b(5) 

indicates that New Jersey treats subsections (5)(a) through (5)(k) as separate elements.

See id. (considering New Jersey’s jury instructions to determine whether § 2C:12-1b is 

divisible among subsections); New Jersey Model Jury Charges (Criminal), “Aggravated 

Assault - Upon Law Enforcement Officer (Attempting to Cause or Purposely, Knowingly 

or Recklessly Causing Bodily Injury) (N.J.S.A. 2C:12-1b(5)(a), (b), (c), (d), (e), (f), (g))”

(revised Dec. 3, 2001) n.1 (noting that the model jury instruction is drafted to address 

only aggravated assault against a law enforcement officer and that, if a different 

subsection is at issue, the jury instruction “must be adapted to fit the facts of [that] case”). 

Because the relevant state statute is divisible, the BIA did not err in applying the 

modified categorical approach to determine which subsection of § 2C:12-1b(5) CastilloLopez violated.

B

Castillo-Lopez next argues that his conviction under § 2C:12-1b(5) is not a CIMT 

under the modified categorical approach. Castillo-Lopez concedes, as he must, that a 

review of his plea colloquy indicates that he violated subsection (a) of § 2C:12-1b(5)

because he recklessly caused bodily injury to a “law enforcement officer acting in the 

performance of his duties while in uniform or exhibiting evidence of his authority.” N.J. 

Stat. Ann. § 2C:12-1b(5)(a) (West 2010) (effective Jan. 4, 2011 through April 19, 2012).
4

The crux of Castillo-Lopez’s argument is that he committed a simple assault,

which is typically not a CIMT. And he argues the fact that his victim was a law 

enforcement officer does not make his crime turpitudinous, even though New Jersey law 

elevated the crime to aggravated assault based on the status of the victim. We are 

unpersuaded by this argument.

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

appreciable level of consciousness or deliberation.” Partyka v. Att’y Gen., 417 F.3d 408, 

414 (3d Cir. 2005). In our prior analysis of the statute at issue here, we stated (in dicta)

that we would affirm a finding of moral turpitude for an intentional, knowing, or reckless

infliction of bodily injury to a law enforcement officer. See id. at 416. And we have 

observed elsewhere as well that certain serious criminal conduct committed recklessly 

may reflect moral turpitude. See Totimeh v. Att’y Gen., 666 F.3d 109, 114 (3d Cir. 2012). 

In view of our prior decisions, we hold that the BIA did not err when it concluded that

Castillo-Lopez is ineligible for cancellation of removal for having committed a CIMT.

C

Finally, Castillo-Lopez contends that the CIMT statute (8 U.S.C. 

§ 1182(a)(2)(A)(i)(I)) is void for vagueness as applied to him. This argument is 

foreclosed by our decision in Moreno v. Attorney General, where we rejected a 

vagueness challenge to the same statute and emphasized that we have “consistently 

defined” the bounds of moral turpitude. 887 F.3d 160, 166 (3d Cir. 2018). Moreover, 

Castillo-Lopez cannot credibly claim he lacked fair notice of the CIMT standard when 
5

we first recognized his crime a CIMT in 2005, well before his conviction. See Partyka, 

417 F.3d at 416. 

* * *

For the reasons stated, we will deny Castillo-Lopez’s petition for review.