June 12, 2017
Petition for Review of an Order of the United States
Department of Justice Board of Immigration Appeals (BIA
1:A208-443-783) Immigration Judge: Hon. Walter A. Durling
B. Conklin [ARGUED] The Shagin Law Group Counsel for
A. Readler John S. Hogan Brianne W. Cohen Rebecca H. Phillips
[ARGUED] Stefanie A. Svoren-Jay United States Department of
Justice Office of Immigration Litigation Counsel for
Before: JORDAN, KRAUSE, Circuit Judges and STEARNS [*] District Judge.
OPINION OF THE COURT
STEARNS, District Judge.
Roman Ildefonso-Candelario challenges a ruling of the Board
of Immigration Appeals (BIA) upholding an Immigration
Judge's determination that he is statutorily ineligible
for cancellation of removal because of a prior conviction for
a crime involving moral turpitude. For the following reasons,
we will grant the petition and remand to the BIA for further
a citizen of Mexico, entered the United States unlawfully,
allegedly in 1996. In October of 2015, he pled guilty in
Pennsylvania state court to a misdemeanor count of
obstructing the administration of law or other governmental
function. See 18 Pa. Cons. Stat. § 5101. The
following March, Immigration and Customs Enforcement (ICE)
took Ildefonso-Candelario into custody, charging him with
being removable as a result of being an alien present without
admission or parole. See 8 U.S.C. §
1182(a)(6)(A)(i). At his first hearing before the Immigration
Judge, Ildefonso-Candelario conceded removability on the
basis of his prior unlawful entry, but announced his
intention to seek cancellation of removal. See id.
§ 1229b(b)(1)(A)-(D). In response, counsel for ICE
suggested that Ildefonso-Candelario's prior conviction
might qualify as a crime involving moral turpitude,
 see id. §
1182(a)(2)(A)(i)(I), which would render him statutorily
ineligible for cancellation of removal, see id.
thereafter, the Immigration Judge issued an initial ruling
holding that section 5101 was "categorically" a
crime involving moral turpitude. On the same day that the
Immigration Judge issued his ruling, ICE added a charge of
removability for committing a crime involving moral turpitude
against Ildefonso-Candelario. See id. §
1227(a)(2)(i)(I). At his next hearing before the Immigration
Judge, Ildefonso-Candelario moved for reconsideration of the
Immigration Judge's ruling on section 5101. The
Immigration Judge rejected Ildefonso-Candelario's
arguments, again holding that section 5101 is categorically a
morally turpitudinous crime. The Immigration Judge then
ordered Ildefonso-Candelario removed to Mexico.
Ildefonso-Candelario took an appeal to the BIA.
single member of the BIA upheld the ruling "[f]or the
reasons given by the Immigration Judge." App. at 4. This
timely petition followed. While the petition was pending, the
government moved to remand the matter to the BIA for further
consideration. That motion was referred to the merits panel
for our consideration.
the BIA adopts an immigration judge's decision and
reasoning, we review both rulings. See Quao Lin Dong v.
Att'y Gen., 638 F.3d 223, 227 (3d Cir. 2011).
Whether an offense is a crime involving moral turpitude is a
question of law subject to de novo review. See
Javier v. Att'y Gen., 826 F.3d 127, 130 (3d Cir.
2016). Typically, we accord so-called Chevron
deference to the BIA's reasonable
determination that an offense is a turpitudinous crime.
Mehboob v. Att'y Gen., 549 F.3d 272, 275 (3d
Cir. 2008). Here, however, the government concedes that the
BIA's decision-a non-precedential disposition issued by a
single member-is not entitled to Chevron deference.
See Mahn v. Att'y Gen., 767 F.3d 170, 173 (3d
Cir. 2014). In any event, we do not defer to the BIA's
interpretation of criminal statutes. Mehboob, 549
F.3d at 275.
determine whether an offense involves moral turpitude, the
BIA and this court apply a categorical approach.See, e.g., Partyka v.
Att'y Gen., 417 F.3d 408, 411 (3d Cir. 2005). Under
the categorical approach, we examine the elements of the
offense "to ascertain the least culpable conduct
necessary to sustain [a] conviction under the statute."
Jean-Louis v. Att'y Gen., 582 F.3d 462, 465-66
(3d Cir. 2009). A morally turpitudinous offense involves
"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 v. Ashcroft, 384 F.3d 84, 89
(3d Cir. 2004). "[T]he hallmark of moral turpitude is a
reprehensible act committed with an appreciable level of
consciousness or deliberation." Par ...