Jean-Louis v. Atty Gen USA

Filing 3110103309

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Document: 003110103309

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Date Filed: 04/15/2010

PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT

No. 07-3311

LYONEL JEAN-LOUIS, Petitioner v. A T T O R N E Y GENERAL O F THE UNITED STATES OF AMERICA, Respondent

Petition for Review of an Order of the U n ite d States Department of Justice B o a rd of Immigration Appeals (B IA No. A25-450-823) Im m ig ra tio n Judge: Honorable Rosalind K. Malloy

Argued February 5, 2009

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B e f o re : RENDELL and ROTH, Circuit Judges and H A Y D E N , District Judge* (F ile d : October 6, 2009)

Craig R. Shagin, Esq. [ARGUED] T h e Shagin Law Group T h e Inns of St. Judge 1 2 0 South Street H a rris b u rg , PA 17101 Counsel for Petitioner K e v in J. Conway, Esq. [ARGUED] R ic h a rd M. Evans, Esq. B ro o k e M. Maurer, Esq. U n ite d States Department of Justice O f f ic e of Immigration Litigation P .O . Box 878 B e n Franklin Station W a sh in g to n , DC 20044 Counsel for Respondent

__________________ * H o n o r a b l e Katharine S. Hayden, Judge of the United S ta te s District Court for the District of New Jersey (N e w a rk ), sitting by designation.

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OPINION OF THE COURT

Rendell, Circuit Judge. We are called upon to decide whether simple assault u n d e r Pennsylvania law, where the victim is under 12 years of a g e and the assailant is over 20 years of age, is a crime involving m o ra l turpitude for purposes of cancellation of removal. In d o in g so we must address a recent opinion of the Attorney G e n e ra l that adopts a novel framework for determining whether a petitioner has been convicted of a crime involving moral tu rp itu d e ("CIMT"). We conclude that the petitioner was not c o n v ic te d of a CIMT, and that we will apply our established m e th o d o lo g y for analyzing CIMT, rather than the approach re c e n tly adopted by the Attorney General. I . Background and Procedural History Appellant Lyonel Jean-Louis, a native and citizen of H a iti, was admitted to the United States in 1994 as a refugee, a n d became a lawful permanent resident in 1996. In 2001, JeanL o u is pled guilty to committing simple assault against a child u n d e r twelve years of age, in violation of 18 Pa. Cons. Stat. § § 2701(b)(2).1 The Department of Homeland Security

Jean-Louis pled guilty to simple assault in violation of 18 P a . C.S. § 2701(b)(2) on July 25, 2001. The Pennsylvania 3

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("D H S ") subsequently filed a Notice to Appear ("NTA"), c h a rg in g Jean-Louis as removable under the Immigration and N atio n ality Act ("INA") § 237(a)(2)(E)(I). Jean-Louis conceded re m o v a b ility but sought to cancel his removal under INA § 240(A)(a), 8 U.S.C. § 1229b(a). U n d e r the INA, discretionary cancellation of removal is a v a ila b le to an alien who has resided continuously in the United S ta te s for seven years. INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2). An alien's period of continuous residency te r m in a te s, however, if he "commits an offense referred to in se c tio n 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or re m o v a b le from the United States under section 1227(a)(2)." IN A § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).2 Crimes involving m o ra l 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 th e U.S., Jean-Louis struck his wife's daughter, who was under th e age of 12, to discipline her and was subsequently convicted o f the Pennsylvania crime of simple assault, 18 Pa. C.S. § 2701(b)(2). The Immigration Judge ("IJ") concluded, and the

simple assault statute was amended on June 22, 2001 (effective i n 60 days), P.L. 605, No. 48, § 1, and again on Dec. 9, 2002 (e f fe c tiv e in 60 days), P.L. 1391, No. 172, § 1. Neither am en d m en t altered subpart 2701(b)(2). An alien bears the burden of establishing his eligibility for d is c re tio n a ry cancellation of removal. INA § 240(c)(4)(A)(i), 8 U.S.C. §1229a(c)(4)(A)(i). 4
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B o a rd of Immigration Appeals ("BIA") affirmed, that JeanL o u is's conviction for simple assault of a child under 12 years o f age under subpart 2701(b)(2) constituted a CIMT, rendering Je a n -L o u is ineligible for cancellation of removal. T h e Pennsylvania simple assault statute to which JeanL o u is pled guilty provides in pertinent part: (a ) O ffe n s e defined.--A person is guilty of a ss a u lt if he: (1) attem p ts to cause or intentionally, k n o w in g ly or recklessly causes bodily injury to an o ther; (2 ) n e g lig e n tly causes bodily injury to another w ith a deadly weapon; or (3) a tte m p t s by physical menace to put another in fear of imminent serious bodily injury. (b ) Grading.--Simple a s s a u l t is a m is d e m e a n o r of the second degree unless c o m m itte d : ... (2) against a child under 12 years of age by an a d u lt 21 years of age or older, in which case it is a misdemeanor of the first degree.

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1 8 Pa. C.S. § 2701 (emphasis added). Noting that, "[I]t is u n c lea r from the record of conviction whether the assault R e s p o n d e n t committed was intentional, knowing, or reckless," th e IJ assumed that Jean-Louis "recklessly" inflicted bodily in ju ry on another-- the least culpable mental state specified in § 2701(a)(1). A. 113. Confining her analysis to that subpart of th e statute, the IJ did not address whether there was a culpability re q u ire m e n t under subpart 2701(b)(2). Accordingly, the IJ did n o t consider whether subpart 2701(b)(2) required the defendant to have known of the underage status of the victim, or would a p p ly in a situation in which the defendant was not aware, and h a d no reason to believe, that the victim was a minor. Instead, th e IJ reasoned that because the victim was under 12 years old, th e offense was a CIMT: "While the Court is cognizant of the f a ct that simple assault is generally not considered to be a C IM T , simple assault plus an aggravating factor is a CIMT." A. 1 1 2 (internal citation omitted). The IJ cited as authority for this p ro p o sitio n BIA opinions involving assaults that were "a g g rav ated " by other types of factors; specifically, they were c o m m itte d with a deadly weapon, committed against a law e n f o rc e m e n t officer, or resulted in the victim's death. A. 112-13. Accordingly, the IJ concluded that Jean-Louis's conviction of s im p le assault under subpart 2701(b)(2) constituted a CIMT, ren d erin g Jean-Louis ineligible for cancellation of removal. The B IA affirmed.3

Because the BIA issued a summary affirmance, we analyze th e IJ's decision. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2 0 0 3 ) (en banc). 6

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I I . Discussion O n appeal, Jean-Louis contends that he is eligible for d is c re tio n a ry cancellation of removal because his conviction of s im p le assault does not qualify as a CIMT.4 Crimes involving m o ra l turpitude have been held to require conduct that is "in h ere n tly base, vile, or depraved." Knapik v. Ashcroft, 384 F .3 d 84, 89 (3d Cir. 2004) (internal citations omitted). In d e te rm in in g whether a state law conviction constitutes a CIMT, th e agency, and we, have historically applied a "categorical" a p p r o a c h , "focusing on the underlying criminal statute `rather th a n the alien's specific act.'" Id. at 88 (quoting DeLeon-

We summarily dispose of two other issues urged by JeanL o u is on appeal. First, Jean-Louis contends that his rights under IN A § 239(a)(1)(C) & (D) and the Due Process Clause of the U .S . Constitution were violated, because his Notice to Appear fa iled to alert him to the CIMT issue. Jean-Louis's c o n stitu tio n a l claim fails at the outset, because an alien seeking d is c re tio n a ry relief from removal has no cognizable liberty or p r o p e r ty interest. See Hernandez v. Gonzales, 437 F.3d 341, 3 4 5 -4 6 (3d Cir. 2006). Moreover, any such failure was h a rm le ss , as Jean-Louis was adequately apprised of the issue, h a v in g "prepared a brief on the topic [CIMT] in anticipation of th e objection." Appellant's Br. at 6; A. 132-33, 210. Jean-Louis's second argument is that he is entitled to a re m a n d of his case to the IJ to have his claim for withholding of re m o v a l decided. However, to date, Jean-Louis has not filed­or so u g h t leave to file­an application for withholding of removal, d e s p ite ample opportunity to do so. 7

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R e y n o so v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002)). We th u s "look to the elements of the statutory state offense, not to th e specific facts," reading the applicable statute to ascertain the le a st culpable conduct necessary to sustain conviction under the s ta tu te . Id. (quoting Wilson v. Ashcroft, 350 F.3d 377, 381 (3d C ir. 2003)). W h e re a statute of conviction contains disjunctive e le m e n ts , some of which are sufficient for conviction of the f e d e ra l offense and others of which are not, we have departed f ro m a strict categorical approach. In such a case, we have c o n d u c te d a limited factual inquiry, examining the record of c o n v ictio n for the narrow purpose of determining the specific s u b p a rt under which the defendant was convicted. See Singh v. A sh c ro ft, 383 F.3d 144, 162 (3d Cir. 2004).5 We have applied th is "modified" categorical approach, even when clear sectional d iv is io n s do not delineate the statutory variations, see Garcia v. A tt'y Gen., 462 F.3d 287, 293 n.9 (3d Cir. 2006), in order to d e te rm in e the least culpable conduct sufficient for conviction, a n d , where a CIMT is asserted, measure that conduct for d e p ra v ity.

In Shepard v. United States, the Supreme Court opined that th e record of conviction includes the charging document, the p le a agreement or transcript of the plea colloquy in which the d ef en d an t confirmed the factual basis for the plea, or a c o m p a r a b le judicial record of information. 544 U.S. 13, 26 (2 0 0 5 ). 8

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H e re , the IJ, applying this methodology, concluded that th e reckless infliction of bodily injury constituted the least cu lp ab le mental state sufficient for conviction under subpart 2 7 0 1 (a )(1 ). Significantly, however, the IJ did not consider the state of mind required under subpart 2701(b)(2) as to the child's a g e . It could be read to require that the offender knew of the a g e of the victim, or that the grading factor applies if the victim w a s under 12, whether or not the defendant knew of her age. A lth o u g h we defer to the agency's determination of whether an o f f e n se constitutes a CIMT, we accord no deference to its c o n s t r u c tio n of a state criminal statute, as to which it has no p a rtic u la r expertise. See Knapik, 384 F.3d at 88. Here, the d e te rm in a tio n of the scienter or level of culpability under su b p a rt (b)(2) of the Pennsylvania assault statute is important, f o r the BIA itself has drawn a distinction for purposes of d e c id in g whether an offense is a CIMT based on this very aspect o f culpability, as we discuss below. We thus disagree with the IJ 's reasoning that the age of the victim should be considered an " a g g ra v a tin g factor," and conclude that a more thorough an alysis of the Pennsylvania criminal statute is in order. B e c au s e the parties did not address the minimum c u lp a b ility required under subpart 2701(b)(2), we requested f u rth e r briefing. In his supplemental brief, Jean-Louis urges the C o u rt to construe subpart 2701(b)(2) as written--it does not e x p re ss ly prescribe a mental state requirement, and thus none a p p lie s. The government cites evidence consistent with JeanL o u is's interpretation of the statute, including the Pennsylvania su g g ested jury instructions and accompanying Advisory C o m m itte e Note, neither of which requires that a jury find that th e defendant knew, or should have known, that the victim was 9

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u n d er 12.6 The government also specifically notes that subpart 2 7 0 1 (b )(2 ) is a grading factor, not an element of the substantive o f f e n s e .7 These aspects of the statute actually support JeanL o u is 's position. Q u ite apart from the government's concessions, we in d e p e n d en tly conclude that no culpability requirement attaches, ex p licit ly or implicitly, to subpart 2701(b)(2). Unlike subpart 2 7 0 1 (a ) (1 ) , which expressly requires that the defendant i n te n tio n a lly, knowingly, or recklessly inflict bodily injury, su b p a rt 2701(b)(2) does not specify the minimum culpability re q u ire d to trigger enhanced penalties. Nor is such a re q u ire m e n t implicit in the statute. The determination that s u b p a rt 2701(b)(2) sets forth a grading factor and not an element o f the offense is significant. As a "grading" factor, subpart

The Advisory Committee Note to the Pennsylvania S u g g e s te d Standard Criminal Jury Instructions for § 2701(b)(2) is silent on the applicable mental state requirement: "Crimes C o d e § 2701(b)(2) raises simple assault from a misdemeanor of th e second degree to a misdemeanor of the first degree where th e victim was under the age of 12 and the defendant was an a d u lt 21 years of age or older." See Pa. SSJI (Crim), 15.2701G (s im p le assault--child victim). The government states, "The subsection under which Mr. J e a n - L o u is was convicted is referred to in the statute as a `g ra d in g factor.' According to Pennsylvania case law, `the g rad in g of the offense is not an element thereof.'" Respondent's S u p p le m e n ta l Br. at 3. 10
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2 7 0 1 (b )(2 ) does not trigger the statutory "gap-filling" p ro v is io n s ,8 which provide a mental state requirement that

18 Pa. C.S. § 302(c) defines the requisite mental state when th e statute is silent on the culpability applicable to a material e le m e n t of an offense. It provides: C u l p a b i l i t y required unless otherwise p ro v id e d .--W h e n the culpability sufficient to e sta b lis h a material element of an offense is not p re sc rib e d by law, such element is established if a person acts intentionally, knowingly, or re c k le ss ly with respect thereto. Id . (emphasis added). 18 Pa. C.S. § 302(d), which serves a slightly different f u n c tio n than § 302(c), defines the requisite mental state when th e statute defines the culpability sufficient for some, but not all, m a ter ial elements of an offense. It provides: Prescribed culpability requirement applies to a ll material elements.-- When the law defining a n offense prescribes the kind of culpability that is sufficient for commission of an offense, w ith o u t distinguishing among the material e lem e n ts thereof, such provision shall apply to all th e material elements of the offense, unless a c o n tra ry purpose plainly appears. Id. (emphasis added). 11

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w o u ld be otherwise missing from "elements" of an offense. See 1 8 Pa. C.S. § 103 (defining "element[s] of an offense" as " c o n d u ct or attendant circumstances . . . included in the d e sc rip tio n of the forbidden conduct in the definition of the o ffen se") (emphasis added); Commonwealth v. Shamberger, 788 A .2 d 408, 418 (Pa. Super. 2001) (distinguishing "grading" f a c to rs from the elements of an offense); accord Commonwealth v . Passarelli, 789 A.2d 708, 714 (Pa. Super. 2001); C o m m o n w e a lth v. Kisner, 736 A.2d 672, 674 (Pa. Super. 1999). T h e explicit designation of subpart 2701(b)(2) as a "grading" f a cto r is particularly strong evidence of the legislative intent h e re , as the distinction between "grading" factors and " e lem e n ts" of an offense was already established in P e n n s ylv a n ia jurisprudence when subpart 2701(b)(2) was added in 1988. P.L. 1275, No. 158, § 1 (Dec. 19, 1988); see, e.g., C o m m o n w e a lth v. Sparks, 492 A.2d 720, 725 (Pa. Super. 1985); C o m m o n w e a lth v. Mathis, 463 A.2d 1167, 1170 (Pa. Super. 1 9 8 3 ) ; Commonwealth v. Stauffer, 361 A.2d 383, 384 (Pa. S u p e r. 1976); Commonwealth v. McKennion, 240 A.2d 889, 892 (P a. Super. 1975).9

Moreover, the designation of subpart 2701(b)(2) as a " g ra d in g " factor has survived subsequent revisions of the simple a s s a u lt 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). W e presume that the legislature is "aware of an administrative o r judicial interpretation of a statute and to adopt that in te rp re ta tio n when it re-enacts a statute without change." L o r illa r d v. Pons, 434 U.S. 575, 580 (1978). Hence, we cannot c o n c lu d e that the legislature intended a culpability requirement 12

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A recent decision of the New Hampshire Supreme Court s u p p o rts the proposition that the Pennsylvania gap-filling p ro v is io n s are inapplicable to subpart 2701(b)(2). In State v. M c C a b e , 765 A.2d 176, 180-81 (N.H. 2001), the Court c o n sid e re d what mental state requirement, if any, attached to c o n d u c t­ " u se of a deadly weapon"­that appeared in the penalty s e c tio n of the offense of "criminal threatening." The statute did n o t specify a mental state requirement. Id. at 180. The Court c o n c lu d e d that the New Hampshire gap-filling provision, a p p lic a b le solely to material elements of an offense, did not g o v e r n , because "[t]he only statutory reference to the use of a d e a d ly weapon is contained in the penalty section" of the statute, a n d the gap-filling provision applies solely to elements of an o f f e n s e , not to grading factors. Id. at 180-81; see State v. Polk, 9 2 7 A.2d 514, 516-17 (N.H. 2007) (holding that gap-filling p ro v is io n did not apply to conduct solely affecting grading of an o f f e n se ); see also State v. Demmons, 634 A.2d 998, 1000 (N.H. 1 9 9 3 ) (noting that culpability requirement is only implied for m aterial elements of an offense). T h u s, we conclude that the Pennsylvania assault statute as written permits a conviction under subpart 2701(b)(2) where th e defendant did not know that the victim was under 12 years o ld . This key fact distinguishes this case from the statute we c o n sid e re d in Partyka v. Att'y Gen., 417 F.3d 408, 413 (3d Cir. 2 0 0 5 ). There, we had to determine the minimum culpability re q u ire d for conviction of the offense of "aggravated assault,"

to inhere in subpart 2701(b)(2) when it adopted and retained lan g u a g e achieving precisely the opposite result. 13

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d e f in e d under New Jersey law as the commission of simple a ss a u lt against "[a]ny law enforcement officer acting in the p e rf o rm a n c e of his duties while in uniform or exhibiting e v id e n c e of his authority." N.J. Stat. Ann. § 2C:12-1b(5)(a) (W e st 1995 & Supp. 2004). Concluding that commission of an a ss a u lt against a law enforcement officer was a material element o f the offense of aggravated assault, we cited United States v. R e b e lo , 358 F.Supp.2d 400, 418-19 (D.N.J. 2005), which a p p lie d the New Jersey gap-filling provision, and held that the o ff en d er had to have known that the victim was a police officer. P a r t y k a , 417 F.3d at 413. Crucial to our analysis--and to the a n a lys is in Rebelo upon which we relied--was the fact that the re le v a n t conduct appeared in the definition of the offense of a g g ra v a te d assault and thus was an element thereof. Id. (citing R e b e lo , 358 F.Supp.2d at 418-19). Because the offender had to k n o w that the victim was an officer, the offense reflected the re q u is ite degree of depravity and thus constituted a CIMT. H e r e , by contrast, the age of the perpetrator and victim are s p e c if ie d not in the definition of the offense but rather under the s e p a ra te statutory heading, "grading." Regardless of how New J e r s e y law treats "grading" factors, their status under P e n n s ylv a n ia law is clear. Where the conduct is included under a statutory section entitled, "grading," rather than under the " d e f in i tio n " of the offense, the conduct is per se not an "e lem en t" of the offense. See 18 Pa. C.S. § 103 (defining the " e le m e n ts " of an offense as solely conduct included in the f o rm a l definition of the offense). Accordingly, the Pennsylvania g a p -f illin g provisions--that would ordinarily mandate a specific m e n tal state with respect to the victim's age--do not apply to su b p a rt 2701(b)(2), and there is no culpability requirement as to th a t subpart. 14

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B a se d upon the foregoing analysis, we conclude that the least culpable conduct necessary for conviction under subpart 2 7 0 1 (b )(2 ) would be a reckless assault by a person over 20 years o f age, where the victim, unbeknownst to the defendant, is under 1 2 years of age. One example might be where a reckless driver s trik e s a vehicle bearing a child occupant. Such a scenario does n o t appear to us to implicate "moral turpitude," as that concept h a s been viewed by the agency and developed under our p re c ed e n ts . The BIA has observed that "[s]imple assaults have g e n e ra lly been held not to involve moral turpitude." Matter of O -- - , 3 I. & N. Dec. 193, 194 (BIA 1948). It has repeatedly o p in e d that the hallmark of a CIMT, indeed, is an act " a cc o m p a n ie d by a vicious motive or a corrupt mind." Matter of P e r e z - C o n t r e r a s , 20 I. & N. Dec. 615, 618 (BIA 1992); see M a tte r of Khourn, 21 I. & N. Dec. 1041, 1046 (BIA 1997); M a tt e r of Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994); M a t te r of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980) ("An evil o r malicious intent is said to be the essence of moral tu rp itu d e ."); Matter of Abreu-Semino, 12 I. & N. Dec. 775, 777 (B IA 1968) (noting that "moral turpitude normally inheres in the in ten t") ; Matter of P---, 2 I. & N. Dec. 117, 121 (BIA 1944) (" O n e of the criteria adopted to ascertain whether a particular c rim e involves moral turpitude is that it be accompanied by a v ic io u s motive or corrupt mind. `It is in the intent that moral tu rp itu d e inheres.'") (quoting US ex rel. Meyer v. Day, 54 F.2d 3 3 6 , 337 (2d Cir. 1931)). Courts of appeals have followed suit. In Michel v. INS, the Court of Appeals for the Second Circuit th u s identified a "corrupt scienter" as the "touchstone of moral tu rp itu d e ." 206 F.3d 253, 263 (2d Cir. 2000); see Chanmouny v. A sh c ro ft, 376 F.3d 810, 814-15 (8th Cir. 2004); Hamdan v. INS, 9 8 F.3d 183,186 (5th Cir. 1996). And, in Partyka, the statute 15

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req u ired that the defendant know the victim was a police officer. 4 1 7 F.3d at 413. Such depravity, however, is absent when a d e f en d a n t could be convicted for unwittingly injuring a c h ild -- a n act that, in our view, reflects a degree of malice no g re a te r than that exhibited by an assault recklessly committed a g a in st an adult. W e normally defer to the agency as to what conduct co n stitu tes a CIMT. Our view that reckless assault of a minor, w i t h o u t more, does not constitute a CIMT is bolstered by a re c e n t decision of the Attorney General, Matter of Cristoval S ilv a -T r e v in o , 24 I. & N. Dec. 687, 706-708 (A.G. 2008). T h e re , the Attorney General considered whether a statute c rim in a li z in g intentional sexual acts directed at a child c o n stitu te d a CIMT. The statute did not include a mistake-ofa g e defense. Hence, a defendant who did not know, and had no re a so n to believe, that the complainant was a minor could face c o n v ic tio n . The Attorney General concluded, therefore, that the s ta tu te lacked the "hallmark of moral turpitude"--a " re p re h e n sib le act committed with an appreciable level of c o n sc io u s n e ss or deliberation." Id. at 706 (quoting Partyka, 417 F .3 d at 414). Significantly, the Attorney General stated, " [ W ]h e th e r the perpetrator knew or should have known the v ic tim 's age is a critical factor in determining whether his or her c rim e involved moral turpitude for immigration purposes. A f in d in g of moral turpitude under the Act requires that a p e rp e tra to r have committed the reprehensible act with some f o rm of scienter." Id. Thus, in Silva-Trevino, the Attorney G e n e ra l treated the perpetrator's knowledge regarding the v ictim 's age as a critical consideration informing the depravity o f the crime. As we noted above, the IJ here did not consider 16

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th e culpability required under subpart 2701(b)(2) but merely s ta te d that it was an "aggravating factor," which converted s i m p l e assault into a CIMT, relying on case law that did not in v o lv e age as a factor. However, our conclusion that subpart 2 7 0 1 (b )(2 ) has no mental state requirement, coupled with the A tto rn e y General's stated view in Silva-Trevino that a d e f en d a n t's knowledge regarding the age of his victim may p ro p e rly bear on the depravity of his conduct, leads inexorably to the conclusion that the Pennsylvania crime of which JeanL o u is was convicted was not a CIMT. While we would n o r m a lly remand to the agency for a "decision of a matter that s ta tu te s place primarily in agency hands"--namely, the d e t e rm in a t io n of whether a criminal violation constitutes a C IM T -- th e agency has spoken clearly that scienter as to age is c ritic a l to the CIMT inquiry, and that the absence of a scienter re q u ire m e n t is conclusive. See INS v. Ventura, 537 U.S. 12, 16 (2 0 0 2 ); Matter of O---, 3 I. & N. Dec. at 194 (holding that sim p le assault does not constitute a CIMT).1 0

We note that a BIA decision that the government urges s h o u ld control the analysis here is distinguishable. In Matter of T r a n , 21 I. & N. Dec. 291, 292, 294 (BIA 1996), the BIA held th a t a California statute imposing criminal penalties on one who " w illf u lly inflicts upon any person with whom he or she is c o h a b itin g [corporal injury]," constitutes a CIMT. Id. at 292. In re a ch in g this conclusion, the BIA underscored the dependent re latio n sh ip among family members: "A person who cohabits w ith or is the parent of the offender's child maintains a re la tio n s h ip of a familial nature with the perpetrator of the harm. T h is relationship is likely to be one of trust and . . . dependency 17

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T h e foregoing analysis tracks the modified categorical a p p ro a c h that we have historically applied. Under that a p p ro a c h , our inquiry concludes when we determine whether the le a st culpable conduct sufficient to sustain conviction under the sta tu te "fits" within the requirements of a CIMT. However, in th e recent opinion we cited above, Matter of Cristoval SilvaT r e v in o , the Attorney General suggested that more is required. W e asked the parties to brief two related issues: the effect of S ilv a -T r e v in o on our existing methodology, and our duty to f o llo w Silva-Trevino, notwithstanding our contrary precedents. We conclude that deference is not owed to SilvaT rev in o 's novel approach and thus will apply our established m e t h o d o l o g y.

. . . . Violence between the parties of such a relationship is d if f ere n t from that between strangers or acquaintances, which m a y or may not involve moral turpitude, depending on the n a tu re of the offense as delineated by statute." Id. at 294. The C a lif o rn ia statute, however, is readily distinguishable from the P en n sylv an ia simple assault statute. Conviction under subpart 2 7 0 1 (b )(2 ) is possible absent the special relationship of d ep en d en ce between the defendant and victim that the BIA p e rc e iv e d as critical in Matter of Tran. Under Pennsylvania law, th e assailant and the complainant, indeed, may be strangers. H e n c e , Matter of Tran does not persuade us that a conviction u n d e r subpart 2701(b)(2) reflects the requisite depravity to c o n s titu te a CIMT.

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In Silva-Trevino, as discussed earlier, the Attorney G e n e ra l considered whether an alien's conviction for indecency w ith a child under Texas law constituted a CIMT, rendering the alien inadmissible, and therefore ineligible for discretionary c a n c e lla tio n of removal, under section 212(a)(2) of the INA, 8 U.S.C. § 1182(a)(2). The Attorney General urged that because c o n f lic tin g methodologies had been adopted by courts of a p p e a ls in conducting the CIMT inquiry, producing a veritable "p a tc h w o rk of different approaches across the nation," he would u se the case as "an opportunity to establish a uniform f ra m ew o r k " for adjudicating CIMT cases under the INA.1 1 Id.

The unusual circumstances of Silva-Trevino's referral to, a n d adjudication by, the Attorney General bear mention. After th e IJ determined that Silva-Trevino's conviction under section 2 .1 1 (a )(1 ) of the Texas Penal Code constituted a CIMT, re n d e rin g him removable, the BIA, applying the categorical a p p ro a c h , concluded that his conviction did not meet the criteria f o r a CIMT and, accordingly, vacated the decision of the IJ and re m a n d e d the case. Subsequently, while the case was pending b e f o re the IJ, the Attorney General certified the case to himself su a sponte. Despite requests by Silva-Trevino's counsel, the A tto rn e y General refused to identify the issues to be considered, to define the scope of his review, to provide a briefing schedule, o r to apprise counsel of the applicable briefing procedure. In fa ct, neither the IJ decision nor the Attorney General's c e rtif ic a ti o n order were made publicly available, thus denying s ta k e h o ld e rs , including immigrant and refugee advocacy o r g a n i z a tio n s , the opportunity to register their views. As a re su lt, the first opportunity of amici curiae to file comment was 19

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a t 688. The Attorney General's novel methodology departs f r o m our precedents in two significant respects. F irs t, Silva-Trevino alters the focus of the categorical a n a lysis . Under the categorical approach that we followed in P a r ty k a , consistent with Supreme Court case law, we look to the e lem e n ts of the statutory offense to ascertain the least culpable c o n d u c t hypothetically necessary to sustain a conviction under th e statute. Partyka, 417 F.3d at 411. Under our precedents, the p o s s ib ility of conviction for non-turpitudinous conduct, however re m o te, is sufficient to avoid removal; proof of actual a p p lic a ti o n of the statute of conviction to the conduct asserted is unnecessary. "As a general rule, a criminal statute defines a

after entry of the Attorney General's opinion. See Br. of Amici C u r ia e American Immigration Lawyers Ass'n, Florence I m m ig r a n t and Refugee Rights Project, Immigrant Defense P r o je c t of the N.Y. State Defenders Ass'n, Immigrant Legal R e so u rc e Ctr., Nat'l Immigration Project of the Nat'l Lawyers G u ild , Nat'l Immigrant Justice Ctr., Refugio del Rio Grande, In c ., and Washington Defenders Ass'n Immigration Project in S u p p o rt of Reconsideration, filed Dec. 5, 2008, available at h t tp : // w w w . i m m i g r a n t d e f e n s e p r o j e c t . o r g / d o c s / 0 8 _ S i l v a T r e v i n o A m ic u s B ri e f .p d f . The amici curiae brief in support of reconsideration e c h o es many of the concerns we express herein and, although no c h a lle n g e to these procedures is before us, the lack of tra n sp a re n c y, coupled with the absence of input by interested s ta k e h o ld e rs , only serves to dissuade us further from deferring to the Attorney General's novel approach. 20

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c rim e involving `moral turpitude only if all of the conduct it p ro h ib it s is turpitudinous.'" Id. (internal citation omitted) (e m p h a s is added). Silva-Trevino eschews our approach of analyzing the lea st culpable conduct hypothetically sufficient to sustain c o n v ic t i o n , in favor of a "realistic probability" test. 24 I.&N. D e c . at 697. Under this approach, "in evaluating whether an a lie n 's prior offense is categorically one that involved moral tu rp itu d e, immigration judges should determine whether there is a `realistic probability, not a theoretical possibility,' that a S ta te or Federal criminal statute would be applied to reach c o n d u c t that does not involve moral turpitude." Id. at 689-90 (c ita ti o n omitted). To demonstrate a "realistic probability" of c o n v ic tio n , the alien must identify an actual conviction for c o m p a ra b le conduct. Silva-Trevino explained, [The "realistic probability" approach] focuses the a d ju d ic a to r on a criminal statute's actual scope a n d application and tailors the categorical moral tu rp itu d e inquiry by asking whether, at the time of a n alien's removal proceeding, any actual (as o p p o s e d to hypothetical) case exists in which the re le v a n t criminal statute was applied to conduct th a t did not involve moral turpitude. If the statute h a s not been so applied in any case (including the a lien 's own case), the adjudicator can reasonably c o n c lu d e that all convictions under the statute m a y categorically be treated as ones involving m o ra l turpitude. In such circumstances, the h is to ry of adjudication generally establishes no 21

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re a listic probability that the statute, whatever its lan g u a g e may hypothetically allow, would a c tu a l ly be applied to acts that do not involve m o ra l turpitude. Id. (internal citation omitted) (emphasis added). Second, Silva-Trevino renders the strict "categorical" a p p ro a c h not "categorical." Prior to Silva-Trevino, we departed f r o m a strict categorical analysis only where the statute of co n v ictio n featured disjunctive variations, some of which were s u f f ic ie n t for conviction of the federal offense and others of w h ic h were not. "We depart farther from the formal categorical a p p ro a c h only where the language of a particular subsection [of a statute] . . . invites inquiry into `the underlying facts of the c a se ." Evanson v. Att'y Gen., 550 F.3d 284, 291-92 (3d Cir. 2 0 0 8 ) (internal citation omitted). In such a case, we modified th e approach, but our inquiry remained a limited one, focused on th e crime of conviction: we reviewed only the record of the c o n v ictio n to ascertain the particular variation of the statute u n d e r which the defendant was convicted. See Singh, 383 F.3d a t 147-48; Joseph v. Att'y Gen., 465 F.3d 123, 127 (3d Cir. 2 0 0 6 ). Accordingly, the focus under the categorical approach h a s always been the conviction, aimed at determining exactly w h a t the defendant was convicted of. S ilv a -T r e v in o , by contrast, directs adjudicators to depart f ro m a categorical approach, and to conduct an "individualized m o ra l turpitude inquiry," in every instance in which a " c ate g o ric a l analysis is not conclusive" as to whether the alien w a s convicted of a CIMT. 24 I.& N. Dec. at 700. The aim of 22

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th is "individualized" inquiry is to ascertain the alien's particular a c ts -- to determine "whether the facts of the alien's prior c o n v ictio n in fact involved moral turpitude"--not merely to d e te rm i n e the elements of the statutory offense of which the a lie n was convicted. Id. at 700, 708. R a th e r than limiting the CIMT inquiry to an examination o f the formal record of conviction, which could include the c h a rg in g document, the terms of the plea agreement or transcript o f the colloquy between judge and defendant in which the f a c tu a l basis for the plea is confirmed by the defendant, or some c o m p a ra b le judicial record of this information, Shepard, 544 U .S . at 26; Evanson, 550 F.3d at 291, Silva-Trevino abandons th e se restrictions: "I [Attorney General] conclude that the e v id e n tia ry limitations of Taylor and Shepard do not apply for p u rp o s e s of making moral turpitude determinations." 24 I.&N. D e c . at 702. Hence, an adjudicator may, in his or her discretion, c o n sid e r not only evidence from the prior criminal proceedings b u t also "any additional evidence or factfinding the adjudicator d e te rm in e s is necessary or appropriate to resolve accurately the m o ra l turpitude question." Id. at 687 (emphasis added). SilvaT r e v in o sets no limitations on the kinds of evidence adjudicators m a y consider. The Attorney General asserts that two aspects of the INA s u p p o rt his authority to direct courts to employ his novel a p p ro a c h and compel our deference. First, he contends that the C IM T provisions in the immigration statute are ambiguous. He u rg e s that Congress employed conflicting terminology, altern a tely using "convicted of" and "committed" throughout the s ta tu te . In the Attorney General's view, these terms, which cut 23

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in "different directions," do not endorse a single methodology f o r adjudicating CIMT cases, but rather confer discretion on the A tto rn e y General to define a reasonable approach. Id. at 693. S e c o n d , the Attorney General urges that the phrase "crime in v o lv in g moral turpitude" invites, if not requires, a factin te n siv e inquiry as to whether the underlying conduct was tu rp itu d in o u s . Id. The Attorney General urges that deference is o w e d to his interpretation of these provisions, and that the m eth o d o lo g y that he espouses is obligatory, notwithstanding our c o n tr a ry precedents.1 2

As a general rule, an agency's construction of an a m b i g u o u s statute under its purview, and in which it has special e x p e rtis e , is entitled to deference. Nat'l Cable & Telecomms. A s s 'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (" C h ev ro n 's premise is that it is for agencies, not courts, to fill sta tu to ry gaps."); Chevron, U.S.A., Inc. v. Natural Res. Def. C o u n c il, Inc., 467 U.S. 837 (1984); Knapik, 384 F.3d at 88. The IN A delegates to the Department of Justice authority to interpret a n d 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 p re c is e issue, no deference is owed to the agency's in te rp re ta tio n of a statute. See Chevron, 467 U.S. at 843 n.9 ("If a court, employing traditional tools of statutory construction, a sc e rta in s that Congress had an intention on the precise question at issue, that intention is the law and must be given effect."); C h o w d h u r y v. INS, 249 F.3d 970, 973 (9th Cir. 2001) (noting th at deference under Chevron "presupposes some ambiguity in th e governing statute"); Beltran-Tirado v. INS, 213 F.3d 1179, 24

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W e conclude that we are not bound by the Attorney G e n e ra l's view because it is bottomed on an impermissible re a d in g of the statute, which, we believe, speaks with the re q u is ite clarity. The ambiguity that the Attorney General p e rc e iv e s in the INA is an ambiguity of his own making, not g ro u n d e d in the text of the statute, and certainly not grounded in th e BIA's own rulings or the jurisprudence of courts of appeals g o in g back for over a century.1 3 The specific ambiguity is as to

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 in te rp re ta tio n reflects an impermissible construction of the s ta tu te , we will not defer to the agency's view. See Chevron, 4 6 7 U.S. at 843; Okeke v. Gonzales, 407 F.3d 585, 588 (3d Cir. 2 0 0 5 ) (noting that deference is only appropriate where agency's re so lu tio n of ambiguity is predicated on a "permissible c o n stru c tio n of the statute" (quoting Fatin v. INS, 12 F.3d 1233, 1 2 3 9 (3d Cir. 1993))). In the case, In re Velazquez-Herrera, the BIA explained the h isto ric a l roots of the categorical approach: For nearly a century, the Federal circuit courts of a p p e a ls have held that where a ground of d e p o rta b ility is premised on the existence of a " c o n v ic tio n " for a particular type of crime, the f o c u s of the immigration authorities must be on th e crime of which the alien was convicted, to the e x c lu sio n of any other criminal or morally re p re h e n s ib le acts he may have committed. See, 25
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e.g., Dalton v. Ashcroft, 257 F.3d 200, 204-05 (2d C ir. 2001); Goldeshtein v. INS, 8 F.3d 645, 647 (9 th Cir. 1993); Okabe v. INS, 671 F.2d 863, 865 (5 th Cir. 1982); Tseung Chu v. Cornell, 247 F.2d 9 2 9 , 935 (9th Cir. 1957); Ablett v. Brownell, 240 F .2 d 625, 627 (D.C. Cir. 1957); United States ex re l. Giglio v. Neelly, 208 F.2d 337, 340-41 (7th C ir. 1953); United States ex rel. McKenzie v. S a v o re tti, 200 F.2d 546, 548 (5th Cir. 1953); U n ite d States ex rel. Robinson v. Day, 51 F.2d 1 0 2 2 , 1022-23 (2d Cir. 1931) (Hand, J.); United S ta te s ex rel. Mylius v. Uhl, 210 F. 860, 862-63 (2 d Cir. 1914). 2 4 I. & N. Dec. at 513; see United States v. Williams, 203 F. 1 5 5 , 156 (D.C.N.Y. 1913) (applying categorical approach and rejectin g individualized inquiry into the alien's particular acts). A lth o u g h we are generally reluctant to infer legislative intent f ro m inaction, we find significant that Congress has retained the te rm "convicted" in the inadmissibility section, despite having a m e n d e d 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 w ith that fact (applicability of categorical approach) when it m a d e deportability under section 237(a)(2)(E)(i) depend on a " c o n v ic tio n ." Had Congress wished to predicate deportability on a n alien's actual conduct, it would have been a simple enough m a tter to have done so.") (internal citations omitted); see also U n ite d States v. Wilson, 290 F.3d 347, 356 (D.C. Cir. 2002) 26

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th e use of the words "convicted" and "committed." The in c lu sio n of "committed," the Attorney General urges, permits in q u iry into any and all acts--whether or not admitted by the a lie n , and whether or not established by the record of c o n v ic tio n -- to determine whether the petitioner was convicted o f a CIMT. To say that this reading has been rejected is an u n d e rs ta te m e n t: the BIA, 1 4 prior attorneys general,1 5 and n u m ero u s courts of appeals have repeatedly held that the term "c o n v icted " forecloses individualized inquiry in an alien's s p e c if ic conduct and does not permit examination of extrare c o rd evidence. 1 6 It could not be clearer from the text of the

("Congress is presumed to preserve, not abrogate, the b ac k g ro u n d understandings against which it legislates."). See, e.g., Matter of Velazquez-Herrera, 24 I. & N. Dec. at 5 1 3 ; Matter of Babaisakov, 24 I. & N. Dec. 306, 311 (BIA 2 0 0 7 ); Matter of Sweetser, 22 I. & N. Dec. 709, 715 (BIA 1 9 9 9 ); Matter of Pichardo, 21 I. & N. Dec. 330, 335 (BIA 1 9 9 6 ); Matter of Madrigal, 21 I. & N. Dec. 323, 327 (1996); M a tter 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 1 9 3 8 ); Op. Of Hon. Cummings, 37 Op. Att'y Gen. 293 (AG 1 9 3 3 ). In Gonzales v. Duenas-Alvarez, upon which the Attorney G e n e r a l relies, the Supreme Court underscored federal courts' 27
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s ta tu te ­ ­ w h ic h defines "conviction" as a "formal judgment of g u ilt," and which explicitly limits the inquiry to the record of

uniform application of the categorical, and modified categorical, a p p ro a c h . 549 U.S. 183, 185-86 (2007); Matter of Babaisakov, 2 4 I. & N. Dec. at 311 ("We [BIA] have also traditionally a p p li e d an analysis that closely resembles the categorical a p p ro a c h to determine whether an alien has a `conviction' that f a lls within a federally defined category of crimes leading to d e p o r ta t io n ." ) . A lth o u g h courts employ different labels to describe the c a te g o ric a l and modified categorical approaches, the f u n d a m e n tal methodology is the same. Each court begins with a n analysis of the statute of conviction. If the statute of c o n v ic tio n is divisible, defining variations of the same offense, s o m e of which would constitute a CIMT and others of which w o u ld not, inquiry into the record of conviction is permissible s o le ly to determine the particular subpart under which the alien w a s convicted. Otherwise, scrutiny of the alien's particular acts is prohibited. See, e.g., Partyka, 417 F.3d at 416; B e ja r a n o -U r r u tia v. Gonzales, 413 F.3d 444, 450 (4th Cir. 2 0 0 5 ); Chanmouny, 376 F.3d at 812; Cabral v. INS, 15 F.3d 193 (1 st Cir. 1994); Gonzalez-Alvarado v. INS, 39 F.3d 245 (9th C ir.1 9 9 4 ); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); United S ta te s ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939). The S e v e n th Circuit Court of Appeals alone has recently abandoned t h e categorical approach in moral turpitude cases. See Ali v. M u k a se y , 521 F.3d 737 (7th Cir. 2008). 28

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c o n v ic tio n or comparable judicial record evidence 1 7 -- th a t the

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The INA provides:

In any proceeding under this chapter, any of the f o llo w in g documents or records (or a certified copy of such an o f f ic ia l document or record) shall constitute proof of a criminal c o n v ic tio n : (i) An official record of judgment and conviction. (ii) An official record of plea, verdict, and s e n te n c e . (iii) A docket entry from court records that in d ic a te s the existence of the conviction. (iv ) Official minutes of a court proceeding or a tran scrip t of a court hearing in which the court ta k e s notice of the existence of the conviction. (v ) An abstract of a record of conviction prepared b y the court in which the conviction was entered, o r by a State official associated with the State's re p o s ito ry of criminal justice records, that in d ic a te s the charge or section of law violated, the d is p o s itio n of the case, the existence and date of c o n v ic tio n , and the sentence. (v i) Any document or record prepared by, or u n d e r the direction of, the court in which the c o n v ic tio n was entered that indicates the e x is te n c e of a conviction. (v ii) Any document or record attesting to the c o n v i c ti o n that is maintained by an official of a S ta te or Federal penal institution, which is the 29

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C IM T determination focuses on the crime of which the alien w a s convicted--not the specific acts that the alien may have c o m m itte d . 8 U.S.C. § 1101(a)(48)(A). The statute presents no a m b ig u ity. Two recent opinions of the Second and Ninth Circuit C o u rts 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 o p in io n s address "convicted" in the context of different removal p ro v is io n s , Congress has prescribed a single definition of " c o n v ic te d ," applicable to all removable offenses. See 8 U.S.C. § 1101(a)(1) and (48)(A) (defining "conviction"). 1 8

basis for that institution's authority to assume c u sto d y of the individual named in the record. 8 U.S.C. § 1229a(c)(3)(B); see Conteh v. Gonzales, 461 F.3d 45, 5 4 (1st Cir. 2006) ("[T]he regulation's catch-all provision a u th o riz e s the admission of evidence for the sole purpose of p ro v in g "the existence of a criminal conviction," 8 C.F.R. § 1003.41(d) (emphasis supplied); it does not authorize the a d m iss io n of evidence for the purpose of proving the facts u n d erlyin g the offense of conviction."). See Duenas-Alvarez, 549 U.S. at 185-86 ("In determining w h e th e r a conviction (say, a conviction for violating a state c rim in a l law that forbids the taking of property without p e rm is s io n ) falls within the scope of a listed offense (e.g., "theft o f f e n s e " ) , the lower courts uniformly have applied the approach th is Court set forth in Taylor v. United States, 495 U.S. 575, 110 30
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A c c o rd in g ly, we find the reasoning in these cases applicable to th e CIMT provisions of the statute. In Tokatly v. Ashcroft, the Ninth Circuit Court of Appeals c o n c lu d e d that a provision authorizing removal of an alien c o n v ic te d of a crime of domestic violence required application o f a categorical, or modified categorical, approach. 371 F.3d at 6 2 2 . The Court stressed that this result flowed from Congress's in c lu s io n of the word "convicted," a clear and unambiguous te rm : L ik e all of the other removal provisions we have a n a lyz e d in accordance with the categorical and m o d if ie d categorical approach, the plain language o f the "crime of domestic violence" provision c le a rly bases deportability on the nature of the a lie n ' s conviction, rather than on the alien's

S.Ct. 2143, 109 L.Ed.2d 607 (1990)).") (emphasis added); see a l so Chowdury, 249 F.3d at 973 ("When analyzing a statute we . . . mak[e] every effort not to interpret a provision in a manner th at renders other provisions of the same statute inconsistent.'" (q u o tin g Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th C ir. 1991))); Tokatly, 371 F.3d at 622; United States v. P a c h e co , 225 F.3d 148, 154 (2d Cir. 2000) (quoting United S ta tes v. Bonanno Organized Crime Family, 879 F.2d 20, 24 (2d C ir. 1989)) ("[W]e must `interpret [a] specific provision in a w a y that renders it consistent with the tenor and structure of the w h o le act or statutory scheme of which it is a part.'") (internal citatio n s omitted). 31

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a c tu a l conduct. We are required to determine w h e th e r Tokatly has been "convicted of a crime of d o m e stic violence"-not whether he in fact c o m m itte d such a crime. INA § 237(a)(2)(E)(i) (e m p h a s is added). That the removable offense at is s u e is a "crime of domestic violence" in no way w a rra n ts a reversal of our fundamental method of d e te rm in in g whether an alien has been convicted o f a removable offense under the Act. Id . (emphasis added). T h e Second Circuit Court of Appeals has concluded, s im ila r ly, that "convicted" mandates a categorical analysis. G e rts e n sh te y n , 544 F.3d at 145-46. In Gertsenshteyn, the court c o n sid e re d the validity of a novel framework, adopted by the B IA , for adjudicating "aggravated felony" convictions under 8 U.S.C. § 1101(a)(43)(K)(ii). 544 F.3d at 138. The BIA had s p e c if ic a lly sought greater leeway to examine the particular c o n d u c t underlying an alien's prior conviction. As originally e n a cte d in April 1996, § 1101(a)(43)(K)(ii) defined as an a g g ra v a te d felony the commission of "an offense that . . . is d e sc rib e d in" any one of three federal statutory provisions [ 1 8 U.S.C. §§ 2421, 2422, and 2423] `for commercial a d v a n ta g e .'" Departing from the categorical and modified c a te g o rical approaches, the BIA scrutinized evidence outside the re c o rd of conviction to ascertain whether the alien was, in fact, m o tiv ated by a desire "for commercial advantage." The court c o n c lu d e d that such an approach was foreclosed by the statute, w h i c h required "conviction" of an aggravated felony. The re le v a n t passage in Gertsenshteyn is worth quoting at length: 32

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O u r holding today is grounded in h is to ry-s p e c if ic a lly, the history of why we have a p p lie d the categorical approach to aggravated f e lo n y inquiries in the removal context. The prim ary reason w as that 8 U .S.C . § 1227(a)(2)(A)(iii)-the provision of the INA that re n d e rs an alien removable for having been c o n v icte d of an aggravated felony (leaving to p ro v is io n 8 U.S.C. § 1101(a)(43) the definition of " a g g ra v a te d felony")-uses the word "convicted." T h a t is, the INA premises removability not on w h a t an alien has done, or may have done, or is lik e ly to do in the future (tempting as it may be to c o n sid e r those factors), but on what he or she has b e e n formally convicted of in a court of law. . . . O n e way to ensure proper focus on the c o n v ic tio n , we decided, was the method the S u p r e m e Court applied in Taylor and Shepard. S e e Ming Lam Sui v. INS, 250 F.3d 105, 116-17 (2 d Cir. 2001) (stating that "the Taylor opinion p ro v id e s valuable guidance" to a determination of w h e t h e r an alien's offense constitutes an " a g g ra v a te d felony" under the INA because, like the statute at issue in Taylor, " § 1227(a)(2)(A)(iii) renders deportable an alien w h o has been `convicted' of an aggravated f e lo n y, not one who has `committed' an a g g ra v a te d felony"). We also reasoned (1) that " n o th in g in the legislative history [of 8 U.S.C. § 1227(a)(2)(A)(iii)] suggested a factfinding role 33

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f o r the BIA in ascertaining whether an alien had c o m m itte d an aggravated felony, just as, in T a y l o r , nothing suggested such a role for the s e n te n c in g court in evaluating the factual basis of a prior burglary conviction," and (2) that "the p ra c tic a l evidentiary difficulties and potential u n f a irn e ss associated with looking behind [an a l i e n ' s] offense of conviction were no less d a u n tin g in the immigration [context] than in the sen ten c in g context." Dulal-Whiteway, 501 F.3d at 1 2 5 -2 6 (internal quotation marks and citations o m itte d ). In sum, our use of the categorical a p p ro a c h emanates from our understanding of w h a t Congress intended when it drafted § 1227(a)(2)(A)(iii), a provision that, like the p ro v is io n in Taylor and Shepard, requires the G o v e rn m e n t to prove the existence of a qualifying c o n v ic tio n in order to make its case. Id . at 145-46 (emphasis in original). Although the Court c o n stru e d "conviction" in the context of the aggravated felony p ro v isio n , the Court made clear that its rejection of the BIA's f a ct-in te n siv e inquiry was premised on "conviction"--a s ta tu to rily defined term--not on the particular offense for which re m o v a l was sought: In the precedential opinion that the BIA is s u e d in this case, it has taken a new approach. B u t 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 34

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th e first place. Rather, it has focused entirely on a subpart of § 1101(a)(43), the provision of the I N A that defines "aggravated felony." The BIA h a s authority to interpret that provision, and its in te rp re ta tio n -s p e c if ic a lly, its sensible reading of th e phrase "commercial advantage"-may well m e rit deference should the BIA reassert it in this ca s e (on remand) or in others. But the BIA's d is c u ss io n of § 1101(a)(43)(K)(ii) gives us no re a so n to depart from its, and our own, precedents re g a rd in g the more fundamental question of what is required of the agency-in the interests of both f a i r n e s s and efficiency-when an alien's re m o v a b ility hinges on the existence of a prior c o n v ic ti o n . Id . at 146 (emphasis added); Conteh, 461 F.3d at 54; Chang v. IN S , 307 F.3d 1185, 1190 & n.2 (9th Cir. 2002) (noting that te rm "conviction" necessarily limits inquiry to the elements of th e statute of conviction and the record of conviction); In re V e la z q u e z -H e r r e r a , 24 I.&N. Dec. at 513 (noting that " c o n v ic te d " requires the "focus" of the immigration authorities to be on the "crime of which the alien was convicted, to the e x c lu s io n of any other criminal or morally reprehensible acts he m a y have committed.") (emphasis added).19

Because "convicted" has an unambiguous meaning, the A tto rn e y General must find support for his novel approach e ls e w h e re in the statute. The Attorney General attempts to do ju s t that, citing 8 U.S.C. § 1182(a)(2)(A)(i)(I), section 35

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W e also take issue with the Attorney General's view that th e phrase "crime involving moral turpitude" invites inquiry into a n alien's specific acts. The Attorney General's argument is p re m is e d on a fundamental misreading of the relevant language. T h e Attorney General views "crime" and "involving moral tu rp itu d e " as distinct grammatical units and, accordingly, re a so n s that the clause "involving moral turpitude" modifies " c rim e ." He thus concludes that Congress intended to authorize in q u iry into whether an alien committed the offense in a manner re f lec tin g depravity--that is whether the alien's particular acts " in v o lv [ e d ] moral turpitude." The Attorney General's view, h o w e v e r, overlooks a crucial fact: crime involving moral

212(a)(2)(A)(i)(I). However, that section, addressing acts s p e c if ic a lly "admitted" by the alien in the underlying criminal p r o c e e d in g , is narrowly drawn; it does not confer limitless d is c re tio n on immigration judges to examine "any additional e v id e n c e" deemed "appropriate." Silva-Trevino, 24 I.&N. Dec. a t 687; see Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 2 5 3 -5 4 (1992) ("[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says th e re ."); In re Velazquez-Herrera, 24 I. & N. Dec. at 507 ("If th a t [statutory] language constitutes a plain expression of c o n g re ss io n a l intent, it must be given effect."); see also Conteh, 4 6 1 F.3d at 58 ("It seems obvious to us that the record of c o n v ictio n cannot encompass after-the-fact statements made in a separate and subsequent proceeding."). The Attorney G e n e ra l'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 m is p la c ed . 36

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tu rp itu d e is a term of art, predating even the immigration statute its e lf . See Jordan v. De George, 341 U.S. 223, 227 (1951); B a x te r v. Mohr, 37 Misc. 833, 76 N.Y.S. 982 (1902). As such, its division into a noun and subordinate clause, as the Attorney G e n e ra l seeks to do, distorts its intended meaning. It refers to a specific class of offenses, not to all conduct that happens to " in v o lv e " moral depravity, because of an alien's specific acts in a particular case. Because the Attorney General's position is p r e m is e d on a clearly erroneous interpretation of "crime in v o lv in g moral turpitude," no deference is owed to his view. M o r e o v e r , although the A t t o r n e y General o b s e rv e s­ c o r re c tly­ th a t "moral turpitude" is rarely an element o f the underlying crime triggering removal,2 0 it is the offense th a t must be scrutinized for the requisite degree of depravity. B e c au s e the INA requires the conviction of a crime--not the c o m m is si o n of an act--involving moral turpitude, the central in q u iry is whether moral depravity inheres in the crime or its e le m e n ts ­ n o t the alien's underlying conduct.2 1 In this way, the

In United States v. Uhl, decided almost one hundred years a g o , the court acknowledged the possibility that the statute w o u ld be both overinclusive and underinclusive, but noted that th e 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 B o a rd and the courts have consistently held in cases addressing th e issue of whether an alien is deportable under section 2 4 1 (a )(2 )(A )(i) of the Act for having been convicted of a crime 37
21

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c o n c e p t of a crime involving moral turpitude does not lend itself to an examination of acts, rather than elements of the crime, any m o re than does the concept of "crime of violence" under section 1 0 1 (a )( 4 3 )( F ) of the INA. See 18 U.S.C. § 1101(a)(43)(F) (d e f in in g "aggravated felony" as including a "crime of v io le n c e" ). Violence, like moral turpitude, is not an element of th e underlying offense; rather, we must look at the elements of th e crime and measure them against the requirement of " v io le n c e." See Ng v. Att'y Gen., 436 F.3d 392, 396-97 (3d Cir. 2 0 0 6 ) (applying categorical approach to determination of w h e th e r conviction constitutes a "crime of violence" under se c tio n 101(a)(43)(F)); see also Shepard, 544 U.S. at 14 (lim itin g cognizable evidence to record of conviction in d e te rm in in g whether prior conviction was for "violent felony" u n d e r the Armed Career Criminal Act); Tokatly, 371 F.3d at 622 (" T h a t the removable offense at issue is a "crime of domestic v io le n c e" in no way warrants a reversal of our fundamental m e th o d of determining whether an alien has been convicted of a removable offense under the Act."). The use of the term "in v o lv e s " in "crime involving moral turpitude" is no more e x p a n s iv e than the word "of" in "crime of violence." N o r do we believe that, as a practical matter, d e te rm in a tio n of whether a conviction "fits" the requirements of a CIMT requires examination of an alien's underlying conduct.

involving moral turpitude, it is the nature of the crime, as d e f in e d by statute and interpreted by the courts and as limited a n d described by the record of conviction, which determines w h e th e r an alien falls within the reach of that law."). 38

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W e are aware that the Seventh Circuit Court of Appeals recently re a ch e d a contrary conclusion in Ali v. Mukasey, upon which the A tto rn e y General relies in Silva-Trevino. 521 F.3d at 741-42. In A li, the Seventh Circuit Court of Appeals concluded, "The need to decide whether a crime is one of `moral turpitude' . . . may req u ire some additional information, since the charging papers th a t led to the prior conviction are not framed with such c la ss if ic a tio n s in mind . . . ." Id. Because the Seventh Circuit rep rese n ts the sole court of appeals to approve such a farre a ch in g inquiry in the CIMT context, we consider its holding a n d reasoning in some detail. In Ali, the court initially acknowledged its precedents a p p lyin g the categorical approach set forth in Shepard and T a y lo r . Id. at 741; see Hashish v. Gonzales, 442 F.3d 572, 575 (7 th Cir. 2006); Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th C ir . 2005). The court, however, then abandoned these p re c ed e n ts , providing three grounds for its decision: that (1) the ra tio n a le for application of the categorical approach in criminal p ro c e ed in g s is inapplicable in the immigration context; (2) s c ru tin y of an alien's specific acts is necessary to determine w h eth e r a prior conviction fits the criteria of a CIMT; and (3) a rec en t decision of the BIA