Knapik v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: September 17, 2004
• Docket: 03-2787
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

9-17-2004

Knapik v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 03-2787

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Recommended Citation "Knapik v. Atty Gen USA" (2004). 2004 Decisions. Paper 278. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/278

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Peter D. Keisler UNITED STATES Assistant Attorney General, Civil Division COURT OF APPEALS Emily Anne Radford, Esquire FOR THE THIRD CIRCUIT Assistant Director Douglas E. Ginsburg, Esquire John M . McAdams, Jr., Esquire No. 03-2787 Aviva L. Poczter, Esquire Nicole Nardone, Esquire (Argued) Department of Justice Civil Division JAN KNAPIK, Office of Immigration Litigation P.O. Box 878 Petitioner Ben Franklin Station Washington, DC 20044 v. Attorneys for Respondent *JOHN ASHCROFT, Attorney General of the United States

Respondent OPINION OF THE COURT

AM BRO, Circuit Judge On Petition for Review of a Final Order of the Jan Knapik challenges the decision Board of Immigration Appeals of the Board of Immigration Appeals (No. A74-902-513) (BIA) that his conviction for attempted reckless endan germent is a crime invo lving m or a l tur pitude u n d er Argued June 25, 2004 § 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. Before: AMBRO, BECKER and § 1227(a)(2)(A)(i). Knapik argues that GREENBERG, Circuit Judges crimes with a mens rea no greater than recklessness cannot involve moral (Opinion filed : September 17, 2004) turpitude because such crimes require intent. He also argues that, even assuming Steven Lyons, Esquire (Argued) reckless endan germent is a crime Martin C. Liu and Associates, PLLC involving moral turpitude, attempted 627 Greenwich St., 12th Floor reckless endangerment is not. For the New York, NY 10014 reasons that follow, we affirm the BIA’s d e t e r m in a t i o n t h a t th e r e c k le s s Attorney for Petitioner endangerment statute in this case defines a crime involving moral turpitude, but we Knapik with a notice to appear, charging agree with Knapik that his conviction for him with removability under 8 U.S.C. attempted reckless endangerment is not § 1227(a)(2)(A)(i), which allows the such a crime. Attorney General to order the removal of any alien who has been convicted of a I. Factual and Procedural Background crime involving moral turpitude within Knapik is a citizen of Slovakia. He five years of admission and for which a legally entered the United States in June sentence of one year or more may be 1995. On September 16, 1996, he adjusted imposed. At the removal hearing, the his status to that of lawful permanent Immigration Judge (“IJ”) held that resident. He resides in New Jersey with Knapik’s conviction constitutes a crime his father and sister who are both lawful involving moral turpitude and ordered him permanent residents. In August 2000, removed from the United States. Knapik Knapik pled guilty to the crime of timely appealed to the BIA. attempted reckless endangerment in the In May 2003, the BIA affirmed the first degree in violation of New York IJ’s decision. The BIA first observed that Penal Law § 120.25.1 The plea arose from attempt offenses are crimes involving an incident in which, while intoxicated, moral turpitude if the underlying offense Knapik drove at an excessive rate of speed involves moral turpitude. The BIA next against the flow of traffic on the Staten addressed the issue of criminal Island Expressway. He pled guilty, was recklessness. Relying on prior decisions, sentenced to and served four months in it concluded that moral turpitude can lie in jail. criminally reckless behavior. The BIA In April 2000, the Immigration and also examined the aggravating factors in Nationalization Service (INS) 2 served New York’s reckless endangerment statute, analogized to prior BIA cases involving manslaughter and assault with a 1 Section 120.25 provides: “A deadly weapon, and distinguished prior person is guilty of reckless endangerment BIA cases involving simple assault. Taken in the first degree when, under together, the BIA concluded that the circumstances evincing a depraved elements of depravity, recklessness and indifference to human life, he recklessly grave risk of death to another person are engages in conduct which creates a grave sufficient to establish moral turpitude. risk of death to another person.” Knapik timely filed a petition for 2 On March 1, 2003, the INS ceased review of the BIA’s decision. We have to exist as an independent agency within the United States Department of Justice and the INS’s functions were transferred to L. No. 107-296, §§ 441, 451, 471, 116 the Department of Homeland Security. Stat. 2135 (2002). The BIA remains See Homeland Security Act of 2002, Pub. within the Department of Justice.

2 jurisdiction to review final orders of term encompasses. Particularly, he removal pursuant to 8 U.S.C. § 1252(a). contends the BIA’s determination that recklessness crimes may constitute moral II. Standard of Review turpitude is not entitled to deference. The Under Chevron, U.S.A., Inc. v. First, Second, Fifth and Eighth Circuits, Natural Res. Def. Council, Inc., 467 U.S. however, have concluded that courts 837 (1984), we review an agency’s should defer not only to the BIA’s construction of a statute it administers definition of moral turpitude but also to its under a two-step inquiry. If congressional determination that the elements of a intent is clear from the statute’s language, criminal statute satisfy that definition. See we must give effect to it as written. Id. at Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 842-43. If Congress’s intent is silent or 1994) (“We therefore inquire whether the ambiguous, we must decide if the agency’s agency interpretation was arbitrary, action is based on “a permissible capricious, or clearly contrary to the construction of the statute.” Id. at 843. statute.”); Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000) (stating that “in order to We afford deference, however, only affirm the BIA’s determination [in regard when an agency construes or interprets a to moral turpitude], we need only conclude statute it administers. See id. at 843-44. that its interpretation is reasonable and that In Francis v. Reno, we refused to afford it ‘considered the matter in a detailed and Chevron deference to the BIA’s reasoned fashion’” (citation omitted)); interpretation of the term “felony” as used Hamdan v. INS, 98 F.3d 183, 184-85 (5th in 18 U.S.C. § 16 because it is a general Cir. 1996) (“We accord deference to the criminal statute not implicating the BIA’s BIA’s interpretation of questions such as expertise. 269 F.3d 162, 168 (3d Cir. those before us here” — i.e., whether 2001). In Sandoval v. Reno, we declined Hamden’s record of conviction “support[s] to give deference to the BIA’s decision as a finding of moral turpitude.”); Franklin v. to the effective date of a statute because the “issue [of] a statute's effective date is not one that implicates agency expertise in “moral turpitude.” The term is not defined a meaningful way. . . .” 166 F.3d 225, 239 in the INA, and “legislative history leaves (3d Cir. 1999). Accordingly, we must no doubt . . . that Congress left the term decide which aspects of the BIA’s decision ‘crime involving moral turpitude’ to future are entitled to Chevron deference. administrative and judicial interpretation.” Knapik argues that Chevron Cabral v. INS, 15 F.3d 193, 195 (1st Cir. deference applies only to what “moral 1994); see also Jordan v. De George, 341 turpitude” means, 3 not to what crimes that U.S. 223, 234 (1951) (Jackson, J., dissenting) (stating that “Congress did not see fit to state what meaning it attributes to 3 We clearly afford Chevron the phrase ‘crime involving moral deference to the BIA’s definition of turpitude’”).

3 INS, 72 F.3d 571, 572 (8th Cir. 1995) III. Analysis (stating “we must decide whether the BIA An alien, even if a lawful has reasonably interpreted its statutory permanent resident, is subject to removal mandate to deport aliens convicted of if he or she has been convicted of a crime crimes involving moral turpitude”). In “involving moral turpitude” within five contrast, the Ninth Circuit reviews de novo years of the date of admission and the whether a particular criminal statute conviction is one for which a sentence of involves moral turpitude. See, e.g., one year or longer may be imposed. 8 Rodriguez-Herrera v. INS, 52 F.3d 238, U.S.C. § 1227(a)(2)(A)(i)(I)-(II). As for 240 n.4 (9th Cir. 1995); cf. Franklin, 72 the length of sentence requirement, though F.3d at 578 (Bennett, J., dissenting) Knapik received but a four month (recognizing “a split of authority, or, at s e n t e n c e , f i r st d e g r e e r e c k l es s least, a fundamental difference in approach endangerment is a class D felony, N.Y. to or perception of the issue”). Penal Law § 120.25, punishable by up to We adopt the majority position and seven years imprisonment, id. at § conclude that the BIA’s determination that 70.00(2)(d). reckless endangerment crimes may involve Thus the only issue we must decide moral turpitude is entitled to Chevron i s w h e t h e r a tt e m p t e d r e c k l e s s deference. This issue goes to the heart of endangerment in the first degree is a crime the administrative scheme established involving moral turpitude. This inquiry under the INA. In this context, the BIA’s entails a categorical approach, focusing on conclusions as to reckless endangerment the underlying criminal statute “rather than implicate BIA expertise. the alien’s specific act.” De Leon- But in determining what the Reynoso v. Ashcroft, 293 F.3d 633, 635 elements are of a particular criminal (3d Cir. 2002) (citing Alleyne v. INS, 879 statute deemed to implicate moral F.2d 1177, 1185 (3d Cir. 1989)); see also turpitude, we do not defer to the BIA. See Rodriguez-Herrera, 52 F.3d at 239-40 Michel, 206 F.3d at 262 (stating that when (stating that, in analyzing whether a crime “the BIA is interpreting state or federal involves moral turpitude, “we must focus criminal laws, we must review its decision on the crime categorically as defined by de novo” (citing Hamdan, 98 F.3d at 185)). the statute, and not on the specific conduct As discussed below, it is unclear what the of Rodriguez-Herrera”). Accordingly, “we e l e m e n t s o f a t te m p t e d r e c k le s s look to the elements of the statutory state endangerment (as opposed to reckless offense, not to the specific facts. We rely endangerment) even are. This is not an on ‘what the convicting court must issue that implicates the BIA’s expertise, necessarily have found to support the and we decline to afford Chevron conviction and not to other conduct in deference to the BIA’s decision relating to which the defendant may have engaged in this matter. Our review of this issue is connection with the offense.’” Wilson v. thus de novo. Ashcroft, 350 F.3d 377, 381-82 (3d. Cir.

4 2003) (quoting Steele v. Blackman, 236 Matter of Franklin, 20 I. & N. Dec. 867, F.3d 130, 135 (3d Cir.2001)).4 868 (BIA 1994); Matter of Danesh, 19 I. & N. Dec. 669, 670 (BIA 1988), and Following the categorical approach, decisions of our Court, see, e.g., De Leon- and in light of our deferential review on Reynoso, 293 F.3d at 636 (quoting with the issue, the BIA did not act unreasonably approval the following definitions of in determining that New York’s reckless moral turpitude: (1) “[c]onduct that is endangerment statute defines a crime contrary to justice, honesty, or morality”; involving moral turpitude. But reviewing and (2) “anything done contrary to justice, de novo the BIA’s conclusions as to honesty, principle, or good morals” attempted reckless endangerment, we (citations omitted)). As such, the BIA’s conclude that the categorical nature of the definition of moral turpitude was moral turpitude inquiry compels the reasonable. conclusion that this crime does not involve moral turpitude. Applying the BIA’s definition, the New York statute under which Knapik was A. Reckless Endangerment convicted does not contain an intent The BIA in this case defined moral requirement. To repeat, N.Y. Penal Law turpitude as conduct that is inherently § 120.25 provides that a “person is guilty base, vile, or depraved, contrary to the of reckless endangerment in the first accepted rules of morality and the duties degree when, under circumstances owed other persons, either individually or evincing a depraved indifference to human to society in general. The BIA also noted life, he recklessly engages in conduct that moral turpitude normally includes which creates a grave risk of death to only acts that are malum in se (i.e., an act another person.” that is inherently immoral). These Knapik correctly notes that a strain statements are in accord with long- of BIA decisions equates moral turpitude established BIA principles, see, e.g., with evil intent. Matter of Khourn, 21 I. & N. Dec. 1041, 1046 (BIA 1997) (stating 4 Wilson is not a moral turpitude the BIA “has held that ‘evil intent’ is a case. The language quoted related to requisite element for a crime involving determining whether Wilson’s state drug moral turpitude” (citing Matter of Serna, conviction constituted an “aggravated 20 I. & N. Dec. 579, 582 (BIA 1992)). felony” under 8 U.S.C. § 1101(a)(43). See Matter of Flores, 17 I. & N. Dec. 225, 227 Wilson, 350 F.3d at 380-82. While (BIA 1980) (stating “evil or malicious aggravated felony cases may be irrelevant intent is said to be the essence of moral to the moral turpitude inquiry, we turpitude”); Matter of Abreu-Semino, 12 I. nonetheless have endorsed a categorical & N. Dec. 775, 777 (BIA 1968) approach for both types of cases. In this (concluding “crimes in which evil intent is context, we believe the discussion in not an element, no matter how serious the Wilson and similar cases is instructive. act or how harmful the consequences, do

5 not involve moral turpitude”). N. Dec. at 870-71, and Matter of Wojtkow, 18 I. & N. Dec. 111, 113 (BIA 1981), In this vein, prior to 1976 the BIA involve moral turpitude. Simple assault was of the opinion that criminally reckless does not. Matter of Fualaau, 21 I. & N. conduct was not so debased as to involve Dec. 475, 478 (BIA 1996). moral turpitude. See, e.g., Matter of Gantus-Bobadilla, 13 I. & N. Dec. 777 We hold that the BIA did not act (BIA 1971). But in Matter of Medina the unreasonably in concluding New York’s BIA reconsidered its position and first degree reckless endangerment statute concluded “that moral turpitude can lie in is a crime involving moral turpitude. First criminally reckless conduct.” 15 I. & N. degree reckless endangerment is a much Dec. 611, 613 (BIA 1976). Examining the more severe offense than drunk driving, Illinois definition of recklessness, the BIA which almost certainly does not involve found persuasive that a moral turpitude. See Matter of Lopez- Meza, 22 I. & N. Dec. 1188 (BIA 1999) person acting recklessly (expressing opinion that “a simple DUI must consciously disregard a offense” will almost never rise to the level substantial and unjustifiable of moral turpitude); cf. Dalton v. Ashcroft, risk, and such disregard 257 F.3d 200, 205-06 (2d Cir. 2001) must constitute a gross (concluding that New York’s “driving deviation from the standard while intoxicated” statute does not of care which a reasonable constitute a “crime of violence” under the person would exercise in the INA). New York Penal Law § 120.25 situation. This definition of contains aggravating factors, requiring that recklessness requires an a defendant create a “grave risk of death to actual awareness of the risk another person” “under circumstances created by the criminal evincing a depraved indifference to human violator’s action. life.” In this context, the BIA could Id. at 613-14 (emphasis in text). reasonably conclude that the elements of depravity, recklessness and grave risk of In the twenty-eight years since death, when considered together, implicate Medina, the BIA consistently has accepted rules of morality and the duties interpreted moral turpitude to include owed to society. Cf. Franklin, 72 F.3d at recklessness crimes if certain statutory 573 (“In the framework of our deferential aggravating factors are present. For review, we cannot say the BIA has gone example, the BIA limits moral turpitude to beyond the bounds of reasonableness in crimes in which a defendant consciously finding that an alien who recklessly causes disregards a substantial risk of serious the death of her child by consciously harm or death to another. Thus disregarding a substantial and unjustifiable recklessness crimes for assault with a risk to life has committed a crime that deadly weapon, Matter of Medina, or manslaughter, Matter of Franklin, 20 I. &

6 involves moral turpitude.”). 5 [or she] engages in conduct which tends to effect the commission of such crime.” B. Attempted Reckless Endangerment People v. Kassebaum, 744 N.E. 2d 694, We do not disagree with previous 698 (N.Y. 2001) (emphasis added) BIA decisions concluding attempt offenses (quoting N.Y. Penal Law § 110.00). Yet can be crimes involving moral turpitude. by its very nature acting recklessly is See, e.g., Matter of Davis, 20 I. & N. Dec. inconsistent with the mens rea required for 536, 545 (BIA 1992) (stating “[t]here is no attempt. A person cannot intend to distinction for immigration purposes in commit a criminally reckless act. He or respect to moral turpitude, between the she either acts recklessly or does not. commission of the substantive crime and Addressing the statute at issue in our case, the attempt to commit it” (citation the New York Appellate Division agreed omitted)). We also take no issue with with this sentiment, concluding that the previous BIA decisions that it cannot go “ c ri m e o f a t te m p t e d reckle s s behind a valid final record of conviction endangerment is nonexistent since it is a — i.e., that the BIA cannot examine the nonintent offense.” People v. Trepanier, particular facts of a case. See, e.g., Matter 84 A.D. 2d 374, 380 (N.Y. App. Div. of C-, 20 I. & N. Dec. 529, 532 (BIA 1982) (affirming the lower court’s decision 1992). In its opinion in this case, however, to dismiss the indictment as to this charge). the BIA glosses over the peculiar conflict Further, New York courts have concluded between attempt crimes and recklessness.6 in other contexts that the concept of an Under New York law, a “person is atte mpte d r e c kl e s s n es s c r im e is guilty of an attempt to commit a crime nonsensical. See, e.g., People v. Terry, when, with intent to commit a crime, he 104 A.D. 2d 572, 573 (N.Y. App. Div. 1984) (stating “one cannot legally be found guilty of attempted murder in the 5 We also reject Knapik’s second degree by reckless conduct”). contention that his conviction is The only contrary authority in New distinguishable from manslaughter or York is People v. Foster, 19 N.Y.2d 150 assault with a deadly weapon because the (1967). Foster was charged with reckless endangerment statute does not manslaughter in the first degree and require injury to an individual. With ultimately pled guilty to attempted regard to reckless acts, moral turpitude manslaughter in the second degree. On inheres in the conscious disregard of a appeal, Foster argued his conviction had substantial and unjustifiable risk of severe no basis in law and violated due process. harm or death. Knapik’s good fortune in The New York Court of Appeals rejected not injuring or killing anyone does not this argument, concluding that Foster change the quality of his actions. knowingly accepted his plea “in 6 satisfaction of an indictment charging a As noted previously, we exercise crime carrying a heavier penalty. In such de novo review in resolving this issue.

7 case, there is no violation of defendant’s Cir. 2002) (quoting Drakes v. Zimski, 240 right to due process.” Id. at 153. F.3d 246, 248 (3d Cir. 2001)). 7 This means, in the context of our case, that the Our case, how eve r, is elements of the underlying offense must distinguishable from Foster. The concern necessarily establish that all convictions driving Foster was manipulation of the involve moral turpitude. Wilson, 350 F.3d state criminal process — i.e., a defendant at 381-82. See also Michel, 206 F.3d at may not induce a plea agreement, receive 263; Okoroha v. INS, 715 F.2d 380, 382 a reduced sentence and then challenge his (8th Cir. 1983).8 Attempted reckless or her conviction. See id. at 153-54 (“The defendant declined to risk his chances with a jury. He induced the proceeding of 7 which he now complains. . . . While there Valansi, like Wilson (see note 4 may be question whether a plea to and accompanying text), is an aggravated attempted manslaughter is technically and felony, not moral turpitude, case. logically consistent, such a plea should be 8 In an opinion issued the same day sustained on the ground that it was sought as the opinion in this case, we engaged in by [the] defendant and freely taken as part an extensive analysis of the categorical of a bargain which was struck for the approach as applied in aggravated felony defendant’s benefit.” (emphasis added)). cases. See Singh v. Ashcroft, No. 03- In contrast, Knapik’s plea did not decrease 1532, __ F.3d __ (3d Cir. Sept. __, 2004). the level of the charged offense or subject Singh noted that while most prior Third him to a less severe sentence. He was Circuit cases had employed the “formal charged with first degree reckless categorical approach” from Taylor v. endangerment and he pled guilty to United States, 495 U.S. 575, 600 (1990) — a t t em p t e d f i r st d e g r e e r e c k l es s which focuses exclusively on the statutory endangerment. More importantly, we are elements of the underlying offense — not reviewing a due process challenge to a others deemed it permissible to look state court conviction; we are assessing the beyond the statutory elements of the immigration implic ations of that underlying offense. conviction. As noted previously, the moral In reconciling these cases, Singh turpitude inquiry is categorical. De Leon- delineated two situations in which the R eyn oso, 293 F.3d at 635; formal categorical approach properly may Rodriguez-Herrera, 52 F.3d at 239-40. be abandoned. The first is when the terms Under the categorical approach, we have of the statute on which removal is based cautioned against going “beyond the invites inquiry into the facts of the offense as charged and scrutiniz[ing] the underlying conviction. For example, underlying facts” of a case to determine Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. whether a crime involves moral turpitude. 2004), and Munroe v. Ashcroft, 353 F.3d Valansi v. Ashcroft, 278 F.3d 203, 214 (3d 225 (3d Cir. 2003), concerned 8 U.S.C.

8 endangerment is not a crime involving moral turpitude because, categorically § 1101(a)(43)(M)(i), which defines an speaking, the concept makes no sense. aggravated felony as an offense that Attempt (necessarily requiring intent to “involves fraud or deceit in which the loss commit a crime) is inconsistent with to the victim or victims exceeds $10,000.” recklessness (which, by definition, implies In both cases, however, the relevant acting without intent). Terry, 104 A.D. 2d criminal statute did not include a “loss at 573; Trepanier, 84 A.D. 2d at 380. Put greater than $10,000” element. See differently, we cannot say that a conviction Nugent, 367 F.3d at 168 n.2 (quoting 18 for attempted reckless endangerment Pa. Cons. Stat. § 3922(a)); Munroe, 353 necessarily involves moral turpitude F.3d at 226 (citing N.J. Stat. Ann. § 2C:20- without also abandoning the categorical 4). Nonetheless, both Nugent and Munroe approach.9 found it proper to examine the amount of loss established. See Nugent, 367 F.3d at 175 (noting the parties had “stipulated that convicted is divided into discrete Nugent’s state conviction was based on a subsections, and (2) it was unclear from bad check amounting to only $4,831.26”; the BIA’s decision which subsection it Munroe, 252 F.3d at 226 (looking to the believed Hamdan was convicted under and indictment and record of conviction). which subsections implicated moral turpitude). The second exception to the categorical approach is when the Examination of these cases further underlying criminal statute is written in the supports our position in this case. Both disjunctive (i.e., the statute criminalizes Nugent and Munroe dealt with a provision similar but legally distinct conduct) such of the INA, 8 U.S.C. § 1101(a)(43)(M)(i), that some, but not all, convictions under not relevant to the moral turpitude inquiry. the statute place the alien within the And unlike the statutes at issue in Valansi removal category for im migra tion and Hamdan, New York’s reckless purposes. Valansi was such a case. 278 endangerment statute is written neither in F.3d at 214-17 (in entering plea for the disjunctive nor in subsections. embezzlement of monies from her Accordingly, the Government has supplied employer bank, petitioner avoided (and we can think of) no principled reason admitting that she intended to defraud, not to apply the formal categorical thus not qualifying as an aggravated felony approach. for removal purposes). See also Hamdan, 9 98 F.3d at 187-89 (granting the petition for While the Government does not review and remanding for further ask us specifically to abandon the examination of the record of conviction categorical approach in cases such as ours because (1) the Louisiana kidnapping (i.e., when it counsels against deportation), statute under which Hamdan was that would be the effect. Under the

9 ***** In this context, we affirm the BIA’s decision that New York Penal Law § 120.25, reckless endangerment in the first degree, is a crime involving moral turpitude, but we reverse the BIA’s conclusion that Knapik’s state conviction for attempted reckless endangerment in the first degree is a crime involving moral turpitude. Therefore, we grant Knapik’s petition for review and reverse the BIA’s order of removal.

categorical approach, courts and the BIA have long declined to consider arguments that, despite the elements of an offense, an alien’s individual conduct did not fit w i t h in a p articular IN A -def ined deportation category. See, e.g., Alleyne, 879 F.2d at 1185 (citations omitted); Okabe v. INS, 671 F.2d 863, 864-65 (5th Cir. 1982); Matter of C-, 20 I. & N. Dec. at 532 (citations omitted). Now that “the shoe is on the other foot,” it would be perverse irony to allow the Government to use the categorical approach in petitioner appeals but to abandon that approach when the Government appeals.