Jean-Louis v. Att’y Gen., No. 07-3311 (3d Cir. Oct. 6, 2009)

U.S. Court of Appeals for the Third Circuit refused to follow Attorney General's Silva-Trevino and Seventh Circuit's Ali v. Mukasey.

Jean-Louis v. Att’y Gen., No. 07-3311 (3d Cir. Oct. 6, 2009).

Applying the established categorical approach, a conviction of simple assault in violation of 18 Pa. Cons. Stat. §§ 2701(b)(2), where the victim is under 12 years of age and the assailant is over 20 years of age, is not a crime involving moral turpitude for purposes of cancellation of removal.

Under the Immigration and Nationality Act, discretionary cancellation of removal is available to an alien who has resided continuously in the United States for seven years. An alien’s period of continuous residency terminates, however, if he commits an offense referred to in 8 U.S.C. § 1182(a)(2) that renders the alien inadmissible to the United States or removable from the United States under 8 U.S.C. § 1227(a)(2). Crimes involving moral turpitude are among the offenses listed in 8 U.S.C. § 1182(a)(2)(A)(i)(I).

The petitioner’s constitutional claim that his rights under INA § 239(a)(1)(C) & (D) and the Due Process Clause of the U.S. Constitution were violated fails at the outset, because an alien seeking discretionary relief from removal has no cognizable liberty or property interest. Moreover, any such failure was harmless, as the petitioner was adequately apprised of the issue, having prepared a brief on the topic of CIMT in anticipation of the objection.

Crimes involving moral turpitude have been held to require conduct that is inherently base, vile, or depraved. In determining whether a state law conviction constitutes a CIMT, the agency and this court, have historically applied a “categorical” approach, focusing on the underlying criminal statute rather than the alien’s specific act. This court thus looks 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.

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, this court has departed from a strict categorical approach. In such a case, this court has 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. This court has applied this “modified” categorical approach, even when clear sectional divisions do not delineate the statutory variations in order to determine the least culpable conduct sufficient for conviction, and, where a CIMT is asserted, measure that conduct for depravity.

In Shepard v. U.S., 544 U.S. 13, 26 (2005), the Supreme Court opined that 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.

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.

The determination of the scienter or level of culpability under 18 Pa. Cons. Stat. §§ 2701(b)(2) 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. This court thus disagrees with the IJ’s reasoning that the age of the victim should be considered an aggravating factor.


This court finds that no culpability requirement attaches, explicitly or implicitly, to 18 Pa. Cons. Stat. §§ 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 2701(b)(2) does not trigger the statutory “gap-filling” provisions, which provide a mental state requirement that would be otherwise missing from “elements” of an offense.

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. The Court concluded that the New Hampshire gap-filling provision, applicable solely to material elements of an offense, did not govern, because the 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.
Thus, this court concludes 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.

In Partyka v. Att’y Gen., 417 F.3d 408, 413 (3d Cir. 2005), this court had to determine the minimum culpability required for conviction of the offense of “aggravated assault,” defined under New Jersey law, N.J. Stat. Ann. § 2C:12-1b(5)(a) (West 1995 & Supp. 2004), as the commission of simple assault against “any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.” Finding that commission of an assault against a law enforcement officer was a material element of the offense of aggravated assault, this court cited U.S. 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. Crucial to this court’s analysis—and to the analysis in Rebelo upon which this court relied—was the fact that the relevant conduct appeared in the definition of the offense of aggravated assault and thus was an element thereof. 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.

In the instant case, 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.” 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. 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 18 Pa. Cons. Stat. §§ 2701(b)(2), and there is no culpability requirement as to that subpart.

Based upon the foregoing analysis, this court concludes that the least culpable conduct necessary for conviction under 18 Pa. Cons. Stat. §§ 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.

The BIA has observed that simple assaults have generally been held not to involve moral turpitude. It has repeatedly opined that the hallmark of a CIMT, indeed, is an act accompanied by a vicious motive or a corrupt mind. In Michel v. INS, 206 F.3d 253 (2d Cir. 2000) the Court of Appeals for the Second Circuit thus identified a “corrupt scienter” as the touchstone of moral turpitude. 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.

This court normally defers to the agency as to what conduct constitutes a CIMT. This court’s 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-of-age 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.” 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.

This court’s conclusion that 18 Pa. Cons. Stat. §§ 2701(b)(2) has no mental state requirement, coupled with the Attorney General’s stated view in Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687, 706-708 (A.G. 2008) 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 simple assault at 18 Pa. Cons. Stat. §§ 2701 was not a CIMT.

While this court 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.

Under the modified categorical approach, the inquiry concludes when this court determines whether the least culpable conduct sufficient to sustain conviction under the statute “fits” within the requirements of a CIMT. However, in the recent opinion of Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) the Attorney General suggested that more is required. However, this court concludes that deference is not owed to Silva-Trevino’s novel approach and thus this court will continue to apply the established modified categorical approach methodology.

The Attorney General’s novel methodology departs from this court’s precedents in two significant respects. First, Silva-Trevino alters the focus of the categorical analysis. Under the categorical approach, consistent with Supreme Court case law, this court looks to the elements of the statutory offense to ascertain the least culpable conduct hypothetically necessary to sustain a conviction under the statute. Under this court’s 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 crime involving ‘moral turpitude only if all of the conduct it prohibits is turpitudinous. Silva-Trevino eschews our approach of analyzing the least culpable conduct hypothetically sufficient to sustain conviction, in favor of a “realistic probability” test. 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. To demonstrate a realistic probability” of conviction, the alien must identify an actual conviction for comparable conduct.

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 realistic probability that the statute, whatever its language may hypothetically allow, would actually be applied to acts that do not involve moral turpitude.

Second, Silva-Trevino renders the strict “categorical” approach not “categorical.” Prior to Silva-Trevino, this court 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. This court departs 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.” In such a case, this court modified the approach, but the inquiry remained a limited one, focused on the crime of conviction: this court reviewed only the record of the conviction to ascertain the particular variation of the statute under which the defendant was convicted. 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. The aim of 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.

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, Silva-Trevino abandons these restrictions. The Attorney General concluded that the evidentiary limitations of Taylor and Shepard do not apply for purposes of making moral turpitude determinations. 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.” Silva-Trevino sets no limitations on the kinds of evidence adjudicators may consider.

As a general rule, an agency’s construction of an ambiguous statute under its purview and in which it has special expertise is entitled to deference. However, where Congress has spoken clearly on the precise issue, no deference is owed to the agency’s interpretation of a statute. This court concludes that a court of appeals is not bound by the Attorney General’s view because it is bottomed on an impermissible reading of the statute, which, this court believes, speaks with the requisite clarity. The ambiguity that the Attorney General perceived 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 the use of the words “convicted” and “committed.” The inclusion of “committed,” the Attorney General urged, 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 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 statute––which defines “conviction” as a “formal judgment of guilt,” and which explicitly limits the inquiry to the record of conviction or comparable judicial record evidence—that the CIMT determination focuses on the crime of which the alien was convicted—not the specific acts that the alien may have committed. The statute at 8 U.S.C. § 1101(a)(48)(A) presents no ambiguity.

Congress has prescribed a single definition of “convicted,” applicable to all removable offenses.

This court also takes 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 viewed “crime” and “involving moral turpitude” as distinct grammatical units and, accordingly, reasons that the clause “involving moral turpitude” modifies “crime.” He thus concluded 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 involved moral turpitude. The Attorney General’s view, however, overlooked a crucial fact: crime involving moral turpitude is a term of art, predating even the immigration statute itself. As such, its division into a noun and subordinate clause, as the Attorney General sought 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 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 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. 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.” The use of the term “involves” in “crime involving moral turpitude” is no more expansive than the word “of” in “crime of violence.”

Nor does this court 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.

The Seventh Circuit’s reasoning for abandoning the categorical approach—(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—cannot withstand scrutiny.

First, the Seventh Circuit’s 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 is without merits. Administrative efficiency and ease of application are equally, if not more, important in the immigration context than in criminal proceedings.

The Ninth Circuit recently stated that if a court of appeals was 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, it 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.

Even if this court was inclined to find, as did the Seventh Circuit, that an individualized inquiry would enable more precise determinations regarding removal, and that this benefit outweighed the administrative burden created, this court believes its discretion to adopt such an approach to be foreclosed by the immigration statute itself, which predicates removal on convicted conduct, and which, this court concludes, expressly limits its inquiry to the official record of judgment and conviction, or other comparable judicial record evidence.

Lastly, the Seventh Circuit Court of Appeals erroneously reasoned that a recent opinion of the BIA, Matter of Babaisakov, warrants abandoning its precedents applying the categorical approach to CIMT cases. Babaisakov, however, does not support the far-reaching inquiry that the Seventh Circuit adopted. 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.”

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. This court reached a similar decision in Nijhawan v. Att’y Gen., 523 F.3d 387, 391-92 (3d Cir. 2008). This court 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 essentially gut this basis for removal and impose a totally impractical standard. 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 this court concludes that the Seventh Circuit misunderstood 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, this court does not feel compelled to follow it.


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. The concept of “realistic probability” originated from Duenas-Alvarez. 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. By contrast, in the instant case, 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. This court therefore views the instant case 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. This 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. This jurisprudence has provided predictability, enabling aliens better to understand the immigration consequences of a particular conviction.

Also unanswered is whether the government or the alien bears the burden of demonstrating a prior application of the statute of conviction to non-turpitudinous conduct, and the applicability of unreported criminal cases. Although the INA
allocates the burden of establishing removability to the government, 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.” These unresolved questions strengthen this court’s 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.