NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 3711

___________ EDGAR ORACIO SALOMON

- BAJXAC , Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

____________________________________ On Petition f

or Review of an Order of the Board of Immigration Appeals (Agency No. A094

- 380

- 845 ) Immigration Judge: Honorable Annie S. Garcy

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

March 3, 2014 Before: JORDAN, GREENBERG and VAN ANTWERPEN , Circuit Judges

(Opinion filed : March 7 , 2014 )

___________ OPINION

___________ PER CURIAM Petitioner Edgar Salomon

- Bajxac petitions for review of a final order of removal issued by the Board of Immigration Appeals (BIA). For the reasons detailed below, we2

will deny the petition for review. Salomon

- Bajxac is a citizen of Guatemala. In 2010, the Department of Homeland Security charged him with being removable un der 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present without bein g admitted. Salomon

- Bajxac conceded removability but applied for cancellation of removal. The government contended that Salomon

- Bajxac had committed a crime involving moral turpitude

— he was convicted in 2003 in New Jersey state court of third

- degree ag gravated assault on a law

- enforcement officer in violation of N.J. Stat. Ann. § 2C:12

- 1 ( b ) (5)(a)

— which rendered him ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)(C)

. The Immigration Judge (IJ) agreed with the government, deni ed Salomon

Bajxac ’s application for cancellation of removal, and ordered him removed. Salomon

Bajxac appealed to the BIA , which dismissed the appeal. Salomon

- Bajxac then filed a timely petitio n for review to this Court. We have jurisdiction over Salomo n - Bajxac’s petition for review pursuant to 8 U.S.C. § 1252(a). The Court reviews the BIA’s legal determinations de novo, except when Chevron v. Natural Resources Defense Council , 467 U.S. 837 (1984), requires the Court to defer to the BIA. Mehboob v. Att ’y Gen. , 549 F.3d 272, 275 (3d Cir. 2008). The Court defers, under Chevron , “to the BIA’s definition of moral turpitude,” and to its “determination that a certain crime involves moral turpitude.” Id. (quotation marks, citation omitted).3

The BIA did no t err here

. We have explained that “the hallmark of moral turpitude is a reprehensible act with an appreciable level of consciousness or deliberation.” Totimeh v. Att’y Gen. , 666 F.3d 109, 114 (3d Cir. 2012) (quotation marks, alterations omitted). Typic ally, in determining whether a crime involves moral turpitude, we employ a “categorical approach” that “ focus [es] on t he underlying criminal statute rather t han the alien’ s specific act. ” Knapik v. Ashcroft , 384 F.3d 84, 88 (3d Cir. 2004) ( quotation marks omitted ). Under that approach , a criminal statute categorically involv es moral turpitude “only if all of the conduct [the statute] prohibits is turpitudinous.” Partyka v. Att ’ y Gen

. , 417 F.3d 408 , 411 (3d Cir. 2005). However, if the statute is “divisib le”

— that is, it “ covers both turpitudinous and nonturpitudinous acts”

— we turn to a modified categorical approach , and “look to the record of conviction to determine whether th e alien was convicted under [a] part of the statute defining a crime involvin g moral turpitude.” Id.
In Partyka , we applied this analysis to the very statute at issue here, N.J. Stat. Ann. § 2C:12

- 1 ( b ) (5)(a) , and concluded that it covers both turpitudinous and nonturpitudinous conduct. More specifically, the statute provides t hat an individual is guilty of aggravated assault if he “[c]ommits a simple assault as defined in subsection a. (1), (2) or (3) of this section upon

. . . [a]ny law enforcement officer.” § 2C:12

- 1 ( b ) (5)(a). Subsections (1), (2), and (3), meanwhile, state that a person is guilty of assault if he “(1) [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2)4

[n]egligently causes bodily injury to another with a deadly weapon; or (3) [a]ttempts by physical menace to put another in fear of imminent serious bodily injury.” N.J. Ann. Stat. § 2C:12

- 1 ( a )

. We then concluded that negligent assault, as proscribed by § 2C:12

- 1 ( a ) (2), i s not turpitudinous , while purposeful , knowing, or reckless assault , as proscribed by § 2C:12

- 1 ( a ) (1 ) , does involve moral turpitude. Partyka , 417 F.3d at 416

. 1 We therefore ruled that in assessing whether convictions under § 2C:12

- 1 ( b ) (5)(a) qualify as crimes involving moral turpitude, i t is necessary to use the modified categorical approach to d etermine which subsection of § 2C:12

- 1 ( a ) the alien violated

. S ee id. We will thus employ that approach here. In applying the modified categorical approach, we may review “ the indictment, plea, verdict, and sentence

. ” I d. (quotation marks omitted)

. He re, the indictment specifically alleges that Salomon

- Bajxac “purposely did attempt to cause bodily injury to and/or purposely, knowingly or recklessly did cause bodily injury to Detective Edward Rivera.” 2 Thus, the record of conviction unequivocally shows that Salomon

- Bajxac violated § 2C:12

- 1 ( a ) (1); this subsection, we concluded in Partyka , involves moral turpitude. See id. ; s ee also Totimeh , 666 F.3d at 114 (noting that moral turpitude may

1 In Partyka , we noted that aggravated assault on a law

- en forcement officer is a crime of the third degree if the officer suffers a bodily injury, and because petitioner in that case pleaded guilty to third

- degree aggravated assault

— like Salomon

- Bajxac did here

— he could not dispute that his assault caused inj ury. See Partyka , 417 F.3d at 412.

2 The fact that the indictment (like § 2C:12

- 1 ( a ) (1) ) includes criminal attempt is of no consequence. As the Court observed in Partyka , “[t] he attempts described in subsection ( a ) (1) and (3) require specific intent ,” a nd thus involve the requisite state of5

inhere in crimes committed recklessly); Knapik v. Ashcroft , 384 F.3d 84, 90 (3d Cir. 2004) (accepting legal standard for crimes of moral turpitude that the BIA applied here); In re Danesh , 19 I. & N. Dec. 669, 673 (BIA 1988) (concluding that similar crime involved moral turpitude). Therefore, the BIA did not err in co ncluding that Salomon

Bajxac was convicted of a crime involving moral turpitude, which render ed him ineligible for cancellation of removal. 3 Accordingly, we will deny the petition for review.

mind for a crime involving moral turpitude. 417 F.3d at 412 n.3.

3 Salomon

- Bajxac also complains that the BIA did not address his cancellation

- of

removal application on the merits. Contrary to his argument, the BIA ’s analysis was perfectly permissible

— “ agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach. ” INS v. Bagamasbad , 429 U.S. 24, 25 (1976).