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Mehboob v. Attorney General of the United States

November 26, 2008

GHULAM MEHBOOB, PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review from an Order of the Board of Immigration Appeals (BIA-1: A46-188-944) Immigration Judge: Hon. Grace A. Sease.

The opinion of the court was delivered by: Cowen, Circuit Judge.

PRECEDENTIAL

Argued October 21, 2008

BEFORE: SMITH and COWEN, Circuit Judges and THOMPSON*fn1, District Judge.

OPINION

In this petition for review of the Board of Immigration Appeals' ("BIA") order of removability, we must decide whether a conviction for indecent assault under 18 Pa. Cons. Stat. § 3126(a)(8), a strict liability offense, is a crime involving moral turpitude. Because the offense combines a reprehensible act with deliberate conduct, we conclude that indecent assault under Pennsylvania law is a crime involving moral turpitude, and consequently, the petition for review will be denied.

I.

Petitioner, Ghulam Mehboob, is seeking review of the BIA's final order of removal and denial of his application for termination of removal proceedings. Mehboob, a native and citizen of Pakistan, was lawfully admitted to the United States as an immigrant in December, 1997. On December 7, 2001, Mehboob was convicted of a misdemeanor, indecent assault, in violation of 18 Pa. Cons. Stat. § 3126(a),*fn2 for touching the breast of a 15 year old girl, who was a customer in his store. He was sentenced to two years of probation and fined $146. The record of conviction, however, did not specify the sub-section of § 3126(a) under which Mehboob was convicted.

Following the conviction, the Department of Homeland Security ("DHS") initiated removal proceedings against Mehboob under 8 U.S.C. § 1227(a)(2)(A)(i), which provides for the deportation of aliens who commit crimes involving moral turpitude. An Immigration Judge ("IJ") determined that Mehboob was removable for having committed a crime involving moral turpitude, and the BIA affirmed. Mehboob then petitioned this Court for review. The panel vacated the decision because the BIA had not sufficiently explained its reasoning and remanded the case to the BIA for reconsideration and fuller explanation. Mehboob v. Att'y Gen. of the U.S., 175 Fed. Appx. 559 (3d Cir. 2006).

On remand, the BIA affirmed its previous conclusion that Mehboob had committed a crime involving moral turpitude and dismissed the appeal. Mehboob petitioned this Court for review of the BIA's order of removal. We have jurisdiction over Mehboob's petition for review pursuant to 8 U.S.C. § 1252(a).

II.

This Court reviews the BIA's legal determinations de novo, except when Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), requires us to defer to the BIA. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). Chevron deference is required "when an agency construes or interprets a statute that it administers" and the agency's interpretation is "based on a permissible interpretation of the statute." Knapik v. Ashcroft, 384 F.3d 84, 87 (3d Cir. 2004). Accordingly, we defer, under Chevron, "to the BIA's definition of moral turpitude," id. at 88 n.3, as well as the BIA's determination that a certain crime involves moral turpitude,*fn3 id. at 88. No deference, however, is given to the BIA's parsing of the elements of the underlying crime. See id.; see also Partyka v. Att'y Gen. of the U.S., 417 F.3d 408, 411 (3d Cir. 2005) ("[W]e owe no deference to the IJ's interpretation of a state criminal statute.").

III.

An alien is subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(i) if she or he "is convicted of a crime involving moral turpitude," the crime is committed within five years of the date of admission, and the sentence that may be imposed for the crime of conviction is one year or longer. Mehboob was convicted of indecent assault, in violation of 18 Pa. Cons. Stat. § 3126(a), on December 7, 2001. That date was four years from his admission to the United States in December, 1997. The offense carried a potential sentence of more than one year in ...


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