                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4763




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 07-4763
                                    ___________

                               MARTIN SOLOMON,
                                          Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                      Respondent

                     ____________________________________

                         On Petition for Review of an Order
                        of the Board of Immigration Appeals
                              Agency No. A72 501 956
                         Immigration Judge: Andrew Arthur
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 28, 2009

              Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                           (Opinion filed: January 30, 2009)
                                    ___________

                                     OPINION
                                    ___________

PER CURIAM

      Martin Solomon petitions for review of an order of the Board of Immigration

Appeals (BIA), which dismissed his appeal from an Immigration Judge’s (IJ’s) removal
order. For the reasons that follow, we will deny the petition for review.

        Solomon is a native and citizen of Jamaica. He adjusted his immigration status to

lawful permanent resident of the United States in 1996. In 1997 and in 1999, he was

convicted in the New Castle County (Delaware) Superior Court of separate offenses of

terroristic threatening, i.e., threatening to commit a crime likely to result in death or

serious injury to person or property, in violation of Del. Code Ann. tit. 11, § 621(a)(1). In

2006, he was placed in removal proceedings, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), for

having been convicted of two or more crimes involving moral turpitude. On the basis of

the two crimes set forth above, on September 6, 2007, the Immigration Judge (“IJ”) found

Solomon removable as charged and ordered him removed to Jamaica. The Board of

Immigration Appeals (“BIA”) affirmed the IJ’s decision on November 26, 2007.1

        Solomon filed a timely petition for review. On January 24, 2008, this Court denied

Solomon’s motion for a stay of removal and referred the Government’s motion to dismiss

to a merits panel. Solomon’s sole issue in his petition is whether the BIA erred in ruling

that a conviction for terroristic threatening under the Delaware law cited above is a

CIMT.

        Although the Immigration and Nationality Act (INA) generally removes

jurisdiction to review final orders of removal against certain criminal aliens, see



   1
     Earlier in the proceedings, the IJ had issued a decision and removal order, but the
BIA remanded the record to the IJ for issuance of a more complete decision. The IJ’s
order of September 6, 2007 is the decision on remand.

                                               2
§ 1252(a)(2)(C), the Act, as amended by the REAL ID Act of 2005, specifically grants

jurisdiction to review a criminal alien’s “constitutional claims or questions of law.”

§ 1252(a)(2)(D). We therefore have jurisdiction to consider the legal issue raised by

Solomon.2

       This Court determines whether a crime involves moral turpitude by examining the

criminal statute and the alien’s record of conviction, not the alien’s specific conduct. See

Partyka v. Attorney General, 417 F.3d 408, 411 (3d Cir. 2005). Under this categorical

approach, the Court reads the applicable statute to ascertain the least culpable conduct

necessary to sustain a conviction. Id. Where a statute covers both turpitudinous and

non-turpitudinous acts, it is divisible, and the Court looks 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. Under Board precedent as construed by this Court, the set

of crimes involving moral turpitude is determined by reference to the intent required for

conviction. See id. at 413. As a general rule, a crime involves moral turpitude if it 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) (citations omitted). The agency’s determination




   2
    The Government’s motion to dismiss is thus denied. Indeed, the Government
acknowledges in its brief that this “Court has jurisdiction to review whether the agency
reasonably concluded that section 621(a)(1) of title 11 of the Delaware Code defines a
crime in which moral turpitude inheres.” Respondent’s Brief at 4.

                                              3
of whether a crime involves moral turpitude is entitled to deference under Chevron,

U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Knapik,

384 F.3d at 87-88. However, the Court reviews de novo the determination of the

elements of a criminal statute deemed to implicate moral turpitude; for a state criminal

statute, the Court looks to state law interpretations of the statute. See id. at 88, 91.

       The parties agree that Solomon was convicted under paragraph (a)(1) of section

621 of the Delaware statute. Under that provision, a person is guilty of terroristic

threatening if “[t]he person threatens to commit any crime likely to result in death or in

serious injury to person or property.” Solomon argues that section 621(a)(1) lacks an

element of specific intent to do harm, and only requires proof of a “general intent” to

make a threat. However, as explained by the IJ and the BIA, the Delaware Supreme

Court recently discussed section 621(a)(1) and held that a conviction under section 621

requires not only that the defendant uttered words that threaten serious injury or death, but

also that the defendant had the intent to threaten or intimidate the victim with those

words. See Andrews v. Delaware, 930 A.2d 846, 853-54 (Del. 2007). “The defendant

need not intend to carry out the threat, but it is not enough to show only that the defendant

merely intended to utter threatening words.” Id. at 854. Thus, under state law, the intent

to threaten is, indeed, an element of proving a violation of section 621.

       We defer to the BIA’s holding that “intentional transmission of threats is evidence

of a vicious motive or a corrupt mind.” See BIA decision, A.R. 4 (citing Matter of Ajami,



                                               4
22 I. & N. Dec. 949, 952 (BIA 1999). Because Solomon’s convictions involve the

intentional transmission of threats under state law, the BIA did not err in finding that

Solomon had been convicted of two crimes involving moral turpitude. We will therefore

deny the petition for review.




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