Bobb v. Atty Gen USA

Filing 3010138660

Case: 08-2644

Document: 003110138660

Page: 1

Date Filed: 05/11/2010

N O T PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 08-2644 ___________ G A R V I N BOBB, P e t i t io n e r v. T H E ATTORNEY GENERAL OF THE UNITED STATES, R e sp o n d e n t ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A76-493-189) Im m ig ra tio n Judge: Honorable Henry S. Dogin ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) F e b ru a ry 22, 2010 B e f o re : SCIRICA, CHAGARES and WEIS, Circuit Judges O p in io n filed: May 11, 2010 ___________ O P IN IO N _____________ W E IS , Circuit Judge. Petitioner Garvin Bobb, a native and citizen of Trinidad and Tobago, e n ter e d the United States as a visitor in April 1989. He shortly thereafter changed his 1

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sta tu s to a non-immigrant student. In January 2001, he pled guilty in New Jersey state c o u rt to three counts of official misconduct in violation of N.J. Stat. Ann. § 2C:30-2, w h ich , in relevant part, provides: "A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit: a . He commits an act relating to his office but constituting an unauthorized e x e rc is e of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or b . He knowingly refrains from performing a duty which is imposed upon him b y law or is clearly inherent in the nature of his office." T h e state prosecution arose out of Bobb's alleged sexual conduct with three m in o r children when he was employed as a counselor at an institution for abused girls. The Government sought to remove Bobb pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), a ss e rtin g that he was convicted of two or more crimes involving moral turpitude not a ris in g out of a single scheme of criminal conduct. The Immigration Judge concluded, in te r alia, that the official misconduct charges constituted crimes of moral turpitude and th a t those crimes did not arise out of a single criminal misconduct scheme. T h e Board of Immigration Appeals dismissed Bobb's counseled appeal. T w o members of the panel held that the convictions qualified as crimes of moral turpitude b e c au s e the charging documents revealed acts "involving a betrayal of public trust for [ B o b b ' s ] own gratification as well as the sexual exploitation of some of the most v u ln e ra b le members of society" and such acts, in turn, were "inherently base, vile,

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d e p ra v e d , and contrary to the accepted rules of morality and the duties owed between p e rs o n s or to society in general." The BIA also reasoned that " [ e]v e n assuming . . . some violations of the New Jersey o f f e n s e of official misconduct would not qualify as crimes in v o lv in g moral turpitude . . . , a proposition we are not p re p a re d to concede, the United States Court of Appeals for th e Third Circuit has held that, `[w]here a statute covers both tu rp itu d in o u s and non-turpitudinous acts . . . , it is "divisible," a n d we then look to the record of conviction to determine w h e th e r the alien was convicted under that part of the statute d e f in in g a crime of moral turpitude.' Partyka v. Attorney G en era l of the United States, 417 F.3d 408, 411-12 (3d Cir. 2 0 0 5 ). Cf. also Canada v. Gonzales, 448 F.3d 560, 567-68 (2 d Cir. 2006). As noted above, [Bobb's] conviction record c le a rly manifests the morally turpitudinous nature of the crime o f which he was convicted."

(second alteration in original). Bobb filed a pro se petition for review with this Court, and we remanded th e matter, requesting that the BIA "classify[ ] its analysis of the divisible statute issue u n d e r Partyka." In a single-member decision, the BIA again dismissed Bobb's a d m in is tra tiv e appeal, stating, "We see nothing in the record or in Third Circuit law that w o u ld cause us to reconsider" the earlier judgment. The BIA noted that the "gravamen" 3

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Document: 003110138660

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Date Filed: 05/11/2010

o f the offense was "the knowing abuse of authority by a public official, who betrays the p u b lic trust either to benefit himself or to harm another." The BIA held that Bobb "is d e p o rta b le even if we assume arguendo . . . some violations . . . are non-turpitudinous." The BIA reiterated its findings that the indictment alleged sexual conduct with three m in o r patients and that such acts involved moral turpitude. Likewise, it reaffirmed its p re v io u s finding with respect to the existence of a single scheme of criminal misconduct. In the end, the BIA found Bobb deportable as charged. Bobb filed a petition for review in th is Court. W e have jurisdiction over final orders of removal under 8 U.S.C. § 1252. The Government filed a motion to dismiss for lack of jurisdiction, arguing that we do not h a v e jurisdiction to review a final order of removal against an alien found removable for h a v in g been convicted of a crime of moral turpitude. See 8 U.S.C. § 1252(a)(2)(C). That ju ris d ic tio n -s trip p in g provision applies only when the alien is actually "deportable by re a so n of having been convicted of one of the enumerated offenses[,]" and we, in turn, h a v e jurisdiction to determine whether such a conviction actually exists. Drakes v. Z im s k i, 240 F.3d 246, 247 (3d Cir. 2001). In the current proceedings, Bobb argues that th e BIA committed errors of law with respect to the issue of moral turpitude. See Alaka v . Att'y Gen., 456 F.3d 88, 102 (3d Cir. 2006) (this Court retains jurisdiction to review " p u re questions of law, and . . . application of law to fact, where the facts are undisputed an d not the subject of challenge" (Kamara v. Att'y Gen., 420 F.3d 202, 211 (3d Cir.

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2 0 0 5 )) ). Therefore, we will deny the Government's motion to dismiss. We review the BIA's conclusions of law de novo, Wang v. Ashcroft, 368 F .3 d 347, 349 (3d Cir. 2004), and "we owe no deference to the [administrative] in te rp re ta tio n of a state criminal statute." Partyka, 417 F.3d at 411 (citing Knapik v. A s h c ro f t, 384 F.3d 84, 88 (3d Cir. 2004)). As we recognized in Partyka, the often-complicated issue of moral turpitude m a n d a te s a "categorical approach." 417 F.3d at 411. "Whether an alien's crime involves m o ra l turpitude is determined by the criminal statute and the record of conviction, not the a lie n 's conduct." Id. Accordingly, "[W]e read the applicable statute to ascertain the least c u lp a b le conduct necessary to sustain a conviction under the s ta tu te . As a general rule, a criminal statute defines a crime in v o lv in g `moral turpitude only if all of the conduct it p ro h ib its is turpitudinous.' Where a statute covers both tu rp itu d in o u s and non-turpitudinous acts, however, it is `d iv isib le,' and we then look to the record of conviction to d e te rm in e whether the alien was convicted under that part of th e statute defining a crime involving moral turpitude. Id . (citations omitted). We re-affirmed Partyka's modified categorical approach in Jean-Louis v. A tto rn e y General, 582 F.3d 462 (3d Cir. 2009). In that case, we rejected the Attorney G e n e ra l's interpretation of the crimes of moral turpitude statute which would have

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d e p a rte d from the categorical analysis in favor of an individualized inquiry into facts o u ts id e of the record of conviction. Id. at 473-74. Instead, we reiterated that "the central inq u iry is whether moral depravity inheres in the crime or its elements ­ not the alien's u n d e rlyin g conduct." Id. at 477. D iv isib ility, in this context, refers to a statute which is divided into discrete s u b s e c tio n s defining crimes involving moral turpitude and crimes not involving moral tu r p itu d e . Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005); see also Jean-Louis, 5 8 2 F.3d at 474 n.16. Here, there are only two subsections of the statute, and Bobb was u n d o u b tedly convicted under section (a); therefore, there is no need to examine the record to determine which was the subsection of conviction. Rather, the relevant question, under P a rtyk a 's categorical approach, is whether the least culpable conduct necessary to sustain a conviction under section (a) of the statute would be a crime involving moral turpitude. T h e BIA suggested that even the least culpable conduct necessary for a c o n v ictio n qualifies as a crime involving moral turpitude. The BIA, however, made this s u g g e stio n without discussing the specific elements of the crime or citing any New Jersey c a se law interpreting the criminal statute.1 Further, Bobb's failure to identify any instance

The BIA referred in passing to the "[t]he gravamen of this offense," and it also o b se rv e d , in rejecting Bobb's speeding ticket hypothetical, that a conviction would re q u ire proof "that the police officer refrained from issuing a ticket `with purpose to o b ta in a benefit for himself or another or to injure or to deprive another of a benefit.'" Nevertheless, the BIA still did not conduct a specific examination of the elements to a s c e rta in the least culpable conduct necessary for a conviction. 6

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Case: 08-2644

Document: 003110138660

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Date Filed: 05/11/2010

w h e re the New Jersey authorities prosecuted a non-turpitudinous offense is not a re q u ire m e n t under the categorical analysis. See Jean-Louis, 582 F.3d at 481 (rejecting a re q u ire m e n t that petitioner must show a "`realistic probability' that the statute of co n v iction would be applied to non-turpitudinous conduct").2 T h e Government argues that the knowing and purposeful misuse of a p o s itio n of public trust renders all violations of the statute turpitudinous. We are not p e rs u a d e d that the least culpable conduct under N.J. Stat. Ann. § 2C:30-2(a) meets the d e f in itio n of a crime of moral turpitude. In order for an offense to be classified as such, it must involve conduct that is "inherently base, vile, or depraved." Jean-Louis, 582 F.3d at 465 (quoting Knapik, 384 F .3 d at 89). The statute appears to contain an element of "evil purpose" or "corruption" w h ic h we have generally identified as a hallmark of a crime of moral turpitude. See JeanL o u is , 582 F.3d at 469; see also State v. Gleitsmann, 161 A.2d 747 (N.J. Super. Ct. App. D iv . 1960). In Gleitsmann, the New Jersey Superior Court, interpreting the common law c rim e of misconduct in office -- a precursor to N.J. Stat. Ann. § 2C:30-2 -- stated that o f f ic ia l misconduct contains a wilfulness element, meaning "`an evil purpose or mental

Both the BIA and the Government seem to be under the mistaken impression that B o b b was convicted of a sexual misconduct offense and, thus, they focus on the moral d e p ra v ity of the facts underlying Bobb's crime. In performing the categorical approach, h o w e v e r, we have repeatedly "cautioned against going beyond the offense as charged and s c ru tin iz [ in g ] the underlying facts of a case to determine whether a crime involves moral tu rp itu d e ." Knapik v. Ashcroft, 384 F.3d 84, 91 (3d Cir. 2004) (internal quotation marks o m itte d ) (alteration in original). 7

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Case: 08-2644

Document: 003110138660

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Date Filed: 05/11/2010

c u lp a b ility,' a concept which is often labelled `criminal intent,' `guilty knowledge,' `mens re a ,' `bad purpose' or `corruption.'" 161 A.2d at 749 (citations omitted). Mental culpability, however, is only one aspect of the moral turpitude a n a lys is , as "the hallmark of moral turpitude is a reprehensible act committed with an a p p re c iab le level of consciousness or deliberation." Partyka, 417 F.3d at 414. The statute d o e s not require an underlying criminal act and can involve acts that are legal and in n o c u o u s when performed by a non-public official or by a public official in an a u th o riz e d manner. See State v. Parker, 592 A.2d 228, 235 (N.J. 1991). In Gleitsmann, a p o lic e captain was convicted of official misconduct for his personal use of a police car a n d municipal telephone. 161 A.2d at 748, 750-51. In another instance, the statute was u s e d to convict a volunteer firefighter who made false fire alarms in order to receive the " jo y or gratification of participating in the response." State v. Quezeda, 953 A.2d 1206, 1 2 0 8 (N.J. Super. Ct. App. Div. 2008). In a third case, the executive director of a county c o m m u n ity development office was indicted under N.J. Stat. Ann. § 2C:30-2 for d is b u rs in g funds without following proper administrative procedures and without the co n sen t of the municipal council. State v. Maioranna, 542 A.2d 510, 511-12 (N.J. Super. C t. Law Div. 1988). In essence, almost any official act willfully done without authorization in th e course of a public servant's employment may be prosecuted under § 2C:30-2. We c a n n o t say that all, or even most, of these acts involve conduct of inherent baseness or

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Case: 08-2644

Document: 003110138660

Page: 9

Date Filed: 05/11/2010

d e p ra v ity which characterizes moral turpitude. Therefore, under the least culpable c o n d u c t test, the New Jersey crime of official misconduct does not qualify as a crime of m o ra l turpitude. We conclude that Bobb is not removable under 8 U.S.C. § 1227(a)(2)(A)(ii) f o r having been convicted of two or more crimes involving moral turpitude. Accordingly, w e will grant the petition, reverse the order of the BIA, and remand the case for further p ro c e e d in g s consistent with this opinion.

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