Louis Ovando v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: June 21, 2022
• Docket: 21-1810
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-1810 _____________

LOUIS ROSARIO-OVANDO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

________________

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. BIA-1:A063-874-567 Immigration Judge: Lisa de Cardona ________________

Argued: March 31, 2022 ________________

Before: CHAGARES, Chief Judge, SHWARTZ, Circuit Judge, and PRATTER, District Judge. *

(Filed: June 21, 2022)

* Honorable Gene E.K. Pratter, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Christopher R. Healy [ARGUED] Troutman Pepper Hamilton Sanders Two Logan Square 18th and Arch Streets Philadelphia, PA 19103

Rosina C. Stambaugh 2930 Carol Road Suite A York, PA 17402 Counsel for Petitioner

Merrick B. Garland Taryn L. Arbeiter Rebekah Nahas [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent

____________

OPINION ** ____________ PRATTER, District Judge.

Petitioner Louis Rosario-Ovando faces removal from the United States because of

his conviction under Pennsylvania’s felony fleeing or eluding statute within five years of

his arrival in this country. Both the Immigration Judge and Board of Immigration Appeals

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 determined this conviction was for a “crime involving moral turpitude.” We disagree for

the reasons outlined below. Therefore, we will grant the petition.

I. BACKGROUND

Mr. Rosario-Ovando is a native and citizen of the Dominican Republic. He was

admitted to the United States as a lawful permanent resident on October 14, 2014. Mr.

Rosario-Ovando was charged by information on January 14, 2019, with several offenses

allegedly committed on November 25, 2018. After the District Attorney dismissed certain

of the charges, Mr. Rosario-Ovando pled guilty to two of those offenses on May 23, 2019,

five months shy of the fifth anniversary of his admittance. As relevant here, he pled guilty

to the commission of the felony of fleeing or attempting to elude a police officer in violation

of 75 Pa. Cons. Stat. § 3733(a.2)(2). In addition, in wholly unrelated matters, on September

24, 2019, Mr. Rosario-Ovando was convicted of two counts of retail theft in violation of

18 Pa. Cons. Stat. § 3929(a)(1).

The Department of Homeland Security (DHS) initiated removal proceedings against

Mr. Rosario-Ovando in October 2019 by serving a notice to appear in immigration court.

At that time, DHS charged Mr. Rosario-Ovando with removability under 8 U.S.C.

§ 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude not

arising out of a single scheme of criminal misconduct at any time after admission, i.e., the

fleeing or eluding conviction and the retail theft convictions.

The Immigration Judge initially sustained the charge of removability on this basis.

Mr. Rosario-Ovando moved to terminate the removal proceedings on the ground that the

two retail theft convictions were then on direct appeal and, thus, were not final for

3 immigration status purposes. DHS opposed Mr. Rosario-Ovando’s motion, and also filed

an additional charge of removability. DHS charged Mr. Rosario-Ovando with removability

under 8 U.S.C. § 1227(a)(2)(A)(i), alleging that his felony fleeing or eluding conviction

was a crime involving moral turpitude, was committed within five years of Mr. Rosario-

Ovando’s admission to the United States, and was a crime for which a sentence of one year

or longer may be imposed.

Mr. Rosario-Ovando again filed a motion to terminate the removal proceedings,

which DHS opposed. At another hearing, the Immigration Judge vacated the earlier finding

that Mr. Rosario-Ovando was removable because the retail theft convictions were indeed

then on direct appeal. 1 The Immigration Judge did, however, find Mr. Rosario-Ovando

removable on the basis that his conviction for felony fleeing or attempting to elude a police

officer was a crime involving moral turpitude committed within five years of admission

for which a sentence of one year or longer may be imposed.

As is important at this stage of the parties’ dispute, the Immigration Judge found

that the traffic statute under which Mr. Rosario-Ovando was convicted, 75 Pa. Cons. Stat.

§ 3733, was divisible between its misdemeanor and felony provisions. As a result, the

Immigration Judge applied the modified categorical approach to determine whether Mr.

Rosario-Ovando’s conviction was a crime involving moral turpitude. The Immigration

Judge noted that Mr. Rosario-Ovando’s conviction record does not state or suggest which

of the three “aggravating factors” under 75 Pa. Cons. Stat. § 3733(a.2)(2) led to the

1 Both parties agree that these retail theft convictions are no longer a basis for Mr. Rosario- Ovando’s removal. Thus, we will not address this issue further. 4 conviction for a third-degree felony. App. 15. 2 Nonetheless, the Immigration Judge found

that all three of the “aggravating factors” that transform a misdemeanor into a felony

categorically involved moral turpitude. Id.

The Board of Immigration Appeals affirmed. Like the Immigration Judge, the Board

applied the modified categorical approach and reached the same conclusion that a

conviction under any or all of the three felony “aggravating factors” under 75 Pa. Cons.

Stat. § 3733(a.2)(2) was a crime involving moral turpitude. App. 4–6.

Mr. Rosario-Ovando timely petitioned this Court, 8 U.S.C. § 1252(b)(1), which we

have jurisdiction to review, id. § 1252(a)(1), (a)(5).

II. STANDARD OF REVIEW

Where the Board of Immigration Appeals adopts the findings and discusses the

bases of an Immigration Judge’s decision, our Court has authority to review both the

Immigration Judge’s and the Board’s decisions. He Chun Chen v. Ashcroft, 376 F.3d 215,

222 (3d Cir. 2004). We review the Board’s legal conclusions de novo. Mahn v. Att’y Gen.,

767 F.3d 170, 173 (3d Cir. 2014). Where, as here, the Board issues an “ ‘unpublished, non-

precedential decision issued by a single [Board] member,’ ” we accord no deference to the

Board’s decision nor “ ‘the [Board’s] parsing of the elements of the underlying state

crime.’ ” Larios v. Att’y Gen., 978 F.3d 62, 67 (3d Cir. 2020) (quoting Mahn, 767 F.3d at

173). Unpublished single-member Board decisions are not entitled to any deference under

2 There are two records applicable to this case. There is the Administrative Record, forwarded to this Court by the Department of Justice, and the Appendix, prepared by Mr. Rosario-Ovando. For ease of reference, the Administrative Record will be cited as “AR” while the Appendix will be cited as “App.” 5 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–44

(1984), because they are not promulgated under the Board’s authority to “make rules

carrying the force of law.” Mahn, 767 F.3d at 173 (internal quotation marks omitted);

United States v. Mead Corp., 533 U.S. 218, 226–227 (2001). In that circumstance, we

consider the Board’s decision to be, at most, persuasive authority. See Mahn, 767 F.3d at

173 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

III. ANALYSIS

Under the Immigration and Nationality Act, a noncitizen is removable if he:

(I) is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed[.]

8 U.S.C. § 1227(a)(2)(A)(i). Here, there is no dispute that the crime for which Mr. Rosario-

Ovando was convicted is punishable by more than one year in prison. 75 Pa. Cons. Stat.

§ 3733(a.2)(2); 18 Pa. Cons. Stat. § 106(b)(4) (making a third-degree felony punishable by

up to seven years in prison). Thus, the dispute centers on the first subsection, whether the

crime for which Mr. Rosario-Ovando was convicted and for which DHS initiated removal

proceedings is a crime involving moral turpitude.

To be a crime involving moral turpitude, there is both an actus reus requirement and

a mens rea requirement, which draw on “long-established [Board] principles and decisions

of our Court.” Larios, 978 F.3d at 69 (quoting Knapik v. Ashcroft, 384 F.3d 84, 89

(3d Cir. 2004)). The actus reus must be “a reprehensible act that is inherently base, vile, or

depraved contrary to the accepted rules of morality and the duties owed to other persons,

6 either individually or to society in general.” Id. (internal quotation marks omitted). The

mens rea must be “of an appreciable level of consciousness or deliberation, signifying a

vicious motive or a corrupt mind.” Id. at 69–70 (quoting Javier v. Att’y Gen., 826 F.3d 127,

130–31 (3d Cir. 2016)).

Before turning to that analysis, however, we must determine the proper approach to

analyze the statute under which Mr. Rosario-Ovando was convicted.

The Modified Categorical Approach and the Categorical Approach

When a state conviction has federal immigration consequences, we use either the

categorial approach or the modified categorical approach to determine whether the

petitioner’s conviction is for a crime involving moral turpitude. Both approaches permit us

to consider only the elements of the crime of conviction.

If the statutory basis of a petitioner’s conviction is clear, then, applying the

“categorical approach,” a court considers only the elements of the crime and asks whether

the “least culpable conduct hypothetically necessary to sustain a conviction under the

statute” is a crime involving moral turpitude. Larios, 978 F.3d at 67 (quoting

Moreno v. Att’y Gen., 887 F.3d 160, 163 (3d Cir. 2018)).

However, if a court cannot decipher the statutory basis for a petitioner’s conviction,

such as when “(1) the statute of conviction has alternative elements, and (2) at least one of

the alternative divisible categories would, by its elements,” be a crime involving moral

7 turpitude, then the court applies the “modified categorical approach.” 3 Id. (quoting

Hillocks v. Att’y Gen., 934 F.3d 332, 339 (3d Cir. 2019)). Under the modified categorical

approach, we may peek at “ ‘a limited class of documents’ specified by the Supreme Court

to determine which alternative version of the crime formed the basis for a petitioner’s

conviction.” Larios, 978 F.3d at 69 (quoting Mathis v. United States, 579 U.S. 500, 505

(2016)). These documents are known as “Shepard documents,” and include the “charging

document, written plea agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented,” but do not include “police

reports or complaint applications.” Shepard v. United States, 544 U.S. 13, 16 (2005);

accord Larios, 978 F.3d at 69. Once a court has identified the specific statutory basis of

the conviction, it then applies the categorical approach. United States v. Peppers, 899 F.3d

211, 231–32 (3d Cir. 2018).

Here, the parties agree that the Pennsylvania statute at issue is divisible between the

misdemeanor and felony portions of the statute. The Government, arguing in support of

the Immigration Judge’s and the Board’s decisions, avers that a conviction under any of

3 The parties dispute whether the three subsections of Pennsylvania’s felony fleeing or eluding statute are separate elements or actually factual means of committing a single element. See Mathis v. United States, 579 U.S. 500, 506 (2016). This is because if the separate elements are “disjunctive factual scenarios rather than separate elements,” the statute is not further divisible. Id. Pennsylvania court have settled this dispute, concluding in Commonwealth v. Bowen that the subsections of Pennsylvania’s felony fleeing and eluding offense “introduced additional elements which must be proven beyond a reasonable doubt.” 55 A.3d 1254, 1268 (Pa. Super. Ct. 2012); see also Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (Crim), § 17.3733 (requiring jury to indicate on the verdict form whether it also finds a defendant engaged in conduct indicated in the subsections “beyond a reasonable doubt”). 8 the three felony aggravating elements is a crime involving moral turpitude. Mr. Rosario-

Ovando, on the other hand, argues that the least culpable conduct under the Pennsylvania

fleeing or eluding statute is not a crime involving moral turpitude. In other words, the

parties argue that application of the modified categorical approach obliges us to apply the

categorical approach to the felony portion of Pennsylvania’s fleeing or eluding statute in

its entirety. We agree.

All of the Shepard documents in the case and other documents state only that Mr.

Rosario-Ovando was convicted under the Pennsylvania felony fleeing or eluding statute

generally; they do not identify any specific felony aggravating element. The criminal

information cites only § 3733 and states only that he was sentenced on Counts One and

Two, which included the felony portion of § 3733. Similarly, the statement accompanying

Mr. Rosario-Ovando’s request to enter a guilty plea only references the generic § 3733

felony offense. In that same document, in the space to write out the elements of the offense

to which Mr. Rosario-Ovando pled guilty, it again avers generically “the Defendant refused

to bring his vehicle to a stop when a police officer gave a visual and audible signal to stop.”

App. 23. That document further states, “[i]f agreeing to the probable cause affidavit as a

factual basis of the plea, attach the probable cause affidavit to this colloquy—this should

be initialed by the Defendant.” Id. The probable cause affidavit was neither attached to the

colloquy nor initialed by Mr. Rosario-Ovando. It appears that the probable cause affidavit

was, instead, attached to the criminal complaint. But that is irrelevant because, as we have

explained elsewhere, under Pennsylvania criminal law, a criminal information supersedes

a criminal complaint, meaning the complaint “is not the relevant charging document and is

9 not an appropriate source under the modified categorical approach.” Evanson v. Att’y Gen.,

550 F.3d 284, 293 n.7 (3d Cir. 2008). In sum, all of the Shepard documents state only

generally that Mr. Rosario-Ovando was convicted under the felony portion of § 3733 but

do not specify which felony aggravating element formed the basis for his conviction.

If, as is the case here, the Shepard documents at which the Court can peek do not

demonstrate which of the alternative elements the immigrant was convicted under, the

Court is left to determine if the least culpable conduct that violates the statute constitutes a

crime involving moral turpitude. Partyka v. Att’y Gen., 417 F.3d 408, 416 (3d Cir. 2005).

In the alternative, anticipating that it might lose if the Court applies the categorical

approach, the Government posits three theories as to why we should, instead, remand this

case to the Board to apply the modified categorical approach. First, the Government argues

that we should remand this case for the Board to analyze whether the Pennsylvania fleeing

or eluding statute is further divisible by the three felony aggravating elements. Because the

three aggravators are alternative elements as a matter of Pennsylvania law, see Bowen,

55 A.3d at 1268, the statute is divisible and the modified categorical approach applies. See

Mathis, 136 S. Ct. at 2248–49. Remand is not necessary to resolve this legal issue.

Second, the Government argues that the recent Supreme Court decision in

Pereida v. Wilkinson, 141 S. Ct. 754 (2021), alters the list of documents that we may

consider when engaging in the modified categorical approach. In that case, the Supreme

Court discussed 8 U.S.C. § 1229a(c)(3)(B), which specifies the sources of information a

noncitizen may use to prove that he was not convicted of a crime involving moral turpitude

when seeking a cancellation of a removal application. At the very end of its opinion, the

10 Supreme Court stated, in dicta, that it was not “clear whether these many listed forms of

proof are meant to be the only permissible ways of proving a conviction, or whether they

are simply assured of special treatment when produced.” Id. at 767. Clinging to that, and

anticipating the Court’s resistance to compelling a meaningless act, the Government argues

that remand to the Board would not be futile because the Board could consider the probable

cause affidavit.

This argument fails, however. First, as a matter of plain textual interpretation, the

list of documents in 8 U.S.C. § 1229a(c)(3)(B) does not include either the criminal

complaint or the probable cause affidavit. Second, the criminal complaint in this case has

been superseded, meaning it is not the operative document. Evanson, 550 F.3d at 293 n.7.

In light of our precedent, we need not decide if the Supreme Court’s dicta expands the list

of documents that may be considered under the modified categorical approach, a question

not in front of the Supreme Court in Pereida. Third, even if Pereida did somehow expand

the list of documents we may consider under the modified categorical approach, the

probable cause affidavit provides no proof of Mr. Rosario-Ovando’s conviction. Instead, it

merely gives the police officer’s account of what happened that day. The Government’s

approach would require us to infer from that account which of the three felony subsections

forms the basis of Mr. Rosario-Ovando’s conviction. But we must only examine the statute

and the record of conviction, not the underlying factual conduct. Partyka, 417 F.3d at 411;

Knapik, 384 F.3d at 88. Thus, remand to the Board for further consideration of the record

in light of the Supreme Court’s decision in Pereida would, indeed, be futile.

11 Finally, the Government argues that the transcript of Mr. Rosario-Ovando’s guilty

plea in 2019 for the felony fleeing or eluding offense provides another basis for us to

remand to the Board. 4 The Government argues that the plea transcript’s mentions of a

“written colloquy” and a “guilty plea colloquy,” are references to the statement

accompanying Mr. Rosario-Ovando’s request to enter a guilty plea, which provides as the

factual basis for the plea: “The Defendant drove away from the police while minor children

were in car not in seat belts.” App. 23. Based on this statement, the Government argues

that we should remand for the Board to consider whether Mr. Rosario-Ovando’s conviction

was for “endanger[ing] a law enforcement officer or member of the general public due to

the driver engaging in a high-speed chase.” 75 Pa. Cons. Stat. § 3733(a.2)(2)(iii).

This tact also falls short. The Government never made this legal argument in front

of either the Immigration Judge or the Board and has now forfeited it. Premier Comp Sols.,

LLC v. UPMC, 970 F.3d 316, 319 (3d Cir. 2020); see also United States v. Brito, 979 F.3d

185, 189 (3d Cir. 2020) (explaining the difference between waiver and forfeiture).

Furthermore, the Government directed us to Pereida for a different point, though we think

it is instructive here. As the Supreme Court explained, “the who, what, when, and where

of a conviction . . . pose questions of fact” and “like any other fact, the party who bears the

burden of proving these facts bears the risks associated with failing to do so.” Pereida, 141

S. Ct. at 765. It is the Government’s burden to prove a noncitizen is removable. 8 U.S.C.

4 The transcript of the guilty plea proceeding was not included in the record presented to the agency and the agency, therefore, did not have the opportunity to consider it in the first instance. 12 § 1229a(c)(3). The Government could have sought this 2019 transcript, which it now

claims is “new evidence,” during the proceedings before the agency. It did not. We will

not give the Government a do-over now.

Therefore, because the record does not establish which of the three aggravating

factors was the basis for the felony conviction, we must apply the categorical approach to

the felony portion of Pennsylvania’s fleeing or eluding statute in its entirety. Partyka,

417 F.3d at 416; Peppers, 899 F.3d at 232. Under the categorical approach, a court must

“read the applicable statute to ascertain the least culpable conduct necessary to sustain a

conviction under the statute.” Partyka, 417 F.3d at 411. In this context, and stated slightly

differently, “a criminal statute defines a crime involving moral turpitude only if all of the

conduct it prohibits is turpitudinous.” Id. (quoting Smalley v. Ashcroft, 354 F.3d 332, 336

(5th Cir. 2003)). Thus, we turn next to interpreting the Pennsylvania statute under which

Mr. Rosario-Ovando was convicted.

The Pennsylvania Felony Fleeing or Eluding Statute Under Which Mr. Rosario-Ovando Was Convicted

Mr. Rosario-Ovando was convicted under 75 Pa. Cons. Stat. § 3733(a), which is

titled “Fleeing or attempting to elude police officer.” That statute reads:

Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits an offense as graded in subsection (a.2).

Id. That offense, by itself, is a second-degree misdemeanor. Id. § 3733(a.2)(1). Such an

offense can, however, become a third-degree felony under certain circumstances:

13 An offense under subsection (a) constitutes a felony of the third degree if the driver while fleeing or attempting to elude a police officer does any of the following: (i) commits a violation of section 3802 (relating to driving under influence of alcohol or controlled substance); (ii) crosses a State line; or (iii) endangers a law enforcement officer or member of the general public due to the driver engaging in a high-speed chase.

75 Pa. Cons. Stat. § 3733(a.2)(2).

The parties dispute both the prohibited actus reus and the applicable mens rea

standard. Thus, we first turn to interpreting Pennsylvania’s fleeing or eluding statute in

order to discern the least culpable conduct to which the statute applies.

1. Actus Reus

Neither the Immigration Judge nor the Board construed the elements of this statute.

But, even if they had, it would be our duty to review such legal determinations de novo.

Partyka, 417 F.3d at 411.

Section 3733(a) defines the misdemeanor fleeing or eluding offense as “[a]ny driver

of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who

otherwise flees or attempts to elude a pursuing police officer, when given a visual and

audible signal to bring the vehicle to a stop.” 75 Pa. Cons. Stat § 3733(a) (emphasis added).

Any of four prohibited actions is a violation of the misdemeanor provision.

Commonwealth v. Wise, 171 A.3d 784, 790 (Pa. Super. Ct. 2017) (“[A] driver who fails or

refuses to stop, or flees, or attempts to elude a pursing officer, commits the offense.”);

Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (Crim), § 17.3733.

As further support, at least one Pennsylvania court has interpreted “fleeing” to be separate

14 and different from “attempting to elude a police officer,” concluding that “fleeing” did not

require a pursuing police officer. Wise, 171 A.3d at 789–90. The parties disagree, however,

as to the conduct prohibited by the felony portion of the statute even though misdemeanor

fleeing or eluding is a lesser included offense.

On the one hand, the Government reads the felony portion of § 3733 narrowly and

argues that a person commits the felony only when fleeing or attempting to elude a pursuing

police officer plus engaging in conduct specified in one of § 3733(a.2)(2)’s subsections.

This is based on the language of § 3733(a.2)(2) which states that a person commits a felony

if committing any of the three acts in the subsections “while fleeing or attempting to elude

a police officer.” 5 75 Pa. Cons. Stat. § 3733(a.2)(2) (emphasis added). In other words,

according to the Government, felony fleeing or eluding only prohibits the more serious

fleeing or attempting to elude and does not include failing to stop or refusing to stop. 6

On the other hand, Mr. Rosario-Ovando argues that a person commits a felony by

failing to stop, refusing to stop, fleeing, or attempting to elude a pursuing police officer

plus engaging in one of the actions in § 3733(a.2)(2). He argues that the felony provision

refers back to “[a]n offense under subsection (a),” meaning that the felony provision

5 The Government also relies on Commonwealth v. Morrison, No. 646 MDA 2019, 2019 WL 5549312, at *2 (Pa. Super. Ct. Oct. 28, 2019), for the proposition that “the defendant must be driving a motor vehicle; an officer must give a signal to stop; and there must be a high-speed chase.” But, as Mr. Rosario-Ovando rightly points out, Morrison only determined that § 2705 (recklessly endangering another person) contained at least one additional element than § 3733(a.2)(2) so as to conclude that a violation of § 2705 was not a lesser included offense of § 3733. Morrison, 2019 WL 5549312, at *2. Morrison says nothing about the particular issue before us and does not merit further discussion. 6 The Immigration Judge came to the conclusion now advanced by the Government. But we owe this determination no deference. Partyka, 417 F.3d at 411. 15 incorporates all violations of the misdemeanor portion, § 3733(a). 75 Pa. Cons. Stat.

§ 3733(a.2)(2). He next argues that the language “if the driver while fleeing or attempting

to elude a police officer” is more naturally read to refer to the title of the statute, which is

“Fleeing or attempting to elude police officer.” 75 Pa. Cons. Stat. § 3733 (emphasis added).

In other words, Mr. Rosario-Ovando argues that when the felony portion states “while

fleeing or attempting to elude a police officer,” it is more reasonably read as “committing

the offense of fleeing or attempting to elude.” 7

No Pennsylvania court has yet faced this precise issue or definitively construed

75 Pa. Cons. Stat. § 3733 in this context. Nonetheless, in a semantic sense, the parties are

both right. That is because the statute is best read to define “fleeing” as encompassing both

one who “fails to bring his vehicle to a stop” and one who “refuses to bring his vehicle to

a stop.” We briefly explain.

First, the plain meaning of § 3733(a) does not support the Government’s argument.

Pennsylvania courts apply the Statutory Construction Act, 1 Pa. Cons. Stat. § 1501 et seq.,

“which provides that the object of interpretation and construction of statutes is to ascertain

and effectuate the intention of the General Assembly.” Commonwealth. v. McCoy,

962 A.2d 1160, 1166 (Pa. 2009) (citing 1 Pa. Cons. Stat. § 1921(a)). Generally, “a statute’s

7 There are two “well-established” rules regarding the usefulness of titles when interpreting statutes: “(1) The title cannot control a statute’s plain words; and, (2) In case of ambiguity, the title may help resolve uncertainty by extending or restraining an act’s purview or correcting obvious errors.” 2A N. Singer & S. Singer, Sutherland Statutes and Statutory Construction § 47:3 (7th ed. 2014, 2021 Update). Because we conclude that the plain words of § 3733 resolve this problem, we do not reach Mr. Rosario-Ovando’s contention that the felony portion of § 3733 uses the title of the statute to incorporate all of the misdemeanor portion. 16 plain language . . . provides the best indication of legislative intent.” Id. A court will only

“look beyond the plain language of the statute . . . when words are unclear or ambiguous,

or the plain meaning would lead to ‘a result that is absurd, impossible of execution or

unreasonable.’ ” Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013) (quoting

1 Pa. Cons. Stat. § 1922(1)).

Here, the plain meaning of § 3733 resolves this dispute. The meaning of “otherwise”

is “[i]n a different way; in another manner” or “[b]y other causes or means.” Otherwise,

Black’s Law Dictionary (11th ed. 2019). Thus, the phrase “otherwise flees” in § 3733(a) is

defining failing or refusing to stop as another way or manner of fleeing. This makes sense

because the plain meaning of “flee” is broad, meaning “[t]o run away; to hasten off” or

“[t]o run away or escape from danger, pursuit, or unpleasantness; to try to evade a

problem.” Flee, Black’s Law Dictionary (11th ed. 2019). In short, the plain language of “or

who otherwise flees” under § 3733 incorporates both failing to stop and refusing to stop.

This result is not absurd, impossible of execution, or unreasonable. This begins and ends

our inquiry.

Nonetheless, to understand the point, the “rule of the last antecedent” also supports

this outcome. Under this rule, “a limiting clause or phrase should ordinarily be read as

modifying only the noun or phrase that it immediately follows.” Facebook, Inc. v. Duguid,

141 S. Ct. 1163, 1170 (2021) (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003));

2A Singer & Singer, supra, § 47:33 (“Referential and qualifying words and phrases, where

no contrary intention appears, refer solely to the last antecedent.”). Here, the phrase “or

who otherwise flees or attempts to elude a pursuing police officer,” which is offset by

17 commas, is a referential phrase that refers back to the last antecedent phrase, “fails or

refuses to bring his vehicle to a stop.” Thus, the felony portion of § 3733 that says “[a]n

offense under subsection (a) constitutes a felony of the third degree if the driver while

fleeing or attempting to elude a police officer” does not further narrow the prohibited

conduct outlined in the misdemeanor portion, but, likely as shorthand, uses the phrase that

already encompasses failing to stop and refusing to stop.

Finally, under Pennsylvania law, courts do not interpret criminal statutes as

narrowly as the Government contends. Although Pennsylvania courts do strictly construe

criminal statutes, “ ‘courts are not required to give words of a criminal statute their

narrowest meaning or disregard evident legislative intent.’ Thus, we will not adopt the

strictest possible interpretation if doing so would defeat the plain intent of the legislature.”

Commonwealth v. Johnson, 125 A.3d 822, 831 (Pa. Super. Ct. 2015) (quoting

Commonwealth v. Brown, 956 A.2d 992, 996 (Pa. Super. Ct. 2008)). That the

Government’s argument here cuts against the plain meaning of the statutory text is yet

another reason to reject it.

Therefore, we conclude that the felony portion of § 3733 prohibits the same four

actions proscribed in the misdemeanor portion of § 3733.

2. Mens Rea

Under § 3733(a), the driver of the motor vehicle must act “willfully” when failing

or refusing to stop, fleeing, or attempting to elude a pursuing police officer. 75 Pa. Cons.

Stat. § 3733(a); Wise, 171 A.3d at 789 n.2 (defining “willfully” under Pennsylvania law);

Pa. SSJI (Crim), § 17.3733. The parties agree at this threshold, but they disagree as to

18 whether the mens rea standard of “willfully” carries through to all of the felony subsections

under § 3733(a.2)(2).

Mr. Rosario-Ovando, invoking Commonwealth v. Collins, 810 A.2d 698, 703

(Pa. Super. Ct. 2002), contends that all three of the felony subsections are strict liability

offenses. The Government does not engage with this argument, because, in its view, it does

not matter—the felony portion of § 3733 is a crime involving moral turpitude with the

“willfully” element applying to the stop regardless of the mens rea standard for any of the

felony subsections.

Again, no Pennsylvania court has squarely faced this issue or directly addressed the

mens rea requirement for each of the subsections under the felony portion of § 3733. We

express no opinion on this issue because we do not know the statutory subsection that

formed the basis of Mr. Rosado-Ovando’s conviction. In any case, we determine that the

least culpable conduct constituting a felony under the statute would not be deemed a crime

of moral turpitude even if committed willfully.

The Least Culpable Conduct Under Pennsylvania’s Felony Fleeing or Eluding Statute

At this stage of the analysis, it is helpful to imagine a scenario that would involve

the least culpable conduct under the statute as we construe it. See, e.g. Partyka, 417 F.3d

at 414 (imagining negligent assault); Hillocks, 934 F.3d at 339 (imagining non-aggravated

felony). The least culpable conduct under the felony portion of § 3733 as we have construed

it would be one in which “[a]ny driver of a motor vehicle . . . willfully fails or refuses to

bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police

19 officer, when given a visual and audible signal to bring the vehicle to a stop” and, who, in

addition, willfully “crosses a State line.” 75 Pa. Cons. Stat. §§ 3733(a), (a.2)(2)(ii).

Thus, one might imagine a person driving at the speed limit from Philadelphia to

New Jersey on I-95. A police officer notices that the car’s taillight is out or that the car’s

registration is expired and turns on his flashing lights. Perhaps the car is running out of gas

or the driver desperately has to use a bathroom and the driver knows there is a rest stop

about a half mile away. Rather than stopping for the officer, the driver willfully (meaning

knowingly 8) fails or refuses to stop (“otherwise flees”) and plans to pull over at the rest

stop to both deal with the traffic stop and to either refill the tank or use the restroom.

Because the driver uses this same route every day, he knows that there is a rest stop about

a half mile further along I-95 and also knows that the rest stop is just across the state border.

The driver proceeds to the rest stop before pulling over, thus willfully (again, meaning

knowingly) crossing a state line. Because the speed limit on that portion of I-95 is 65 miles

per hour, the additional half mile of “fleeing” lasts approximately 30 seconds. We test the

Government’s argument against this scenario.

8 Under Pennsylvania law, “[a] requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.” 18 Pa. Cons. Stat. § 302(g). A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

Id. § 302(b)(2). 20 There is, not surprisingly, no precise definition of “moral turpitude.” We have stated

that the phrase “defies a precise definition.” De Leon-Reynoso v. Ashcroft, 293 F.3d 633,

635 (3d Cir. 2002). Black’s Law Dictionary defines it as “[c]onduct that is contrary to

justice, honesty, or morality; esp., an act that demonstrates depravity.” Moral Turpitude,

Black’s Law Dictionary (11th ed. 2019). The Board defines it as “conduct that is inherently

base, vile, or depraved, contrary to the accepted rules of morality and the duties owed other

persons, either individually or to society in general.” Knapik, 384 F.3d at 89. As a general

rule, the Board asks “whether the act is accompanied by a vicious motive or a corrupt

mind.” Partyka, 417 F.3d at 413 (quoting Matter of Franklin, 20 I. & N. Dec. 867, 868

(B.I.A. 1994)). Nevertheless, “[i]n recent years . . . the [Board] has found moral turpitude

to inhere in serious crimes committed recklessly, i.e., with a conscious disregard of a

substantial and unjustifiable risk that serious injury or death would follow.” Id. at 414. We

have affirmed this conclusion. Knapik, 384 F.3d at 89–90 (affirming the Board’s decision

that first degree reckless endangerment under New York law was a crime involving moral

turpitude where the criminal statute requires the actor to “consciously disregard” a “grave

risk of death to another person” that the actor himself created).

As an initial point, our decision in Mahn is especially instructive here. In that case,

we held that a misdemeanor conviction under a statute prohibiting reckless engagement in

conduct which “may place another person in danger of death or serious bodily injury” was

not a crime involving moral turpitude. Mahn, 767 F.3d at 174 (emphasis added) (quoting

18 Pa. Cons. Stat. § 2705). We reasoned that a traffic offense where no other person is

actually placed in danger is not categorically a crime involving moral turpitude. Id. As we

21 have construed it, the least culpable conduct under the Pennsylvania felony fleeing or

eluding statute similarly may put another in danger but does not inevitably do so. Thus,

there may be good reason to end our inquiry with a comparison to Mahn. Nonetheless, we

must also address other cases involving felony convictions arguably similar to the one at

issue here.

Much of the caselaw on this particular issue, coming from our sister circuits, does

not suggest an obvious outcome. On the one hand, none of our sister circuits have faced a

similar conviction involving an aggravating element of crossing a state line. Instead, those

other cases all involved convictions for more serious, or at least more dangerous, offenses

than the one at issue here. To be sure, many of our sister circuits did find convictions under

general felony fleeing or eluding statutes to be crimes involving moral turpitude and did so

with broad language that arguably captures the facts of this case, if not the foregoing

hypothetical.

As we might expect, the parties’ arguments track this gap. Mr. Rosario-Ovando

argues that the least culpable conduct is clearly not a crime involving moral turpitude and

distinguishes this statute from those examined by our sister circuits. The Government

latches onto the broad language from other circuits and argues that “crossing state lines

escalates the confrontation between the offender and law enforcement and invites violent

confrontation.” Resp’t’s Br. at 24.

We agree with Mr. Rosario-Ovando. None of the statutes considered by our sister

circuits involved a statute quite like the one at issue here. Instead, the other cases involved

convictions that included as an element the risk of death or serious injury either to the

22 police officer, the general public, or both and, hence, are not ultimately instructive here,

except in distinction. 9 In other words, the Government’s argument that any flight from a

police officer who has given a signal to stop, plus crossing a state line, is inherently

dangerous proves too much. There is a significant difference between fleeing a police

officer at more than 21 miles per hour over the speed limit, see Mei v. Ashcroft, 393 F.3d

737, 738 (7th Cir. 2004), or interfering with or endangering the police officer or the general

public, see Granados v. Garland, 17 F.4th 475, 481 (4th Cir. 2021); Cano-Oyarzabal v.

Holder, 774 F.3d 914, 917 (7th Cir. 2014); Ruiz-Lopez v. Holder, 682 F.3d 513, 517

(6th Cir. 2012), or creating the risk of injury or death, N.J. Stat. Ann. § 2C:29–2(b), on the

9 In Mei v. Ashcroft, the Court of Appeals for the Seventh Circuit concluded that a conviction under the Illinois aggravated fleeing or eluding law, requiring “fleeing at 21 or more miles per hour above the speed limit,” was a crime involving moral turpitude. 393 F.3d 737, 738, 741–42 (7th Cir. 2004) (quoting 625 Ill. Comp. Stat. 5/11-204.1(a)(1)). Similarly, in Ruiz-Lopez v. Holder, the Court of Appeals for the Sixth Circuit concluded that a conviction under Washington state’s felony feeling or eluding statute, requiring that the driver “drives his vehicle in a manner indicating a wanton or wil[l]ful disregard for the lives or property of others while attempting to elude a pursuing police vehicle,” was a crime involving moral turpitude. 682 F.3d 513, 517, 521 (6th Cir. 2012) (quoting Wash. Rev. Code § 46.61.024). Likewise, in Cano-Oyarzabal v. Holder, the Court of Appeals for the Seventh Circuit concluded that a conviction under the Wisconsin fleeing and eluding statute, requiring that a driver “knowingly flee or attempt to elude any traffic officer by willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians,” was a crime involving moral turpitude. 774 F.3d 914, 917, 919 (7th Cir. 2014) (quoting Wis. Stat. § 346.04(3)). Finally, in Granados v. Garland, the Court of Appeals for the Fourth Circuit concluded that a conviction under the Virginia felony eluding statute, requiring that a driver “drives . . . in a willful and wanton disregard of such signal so as to interfere with or endanger the operation of the law-enforcement vehicle or endanger a person,” was a crime involving moral turpitude, 17 F.4th 475, 481 (4th Cir. 2021) (quoting Va. Code § 46.2- 817(B)). 23 one hand, and, on the other hand, willfully failing or refusing to stop and willfully crossing

a state line without placing any other person at risk or in danger.

Instead, we are more convinced by the reasoning of the Court of Appeals for the

Ninth Circuit in Ramirez-Contreras v. Sessions, 858 F.3d 1298 (9th Cir. 2017). In that case,

the Court considered the California fleeing or eluding law which makes it a crime “[i]f a

person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1

and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons

or property.” Id. at 1301 (quoting Cal. Vehicle Code § 2800.2(a)). The statute then further

defines “willful or wanton disregard for the safety of persons or property” as “driving while

fleeing or attempting to elude a pursuing peace officer during which time either three or

more violations that are assigned a traffic violation point count under Section 12810 occur,

or damage to property occurs.” Id. (quoting Cal. Vehicle Code § 2800.2(b)) (emphasis

added). That Court reasoned that the three traffic violations under Section 12810 could be

“relatively innocuous sorts of conduct,” including driving without the proper registration,

violating the California emissions standards, and failing to stop after an accident involving

only property damage. Id. at 1304. Moreover, the Court specifically discussed the other

cases embraced by the Government and detailed here but found them inapplicable to the

least culpable conduct under the California statute because “those cases penalized willful

conduct that increased the risk of harm to others.” Id. at 1305. We agree with this

commonsense analysis.

Perhaps recognizing that none of these out-of-circuit cases directly supports its

position, the Government resorts to Sykes v. United States, 564 U.S. 1 (2011), and

24 United States v. Jones, 740 F.3d 127 (3d Cir. 2014), both of which determined that certain

crimes were “violent felonies” within the meaning of the residual clause of the Armed

Career Criminal Act. True, as the Government points out, our opinion in Jones held that a

misdemeanor conviction under the same Pennsylvania fleeing or eluding statute constituted

a crime of violence for purposes of sentencing. Jones, 740 F.3d at 137–38. In coming to

that conclusion, we explicitly invoked the Supreme Court’s holding in Sykes that the “[r]isk

of violence is inherent to vehicle flight” because “the intervening pursuit creates high risks

of crashes.” Id. at 137 (quoting Sykes, 564 U.S. at 10).

The Government’s reliance on these cases, however, is inapposite. For one, both

cases were interpreting a statutory provision not at issue in this case. And the Supreme

Court later held that provision, the residual clause of the Armed Career Criminal Act, to be

unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 606 (2015). In that same

decision the Supreme Court also explicitly overruled Sykes. Id. Thus, our earlier reliance

in Jones on the reasoning and holding of Sykes has been undermined. Plus, as our

hypothetical above illustrates, a conviction under Pennsylvania’s fleeing or eluding statute

does not automatically and inherently involve the use, attempted use, or threatened use of

any physical force or violence. Therefore, although we have not explicitly overruled Jones

with a precedential opinion, we reject the Government’s reliance on it.

Therefore, we conclude that the least culpable conduct constituting a felony

conviction under Pennsylvania’s fleeing or eluding statute, 75 Pa. Cons. Stat.

§ 3733(a.2)(2)(ii), is not a crime involving moral turpitude.

25 IV. CONCLUSION

Because the least culpable conduct criminalized by the three aggravating elements

of Pennsylvania’s felony fleeing or eluding statute is not a crime involving moral turpitude,

8 U.S.C. § 1227(a)(2)(A)(i), Mr. Rosario-Ovando’s crime of conviction does not provide

a basis for removal. We reject the Government’s request for a remand so the Board may

apply the modified categorical approach because we have resolved the legal issue and

because remand for further consideration of the record would be futile. Therefore, we will

grant Mr. Rosario-Ovando’s petition.