Amaya v. Attorney General of the United States

189 F. App'x 130
Court of Appeals for the Third Circuit·Decided July 18, 2006·No. No. 05-2996·Published

Opinion

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Petitioner Ismael Antonio Alvarez-Amaya, a male native and citizen of El Salvador, seeks review of the decision of the Board of Immigration Appeals (“BIA”) affirming without opinion the decision of the Immigration Judge (“IJ”) that Alvarez was removable for having been convicted of a crime involving moral turpitude, namely endangering the welfare of a child by sexual conduct which would impair or debauch the morals of a child. The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1. This Court has jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a)(2)(D), to consider only “constitutional claims or questions of law.” For the reasons set forth below, we will deny the petition for review.

I.

Because we write solely for the benefit of the parties, we state the facts only as they pertain to our analysis.

Alvarez-Amaya, who was born in El Salvador, entered the United States in California on February 15, 1986, without inspection or admission. Ten years later in New Jersey, Alvarez-Amaya was arrested and charged with violating N.J. Stat. Ann. § 2C:24-4a (West 1995), Endangering [132] Welfare of Children. The Accusation charged that, between January 1, 1995, and August 3, 1995, Alvarez-Amaya “knowingly did engage in sexual conduct which would impair or debauch the morals of a child under the age of 16,” specifically a 15-year-old, a crime in the third degree.1 Alvarez-Amaya pleaded guilty to the charge on October 11, 1996, in New Jersey Superior Court, and was sentenced to twenty days imprisonment and two years probation.

Alvarez-Amaya was arrested by the Department of Homeland Security on September 10, 2003, and placed in removal hearings. He was charged with removal based on violations of 8 U.S.C. § 1182(a)(6)(A)(i), for being an alien present in the United States without admission or parole, and 8 U.S.C. § 1182(a)(2)(A)(i)(I), for being an alien who was convicted of a crime involving moral turpitude. He conceded all factual allegations, but claimed that his conviction was not for a crime involving moral turpitude because the New Jersey statute of conviction did not require criminal intent.

The IJ concluded otherwise, and in a written interlocutory decision on June 14, 2004, held that Alvarez-Amaya had been convicted of a crime involving moral turpitude, because his conviction required proof of “knowledge,” and fell within the portion of the statute constituting morally turpitudinous conduct. The IJ concomitantly denied Alvarez-Amaya’s request for Special Rule cancellation of removal pursuant to 8 C.F.R. '§ 1240.66, because as of June 2004, he had not been continuously present in the United States for 10 years since the commission of his crime, which had ended in August, 1995. The IJ then, on June 15, 2004, issued an oral decision ordering Alvarez-Amaya removed to El Salvador. On May 31, 2005, the BIA affirmed without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Alvarez-Amaya then filed this timely petition for review.2

II.

Where the BIA affirms without opinion, this Court reviews the IJ’s opinion. Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d Cir.2001). While we “accord Chevron deference to the BIA’s determination that a particular crime involves moral turpitude,” the question of whether we owe such deference to an IJ’s determination when the BIA affirms without opinion, is still open. Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir.2005). “[W]e owe no deference to the IJ’s interpretation of a state criminal statute.” Id. (citing Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir.2004)). We therefore review de novo the IJ’s conclusion that Alvarez-Amaya was convicted under a statute with elements constituting a crime involving moral turpitude. We review findings of fact under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); [133] see also Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Such determinations are upheld unless a “reasonable adjudicator would be compelled to conclude to the contrary,” considering the totality of the circumstances. Gao, 299 F.3d at 272 (quoting 8 U.S.C. § 1252(b)(4)(B)).

III.

Our inquiry is two-staged. Under the categorical approach, we first ask whether the statute of conviction covers only morally turpitudinous acts, as determined by the “least culpable conduct necessary to sustain a conviction under the statute.” Partyka, 417 F.3d at 411. If a statute is “divisible,” however, as through the use of disjunctive or discrete subsections, we must go beyond the statute “to the record of conviction to determine whether the alien was convicted under that part of the statute defining a crime involving moral turpitude.” Id. Thus under either of these approaches, we may not look at the specific facts of Alvarez-Amaya’s actions.3 Knapilc, 384 F.3d at 88.

Alvarez-Amaya concedes on appeal that the IJ correctly found N.J. Stat. Ann. § 2C:24-4a to be “divisible.” See, e.g., Pet. Br. at 12, 19. We therefore must proceed to the second stage of our analysis, and look at the record of conviction to determine under which part of the statute Alvarez-Amaya was convicted, and whether that portion of the statute defines a crime involving moral turpitude.

N.J. Stat. Ann. § 2C:24-4a comprises four divisible subsections, which we set forth below with classifications added for clarity’s sake.

Second degree, sexual conduct: “Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child.”

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Amaya v. Attorney General of the United States, 189 F. App'x 130 (3d Cir. 2006).

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