2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-6-2009

Jean-Louis v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 07-3311

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3311

 

LYONEL JEAN-LOUIS,

 Petitioner

v.

ATTORNEY GENERAL

OF THE UNITED STATES OF AMERICA,

 Respondent

 

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA No. A25-450-823)

Immigration Judge: Honorable Rosalind K. Malloy

 

Argued February 5, 2009
2

Before: RENDELL and ROTH, Circuit Judges and

HAYDEN, District Judge*

(Filed: October 6, 2009)

 

Craig R. Shagin, Esq. [ARGUED]

The Shagin Law Group

The Inns of St. Judge

120 South Street

Harrisburg, PA 17101

 Counsel for Petitioner

Kevin J. Conway, Esq. [ARGUED]

Richard M. Evans, Esq.

Brooke M. Maurer, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

 Counsel for Respondent

__________________

* Honorable Katharine S. Hayden, Judge of the United

States District Court for the District of New Jersey

(Newark), sitting by designation. 
 Jean-Louis pled guilty to simple assault in violation of 18 1

Pa. C.S. § 2701(b)(2) on July 25, 2001. The Pennsylvania

3

 

OPINION OF THE COURT

 

Rendell, Circuit Judge. 

We are called upon to decide whether simple assault

under Pennsylvania law, where the victim is under 12 years of

age and the assailant is over 20 years of age, is a crime involving

moral turpitude for purposes of cancellation of removal. In

doing so we must address a recent opinion of the Attorney

General that adopts a novel framework for determining whether

a petitioner has been convicted of a crime involving moral

turpitude (“CIMT”). We conclude that the petitioner was not

convicted of a CIMT, and that we will apply our established

methodology for analyzing CIMT, rather than the approach

recently adopted by the Attorney General.

I. Background and Procedural History

 Appellant Lyonel Jean-Louis, a native and citizen of

Haiti, was admitted to the United States in 1994 as a refugee,

and became a lawful permanent resident in 1996. In 2001, JeanLouis pled guilty to committing simple assault against a child

under twelve years of age, in violation of 18 Pa. Cons. Stat.

§§ 2701(b)(2). The Department of Homeland Security 1
simple assault statute was amended on June 22, 2001 (effective

in 60 days), P.L. 605, No. 48, § 1, and again on Dec. 9, 2002

(effective in 60 days), P.L. 1391, No. 172, § 1. Neither

amendment altered subpart 2701(b)(2).

An alien bears the burden of establishing his eligibility for 2

discretionary cancellation of removal. INA § 240(c)(4)(A)(i),

8 U.S.C. §1229a(c)(4)(A)(i).

4

(“DHS”) subsequently filed a Notice to Appear (“NTA”),

charging Jean-Louis as removable under the Immigration and

Nationality Act (“INA”) § 237(a)(2)(E)(I). Jean-Louis conceded

removability but sought to cancel his removal under INA

§ 240(A)(a), 8 U.S.C. § 1229b(a).

Under the INA, discretionary cancellation of removal is

available to an alien who has resided continuously in the United

States for seven years. INA § 240A(a)(2), 8 U.S.C.

§ 1229b(a)(2). An alien’s period of continuous residency

terminates, however, if he “commits an offense referred to in

section 1182(a)(2) of this title that renders the alien inadmissible

to the United States under section 1182(a)(2) of this title or

removable from the United States under section 1227(a)(2).”

INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1). Crimes involving 2

moral turpitude are among the offenses listed in 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). Prior to his seventh year of residency in

the U.S., Jean-Louis struck his wife’s daughter, who was under

the age of 12, to discipline her and was subsequently convicted

of the Pennsylvania crime of simple assault, 18 Pa. C.S.

§ 2701(b)(2). The Immigration Judge (“IJ”) concluded, and the
5

Board of Immigration Appeals (“BIA”) affirmed, that JeanLouis’s conviction for simple assault of a child under 12 years

of age under subpart 2701(b)(2) constituted a CIMT, rendering

Jean-Louis ineligible for cancellation of removal.

The Pennsylvania simple assault statute to which JeanLouis pled guilty provides in pertinent part:

(a) Offense defined.--A person is guilty of

assault if he:

(1) attempts to cause or intentionally,

knowingly or recklessly causes bodily injury to

another;

(2) negligently causes bodily injury to another

with a deadly weapon; or 

(3) attempts by physical menace to put another

in fear of imminent serious bodily injury.

(b) Grading.--Simple assault is a

misdemeanor of the second degree unless

committed:

. . . 

(2) against a child under 12 years of age by an

adult 21 years of age or older, in which case it is

a misdemeanor of the first degree. 
 Because the BIA issued a summary affirmance, we analyze 3

the IJ’s decision. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.

2003) (en banc).

6

18 Pa. C.S. § 2701 (emphasis added). Noting that, “[I]t is

unclear from the record of conviction whether the assault

Respondent committed was intentional, knowing, or reckless,”

the IJ assumed that Jean-Louis “recklessly” inflicted bodily

injury on another— the least culpable mental state specified in

§ 2701(a)(1). A. 113. Confining her analysis to that subpart of

the statute, the IJ did not address whether there was a culpability

requirement under subpart 2701(b)(2). Accordingly, the IJ did

not consider whether subpart 2701(b)(2) required the defendant

to have known of the underage status of the victim, or would

apply in a situation in which the defendant was not aware, and

had no reason to believe, that the victim was a minor. Instead,

the IJ reasoned that because the victim was under 12 years old,

the offense was a CIMT: “While the Court is cognizant of the

fact that simple assault is generally not considered to be a

CIMT, simple assault plus an aggravating factor is a CIMT.” A.

112 (internal citation omitted). The IJ cited as authority for this

proposition BIA opinions involving assaults that were

“aggravated” by other types of factors; specifically, they were

committed with a deadly weapon, committed against a law

enforcement officer, or resulted in the victim’s death. A. 112-13.

 Accordingly, the IJ concluded that Jean-Louis’s conviction of

simple assault under subpart 2701(b)(2) constituted a CIMT,

rendering Jean-Louis ineligible for cancellation of removal. The

BIA affirmed.3
 We summarily dispose of two other issues urged by Jean- 4

Louis on appeal. First, Jean-Louis contends that his rights under

INA § 239(a)(1)(C) & (D) and the Due Process Clause of the

U.S. Constitution were violated, because his Notice to Appear

failed to alert him to the CIMT issue. Jean-Louis’s

constitutional claim fails at the outset, because an alien seeking

discretionary relief from removal has no cognizable liberty or

property interest. See Hernandez v. Gonzales, 437 F.3d 341,

345-46 (3d Cir. 2006). Moreover, any such failure was

harmless, as Jean-Louis was adequately apprised of the issue,

having “prepared a brief on the topic [CIMT] in anticipation of

the objection.” Appellant’s Br. at 6; A. 132-33, 210. 

Jean-Louis’s second argument is that he is entitled to a

remand of his case to the IJ to have his claim for withholding of

removal decided. However, to date, Jean-Louis has not filed–or

sought leave to file–an application for withholding of removal,

despite ample opportunity to do so. 

7

II. Discussion

On appeal, Jean-Louis contends that he is eligible for

discretionary cancellation of removal because his conviction of

simple assault does not qualify as a CIMT. Crimes involving 4

moral turpitude have been held to require conduct that is

“inherently base, vile, or depraved.” Knapik v. Ashcroft, 384

F.3d 84, 89 (3d Cir. 2004) (internal citations omitted). In

determining whether a state law conviction constitutes a CIMT,

the agency, and we, have historically applied a “categorical”

approach, “focusing on the underlying criminal statute ‘rather

than the alien’s specific act.’” Id. at 88 (quoting DeLeon-
 In Shepard v. United States, the Supreme Court opined that 5

the record of conviction includes the charging document, the

plea agreement or transcript of the plea colloquy in which the

defendant confirmed the factual basis for the plea, or a

comparable judicial record of information. 544 U.S. 13, 26

(2005). 

8

Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002)). We

thus “look to the elements of the statutory state offense, not to

the specific facts,” reading the applicable statute to ascertain the

least culpable conduct necessary to sustain conviction under the

statute. Id. (quoting Wilson v. Ashcroft, 350 F.3d 377, 381 (3d

Cir. 2003)).

Where a statute of conviction contains disjunctive

elements, some of which are sufficient for conviction of the

federal offense and others of which are not, we have departed

from a strict categorical approach. In such a case, we have

conducted a limited factual inquiry, examining the record of

conviction for the narrow purpose of determining the specific

subpart under which the defendant was convicted. See Singh v.

Ashcroft, 383 F.3d 144, 162 (3d Cir. 2004). We have applied 5

this “modified” categorical approach, even when clear sectional

divisions do not delineate the statutory variations, see Garcia v.

Att’y Gen., 462 F.3d 287, 293 n.9 (3d Cir. 2006), in order to

determine the least culpable conduct sufficient for conviction,

and, where a CIMT is asserted, measure that conduct for

depravity. 
9

Here, the IJ, applying this methodology, concluded that

the reckless infliction of bodily injury constituted the least

culpable mental state sufficient for conviction under subpart

2701(a)(1). Significantly, however, the IJ did not consider the

state of mind required under subpart 2701(b)(2) as to the child’s

age. It could be read to require that the offender knew of the

age of the victim, or that the grading factor applies if the victim

was under 12, whether or not the defendant knew of her age.

Although we defer to the agency’s determination of whether an

offense constitutes a CIMT, we accord no deference to its

construction of a state criminal statute, as to which it has no

particular expertise. See Knapik, 384 F.3d at 88. Here, the

determination of the scienter or level of culpability under

subpart (b)(2) of the Pennsylvania assault statute is important,

for the BIA itself has drawn a distinction for purposes of

deciding whether an offense is a CIMT based on this very aspect

of culpability, as we discuss below. We thus disagree with the

IJ’s reasoning that the age of the victim should be considered an

“aggravating factor,” and conclude that a more thorough

analysis of the Pennsylvania criminal statute is in order.

Because the parties did not address the minimum

culpability required under subpart 2701(b)(2), we requested

further briefing. In his supplemental brief, Jean-Louis urges the

Court to construe subpart 2701(b)(2) as written—it does not

expressly prescribe a mental state requirement, and thus none

applies. The government cites evidence consistent with JeanLouis’s interpretation of the statute, including the Pennsylvania

suggested jury instructions and accompanying Advisory

Committee Note, neither of which requires that a jury find that

the defendant knew, or should have known, that the victim was
 The Advisory Committee Note to the Pennsylvania 6

Suggested Standard Criminal Jury Instructions for § 2701(b)(2)

is silent on the applicable mental state requirement: “Crimes

Code § 2701(b)(2) raises simple assault from a misdemeanor of

the second degree to a misdemeanor of the first degree where

the victim was under the age of 12 and the defendant was an

adult 21 years of age or older.” See Pa. SSJI (Crim), 15.2701G

(simple assault--child victim). 

 The government states, “The subsection under which Mr. 7

Jean-Louis was convicted is referred to in the statute as a

‘grading factor.’ According to Pennsylvania case law, ‘the

grading of the offense is not an element thereof.’” Respondent’s

Supplemental Br. at 3.

10

under 12. The government also specifically notes that subpart 6

2701(b)(2) is a grading factor, not an element of the substantive

offense. These aspects of the statute actually support Jean- 7

Louis’s position.

Quite apart from the government’s concessions, we

independently conclude that no culpability requirement attaches,

explicitly or implicitly, to subpart 2701(b)(2). Unlike subpart

2701(a)(1), which expressly requires that the defendant

intentionally, knowingly, or recklessly inflict bodily injury,

subpart 2701(b)(2) does not specify the minimum culpability

required to trigger enhanced penalties. Nor is such a

requirement implicit in the statute. The determination that

subpart 2701(b)(2) sets forth a grading factor and not an element

of the offense is significant. As a “grading” factor, subpart
 18 Pa. C.S. § 302(c) defines the requisite mental state when 8

the statute is silent on the culpability applicable to a material

element of an offense. It provides:

Culpability required unless otherwise

provided.--When the culpability sufficient to

establish a material element of an offense is not

prescribed by law, such element is established if

a person acts intentionally, knowingly, or

recklessly with respect thereto.

Id. (emphasis added). 

18 Pa. C.S. § 302(d), which serves a slightly different

function than § 302(c), defines the requisite mental state when

the statute defines the culpability sufficient for some, but not all,

material elements of an offense. It provides: 

Prescribed culpability requirement applies to

all material elements.-- When the law defining

an offense prescribes the kind of culpability that

is sufficient for commission of an offense,

without distinguishing among the material

elements thereof, such provision shall apply to all

the material elements of the offense, unless a

contrary purpose plainly appears. 

Id. (emphasis added). 

11

2701(b)(2) does not trigger the statutory “gap-filling”

provisions, which provide a mental state requirement that 8
 Moreover, the designation of subpart 2701(b)(2) as a 9

“grading” factor has survived subsequent revisions of the simple

assault statute. 18 Pa. C.S. § 2701 (amended in 2001, June 22,

P.L. 605, No. 48, § 1; 2002, Dec. 9, P.L. 1391, No. 172, § 1).

We presume that the legislature is “aware of an administrative

or judicial interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without change.”

Lorillard v. Pons, 434 U.S. 575, 580 (1978). Hence, we cannot

conclude that the legislature intended a culpability requirement

12

would be otherwise missing from “elements” of an offense. See

18 Pa. C.S. § 103 (defining “element[s] of an offense” as

“conduct or attendant circumstances . . . included in the

description of the forbidden conduct in the definition of the

offense”) (emphasis added); Commonwealth v. Shamberger, 788

A.2d 408, 418 (Pa. Super. 2001) (distinguishing “grading”

factors from the elements of an offense); accord Commonwealth

v. Passarelli, 789 A.2d 708, 714 (Pa. Super. 2001);

Commonwealth v. Kisner, 736 A.2d 672, 674 (Pa. Super. 1999).

The explicit designation of subpart 2701(b)(2) as a “grading”

factor is particularly strong evidence of the legislative intent

here, as the distinction between “grading” factors and

“elements” of an offense was already established in

Pennsylvania jurisprudence when subpart 2701(b)(2) was added

in 1988. P.L. 1275, No. 158, § 1 (Dec. 19, 1988); see, e.g.,

Commonwealth v. Sparks, 492 A.2d 720, 725 (Pa. Super. 1985);

Commonwealth v. Mathis, 463 A.2d 1167, 1170 (Pa. Super.

1983); Commonwealth v. Stauffer, 361 A.2d 383, 384 (Pa.

Super. 1976); Commonwealth v. McKennion, 240 A.2d 889, 892

(Pa. Super. 1975).9
to inhere in subpart 2701(b)(2) when it adopted and retained

language achieving precisely the opposite result.

13

A recent decision of the New Hampshire Supreme Court

supports the proposition that the Pennsylvania gap-filling

provisions are inapplicable to subpart 2701(b)(2). In State v.

McCabe, 765 A.2d 176, 180-81 (N.H. 2001), the Court

considered what mental state requirement, if any, attached to

conduct–“use of a deadly weapon”–that appeared in the penalty

section of the offense of “criminal threatening.” The statute did

not specify a mental state requirement. Id. at 180. The Court

concluded that the New Hampshire gap-filling provision,

applicable solely to material elements of an offense, did not

govern, because “[t]he only statutory reference to the use of a

deadly weapon is contained in the penalty section” of the statute,

and the gap-filling provision applies solely to elements of an

offense, not to grading factors. Id. at 180-81; see State v. Polk,

927 A.2d 514, 516-17 (N.H. 2007) (holding that gap-filling

provision did not apply to conduct solely affecting grading of an

offense); see also State v. Demmons, 634 A.2d 998, 1000 (N.H.

1993) (noting that culpability requirement is only implied for

material elements of an offense).

Thus, we conclude that the Pennsylvania assault statute

as written permits a conviction under subpart 2701(b)(2) where

the defendant did not know that the victim was under 12 years

old. This key fact distinguishes this case from the statute we

considered in Partyka v. Att’y Gen., 417 F.3d 408, 413 (3d Cir.

2005). There, we had to determine the minimum culpability

required for conviction of the offense of “aggravated assault,”
14

defined under New Jersey law as the commission of simple

assault against “[a]ny 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 1995 & Supp. 2004). Concluding that commission of an

assault against a law enforcement officer was a material element

of the offense of aggravated assault, we cited United States v.

Rebelo, 358 F.Supp.2d 400, 418-19 (D.N.J. 2005), which

applied the New Jersey gap-filling provision, and held that the

offender had to have known that the victim was a police officer.

Partyka, 417 F.3d at 413. Crucial to our analysis—and to the

analysis in Rebelo upon which we relied—was the fact that the

relevant conduct appeared in the definition of the offense of

aggravated assault and thus was an element thereof. Id. (citing

Rebelo, 358 F.Supp.2d at 418-19). Because the offender had to

know that the victim was an officer, the offense reflected the

requisite degree of depravity and thus constituted a CIMT.

Here, by contrast, the age of the perpetrator and victim are

specified not in the definition of the offense but rather under the

separate statutory heading, “grading.” Regardless of how New

Jersey law treats “grading” factors, their status under

Pennsylvania law is clear. Where the conduct is included under

a statutory section entitled, “grading,” rather than under the

“definition” of the offense, the conduct is per se not an

“element” of the offense. See 18 Pa. C.S. § 103 (defining the

“elements” of an offense as solely conduct included in the

formal definition of the offense). Accordingly, the Pennsylvania

gap-filling provisions—that would ordinarily mandate a specific

mental state with respect to the victim’s age—do not apply to

subpart 2701(b)(2), and there is no culpability requirement as to

that subpart.
15

Based upon the foregoing analysis, we conclude that the

least culpable conduct necessary for conviction under subpart

2701(b)(2) would be a reckless assault by a person over 20 years

of age, where the victim, unbeknownst to the defendant, is under

12 years of age. One example might be where a reckless driver

strikes a vehicle bearing a child occupant. Such a scenario does

not appear to us to implicate “moral turpitude,” as that concept

has been viewed by the agency and developed under our

precedents. The BIA has observed that “[s]imple assaults have

generally been held not to involve moral turpitude.” Matter of

O---, 3 I. & N. Dec. 193, 194 (BIA 1948). It has repeatedly

opined that the hallmark of a CIMT, indeed, is an act

“accompanied by a vicious motive or a corrupt mind.” Matter of

Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992); see

Matter of Khourn, 21 I. & N. Dec. 1041, 1046 (BIA 1997);

Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994);

Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980) (“An 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) (noting that “moral turpitude normally inheres in the

intent”); Matter of P---, 2 I. & N. Dec. 117, 121 (BIA 1944)

(“One of the criteria adopted to ascertain whether a particular

crime involves moral turpitude is that it be accompanied by a

vicious motive or corrupt mind. ‘It is in the intent that moral

turpitude inheres.’”) (quoting US ex rel. Meyer v. Day, 54 F.2d

336, 337 (2d Cir. 1931)). Courts of appeals have followed suit.

In Michel v. INS, the Court of Appeals for the Second Circuit

thus identified a “corrupt scienter” as the “touchstone of moral

turpitude.” 206 F.3d 253, 263 (2d Cir. 2000); see Chanmouny v.

Ashcroft, 376 F.3d 810, 814-15 (8th Cir. 2004); Hamdan v. INS,

98 F.3d 183,186 (5th Cir. 1996). And, in Partyka, the statute
16

required that the defendant know the victim was a police officer.

417 F.3d at 413. Such depravity, however, is absent when a

defendant could be convicted for unwittingly injuring a

child—an act that, in our view, reflects a degree of malice no

greater than that exhibited by an assault recklessly committed

against an adult.

We normally defer to the agency as to what conduct

constitutes a CIMT. Our view that reckless assault of a minor,

without more, does not constitute a CIMT is bolstered by a

recent decision of the Attorney General, Matter of Cristoval

Silva-Trevino, 24 I. & N. Dec. 687, 706-708 (A.G. 2008).

There, the Attorney General considered whether a statute

criminalizing intentional sexual acts directed at a child

constituted a CIMT. The statute did not include a mistake-ofage defense. Hence, a defendant who did not know, and had no

reason to believe, that the complainant was a minor could face

conviction. The Attorney General concluded, therefore, that the

statute lacked the “hallmark of moral turpitude”—a

“reprehensible act committed with an appreciable level of

consciousness or deliberation.” Id. at 706 (quoting Partyka, 417

F.3d at 414). Significantly, the Attorney General stated,

“[W]hether the perpetrator knew or should have known the

victim’s age is a critical factor in determining whether his or her

crime involved moral turpitude for immigration purposes. A

finding of moral turpitude under the Act requires that a

perpetrator have committed the reprehensible act with some

form of scienter.” Id. Thus, in Silva-Trevino, the Attorney

General treated the perpetrator’s knowledge regarding the

victim’s age as a critical consideration informing the depravity

of the crime. As we noted above, the IJ here did not consider
 We note that a BIA decision that the government urges 10

should control the analysis here is distinguishable. In Matter of

Tran, 21 I. & N. Dec. 291, 292, 294 (BIA 1996), the BIA held

that a California statute imposing criminal penalties on one who

“willfully inflicts upon any person with whom he or she is

cohabiting [corporal injury],” constitutes a CIMT. Id. at 292. In

reaching this conclusion, the BIA underscored the dependent

relationship among family members: “A person who cohabits

with or is the parent of the offender’s child maintains a

relationship of a familial nature with the perpetrator of the harm.

This relationship is likely to be one of trust and . . . dependency

17

the culpability required under subpart 2701(b)(2) but merely

stated that it was an “aggravating factor,” which converted

simple assault into a CIMT, relying on case law that did not

involve age as a factor. However, our conclusion that subpart

2701(b)(2) has no mental state requirement, coupled with the

Attorney General’s stated view in Silva-Trevino that a

defendant’s knowledge regarding the age of his victim may

properly bear on the depravity of his conduct, leads inexorably

to the conclusion that the Pennsylvania crime of which JeanLouis was convicted was not a CIMT. While we would

normally remand to the agency for a “decision of a matter that

statutes place primarily in agency hands”—namely, the

determination of whether a criminal violation constitutes a

CIMT—the agency has spoken clearly that scienter as to age is

critical to the CIMT inquiry, and that the absence of a scienter

requirement is conclusive. See INS v. Ventura, 537 U.S. 12, 16

(2002); Matter of O---, 3 I. & N. Dec. at 194 (holding that

simple assault does not constitute a CIMT).10
. . . . Violence between the parties of such a relationship is

different from that between strangers or acquaintances, which

may or may not involve moral turpitude, depending on the

nature of the offense as delineated by statute.” Id. at 294. The

California statute, however, is readily distinguishable from the

Pennsylvania simple assault statute. Conviction under subpart

2701(b)(2) is possible absent the special relationship of

dependence between the defendant and victim that the BIA

perceived as critical in Matter of Tran. Under Pennsylvania law,

the assailant and the complainant, indeed, may be strangers.

Hence, Matter of Tran does not persuade us that a conviction

under subpart 2701(b)(2) reflects the requisite depravity to

constitute a CIMT.

18

The foregoing analysis tracks the modified categorical

approach that we have historically applied. Under that

approach, our inquiry concludes when we determine whether the

least culpable conduct sufficient to sustain conviction under the

statute “fits” within the requirements of a CIMT. However, in

the recent opinion we cited above, Matter of Cristoval SilvaTrevino, the Attorney General suggested that more is required.

We asked the parties to brief two related issues: the effect of

Silva-Trevino on our existing methodology, and our duty to

follow Silva-Trevino, notwithstanding our contrary

 precedents. We conclude that deference is not owed to SilvaTrevino’s novel approach and thus will apply our established

methodology.
 The unusual circumstances of Silva-Trevino’s referral to, 11

and adjudication by, the Attorney General bear mention. After

the IJ determined that Silva-Trevino’s conviction under section

2.11(a)(1) of the Texas Penal Code constituted a CIMT,

rendering him removable, the BIA, applying the categorical

approach, concluded that his conviction did not meet the criteria

for a CIMT and, accordingly, vacated the decision of the IJ and

remanded the case. Subsequently, while the case was pending

before the IJ, the Attorney General certified the case to himself

sua sponte. Despite requests by Silva-Trevino’s counsel, the

Attorney General refused to identify the issues to be considered,

to define the scope of his review, to provide a briefing schedule,

or to apprise counsel of the applicable briefing procedure. In

fact, neither the IJ decision nor the Attorney General’s

certification order were made publicly available, thus denying

stakeholders, including immigrant and refugee advocacy

organizations, the opportunity to register their views. As a

result, the first opportunity of amici curiae to file comment was

19

In Silva-Trevino, as discussed earlier, the Attorney

General considered whether an alien’s conviction for indecency

with a child under Texas law constituted a CIMT, rendering the

alien inadmissible, and therefore ineligible for discretionary

cancellation of removal, under section 212(a)(2) of the INA,

8 U.S.C. § 1182(a)(2). The Attorney General urged that because

conflicting methodologies had been adopted by courts of

appeals in conducting the CIMT inquiry, producing a veritable

“patchwork of different approaches across the nation,” he would

use the case as “an opportunity to establish a uniform

framework” for adjudicating CIMT cases under the INA. Id.

11
after entry of the Attorney General’s opinion. See Br. of Amici

Curiae American Immigration Lawyers Ass’n, Florence

Immigrant and Refugee Rights Project, Immigrant Defense

Project of the N.Y. State Defenders Ass’n, Immigrant Legal

Resource Ctr., Nat’l Immigration Project of the Nat’l Lawyers

Guild, Nat’l Immigrant Justice Ctr., Refugio del Rio Grande,

Inc., and Washington Defenders Ass’n Immigration Project in

Support of Reconsideration, filed Dec. 5, 2008, available at

http://www.immigrantdefenseproject.org/docs/08_SilvaTrevin

oAmicusBrief.pdf. 

The amici curiae brief in support of reconsideration

echoes many of the concerns we express herein and, although no

challenge to these procedures is before us, the lack of

transparency, coupled with the absence of input by interested

stakeholders, only serves to dissuade us further from deferring

to the Attorney General’s novel approach.

20

at 688. The Attorney General’s novel methodology departs

from our precedents in two significant respects.

First, Silva-Trevino alters the focus of the categorical

analysis. Under the categorical approach that we followed in

Partyka, consistent with Supreme Court case law, we look to the

elements of the statutory offense to ascertain the least culpable

conduct hypothetically necessary to sustain a conviction under

the statute. Partyka, 417 F.3d at 411. Under our precedents, the

possibility of conviction for non-turpitudinous conduct, however

remote, is sufficient to avoid removal; proof of actual

application of the statute of conviction to the conduct asserted

is unnecessary. “As a general rule, a criminal statute defines a
21

crime involving ‘moral turpitude only if all of the conduct it

prohibits is turpitudinous.’” Id. (internal citation omitted)

(emphasis added). 

Silva-Trevino eschews our approach of analyzing the

least culpable conduct hypothetically sufficient to sustain

conviction, in favor of a “realistic probability” test. 24 I.&N.

Dec. at 697. Under this approach, “in evaluating whether an

alien’s prior offense is categorically one that involved moral

turpitude, immigration judges should determine whether there

is a ‘realistic probability, not a theoretical possibility,’ that a

State or Federal criminal statute would be applied to reach

conduct that does not involve moral turpitude.” Id. at 689-90

(citation omitted). To demonstrate a “realistic probability” of

conviction, the alien must identify an actual conviction for

comparable conduct. Silva-Trevino explained, 

[The “realistic probability” approach] focuses the

adjudicator on a criminal statute’s actual scope

and application and tailors the categorical moral

turpitude inquiry by asking whether, at the time of

an alien’s removal proceeding, any actual (as

opposed to hypothetical) case exists in which the

relevant criminal statute was applied to conduct

that did not involve moral turpitude. If the statute

has not been so applied in any case (including the

alien’s own case), the adjudicator can reasonably

conclude that all convictions under the statute

may categorically be treated as ones involving

moral turpitude. In such circumstances, the

history of adjudication generally establishes no
22

realistic probability that the statute, whatever its

language may hypothetically allow, would

actually be applied to acts that do not involve

moral turpitude. 

Id. (internal citation omitted) (emphasis added). 

Second, Silva-Trevino renders the strict “categorical”

approach not “categorical.” Prior to Silva-Trevino, we departed

from a strict categorical analysis only where the statute of

conviction featured disjunctive variations, some of which were

sufficient for conviction of the federal offense and others of

which were not. “We depart farther from the formal categorical

approach only where the language of a particular subsection [of

a statute] . . . invites inquiry into ‘the underlying facts of the

case.” Evanson v. Att’y Gen., 550 F.3d 284, 291-92 (3d Cir.

2008) (internal citation omitted). In such a case, we modified

the approach, but our inquiry remained a limited one, focused on

the crime of conviction: we reviewed only the record of the

conviction to ascertain the particular variation of the statute

under which the defendant was convicted. See Singh, 383 F.3d

at 147-48; Joseph v. Att’y Gen., 465 F.3d 123, 127 (3d Cir.

2006). Accordingly, the focus under the categorical approach

has always been the conviction, aimed at determining exactly

what the defendant was convicted of.

Silva-Trevino, by contrast, directs adjudicators to depart

from a categorical approach, and to conduct an “individualized

moral turpitude inquiry,” in every instance in which a

“categorical analysis is not conclusive” as to whether the alien

was convicted of a CIMT. 24 I.& N. Dec. at 700. The aim of
23

this “individualized” inquiry is to ascertain the alien’s particular

acts—to determine “whether the facts of the alien’s prior

conviction in fact involved moral turpitude”—not merely to

determine the elements of the statutory offense of which the

alien was convicted. Id. at 700, 708.

Rather than limiting the CIMT inquiry to an examination

of the formal record of conviction, which could include the

charging document, the terms of the plea agreement or transcript

of the colloquy between judge and defendant in which the

factual basis for the plea is confirmed by the defendant, or some

comparable judicial record of this information, Shepard, 544

U.S. at 26; Evanson, 550 F.3d at 291, Silva-Trevino abandons

these restrictions: “I [Attorney General] conclude that the

evidentiary limitations of Taylor and Shepard do not apply for

purposes of making moral turpitude determinations.” 24 I.&N.

Dec. at 702. Hence, an adjudicator may, in his or her discretion,

consider not only evidence from the prior criminal proceedings

but also “any additional evidence or factfinding the adjudicator

determines is necessary or appropriate to resolve accurately the

moral turpitude question.” Id. at 687 (emphasis added). SilvaTrevino sets no limitations on the kinds of evidence adjudicators

may consider. 

The Attorney General asserts that two aspects of the INA

support his authority to direct courts to employ his novel

approach and compel our deference. First, he contends that the

CIMT provisions in the immigration statute are ambiguous. He

urges that Congress employed conflicting terminology,

alternately using “convicted of” and “committed” throughout the

statute. In the Attorney General’s view, these terms, which cut
 As a general rule, an agency’s construction of an 12

ambiguous statute under its purview, and in which it has special

expertise, is entitled to deference. Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)

(“Chevron’s premise is that it is for agencies, not courts, to fill

statutory gaps.”); Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984); Knapik, 384 F.3d at 88. The

INA delegates to the Department of Justice authority to interpret

and implement its provisions. See section 102(a)(1) of the INA,

8 U.S.C. §1103(a)(1). 

However, where Congress has spoken clearly on the

precise issue, no deference is owed to the agency’s

interpretation of a statute. See Chevron, 467 U.S. at 843 n.9 (“If

a court, employing traditional tools of statutory construction,

ascertains that Congress had an intention on the precise question

at issue, that intention is the law and must be given effect.”);

Chowdhury v. INS, 249 F.3d 970, 973 (9th Cir. 2001) (noting

that deference under Chevron “presupposes some ambiguity in

the governing statute”); Beltran-Tirado v. INS, 213 F.3d 1179,

24

in “different directions,” do not endorse a single methodology

for adjudicating CIMT cases, but rather confer discretion on the

Attorney General to define a reasonable approach. Id. at 693.

Second, the Attorney General urges that the phrase “crime

involving moral turpitude” invites, if not requires, a factintensive inquiry as to whether the underlying conduct was

turpitudinous. Id. The Attorney General urges that deference is

owed to his interpretation of these provisions, and that the

methodology that he espouses is obligatory, notwithstanding our

contrary precedents.12
1185 & n.10 (9th Cir. 2000); see In re Velazquez-Herrera, 24 I.

& N. Dec. 503, 513 (B.I.A. 2008). Further, where an agency

interpretation reflects an impermissible construction of the

statute, we will not defer to the agency’s view. See Chevron,

467 U.S. at 843; Okeke v. Gonzales, 407 F.3d 585, 588 (3d Cir.

2005) (noting that deference is only appropriate where agency’s

resolution of ambiguity is predicated on a “permissible

construction of the statute” (quoting Fatin v. INS, 12 F.3d 1233,

1239 (3d Cir. 1993))).

 In the case, In re Velazquez-Herrera, the BIA explained the 13

historical roots of the categorical approach: 

For nearly a century, the Federal circuit courts of

appeals have held that where a ground of

deportability is premised on the existence of a

“conviction” for a particular type of crime, the

focus of the immigration authorities must be on

the crime of which the alien was convicted, to the

exclusion of any other criminal or morally

reprehensible acts he may have committed. See,

25

We conclude that we are not bound by the Attorney

General’s view because it is bottomed on an impermissible

reading of the statute, which, we believe, speaks with the

requisite clarity. The ambiguity that the Attorney General

perceives in the INA is an ambiguity of his own making, not

grounded in the text of the statute, and certainly not grounded in

the BIA’s own rulings or the jurisprudence of courts of appeals

going back for over a century. The specific ambiguity is as to 13
e.g., Dalton v. Ashcroft, 257 F.3d 200, 204-05 (2d

Cir. 2001); Goldeshtein v. INS, 8 F.3d 645, 647

(9th Cir. 1993); Okabe v. INS, 671 F.2d 863, 865

(5th Cir. 1982); Tseung Chu v. Cornell, 247 F.2d

929, 935 (9th Cir. 1957); Ablett v. Brownell, 240

F.2d 625, 627 (D.C. Cir. 1957); United States ex

rel. Giglio v. Neelly, 208 F.2d 337, 340-41 (7th

Cir. 1953); United States ex rel. McKenzie v.

Savoretti, 200 F.2d 546, 548 (5th Cir. 1953);

United States ex rel. Robinson v. Day, 51 F.2d

1022, 1022-23 (2d Cir. 1931) (Hand, J.); United

States ex rel. Mylius v. Uhl, 210 F. 860, 862-63

(2d Cir. 1914).

24 I. & N. Dec. at 513; see United States v. Williams, 203 F.

155, 156 (D.C.N.Y. 1913) (applying categorical approach and

rejecting individualized inquiry into the alien’s particular acts).

Although we are generally reluctant to infer legislative intent

from inaction, we find significant that Congress has retained the

term “convicted” in the inadmissibility section, despite having

amended the statute over forty times since 1952. 8 U.S.C.

§ 1182 (historical notes); see In re Velazquez-Herrera, 24 I. &

N. Dec. at 515 (“[W]e must presume that Congress was familiar

with that fact (applicability of categorical approach) when it

made deportability under section 237(a)(2)(E)(i) depend on a

“conviction.” Had Congress wished to predicate deportability on

an alien’s actual conduct, it would have been a simple enough

matter to have done so.”) (internal citations omitted); see also

United States v. Wilson, 290 F.3d 347, 356 (D.C. Cir. 2002)

26
(“Congress is presumed to preserve, not abrogate, the

background understandings against which it legislates.”).

 See, e.g., Matter of Velazquez-Herrera, 24 I. & N. Dec. at 14

513; Matter of Babaisakov, 24 I. & N. Dec. 306, 311 (BIA

2007); Matter of Sweetser, 22 I. & N. Dec. 709, 715 (BIA

1999); Matter of Pichardo, 21 I. & N. Dec. 330, 335 (BIA

1996); Matter of Madrigal, 21 I. & N. Dec. 323, 327 (1996);

Matter of Franklin, 20 I. & N. Dec. at 868-69; Matter of S----,

2 I. & N. Dec. 559 (C.O., BIA 1946; A.G. 1947); Matter of S----

, 2 I. & N. Dec. 353, 357 (BIA, A.G. 1945); Matter of N----, 1

I. & N. Dec. 181 (BIA 1941). 

 See Op. Of Hon. Cummings, 39 Op. Att’y Gen. 215 (AG

15

1938); Op. Of Hon. Cummings, 37 Op. Att’y Gen. 293 (AG

1933).

 In Gonzales v. Duenas-Alvarez, upon which the Attorney 16

General relies, the Supreme Court underscored federal courts’

27

the use of the words “convicted” and “committed.” The

inclusion of “committed,” the Attorney General urges, permits

inquiry into any and all acts—whether or not admitted by the

alien, and whether or not established by the record of

conviction—to determine whether the petitioner was convicted

of a CIMT. To say that this reading has been rejected is an

understatement: the BIA, prior attorneys general, and 14 15

numerous courts of appeals have repeatedly held that the term

“convicted” forecloses individualized inquiry in an alien’s

specific conduct and does not permit examination of extrarecord evidence. It could not be clearer from the text of the 16
uniform application of the categorical, and modified categorical,

approach. 549 U.S. 183, 185-86 (2007); Matter of Babaisakov,

24 I. & N. Dec. at 311 (“We [BIA] have also traditionally

applied an analysis that closely resembles the categorical

approach to determine whether an alien has a ‘conviction’ that

falls within a federally defined category of crimes leading to

deportation.”).

Although courts employ different labels to describe the

categorical and modified categorical approaches, the

fundamental methodology is the same. Each court begins with

an analysis of the statute of conviction. If the statute of

conviction is divisible, defining variations of the same offense,

some of which would constitute a CIMT and others of which

would not, inquiry into the record of conviction is permissible

solely to determine the particular subpart under which the alien

was convicted. Otherwise, scrutiny of the alien’s particular acts

is prohibited. See, e.g., Partyka, 417 F.3d at 416;

Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 450 (4th Cir.

2005); Chanmouny, 376 F.3d at 812; Cabral v. INS, 15 F.3d 193

(1st Cir. 1994); Gonzalez-Alvarado v. INS, 39 F.3d 245 (9th

Cir.1994); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); United

States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939). The

Seventh Circuit Court of Appeals alone has recently abandoned

the categorical approach in moral turpitude cases. See Ali v.

Mukasey, 521 F.3d 737 (7th Cir. 2008).

28

statute––which defines “conviction” as a “formal judgment of

guilt,” and which explicitly limits the inquiry to the record of
 The INA provides: 17

In any proceeding under this chapter, any of the

following documents or records (or a certified copy of such an

official document or record) shall constitute proof of a criminal

conviction:

(i) An official record of judgment and conviction.

(ii) An official record of plea, verdict, and

sentence.

(iii) A docket entry from court records that

indicates the existence of the conviction.

(iv) Official minutes of a court proceeding or a

transcript of a court hearing in which the court

takes notice of the existence of the conviction.

(v) An abstract of a record of conviction prepared

by the court in which the conviction was entered,

or by a State official associated with the State's

repository of criminal justice records, that

indicates the charge or section of law violated, the

disposition of the case, the existence and date of

conviction, and the sentence.

(vi) Any document or record prepared by, or

under the direction of, the court in which the

conviction was entered that indicates the

existence of a conviction.

(vii) Any document or record attesting to the

conviction that is maintained by an official of a

State or Federal penal institution, which is the

29

conviction or comparable judicial record evidence —that the 17
basis for that institution's authority to assume

custody of the individual named in the record.

8 U.S.C. § 1229a(c)(3)(B); see Conteh v. Gonzales, 461 F.3d 45,

54 (1st Cir. 2006) (“[T]he regulation’s catch-all provision

authorizes the admission of evidence for the sole purpose of

proving “the existence of a criminal conviction,” 8 C.F.R.

§ 1003.41(d) (emphasis supplied); it does not authorize the

admission of evidence for the purpose of proving the facts

underlying the offense of conviction.”).

 See Duenas-Alvarez, 549 U.S. at 185-86 (“In determining 18

whether a conviction (say, a conviction for violating a state

criminal law that forbids the taking of property without

permission) falls within the scope of a listed offense (e.g., “theft

offense”), the lower courts uniformly have applied the approach

this Court set forth in Taylor v. United States, 495 U.S. 575, 110

30

CIMT determination focuses on the crime of which the alien

was convicted—not the specific acts that the alien may have

committed. 8 U.S.C. § 1101(a)(48)(A). The statute presents no

ambiguity. 

 Two recent opinions of the Second and Ninth Circuit

Courts of Appeals buttress this conclusion—Gertsenshteyn v.

U.S. Dept. of Justice, 544 F.3d 137 (2d Cir. 2008) and Tokatly

v. Ashcroft, 371 F.3d 613, 622 (9th Cir. 2004). Although these

opinions address “convicted” in the context of different removal

provisions, Congress has prescribed a single definition of

“convicted,” applicable to all removable offenses. See 8 U.S.C.

§ 1101(a)(1) and (48)(A) (defining “conviction”).18
S.Ct. 2143, 109 L.Ed.2d 607 (1990)).”) (emphasis added); see

also Chowdury, 249 F.3d at 973 (“When analyzing a statute we

. . . mak[e] every effort not to interpret a provision in a manner

that renders other provisions of the same statute inconsistent.’”

(quoting Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th

Cir. 1991))); Tokatly, 371 F.3d at 622; United States v.

Pacheco, 225 F.3d 148, 154 (2d Cir. 2000) (quoting United

States v. Bonanno Organized Crime Family, 879 F.2d 20, 24 (2d

Cir. 1989)) (“[W]e must ‘interpret [a] specific provision in a

way that renders it consistent with the tenor and structure of the

whole act or statutory scheme of which it is a part.’”) (internal

citations omitted).

31

Accordingly, we find the reasoning in these cases applicable to

the CIMT provisions of the statute.

In Tokatly v. Ashcroft, the Ninth Circuit Court of Appeals

concluded that a provision authorizing removal of an alien

convicted of a crime of domestic violence required application

of a categorical, or modified categorical, approach. 371 F.3d at

622. The Court stressed that this result flowed from Congress’s

inclusion of the word “convicted,” a clear and unambiguous

term:

Like all of the other removal provisions we have

analyzed in accordance with the categorical and

modified categorical approach, the plain language

of the “crime of domestic violence” provision

clearly bases deportability on the nature of the

alien’s conviction, rather than on the alien’s
32

actual conduct. We are required to determine

whether Tokatly has been “convicted of a crime of

domestic violence”-not whether he in fact

committed such a crime. INA § 237(a)(2)(E)(i)

(emphasis added). That the removable offense at

issue is a “crime of domestic violence” in no way

warrants a reversal of our fundamental method of

determining whether an alien has been convicted

of a removable offense under the Act.

Id. (emphasis added).

The Second Circuit Court of Appeals has concluded,

similarly, that “convicted” mandates a categorical analysis.

Gertsenshteyn, 544 F.3d at 145-46. In Gertsenshteyn, the court

considered the validity of a novel framework, adopted by the

BIA, for adjudicating “aggravated felony” convictions under

8 U.S.C. § 1101(a)(43)(K)(ii). 544 F.3d at 138. The BIA had

specifically sought greater leeway to examine the particular

conduct underlying an alien’s prior conviction. As originally

enacted in April 1996, § 1101(a)(43)(K)(ii) defined as an

aggravated felony the commission of “an offense that . . . is

described in” any one of three federal statutory provisions

[18 U.S.C. §§ 2421, 2422, and 2423] ‘for commercial

advantage.’” Departing from the categorical and modified

categorical approaches, the BIA scrutinized evidence outside the

record of conviction to ascertain whether the alien was, in fact,

motivated by a desire “for commercial advantage.” The court

concluded that such an approach was foreclosed by the statute,

which required “conviction” of an aggravated felony. The

relevant passage in Gertsenshteyn is worth quoting at length:
33

Our holding today is grounded in

history-specifically, the history of why we have

applied the categorical approach to aggravated

felony inquiries in the removal context. The

p rim a ry re a son w as th a t 8 U.S.C .

§ 1227(a)(2)(A)(iii)-the provision of the INA that

renders an alien removable for having been

convicted of an aggravated felony (leaving to

provision 8 U.S.C. § 1101(a)(43) the definition of

“aggravated felony”)-uses the word “convicted.”

That is, the INA premises removability not on

what an alien has done, or may have done, or is

likely to do in the future (tempting as it may be to

consider those factors), but on what he or she has

been formally convicted of in a court of law. . . .

One way to ensure proper focus on the

conviction, we decided, was the method the

Supreme Court applied in Taylor and Shepard.

See Ming Lam Sui v. INS, 250 F.3d 105, 116-17

(2d Cir. 2001) (stating that “the Taylor opinion

provides valuable guidance” to a determination of

whether an alien’s offense constitutes an

“aggravated felony” under the INA because, like

the statu t e at issue in Taylo r, “

§ 1227(a)(2)(A)(iii) renders deportable an alien

who has been ‘convicted’ of an aggravated

felony, not one who has ‘committed’ an

aggravated felony”). We also reasoned (1) that

“nothing in the legislative history [of 8 U.S.C.

§ 1227(a)(2)(A)(iii)] suggested a factfinding role
34

for the BIA in ascertaining whether an alien had

committed an aggravated felony, just as, in

Taylor, nothing suggested such a role for the

sentencing court in evaluating the factual basis of

a prior burglary conviction,” and (2) that “the

practical evidentiary difficulties and potential

unfairness associated with looking behind [an

alien’s] offense of conviction were no less

daunting in the immigration [context] than in the

sentencing context.” Dulal-Whiteway, 501 F.3d at

125-26 (internal quotation marks and citations

omitted). In sum, our use of the categorical

approach emanates from our understanding of

what Congress intended when it drafted

§ 1227(a)(2)(A)(iii), a provision that, like the

provision in Taylor and Shepard, requires the

Government to prove the existence of a qualifying

conviction in order to make its case.

Id. at 145-46 (emphasis in original). Although the Court

construed “conviction” in the context of the aggravated felony

provision, the Court made clear that its rejection of the BIA’s

fact-intensive inquiry was premised on “conviction”—a

statutorily defined term—not on the particular offense for which

removal was sought:

In the precedential opinion that the BIA

issued in this case, it has taken a new approach.

But it has done so not by reinterpreting 8 U.S.C.

§ 1227(a)(2)(A)(iii), the provision whose wording

led it-and us-to adopt the categorical approach in
 Because “convicted” has an unambiguous meaning, the 19

Attorney General must find support for his novel approach

elsewhere in the statute. The Attorney General attempts to do

just that, citing 8 U.S.C. § 1182(a)(2)(A)(i)(I), section

35

the first place. Rather, it has focused entirely on

a subpart of § 1101(a)(43), the provision of the

INA that defines “aggravated felony.” The BIA

has authority to interpret that provision, and its

interpretation-specifically, its sensible reading of

the phrase “commercial advantage”-may well

merit deference should the BIA reassert it in this

case (on remand) or in others. But the BIA’s

discussion of § 1101(a)(43)(K)(ii) gives us no

reason to depart from its, and our own, precedents

regarding the more fundamental question of what

is required of the agency-in the interests of both

fairness and efficiency-when an alien's

removability hinges on the existence of a prior

conviction.

Id. at 146 (emphasis added); Conteh, 461 F.3d at 54; Chang v.

INS, 307 F.3d 1185, 1190 & n.2 (9th Cir. 2002) (noting that

term “conviction” necessarily limits inquiry to the elements of

the statute of conviction and the record of conviction); In re

Velazquez-Herrera, 24 I.&N. Dec. at 513 (noting that

“convicted” requires the “focus” of the immigration authorities

to be on the “crime of which the alien was convicted, to the

exclusion of any other criminal or morally reprehensible acts he

may have committed.”) (emphasis added). 

19
212(a)(2)(A)(i)(I). However, that section, addressing acts

specifically “admitted” by the alien in the underlying criminal

proceeding, is narrowly drawn; it does not confer limitless

discretion on immigration judges to examine “any additional

evidence” deemed “appropriate.” Silva-Trevino, 24 I.&N. Dec.

at 687; see Connecticut Nat’l Bank v. Germain, 503 U.S. 249,

253-54 (1992) (“[C]ourts must presume that a legislature says in

a statute what it means and means in a statute what it says

there.”); In re Velazquez-Herrera, 24 I. & N. Dec. at 507 (“If

that [statutory] language constitutes a plain expression of

congressional intent, it must be given effect.”); see also Conteh,

461 F.3d at 58 (“It seems obvious to us that the record of

conviction cannot encompass after-the-fact statements made in

a separate and subsequent proceeding.”). The Attorney

General’s reliance on section 212(a)(2)(A)(i)(I) as support for

a far-reaching inquiry into an alien’s specific acts is thus

misplaced.

36

We also take issue with the Attorney General’s view that

the phrase “crime involving moral turpitude” invites inquiry into

an alien’s specific acts. The Attorney General’s argument is

premised on a fundamental misreading of the relevant language.

The Attorney General views “crime” and “involving moral

turpitude” as distinct grammatical units and, accordingly,

reasons that the clause “involving moral turpitude” modifies

“crime.” He thus concludes that Congress intended to authorize

inquiry into whether an alien committed the offense in a manner

reflecting depravity—that is whether the alien’s particular acts

“involv[ed] moral turpitude.” The Attorney General’s view,

however, overlooks a crucial fact: crime involving moral
 In United States v. Uhl, decided almost one hundred years 20

ago, the court acknowledged the possibility that the statute

would be both overinclusive and underinclusive, but noted that

the interest in administrative efficiency justified this result. 203

F. 152, 153 (S.D.N.Y. 1913). 

 See Matter of Pichardo, 21 I. & N. Dec. at 335 (“As this 21

Board and the courts have consistently held in cases addressing

the issue of whether an alien is deportable under section

241(a)(2)(A)(i) of the Act for having been convicted of a crime

37

turpitude is a term of art, predating even the immigration statute

itself. See Jordan v. De George, 341 U.S. 223, 227 (1951);

Baxter v. Mohr, 37 Misc. 833, 76 N.Y.S. 982 (1902). As such,

its division into a noun and subordinate clause, as the Attorney

General seeks to do, distorts its intended meaning. It refers to

a specific class of offenses, not to all conduct that happens to

“involve” moral depravity, because of an alien’s specific acts in

a particular case. Because the Attorney General’s position is

premised on a clearly erroneous interpretation of “crime

involving moral turpitude,” no deference is owed to his view.

Moreover, although the Attorney General

observes–correctly–that “moral turpitude” is rarely an element

of the underlying crime triggering removal, it is the offense 20

that must be scrutinized for the requisite degree of depravity.

Because the INA requires the conviction of a crime—not the

commission of an act—involving moral turpitude, the central

inquiry is whether moral depravity inheres in the crime or its

elements–not the alien’s underlying conduct. In this way, the 21
involving moral turpitude, it is the nature of the crime, as

defined by statute and interpreted by the courts and as limited

and described by the record of conviction, which determines

whether an alien falls within the reach of that law.”). 

38

concept of a crime involving moral turpitude does not lend itself

to an examination of acts, rather than elements of the crime, any

more than does the concept of “crime of violence” under section

101(a)(43)(F) of the INA. See 18 U.S.C. § 1101(a)(43)(F)

(defining “aggravated felony” as including a “crime of

violence”). Violence, like moral turpitude, is not an element of

the underlying offense; rather, we must look at the elements of

the crime and measure them against the requirement of

“violence.” See Ng v. Att’y Gen., 436 F.3d 392, 396-97 (3d Cir.

2006) (applying categorical approach to determination of

whether conviction constitutes a “crime of violence” under

section 101(a)(43)(F)); see also Shepard, 544 U.S. at 14

(limiting cognizable evidence to record of conviction in

determining whether prior conviction was for “violent felony”

under the Armed Career Criminal Act); Tokatly, 371 F.3d at 622

(“That the removable offense at issue is a “crime of domestic

violence” in no way warrants a reversal of our fundamental

method of determining whether an alien has been convicted of

a removable offense under the Act.”). The use of the term

“involves” in “crime involving moral turpitude” is no more

expansive than the word “of” in “crime of violence.”

Nor do we believe that, as a practical matter,

determination of whether a conviction “fits” the requirements of

a CIMT requires examination of an alien’s underlying conduct.
39

We are aware that the Seventh Circuit Court of Appeals recently

reached a contrary conclusion in Ali v. Mukasey, upon which the

Attorney General relies in Silva-Trevino. 521 F.3d at 741-42. In

Ali, the Seventh Circuit Court of Appeals concluded, “The need

to decide whether a crime is one of ‘moral turpitude’ . . . may

require some additional information, since the charging papers

that led to the prior conviction are not framed with such

classifications in mind . . . .” Id. Because the Seventh Circuit

represents the sole court of appeals to approve such a farreaching inquiry in the CIMT context, we consider its holding

and reasoning in some detail.

In Ali, the court initially acknowledged its precedents

applying the categorical approach set forth in Shepard and

Taylor. Id. at 741; see Hashish v. Gonzales, 442 F.3d 572, 575

(7th Cir. 2006); Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th

Cir. 2005). The court, however, then abandoned these

precedents, providing three grounds for its decision: that (1) the

rationale for application of the categorical approach in criminal

proceedings is inapplicable in the immigration context; (2)

scrutiny of an alien’s specific acts is necessary to determine

whether a prior conviction fits the criteria of a CIMT; and (3) a

recent decision of the BIA permits examination of extra-record

evidence in conducting the CIMT inquiry, see Matter of

Babaisakov, 24 I. & N. Dec. at 311. None of these reasons

withstands scrutiny.

First, the court reasons that the twin rationales for the

categorical approach articulated in Taylor—simplicity of

application and conservation of judicial resources—do not

“come into play” in the immigration context. Ali, 521 F.3d at
40

741. We respectfully disagree. Administrative efficiency and

ease of application are equally, if not more, important in the

immigration context than in criminal proceedings. See

Gertsenshteyn, 544 F.3d at 146 (noting that “the practical

evidentiary difficulties and potential unfairness associated with

looking behind [an alien’s] offense of conviction were no less

daunting in the immigration [context] than in the sentencing

context”). As the Ninth Circuit Court of Appeals, a circuit

experienced with managing crowded immigration dockets,

recently explained, “If we were to allow evidence that is not part

of the record of conviction as proof of whether an alien falls

within the reach of [an INA removal provision], we essentially

would be inviting the parties to present any and all evidence

bearing on an alien’s conduct leading to the conviction . . . .

Such an endeavor is inconsistent . . . with the streamlined

adjudication that a deportation hearing is intended to provide.”

Tokatly, 371 F.3d at 621 (quoting Matter of Pichardo, 21 I. & N.

Dec. at 335). Yet, the “invitation” that Tokatly strives to avoid

is extended to the parties in Ali: “[W]e now conclude that when

deciding how to classify convictions under criteria that go

beyond the criminal charge-such as . . . whether the crime is one

of ‘moral turpitude,’ the agency has the discretion to consider

evidence beyond the charging papers and judgment of

conviction.” Ali, 521 F.3d at 743. Ali sets no limitation on the

evidence admissible to establish an alien’s underlying conduct.

Ali dismisses the administrative implications of its

ground-breaking approach, reasoning that immigration judges

may devote as much, or as little, time to examination of an

alien’s specific conduct as they see fit. Id. at 741. The court

reasons that whether an individualized inquiry would be unduly
41

burdensome is an issue for the agency, not the judiciary, to

decide: “And how much time the agency wants to devote to the

resolution of particular issues is, we should suppose, a question

for the agency itself rather than the judiciary.” Id. We need not

weigh the respective costs and benefits of a fact-intensive

approach, or divine the agency’s view on the matter, as the BIA

has already spoken clearly and unequivocally. If Ali refers the

“question” to the BIA, id., the agency has previously answered

it:

If we were to make an exception here and

accept the respondent’s testimony as proof of his

deportability . . . there would be no clear stopping

point where this Board could limit the scope of

seemingly dispositive but extrinsic evidence

bearing on the respondent’s deportability. We

believe that the harm to the system induced by the

consideration of such extrinsic evidence far

outweighs the beneficial effect of allowing it to

form the evidentiary basis of a finding of

deportability. 

Matter of Pichardo, 21 I. & N. Dec. at 335-36 (internal citation

omitted).

Notwithstanding the agency’s prior rejection of a factintensive inquiry, the court in Ali reasons that such an approach

is necessary to determine whether a prior conviction satisfies the

criteria of a CIMT, since “moral turpitude” is rarely an element

of the statute of conviction. But, this problem of “fit”—the

virtually inevitable incongruity between the statute of conviction
42

and the elements of a CIMT—is not of recent vintage. Writing

nearly a century ago, Judge Noyes identified this as an inevitable

byproduct of the categorical approach:

It is true that . . . some aliens who have been

convicted of high crimes may be excluded

although their particular acts evidence no

immorality and that some who have been

convicted of slight offenses may be admitted

although the facts surrounding their commission

may be such as to indicate moral obliquity. But

such results always follow the use of fixed

standards and such standards are, in my opinion,

necessary for the efficient administration of the

immigration laws.

Uhl, 203 F. at 153. In the intervening one hundred years since

Uhl was decided, adjudicators have applied the categorical

approach to the CIMT inquiry without great difficulty. See also

In re Velazquez-Herrera, 24 I. & N. Dec. at 513. Ali fails to

identify a significant development–legal, policy, or

otherwise–justifying departure from our historic approach. 

Even if we were inclined to find, as did the court in Ali,

that an individualized inquiry would enable more precise

determinations regarding removal, and that this benefit

outweighed the administrative burden created, we believe our

discretion to adopt such an approach to be foreclosed by the

immigration statute itself, which predicates removal on

convicted conduct, and which, we conclude, expressly limits our

inquiry to the official record of judgment and conviction, or
43

other comparable judicial record evidence. 8 U.S.C.

§§ 1229a(c)(3)(B), 1101(a)(48)(A); see Conteh, 461 F.3d at 54;

cf. Chevron, 467 U.S. at 842-43.

Lastly, the Seventh Circuit Court of Appeals reasons that

a recent opinion of the BIA, Matter of Babaisakov, warrants

abandoning its precedents applying the categorical approach to

CIMT cases. 24 I. & N. Dec. at 311. Babaisakov, however, does

not support the far-reaching inquiry that the court adopts in Ali.

There, the BIA examined evidence outside the record of

conviction for the narrow purpose of determining whether the

monetary threshold for removal under section 101(a)(43)(M)

was met. Section 101(a)(43)(M) authorizes removal of an alien

who is convicted of an offense that “involves fraud or deceit in

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

(emphasis added). In approving resort to reliable evidence

outside the record of conviction to determine the loss amount,

the BIA stressed that a categorical approach would be

unworkable, as there is no federal or state fraud statute that

contains an element requiring loss to the victims exceeding

$10,000. Id. at 315. 

Shortly after Matter of Babaisakov was decided, we

adopted a position similar to that of the BIA and, eschewing a

categorical approach, held that section 101(a)(43)(M)’s

monetary requirement did not require jury determination of the

amount of victim loss in the underlying criminal proceeding.

Nijhawan v. Att’y Gen., 523 F.3d 387, 391-92 (3d Cir. 2008).

We reasoned, as the BIA did in Matter of Babaisakov, that a

contrary approach, requiring a loss amount to have been

ascertained by the jury in the prior criminal proceeding, would
 In Silva-Trevino, the Attorney General posits a series of 22

policy arguments to justify abandoning the categorical

approach—that an individualized inquiry would minimize the

impact of differences in state criminal codes on CIMT

adjudication, and remedy the current fractured approach to the

CIMT issue, in which courts of appeals apply different

methodologies. These policy benefits are largely beside the

point. Congress has spoken clearly and unambiguously and,

therefore, the agency is not free to disregard Congress’s

judgment, merely because it believes that it has fashioned a

better alternative, or that Congress’s approach is ill-advised. See

Chevron, 467 U.S. at 842-43; In re Velazquez-Herrera, 24 I. &

N. Dec. at 514 (“The principal difficulty with the DHS’s

44

essentially gut this basis for removal and “impose a totally

impractical standard.” Id. 

The practical impediments to application of the

categorical approach identified in Nijhawan and Babaisakov,

however, are not present in the CIMT context. The BIA and

courts of appeals have determined whether moral turpitude

inheres in the convicted conduct using a categorical approach

for over a century. Hence, Nijhawan and Babaisakov do not

support abandoning our established methodology. 

Because we conclude that Ali misunderstands the import

of Babaisakov, violates clear statutory language requiring proof

of actual conviction, and ignores the BIA’s pronouncement that

a fact-intensive inquiry would be unduly burdensome, we do not

feel compelled to follow it.22
position is that we simply have no authority to consider . . .

policy matters except as they may bear on the proper

interpretation of an otherwise ambiguous statute.”).

45

The other aspect of Silva-Trevino—requiring proof of a

“realistic probability” that the statute of conviction would be

applied to non-turpitudinous conduct—is also wrong-headed.

This concept originated in Duenas-Alvarez, 549 U.S. at 185-86.

There, the Supreme Court considered whether conviction under

a California statute, imposing criminal penalties not only on one

who takes a vehicle without consent but also on one who is an

accessory or accomplice to such an unauthorized taking,

constitutes a “theft offense” under the 8 U.S.C.

§ 1101(a)(43)(G), and is thus removable. The alien urged that,

as a result of California courts’ application of the “natural and

probable consequences” doctrine, the California statute

criminalized conduct that is not “theft” and thus does not

warrant removal. Rejecting the alien’s view of the statute, the

Supreme Court reasoned that states routinely punish conduct of

an accomplice to theft as “theft,” and stated: “[I]n our view, to

find that a state statute creates a crime outside the generic

definition of a listed crime in a federal statute requires more

than the application of legal imagination to a state statute’s

language. It requires a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct that

falls outside the generic definition of a crime.” Id. at 193.

Concluding that the alien had merely articulated a theoretical

possibility that the California statute would apply where the

defendant did not intend to commit the crimes resulting from his
 See United States v. Grisel, 488 F.3d 844, 850 (9th Cir.

23

2007) (en banc) (“Where, as here, a state statute explicitly

defines a crime more broadly than the generic definition, no

46

acts, the Court concluded that the statute “fit” the generic

definition of a “theft offense.” 

Curiously, the phrase “realistic probability” has been

imported into the CIMT context, with several courts reasoning

that an alien may avoid removal only if he demonstrates a

“realistic probability” that non-turpitudinous conduct would,

indeed, be prosecuted as a crime under the particular statute at

issue. See, e.g., Nicanor-Romero v. Mukasey, 523 F.3d 992,

1005-1006 (9th Cir. 2008); United States v. Becerril-Lopez, 528

F.3d 1133, 1141 (9th Cir. 2008); Martinez v. Mukasey, 551 F.3d

113, 119 n.6 (2d Cir. 2008); United States v. Diaz-Ibarra, 522

F.3d 343, 348 (4th Cir. 2008). We seriously doubt that the logic

of the Supreme Court in Duenas-Alvarez, however, is

transferable to the CIMT context. In Duenas-Alvarez, the

hypothetical conduct asserted by the alien was not clearly a

violation of California law. In fact, the parties vigorously

disputed whether California courts would permit application of

the statute to a defendant who had committed acts resulting in

a crime, but where the commission of the crime itself was not

intended. Here, by contrast, no application of “legal

imagination” to the Pennsylvania simple assault statute is

necessary. The elements of 2701 are clear, and the ability of the

government to prosecute a defendant under subpart

2701(b)(2)—even where the defendant is unaware of the

victim’s age—is not disputed. With all due respect to our 23
“legal imagination,” Duenas-Alvarez, 127 S.Ct. at 822, is

required to hold that a realistic probability exists that the state

will apply its statute to conduct that falls outside the generic

definition of the crime. The state statute’s greater breadth is

evident from its text.”); Becerril-Lopez, 528 F.3d at 1141.

47

sister courts of appeals who have imposed this additional step in

light of Duenas-Alvarez, we view the situation here as

sufficiently different from that of Duenas-Alvarez to raise

serious doubts as to its applicability. 

Other considerations support our refusal to import a

“realistic probability” test into the CIMT context. As the Ninth

Circuit Court of Appeals explained in Nicanor-Romero, “[T]his

court and others have developed a substantial body of case law

deciding whether various state criminal statutes fall within the

scope of the ‘crime involving moral turpitude’ offense.” 523

F.3d at 1004. This jurisprudence has provided predictability,

enabling aliens better to understand the immigration

consequences of a particular conviction. See id. DuenasAlvarez did not purport to alter our and other courts of appeals’

case law regarding the examination of the least culpable

criminal conduct in resolving the CIMT issue. As the en banc

court in Nicanor-Romero noted, the issue is not whether

potential offenders have been prosecuted; rather, the issue is

whether everyone prosecuted under that statute has necessarily

committed a CIMT. 523 F.3d at 1072. 

Also unanswered is whether the government or the alien

bears the burden of demonstrating a prior application of the
48

statute of conviction to non-turpitudinous conduct, and the

applicability of unreported criminal cases. Id. Although the INA

allocates the burden of establishing removability to the

government, see Notash v. Gonzales, 427 F.3d 693, 697 (9th

Cir. 2005), Duenas-Alvarez appears to shift this burden to the

alien, indicating that he must “show that the statute was so

applied in his own case” or point to “other cases in which the

state courts in fact did apply the statute in the special

(nongeneric) manner for which he argues.” 549 U.S. at 194; see

Nicanor-Romero, 523 F.3d at 1004. These unresolved questions

strengthen our conclusion that the Supreme Court never

intended a sea-change in our case law regarding the

methodology for determining whether an alien has been

convicted of a CIMT.

Based on the foregoing analysis, we will not defer to the

methodology adopted by the Attorney General, which we

conclude is predicated on an impermissible reading of the INA,

is contrary to Congress’s intent, and would overturn nearly a

century of jurisprudence. Accordingly, we will follow our

established methodology for adjudicating crimes involving

moral turpitude, as set forth in Partyka, and conclude that JeanLouis was not convicted of a CIMT.

III. Conclusion

For the foregoing reasons, we will GRANT the petition,

REVERSE the order of the BIA, and REMAND the case to the

BIA for further proceedings consistent with this Opinion.