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Partyka v. Attorney General of the United States

August 11, 2005

MAREK PARTYKA, PETITIONER
v.
* ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT *(PURSUANT TO F.R.A.P. 43(C))



On Petition for review of an Order of the Board of Immigration Appeals. INS No. A46-389-774.

The opinion of the court was delivered by: Rosenn, Circuit Judge.

PRECEDENTIAL

Argued: March 30, 2005

Before: ALITO, SMITH, and ROSENN Circuit Judges

OPINION OF THE COURT

The conviction of Marek Partyka ("Partyka" or "Petitioner") for violating a New Jersey criminal statute by assaulting a local law enforcement officer and the ensuing order of removal require us to wade into the amorphous morass of moral turpitude law. As a result of an altercation between Petitioner, then aged twenty, and his father, local police and their K-9 dog responded to a call for assistance. A scuffle soon ensued between the officers and Partyka as he attempted to free himself from the chomping jaws of the police dog. Partyka pled guilty to one count of third degree aggravated assault under the New Jersey statute and the New Jersey Superior Court imposed a sentence of ninety days' house arrest and two years' probation.

The Immigration and Naturalization Service ("INS") instituted deportation proceedings for Petitioner's removal to Poland on the ground that his conviction for causing bodily injury to a law enforcement officer involved moral turpitude under § 237(a)(2)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(i). The Immigration Judge ("IJ") concluded that Partyka's crime involved moral turpitude and that he was removable. The Board of Immigration Appeals ("BIA") affirmed without opinion. Partyka timely filed a petition for review in this Court. We grant the petition for review and will vacate the BIA's order of removal.

I.

Partyka, a native and citizen of Poland, was admitted to the United States as a lawful permanent resident in June 1999, when he was eighteen years-old. Less than two years later, a dispute erupted between Partyka and his father at his father's home in New Jersey, and the police were summoned. When the officers arrived, Partyka's father reported that his son had been drinking and had choked him. The officers observed Partyka pacing on an outdoor, second-floor landing of his father's apartment building, with a cigarette in one hand, and his other hand in his pocket. One officer thought Partyka was hiding something in his concealed hand, and ordered him to remove his hand from his pocket and to descend the staircase to the ground floor. Partyka allegedly became enraged, threw his cigarette at the officer, and refused to remove his hand from his pocket or to descend the staircase.

According to the police reports, Partyka took no physical action toward the police until the K-9 police unit arrived. At that time, Partyka, having been informed that he was under arrest, came down the steps toward the police officers and kicked at the K-9 police dog accompanying the arresting officers. The dog attacked him, biting him repeatedly on his legs, head, and face. The dog seized Partyka on the right calf and the left leg, inflicting multiple lacerations and punctures to both legs. The officers reported that, before they gained control of Partyka, he spat at, wrestled with, kicked, and punched them. Upon completion of the arrest, Partyka was committed to the local hospital for his injuries from the dog bites. He was diagnosed with "traumatic arthrotomy, left knee, secondary to dog bite; multiple lacerations and punctures of the right and left lower extremities secondary to dog bites." He remained hospitalized for three days. The police dog received veterinary attention. There is no report of the officers having received medical care.

In May 2001, Partyka was charged with, inter alia, two counts of aggravated assault on a law enforcement officer in the third degree, in violation of N.J. Stat. Ann. § 2C:12-1b(5)(a). He pled guilty to one count of third degree aggravated assault on a law enforcement officer, and the other charges were dropped. The Superior Court entered a judgment of conviction and sentenced Partyka to ninety days' house arrest and two years' probation.

In April 2002, the INS*fn1 initiated removal proceedings against Partyka, charging him with being removable under § 237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i), as an alien having been convicted of a crime involving moral turpitude within five years of admission for which a sentence of one year or longer may be imposed.

Partyka moved to terminate the removal proceedings, arguing that he was not convicted of a crime involving moral turpitude. The IJ denied the motion, and applying Board precedents, explained in a written decision that, "aggravated assault against a police officer, which results in bodily injury, and which involves knowledge . . . that . . . force is directed to the officer who is performing an official duty, constitutes a crime involving moral turpitude." IJ Dec. & Order at 2-3 (citing Matter of Danesh, 19 I. & N. Dec. 669, 673 (BIA 1988)).

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIA's final order of removal. Our review of the BIA's legal determinations is de novo. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004). Because the BIA in Partyka's case affirmed the IJ's decision without opinion, we review the IJ's decision. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). Whether an IJ's determination is entitled to Chevron deference, Chevron, U.S.A. v. National Res. Def. Council, Inc, 467 U.S. 837 (1984), when the BIA affirms without opinion remains an open question in this circuit. See Smriko, 387 F.3d at 289 n.6; Coraggioso v. Ashcroft, 355 F.3d 730, 733 (3d Cir. 2004). We need not answer this question now, however, because we owe no deference to the IJ's interpretation of a state criminal statute. See Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (explaining that we accord Chevron deference to the BIA's determination that a particular crime involves moral turpitude but we accord no deference to the BIA's determination of "the elements . . . of a particular criminal statute deemed to implicate moral turpitude"). We conclude that the IJ erroneously interpreted the New Jersey aggravated assault statute.

III.

Under the INA, an alien is deportable if he:

(I) is convicted of a crime involving moral turpitude committed within five years . . . after ...


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