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.
The opinion of the court was delivered by: Rendell, Circuit Judge
Before: RENDELL and ROTH, Circuit Judges and HAYDEN, District Judge.*fn1
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, Jean-Louis pled guilty to committing simple assault against a child under twelve years of age, in violation of 18 Pa. Cons. Stat. §§ 2701(b)(2).*fn2 The Department of Homeland Security ("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).*fn3 Crimes involving 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 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 Jean-Louis 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.
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.*fn4
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.*fn5 Crimes involving 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- 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).*fn6 We have applied 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.
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 ...