Title Partyka v. Attorney General of the United States
Date 2005
By
Subject Other\Concurring & Dissenting
Contents
Page 1
5 of 79 DOCUMENTS
MAREK PARTYKA, Petitioner v. * ATTORNEY GENERAL OF THE UNITED STATES, Respondent
* (Pursuant to F.R.A.P. 43(c))
No. 04-2804
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
417 F.3d 408; 2005 U.S. App. LEXIS 16808
March 30, 2005, Argued
August 11, 2005, Filed
PRIOR HISTORY: **1 On Petition for review of an Order of the Board of Immigration Appeals. INS No. A46-389--774.
CASE SUMMARY:
PROCEDURAL POSTURE: The immigration judge concluded that petitioner alien's state court conviction for causing bodily injury to a law enforcement offi- cer involved moral turpitude under § 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.S. §
1227(a)(2)(A)(i), and that he was removable to Poland. The Board of Immigration Appeals (BIA) affirmed with- out opinion. The alien filed a petition for review.
OVERVIEW: In his state court conviction, the alien pled guilty to one count of third degree aggravated assault on a law enforcement officer. The appellate court found that moral turpitude did not inhere in the least culpable con- duct under N.J. Stat. Ann. § 2C:12-1b(5)(a). Also, the indictment did not specify under which subsection of the simple assault statute the alien was charged. Likewise, the judgment of conviction and statement of reasons and sentence did not reveal the level of criminal culpabil- ity involved. Therefore, the appellate court had to de- cide whether the alien's crime involved moral turpitude based on the least culpable conduct required to secure a conviction under the state statute. However, the least culpable conduct under § 2C:12-1b(5)(a) was the neg- ligent infliction of bodily injury with a deadly weapon, and negligently inflicted bodily injury lacked the inher- ent baseness or depravity that evinced moral turpitude; therefore, the alien was not convicted of a crime of moral turpitude. Accordingly, the alien was not deportable, not having committed a crime involving moral turpitude, un- der 8 U.S.C.S. § 1227(a)(2)(A)(i).
OUTCOME: The appellate court granted the alien's pe- tition for review and vacated the BIA's order of removal.
LexisNexis(R) Headnotes
Immigration Law > Deportation & Removal > Judicial
Review
Immigration Law > Judicial Review > Jurisdiction
HN1 In a deportation case, an appellate court has ju- risdiction pursuant to 8 U.S.C.S. § 1252(a) to review the Board of Immigration Appeals' final order of removal. Immigration Law > Deportation & Removal > Judicial Review
Immigration Law > Judicial Review > Standards of
Review > De Novo Review
HN2 In a deportation proceeding, an appellate court's review of the Board of Immigration Appeals' legal deter- minations is de novo.
Immigration Law > Deportation & Removal > Judicial
Review
HN3 Where the Board of Immigration Appeals in an alien's deportation case affirms an immigration judge's
(IJ) decision without opinion, an appellate court reviews the IJ's decision.
Governments > Legislation > Interpretation Immigration Law > Deportation & Removal > Judicial Review
HN4 In a deportation proceeding, an appellate court owes no deference to an immigration judge's interpreta- tion of a state criminal statute.
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN5 Under the Immigration and Nationality Act, an alien is deportable if he: (1) is convicted of a crime in-
417 F.3d 408, *; 2005 U.S. App. LEXIS 16808, **1
Page 2
volving moral turpitude committed within five years after the date of admission, and (2) is convicted of a crime for which a sentence of one year or longer may be imposed.
8 U.S.C.S. § 1227(a)(2)(A)(i).
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN6 Whether an alien's crime involves moral turpitude is determined by the criminal statute and the record of conviction, not the alien's conduct. Under that categorical approach, an appellate court reads the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute.
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN7 As a general rule, a criminal statute defines a crime involving moral turpitude only if all of the conduct it prohibits is turpitudinous. Where a statute covers both turpitudinous and non-turpitudinous acts, however, it is divisible, and an appellate court then looks to the record of conviction to determine whether the alien was convicted under that part of the statute defining a crime involving moral turpitude.
Criminal Law & Procedure > Criminal Offenses > Crimes Against the Person > Assault & Battery
HN8 See N.J. Stat. Ann. § 2C:12-1b(5)(a) (1995 & Supp. 2004).
Criminal Law & Procedure > Criminal Offenses > Crimes Against the Person > Assault & Battery
HN9 See N.J. Stat. Ann. § 2C:12-1a.
Criminal Law & Procedure > Criminal Offenses > Crimes Against the Person > Assault & Battery
HN10 Aggravated assault on a law enforcement officer is a crime of the third degree if the officer suffers bodily injury. N.J. Stat. Ann. § 2C:12-1b(11).
Criminal Law & Procedure > Criminal Offenses > Crimes Against the Person > Assault & Battery
HN11 The first element of aggravated assault under the New Jersey statute is simple assault as defined in N.J. Stat. Ann. § 2C:12-1a(1), (2), or (3). N.J. Stat. Ann. §
2C:12-1b(5).
Criminal Law & Procedure > Criminal Offenses > Crimes Against the Person > Assault & Battery Criminal Law & Procedure > Scienter > Negligence
HN12 The minimum culpable conduct required to com- mit simple assault is the negligent infliction of bodily in- jury with a deadly weapon under N.J. Stat. Ann. § 2C:12-
1a(2).
Criminal Law & Procedure > Scienter > Negligence
HN13 A person acts negligently, according to the New
Jersey criminal code, when he should be aware of a sub-
stantial and unjustifiable risk that the material element exists or will result from his conduct. N.J. Stat. Ann. §
2C:2-2b(4). The risk involved must be of such a nature and degree that the actor's failure to perceive it, consid- ering the circumstances known to him, involves a gross deviation from the standard of care that a reasonable per- son would have exercised. N.J. Stat. Ann. 2C:2-2b(4). Criminal Law & Procedure > Criminal Offenses > Crimes Against the Person > Assault & Battery Criminal Law & Procedure > Scienter > Knowledge
HN14 Based on the statutory language of N.J. Stat. Ann.
§ 2C:12-1b(5)(a), it is apparent that the State is required to prove that a defendant knows the person he is assaulting is a police officer.
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN15 The Immigration and Nationality Act does not define moral turpitude, and, as the United States Court of Appeals for the Third Circuit has observed, the phrase defies a precise definition.
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN16 The Board of Immigration Appeals defines moral turpitude as conduct that is inherently base, vile, or de- praved, contrary to the accepted rules of morality and the duties owed other persons, either individually or to society in general.
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN17 A longstanding test employed by the Board of Immigration Appeals to determine the existence of moral turpitude, which an appellate court finds persuasive in a removal proceeding, asks whether the act is accompanied by a vicious motive or a corrupt mind. Accordingly, the Board has repeatedly held that evil intent is a requisite element for a crime involving moral turpitude.
Criminal Law & Procedure > Scienter > Recklessness
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN18 In recent years, the Board of Immigration Appeals has found moral turpitude to inhere in serious crimes committed recklessly, i.e., with a conscious dis- regard of a substantial and unjustifiable risk that serious injury or death would follow. Recently, the United States Court of Appeals for the Third Circuit has expressed its approval of that approach.
Criminal Law & Procedure > Scienter > Negligence Criminal Law & Procedure > Scienter > Recklessness Criminal Law & Procedure > Scienter > Specific Intent Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
417 F.3d 408, *; 2005 U.S. App. LEXIS 16808, **1
Page 3
HN19 Under either the corrupt intent or recklessness standard, the hallmark of moral turpitude is a reprehensi- ble act committed with an appreciable level of conscious- ness or deliberation. The negligent infliction of bodily in- jury lacks that essential culpability requirement. By defi- nition, a negligent assault is unintentional, unwitting, and committed without contemplation of the risk of injury involved.
Criminal Law & Procedure > Criminal Offenses > Crimes Against the Person > Assault & Battery Criminal Law & Procedure > Scienter > Negligence Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN20 The Board of Immigration Appeals has declared that an assault which causes bodily harm accompanied by substantial pain and considerable suffering, lacks moral turpitude when committed with criminal negligence. Criminal Law & Procedure > Scienter > Specific Intent Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN21 Where knowing or intentional conduct is an el- ement of an offense, an appellate court has found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpi- tude does not inhere.
Criminal Law & Procedure > Criminal Offenses > Crimes Against the Person > Assault & Battery Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN22 Moral turpitude does not inhere in the least cul- pable assault conduct under N.J. Stat. Ann. § 2C:12-
1b(5)(a).
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Moral Turpitude
HN23 Under the general rule governing moral turpitude determinations in deportation proceedings, absent spe- cific evidence to the contrary in the record of conviction, a statute must be read at the minimum criminal conduct necessary to sustain a conviction under the statute. The record of conviction includes the indictment, plea, ver- dict, and sentence.
COUNSEL: Joseph C. Hohenstein (Argued), James J. Orlow, Orlow & Orlow, 6th & Chestnut Streets, Philadelphia, PA 19106, Counsel for Petitioner.
Bryan S. Beier (Argued), Linda S. Wernery, Jocelyn L. Wright, William C. Peachey, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent.
JUDGES: Before: ALITO, SMITH, and ROSENN Circuit Judges
OPINIONBY: ROSENN
OPINION:
*409 OPINION OF THE COURT
ROSENN, Circuit Judge.
The conviction of Marek Partyka ("Partyka" or
"Petitioner") for violating a New Jersey criminal statute by assaulting a local law enforcement officer and the en- suing order of removal require us to wade into the amor- phous morass of moral turpitude law. As a result of an altercation between Petitioner, then aged twenty, and his father, local police and their K-9 dog responded to a call for assistance. A scuffle soon ensued between the offi- cers and Partyka as he attempted to free himself from the chomping jaws of the police dog. Partyka pled guilty to one count of third degree aggravated assault under **2 the New Jersey statute and the New Jersey Superior Court imposed a sentence of ninety days' house arrest and two years' probation.
The Immigration and Naturalization Service ("INS") instituted deportation proceedings for Petitioner's re- moval to Poland on the ground that his conviction for causing bodily injury to a law enforcement officer in- volved moral turpitude under § 237(a)(2)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C.
§ 1227(a)(2)(A)(i). The Immigration Judge ("IJ") con- cluded that Partyka's
417 F.3d 408, *410; 2005 U.S. App. LEXIS 16808, **2
Page 4
*410 crime involved moral turpitude and that he was removable. The Board of Immigration Appeals ("BIA") affirmed without opinion. Partyka timely filed a petition for review in this Court. We grant the petition for review and will vacate the BIA's order of removal.
I.
Partyka, a native and citizen of Poland, was admitted to the United States as a lawful permanent resident in June 1999, when he was eighteen years-old. Less than two years later, a dispute erupted between Partyka and his father at his father's home in New Jersey, and the po- lice were summoned. When the officers arrived, Partyka's father reported that his son had been drinking and had choked **3 him. The officers observed Partyka pac- ing on an outdoor, second-floor landing of his father's apartment building, with a cigarette in one hand, and his other hand in his pocket. One officer thought Partyka was hiding something in his concealed hand, and ordered him to remove his hand from his pocket and to descend the staircase to the ground floor. Partyka allegedly became enraged, threw his cigarette at the officer, and refused to remove his hand from his pocket or to descend the staircase.
According to the police reports, Partyka took no phys- ical action toward the police until the K-9 police unit ar- rived. At that time, Partyka, having been informed that he was under arrest, came down the steps toward the police officers and kicked at the K-9 police dog accompanying the arresting officers. The dog attacked him, biting him repeatedly on his legs, head, and face. The dog seized Partyka on the right calf and the left leg, inflicting mul- tiple lacerations and punctures to both legs. The officers reported that, before they gained control of Partyka, he spat at, wrestled with, kicked, and punched them. Upon completion of the arrest, Partyka was committed to the local hospital for his injuries **4 from the dog bites.
He was diagnosed with "traumatic arthrotomy, left knee, secondary to dog bite; multiple lacerations and punctures of the right and left lower extremities secondary to dog bites." He remained hospitalized for three days. The po- lice dog received veterinary attention. There is no report of the officers having received medical care.
In May 2001, Partyka was charged with, inter alia, two counts of aggravated assault on a law enforcement officer in the third degree, in violation of N.J. Stat. Ann.
§ 2C:12-1(b)(5)(a). He pled guilty to one count of third degree aggravated assault on a law enforcement officer, and the other charges were dropped. The Superior Court entered a judgment of conviction and sentenced Partyka to ninety days' house arrest and two years' probation.
In April 2002, the INS n1 initiated removal pro- ceedings against Partyka, charging him with being re- movable under § 237(a)(2)(A)(i) of the INA, 8 U.S.C. §
1227(a)(2)(A)(i), as an alien having been convicted of a crime involving moral turpitude within five years of ad- mission for which a sentence of one year or longer may be imposed.
n1 On March 1, 2003, the INS's functions were transferred to the newly-formed Bureau of Immigration and Customs Enforcement, within the United States Department of Homeland Security. See Knapik v. Ashcroft, 384 F.3d 84, 86 n.2 (3d Cir. 2004) (citing Homeland Security Act of 2002, Pub. L. 107-296, §§ 441, 451, 471, 116 Stat. 2135
(2002)).
**5
Partyka moved to terminate the removal proceedings, arguing that he was not convicted of a crime involving moral turpitude. The IJ denied the motion, and applying Board precedents, explained in a written
417 F.3d 408, *411; 2005 U.S. App. LEXIS 16808, **5
Page 5
*411 decision that, "aggravated assault against a police officer, which results in bodily injury, and which involves knowledge . . . that . . . force is directed to the officer who is performing an official duty, constitutes a crime involv- ing moral turpitude." IJ Dec. & Order at 2-3 (citing In re Danesh,, 19 I. & N. Dec. 669, 673 (BIA 1988)).
II.
HN1 We have jurisdiction pursuant to 8 U.S.C. §
1252(a) to review the BIA's final order of removal. HN2 Our review of the BIA's legal determinations is de novo. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004).
HN3 Because the BIA in Partyka's case affirmed the IJ's decision without opinion, we review the IJ's decision. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003)
(en banc). Whether an IJ's determination is entitled to Chevron deference, Chevron, U.S.A. v. National Res. Def. Council, Inc, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct.
2778 (1984), when the **6 BIA affirms without opin- ion remains an open question in this circuit. See Smriko,
387 F.3d at 289 n.6; Coraggioso v. Ashcroft, 355 F.3d 730,
733 (3d Cir. 2004). We need not answer this question now, however, because HN4 we owe no deference to the IJ's interpretation of a state criminal statute. See Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (explaining that we accord Chevron deference to the BIA's determination that a particular crime involves moral turpitude but we accord no deference to the BIA's determination of "the elements . . . of a particular criminal statute deemed to implicate moral turpitude"). We conclude that the IJ er- roneously interpreted the New Jersey aggravated assault statute.
III.
HN5 Under the INA, an alien is deportable if he:
(I) is convicted of a crime involving moral turpitude committed within five years
. . . after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be im- posed . . . .
8 U.S.C. § 1227(a)(2)(A)(i).
Partyka was convicted of a crime within five years of his admission to this country, and although the New **7 Jersey Superior Court imposed a light sentence of ninety days' house arrest and two years' probation, the crime car- ried a potential sentence of one year or longer. Therefore, he is deportable if his crime "involves moral turpitude."
HN6 Whether an alien's crime involves moral turpi- tude is determined by the criminal statute and the record of conviction, not the alien's conduct. Knapik, 384 F.3d at 88, 90-91; De Leon-Reynoso v. Ashcroft, 293 F.3d
633, 635 (3d Cir. 2002). Under this categorical approach, we read the applicable statute to ascertain the least cul- pable conduct necessary to sustain a conviction under the statute. Hamdan v. INS, 98 F.3d 183, 189 (5th Cir.
1996); Matter of Marchena, 12 I. & N. Dec. 355, 357
(BIA 1967). HN7 As a general rule, a criminal statute defines a crime involving "moral turpitude only if all of the conduct it prohibits is turpitudinous." Smalley v. Ashcroft,
354 F.3d 332, 336 (5th Cir. 2003) (quoting Hamdan, 98
F.3d at 187); see also In re C—-, 5 I. & N. Dec. 65, 69-70
(BIA 1953). Where a statute covers both turpitudinous and non-turpitudinous **8 acts, however, it is "divisible," and we then look to the record of conviction to determine whether the alien was convicted under that part of the statute defining a crime involving moral turpitude. See, e.g., Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir.
417 F.3d 408, *412; 2005 U.S. App. LEXIS 16808, **8
Page 6
*412 2005); Chanmouny v. Ashcroft, 376 F.3d 810, 813
(8th Cir. 2004); Hamdan, 98 F.3d at 187;In re Ajami, 22
I. & N. Dec. 949, 950 (BIA 1999).
Thus, we first focus on the elements of the New Jersey statute. Then, we examine the meaning of "moral turpi- tude" under BIA precedents and federal case law. Because we conclude that moral turpitude does not inhere in all violations of the New Jersey statute, we turn to Partyka's record of conviction to determine whether he was con- victed under a subsection involving moral turpitude.
A. The New Jersey Statute
The New Jersey aggravated assault statute effective at the time of Partyka's arrest and indictment provided that HN8 a person is guilty of aggravated assault for committing a
simple assault as defined in subsection a. (1),
(2) or (3) of this section upon:
(a) Any law enforcement officer acting in the performance **9 of his duties while in uniform or exhibiting evidence of his author- ity . . . .
N.J. Stat. Ann. § 2C:12-1(b)(5)(a) (West 1995 & Supp.
2004), amended by 2001 N.J. Sess. Law Serv. ch. 215, §
1. n2 HN9 Under subsection a, one is guilty of simple assault if one:
(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(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.
Id. § 2C:12-1(a)(1)--(3).
n2 Effective August 20, 2001, seven days be- fore Partyka pled guilty to this crime, the New Jersey assault statute was amended to include an- other ground for aggravated assault: simple assault on a law enforcement officer "because of his sta- tus as a law enforcement officer." N.J. Stat. Ann.
§ 2C:12-1(b)(5)(a) (West Supp. 2004). The IJ ap- plied the old version to Partyka's case. Contrary to Partyka's assertions, both versions of the statute require knowledge that the person assaulted is a po- lice officer. Thus, the statutory amendment has no impact on whether the crime involves moral turpi- tude. See discussion infra p. 11.
**10
HN10 Aggravated assault on a law enforcement of- ficer is a crime of the third degree if the officer suffers bodily injury. Id. § 2C:12-1(b)(11). Partyka pled guilty to aggravated assault in the third degree, and thus he does not contest that his assault on a law enforcement offi- cer resulted in bodily injury. Rather, he contends that the New Jersey assault statute permits convictions in the ab- sence of an intent to cause bodily injury, and therefore, his conviction does not evince moral turpitude. The IJ rejected Partyka's contention, and concluded that "all the offenses" defined in the New Jersey assault statute "re- quired at a minimum an intent to cause bodily injury." IJ Dec. & Order at 3 n.2. The IJ, however, misconstrued the statute, as it plainly allows convictions for recklessly or negligently causing bodily injury.
HN11 The first element of aggravated assault under the New Jersey statute is "simple assault as defined in subsection a(1), (2), or (3) of this section." N.J. Stat. Ann.
§ 2C:12-1(b)(5). HN12 The minimum culpable con- duct required to commit simple assault is the negligent infliction of bodily injury with a deadly weapon under subsection a(2). n3 HN13 A person acts negligently, ac- cording **11 to the New Jersey criminal code, when
"he
417 F.3d 408, *413; 2005 U.S. App. LEXIS 16808, **11
Page 7
*413 should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct." Id. § 2C:2-2(b)(4). The risk involved "must be of such a nature and degree that the actor's failure to perceive it," considering the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would have exercised. Id. We need not concern ourselves with the statutory definition of a deadly weapon because Partyka had no weapon in his possession.
n3 The attempts described in subsection a(1) and (3) require specific intent. See, e.g., United States v. Rebelo, 358 F. Supp. 2d 400, 416 (D.N.J.
2005) ("It is blackletter law that criminal attempt requires specific intent.") (citing N.J. Stat. Ann. §
2C:5-1)).
HN14 Based on the statutory language of § 2C:12-
1(b)(5)(a) both before and after Partyka pled guilty to this crime in August 2001, it is apparent that the State **12 was required to prove that Partyka knew the person he was assaulting was a police officer. See, e.g., United States v. Rebelo, 358 F. Supp. 2d 400, 418-19 (D.N.J. 2005); State v. Green, 318 N.J. Super. 361, 724 A.2d 254, 262 & n.1
(N.J. Super. Ct. App. Div. 1999). Therefore, we must con- sider whether the negligent infliction of bodily injury on someone known to the defendant to be a law enforcement officer is a crime involving moral turpitude.
B. Moral Turpitude
HN15 The INA does not define "moral turpitude," and, as this Court has observed, the phrase "defies a precise definition." De Leon-Reynoso, 293 F.3d at 635. Black's Law Dictionary sweepingly defines moral turpi- tude as "conduct that is contrary to justice, honesty, or morality." BLACK'S LAW DICTIONARY 1030 (8th ed.
2004); see Smriko, 387 F.3d at 283; De Leon-Reynoso,
293 F.3d at 635-36. HN16 The BIA is more specific and defines "moral turpitude as conduct that is inherently base, vile, or depraved, contrary to the accepted rules of
morality and the duties owed other persons, either indi- vidually or to society in general." Knapik, 384 F.3d at 89
**13 (citing Matter of Franklin, 20 I. & N. Dec. 867,
868 (BIA 1994), and Matter of Danesh, 19 I. & N. Dec. at 670).
HN17 A longstanding test employed by the BIA to determine the existence of moral turpitude, which we find persuasive in a removal proceeding, asks "whether the act is accompanied by a vicious motive or a corrupt mind." Matter of Franklin, 20 I. & N. Dec. at 868 (ci- tations omitted). Accordingly, the Board has repeatedly
"held that 'evil intent' is a requisite element for a crime involving moral turpitude." In re Khourn, 21 I. & N. Dec.
1041, 1046 (BIA 1997);In re 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) ("moral turpitude normally inheres in the intent");In re 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 mo- tive or corrupt mind. 'It is in the intent that moral turpitude inheres.'") (quoting **14 US ex rel. Meyer v. Day, 54
F.2d 336 (2d Cir. 1931)). n4 The Court of Appeals for the Second Circuit has given the subject considerable thought and has concluded that "corrupt scienter is the touchstone of moral turpitude." Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000); see also, Chanmouny, 376 F.3d at 814-15; Hamdan, 98 F.3d at 186. n5
n4 Of significant importance is the BIA's recog- nition that a "state's determination as to what crimes it deems morally turpitudinous is not conclusive for federal immigration purposes." In re Medina, 15 I.
& N. Dec. 611, 614 (BIA 1976).
n5 But see Mei v. Ashcroft, 393 F.3d 737, 740
(7th Cir. 2004).
HN18
417 F.3d 408, *414; 2005 U.S. App. LEXIS 16808, **14
Page 8
*414 In recent years, however, the BIA has found moral turpitude to inhere in serious crimes committed recklessly, i.e., with a conscious disregard of a substantial and un- justifiable risk that serious injury or death would follow. See In re Medina, 15 I. & N. Dec. 611, 614 (BIA 1976)
**15 (concluding that moral turpitude inheres in aggra- vated assault with a deadly weapon even if one acts not with intent, but with recklessness, because the "definition of recklessness requires an actual awareness of the risk created by the criminal violator's action"). Recently, this Court has expressed its approval of this approach. See Knapik, 384 F.3d at 89-90 (affirming the BIA's decision that first degree reckless endangerment as defined by the N.Y. Penal Law involves moral turpitude, where the crim- inal statute requires the actor to "consciously disregard" the "grave risk of death to another person" created by the actor) (internal quotation marks omitted).
HN19 Under either standard, the hallmark of moral turpitude is a reprehensible act committed with an appre- ciable level of consciousness or deliberation. The negli- gent infliction of bodily injury lacks this essential cul- pability requirement. By definition, a negligent assault is unintentional, unwitting, and committed without con- templation of the risk of injury involved. We can readily imagine negligent assaults which do not connote moral turpitude. For just one example, a licensed firearm owner could be target-practicing **16 in an authorized area, while uniformed police officers conduct an investigation nearby. The firearm owner might handle the firearm care- lessly for a moment, discharging a bullet in the direction of the officers, and causing bodily injury to an officer. This event could lead to a conviction for negligent assault with a deadly weapon on a law enforcement officer, in viola- tion of N.J. Stat. Ann. § 2C:12-1(b)(5)(a). However, there
is nothing "inherently base, vile, or depraved" about such an act, particularly because the actor never intended to as- sault the officer, nor consciously disregarded a substantial risk of injury to the officer. See Knapik, 384 F.3d at 90
(observing that "the BIA limits moral turpitude to crimes
involving specific intent or crimes in which a defendant consciously disregards a substantial risk of serious harm or death to another").
Therefore, we reject the Attorney General's con- tention that moral turpitude inheres in the New Jersey aggravated assault statute in all instances where the de- fendant knows that the person he is assaulting is a law enforcement officer and causes bodily injury. The aggra- vating factors, standing alone, cannot give rise **17 to moral turpitude. Two federal immigration cases involv- ing assaults on law enforcement officers, often cited by the BIA, illustrate this point. See United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933); Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass. 1926). In Zaffarano, the alien was convicted of second degree assault under New York law, but his record of conviction failed to specify the elements of his crime. A panel of the Second Circuit Court of Appeals consisting of the vener- able Learned Hand, Augustus N. Hand, and Judge Swan, vacated the order of removal, observing that not all sec- ond degree assaults involve moral turpitude. An assault lacking such depravity, the court explained, is committed by a person "to prevent or resist execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself or of any other per- son." Id. at 758. Although recognizing that assaulting a law enforcement officer during the course of his duties is more serious than assaulting a private person, the court
concluded that there is no moral turpitude
417 F.3d 408, *415; 2005 U.S. App. LEXIS 16808, **17
Page 9
*415 inherent in "putting forth the mildest **18 form of intentional resistance against an officer attempting to
. . . apprehend or detain the accused or another." Id. In this scenario, the assault is a byproduct of an attempt to evade arrest, not the result of a deliberate attempt to in- jure the officer. Without venturing an opinion on whether moral turpitude inheres in resisting arrest, we think that the essence of Zaffarano's holding, that the actor's state of mind is key to a finding of moral turpitude, remains sound.
Similarly, this focus on state of mind guided the fed- eral court's holding in Ciambelli that an alien's assault on a police officer during the course of his official duties, even when armed with a dangerous weapon, was not a crime involving moral turpitude. In that case, the assault occurred when the officer interceded in a barroom brawl. Ciambelli, 12 F.2d at 465. It was apparent from the record of conviction that the alien did not use the weapon on the officer, but the court's holding turned on the alien's mind state. It explained that assault committed "in the heat of anger," such as during a fight, lacks "such inherent base- ness or depravity as to" evince moral turpitude. Id. at 466.
**19 The court recognized, however, that if the alien had "deliberately assaulted an officer of the law with a dangerous weapon and with felonious intent, or for the purpose of interfering with the officer in the performance of his duty," then his crime might have involved moral turpitude. Id. (emphasis added).
The BIA has consistently adhered to the premise of Zaffarano and Ciambelli by taking into account the crime's culpability requirements in determining whether it involves moral turpitude. See, e.g., Matter of Torres- Varela, 23 I. & N. Dec. 78 (BIA 2001) (interim decision). The BIA has seldom found moral turpitude to inhere in
an assault that lacks specific intent, and in the absence of specific intent, it has found depravity only if there is deliberate conduct and an aggravating factor. Compare In re Fualaau, 21 I. & N. Dec. 475, 478 (BIA 1996) (reck- less assault without an aggravating dimension lacks moral turpitude), with Matter of Medina, 15 I. & N. Dec. at 614
(reckless assault with a deadly weapon involves moral turpitude).
In its one published decision involving negligent as- sault, the BIA found no **20 moral turpitude. In Matter of Perez-Contreras, HN20 the Board declared that an assault which causes "bodily harm accompanied by sub- stantial pain" and "considerable suffering," lacks moral turpitude when committed "with criminal negligence." Matter of Perez-Contreras, 20 I. & N. Dec. 615, 617
(BIA 1992) (quoting Wash. Rev. Code § 9A.36.031(1)(f)). Although there were no aggravating factors under the statute at issue there, the Board's decision focused on the absence of a scienter requirement. It explained: HN21
"Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be deter- mined from the statute, moral turpitude does not inhere." Id. at 618 (citing Matter of Danesh, 19 I. & N. Dec. 669). The Attorney General contends that Matter of Danesh is directly on point, and urges us to apply it here to affirm the BIA's order of removal. In that case, the alien was convicted for aggravated assault under Texas law, for, as the BIA described the crime, "having knowingly and in- tentionally caused bodily injury to **21 a peace officer who was in the lawful discharge of his official duty when
the alien knew the person assaulted was a peace officer."
19 I. & N. Dec. at 670 (emphasis added). The
417 F.3d 408, *416; 2005 U.S. App. LEXIS 16808, **21
Page 10
*416 Board concluded that this aggravated assault involved moral turpitude. Notably, it acknowledged that the first element of aggravated assault under the Texas statute is simple assault, which requires either the intentional, knowing, or reckless infliction of bod- ily injury. Id. at 673 n.1 (citing Tex. Penal Code §
22.02(a)(2)(A)). Subsequently, in its decision in Matter of Perez-Contreras, the BIA cited Matter of Danesh for the proposition that assault involves moral turpitude only if the statute requires scienter. See Matter of Perez- Contreras, 20 I. & N. Dec. at 618. Thus, a careful read- ing of Matter of Danesh militates against the Attorney General's contention that moral turpitude inheres in caus- ing bodily injury to a law enforcement officer with a deadly weapon as a result of mere negligence.
For the foregoing reasons, we conclude that HN22 moral turpitude does not inhere in the least culpable con- duct under N.J. Stat. Ann. **22 § 2C:12-1(b)(5)(a). n6 However, if we can determine from Partyka's record of conviction that he was convicted for violating a sub- section of the statute requiring intentional, knowing, or reckless infliction of bodily injury, then Matter of Danesh would apply, and we would agree with the IJ's finding of moral turpitude.
n6 Accordingly, we disagree with the court in Rebelo, insofar as it concluded that the least cul- pable conduct under N. J. Stat. Ann. § 2C:12-
1(b)(5)(a) involves moral turpitude. See Rebelo,
358 F. Supp. 2d at 417-21.
C. Partyka's Record of Conviction
HN23 Under the general rule governing moral turpi- tude determinations, "absent specific evidence to the con- trary in the record of conviction, the statute must be read at the minimum criminal conduct necessary to sustain a
conviction under the statute." Hamdan, 98 F.3d at 189
(citing United States ex rel. Guarino v. Uhl, 107 F.2d
399 (2d Cir. 1939)). The record of conviction includes
"the indictment, **23 plea, verdict, and sentence."
Chanmouny, 376 F.3d at 812 (citing Matter of Ajami, 22
I. & N. Dec. at 950).
The administrative record before us contains the Indictment, Judgment of Conviction, and Statement of Reasons and Sentence. Partyka's plea agreement is not part of the record. The Indictment charges that Partyka
"did commit a simple assault as defined in N.J. Stat. Ann.
§ 2C:12-1(a) causing bodily injury to" two law enforce- ment officers while they were "acting in the performance of their duties, while in uniform or exhibiting evidence of their authority, contrary to the provisions of the N.J.S.
2C:12-1(b)(5)." It does not specify under which subsec- tion of the simple assault statute Partyka was charged. Likewise, the Judgment of Conviction and Statement of Reasons and Sentence do not reveal the level of criminal culpability involved.
Therefore, we must decide whether Partyka's crime involves moral turpitude based on the least culpable con- duct required to secure a conviction under the New Jersey statute. As we have concluded, supra § III.A, the least cul- pable conduct under the statute is the negligent infliction of bodily injury **24 with a deadly weapon. We hold that negligently inflicted bodily injury lacks the inherent baseness or depravity that evinces moral turpitude, see supra § III.B, and therefore, Partyka was not convicted of such a crime.
IV.
Accordingly, Partyka is not deportable, not having committed a crime involving moral turpitude under §
237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i). His
417 F.3d 408, *417; 2005 U.S. App. LEXIS 16808, **24
Page 11
*417 petition for review is granted and the BIA's order of removal will be vacated.
CONCURBY: ALITO (In Part)
DISSENTBY: ALITO (In Part)
DISSENT: ALITO, Circuit Judge, concurring in the judg- ment in part and dissenting in part:
I concur in the judgment insofar as it grants the petition for review. I agree with the majority that the Immigration Judge misread the New Jersey assault statute when he said that "all the offenses covered by that statute require at a minimum an intent to cause bodily injury." IJ Dec. & Order at 3 n.2. In fact, under the provision at issue here, N.J.S.A. § 2C:12-1(b)(5)(a), the minimum mens rea with respect to the infliction of bodily injury without the use of a deadly weapon is recklessness, and the minimum mens rea for the **25 infliction of bodily injury with a deadly weapon is negligence. In light of the IJ's misinterpretation of the New Jersey statute, we should grant the petition for review and remand to the Board of Immigration Appeals so that the Board can apply its understanding of the con- cept of a crime of moral turpitude to the New Jersey statute as properly construed.
The majority sees no need for a remand because it is confident that the petitioner's offense was not a crime of moral turpitude under the BIA's interpretation of that concept. The majority interprets the BIA's decisions as generally holding that an assault cannot be a crime of moral turpitude unless the perpetrator has the "specific intent" to inflict bodily injury or at least acts recklessly with respect to the infliction of such injury. Maj. Op. at
12-14.
I do not rule out this interpretation of the BIA's deci- sions, but this reading is at least debatable. In Matter of Danesh, 19 I.& N. at 673 (emphasis added), the Board stated:
In the case before us the respondent was con-
victed of aggravated assault on a peace offi- cer. Under Texas law that offense requires that the following elements be present: (1) the **26 person assaulted must sustain bodily injury; (2) the accused must know that the person assaulted is a peace officer; and
(3) the peace officer must be engaged in the lawful discharge of an official duty. . . . We conclude that an aggravated assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime that involves moral turpi- tude.
This language suggests that, contrary to the majority's interpretation, the Board may think that the unintentional infliction of bodily injury upon a person known to be a police officer who is performing an official duty consti- tutes a crime of moral turpitude. Indeed, that is how the IJ in this case seems to have interpreted Matter of Danesh. The IJ wrote:
An aggravated assault against a police officer, which results in bodily injury, and which involves knowledge by the respondent that his force is directed to the officer who is performing an official duty, constitutes a crime involving moral turpitude. See Matter of Danesh, 19 I & N Dec. 669, 673 (BIA
1988) . . . .
**27
App. 42-43. The BIA affirmed the IJ's decision without opinion. Therefore, I am afraid that the majority may be relying on a mistaken reading of the Board's decisions. This approach is puzzling because the BIA is the final authority on the meaning of its own decisions.
For these reasons, while I concur in the judgment in- sofar as it grants the petition for review, I must dissent from the majority's
417 F.3d 408, *418; 2005 U.S. App. LEXIS 16808, **27
*418 unexplained refusal to remand to the BIA.
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