                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-2005

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Precedential or Non-Precedential: Precedential

Docket No. 04-2804




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                                         PRECEDENTIAL

 IN THE UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                   No. 04-2804
                  ____________

               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
                   ____________

             Argued: March 30, 2005

Before: ALITO, SMITH, and ROSENN Circuit Judges

             (Filed: August 11, 2005 )
Joseph C. Hohenstein (Argued)
James J. Orlow
Orlow & Orlow
6th & Chestnut Streets
Philadelphia, PA 19106

       Counsel for Petitioner

Bryan S. Beier (Argued)
Linda S. Wernery
Jocelyn L. Wright
William C. Peachey
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

       Counsel for Respondent

                        ____________

                 OPINION OF THE COURT
                      ____________

ROSENN, Circuit Judge.

       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

                                2
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

                               3
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

                               4
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 1 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


  1
       On March 1, 2003, the INS’s functions were transferred
to the newly-formed Bureau of Immigration and Customs
Enforcement, within the United States Department of Homeland
Security. See Knapik v. Ashcroft, 384 F.3d 84, 86 n.2 (3d Cir.
2004) (citing Homeland Security Act of 2002, Pub. L. 107-296,
§§ 441, 451, 471, 116 Stat. 2135 (2002)).

                                5
(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:

                              6
                     (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).

        Partyka was convicted of a crime within five years of
his admission to this country, and although the New Jersey
Superior Court imposed a light sentence of ninety days’ house
arrest and two years’ probation, the crime carried a potential
sentence of one year or longer. Therefore, he is deportable if
his crime “involves moral turpitude.”

        Whether an alien’s crime involves moral turpitude is
determined by the criminal statute and the record of
conviction, not the alien’s conduct. Knapik, 384 F.3d at 88,
90-91; De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d
Cir. 2002). Under this categorical approach, we read the
applicable statute to ascertain the least culpable conduct
necessary to sustain a conviction under the statute. Hamdan
v. INS, 98 F.3d 183, 189 (5th Cir. 1996); Matter of Marchena,
12 I. & N. Dec. 355, 357 (BIA 1967). As a general rule, a
criminal statute defines a crime involving “moral turpitude
only if all of the conduct it prohibits is turpitudinous.”

                               7
Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003)
(quoting Hamdan, 98 F.3d at 187); see also Matter of C–, 5 I.
& N. Dec. 65, 69-70 (BIA 1953). Where a statute covers both
turpitudinous and non-turpitudinous acts, however, it is
“divisible,” and we then look to the record of conviction to
determine whether the alien was convicted under that part of
the statute defining a crime involving moral turpitude. See,
e.g., Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005);
Chanmouny v. Ashcroft, 376 F.3d 810, 813 (8th Cir. 2004);
Hamdan, 98 F.3d at 187; Matter of Ajami, 22 I. & N. Dec.
949, 950 (BIA 1999).

        Thus, we first focus on the elements of the New Jersey
statute. Then, we examine the meaning of “moral turpitude”
under BIA precedents and federal case law. Because we
conclude that moral turpitude does not inhere in all violations
of the New Jersey statute, we turn to Partyka’s record of
conviction to determine whether he was convicted under a
subsection involving moral turpitude.

                  A. The New Jersey Statute

       The New Jersey aggravated assault statute effective at
the time of Partyka’s arrest and indictment provided that a
person is guilty of aggravated assault for committing a

              simple assault as defined in
              subsection a. (1), (2) or (3) of this
              section upon:

                     (a) Any law enforcement

                                8
              officer acting in the performance
              of his duties while in uniform or
              exhibiting evidence of his
              authority . . . .




N.J. Stat. Ann. § 2C:12-1b(5)(a) (West 1995 & Supp. 2004),
amended by 2001 N.J. Sess. Law Serv. ch. 215, § 1.2 Under
subsection a, one is guilty of simple assault if one:

                     (1) Attempts to cause or
              purposely, knowingly or recklessly
              causes bodily injury to another; or

                      (2) Negligently causes bodily
              injury to another with a deadly weapon;
              or


  2
        Effective August 20, 2001, seven days before Partyka
pled guilty to this crime, the New Jersey assault statute was
amended to include another ground for aggravated assault:
simple assault on a law enforcement officer “because of his
status as a law enforcement officer.” N.J. Stat. Ann. § 2C:12-
1b(5)(a) (West Supp. 2004). The IJ applied the old version to
Partyka’s case. Contrary to Partyka’s assertions, both versions
of the statute require knowledge that the person assaulted is a
police officer. Thus, the statutory amendment has no impact on
whether the crime involves moral turpitude. See discussion
infra p. 11.

                              9
                     (3) Attempts by physical menace
              to put another in fear of imminent serious
              bodily injury.




Id. § 2C:12-1a(1)-(3).

        Aggravated assault on a law enforcement officer is a
crime of the third degree if the officer suffers bodily injury.
Id. § 2C:12-1b(11). Partyka pled guilty to aggravated assault
in the third degree, and thus he does not contest that his
assault on a law enforcement officer resulted in bodily injury.
Rather, he contends that the New Jersey assault statute
permits convictions in the absence of an intent to cause bodily
injury, and therefore, his conviction does not evince moral
turpitude. The IJ rejected Partyka’s contention, and
concluded that “all the offenses” defined in the New Jersey
assault statute “required at a minimum an intent to cause
bodily injury.” IJ Dec. & Order at 3 n.2. The IJ, however,
misconstrued the statute, as it plainly allows convictions for
recklessly or negligently causing bodily injury.

        The first element of aggravated assault under the New
Jersey statute is “simple assault as defined in subsection a(1),
(2), or (3) of this section.” N.J. Stat. Ann. § 2C:12-1b(5).
The minimum culpable conduct required to commit simple
assault is the negligent infliction of bodily injury with a




                               10
deadly weapon under subsection a(2).3 A person acts
negligently, according to the New Jersey criminal code, when
“he should be aware of a substantial and unjustifiable risk that
the material element exists or will result from his conduct.”
Id. § 2C:2-2b(4). The risk involved “must be of such a nature
and degree that the actor’s failure to perceive it,” considering
the circumstances known to him, involves a gross deviation
from the standard of care that a reasonable person would have
exercised. Id. We need not concern ourselves with the
statutory definition of a deadly weapon because Partyka had
no weapon in his possession.

       Based on the statutory language of § 2C:12-1b(5)(a)
both before and after Partyka pled guilty to this crime in
August 2001, it is apparent that the State was required to
prove that Partyka knew the person he was assaulting was a
police officer. See, e.g., United States v. Rebelo, 358 F.
Supp. 2d 400, 418-19 (D.N.J. 2005); State v. Green, 724 A.2d
254, 262 & n.1 (N.J. Super. Ct. App. Div. 1999). Therefore,
we must consider whether the negligent infliction of bodily
injury on someone known to the defendant to be a law
enforcement officer is a crime involving moral turpitude.

                      B. Moral Turpitude


 3
       The attempts described in subsection a(1) and (3) require
specific intent. See, e.g., United States v. Rebelo, 358 F. Supp.
2d 400, 416 (D.N.J. 2005) (“It is blackletter law that criminal
attempt requires specific intent.”) (citing N.J. Stat. Ann. § 2C:5-
1)).

                               11
        The INA does not define “moral turpitude,” and, as
this Court has observed, the phrase “defies a precise
definition.” De Leon-Reynoso, 293 F.3d at 635. Black’s Law
Dictionary sweepingly defines moral turpitude as “[c]onduct
that is contrary to justice, honesty, or morality.” B LACK’S
L AW D ICTIONARY 1030 (8th ed. 2004); see Smriko, 387 F.3d
at 283; De Leon-Reynoso, 293 F.3d at 635-36. The BIA is
more specific and defines “moral turpitude 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
(citing Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA
1994), and Matter of Danesh, 19 I. & N. Dec. at 670).

       A longstanding test employed by the BIA to determine
the existence of moral turpitude, which we find persuasive in
a removal proceeding, asks “whether the act is accompanied
by a vicious motive or a corrupt mind.” Matter of Franklin,
20 I. & N. Dec. at 868 (citations omitted). Accordingly, the
Board has repeatedly “held that ‘evil intent’ is a requisite
element for a crime involving moral turpitude.” Matter of
Khourn, 21 I. & N. Dec. 1041, 1046 (BIA 1997); Matter of
Flores, 17 I. & N. Dec. 225, 227 (BIA 1980) (“An evil or
malicious intent is said to be the essence of moral
turpitude.”); Matter of Abreu-Semino, 12 I. & N. Dec. 775,
777 (BIA 1968) (“moral turpitude normally inheres in the
intent”); Matter of P– , 2 I. & N. Dec. 117, 121 (BIA 1944)
(“One of the criteria adopted to ascertain whether a particular
crime involves moral turpitude is that it be accompanied by a
vicious motive or corrupt mind. ‘It is in the intent that moral
turpitude inheres.’”) (quoting US ex rel. Meyer v. Day, 54

                              12
F.2d 336 (2d Cir. 1931)).4 The Court of Appeals for the
Second Circuit has given the subject considerable thought and
has concluded that “corrupt scienter is the touchstone of
moral turpitude.” Michel v. INS, 206 F.3d 253, 263 (2d Cir.
2000); see also, Chanmouny, 376 F.3d at 814-15; Hamdan, 98
F.3d at 186.5

        In recent years, however, the BIA 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.
See Matter of Medina, 15 I. & N. Dec. 611, 614 (BIA 1976)
(concluding that moral turpitude inheres in aggravated assault
with a deadly weapon even if one acts not with intent, but
with recklessness, because the “definition of recklessness
requires an actual awareness of the risk created by the
criminal violator’s action”). Recently, this Court has
expressed its approval of this approach. See Knapik, 384
F.3d at 89-90 (affirming the BIA’s decision that first degree
reckless endangerment as defined by the N.Y. Penal Law
involves moral turpitude, where the criminal statute requires
the actor to “consciously disregard” the “grave risk of death to


      4
      Of significant importance is the BIA’s recognition that a
“state’s determination as to what crimes it deems morally
turpitudinous is not conclusive for federal immigration
purposes.” Matter of Medina, 15 I. & N. Dec. 611, 614 (BIA
1976).
  5
          But see Mei v. Ashcroft, 393 F.3d 737, 740 (7th Cir. 2004).

                                    13
another person” created by the actor) (internal quotation
marks omitted).

        Under either standard, the hallmark of moral turpitude
is a reprehensible act committed with an appreciable level of
consciousness or deliberation. The negligent infliction of
bodily injury lacks this essential culpability requirement. By
definition, a negligent assault is unintentional, unwitting, and
committed without contemplation of the risk of injury
involved. We can readily imagine negligent assaults which
do not connote moral turpitude. For just one example, a
licensed firearm owner could be target-practicing in an
authorized area, while uniformed police officers conduct an
investigation nearby. The firearm owner might handle the
firearm carelessly for a moment, discharging a bullet in the
direction of the officers, and causing bodily injury to an
officer. This event could lead to a conviction for negligent
assault with a deadly weapon on a law enforcement officer, in
violation of N.J. Stat. Ann. § 2C:12-1b(5)(a). However, there
is nothing “inherently base, vile, or depraved” about such an
act, particularly because the actor never intended to assault
the officer, nor consciously disregarded a substantial risk of
injury to the officer. See Knapik, 384 F.3d at 90 (observing
that “the BIA limits moral turpitude to crimes [involving
specific intent or crimes] in which a defendant consciously
disregards a substantial risk of serious harm or death to
another”).

       Therefore, we reject the Attorney General’s contention
that moral turpitude inheres in the New Jersey aggravated
assault statute in all instances where the defendant knows that

                              14
the person he is assaulting is a law enforcement officer and
causes bodily injury. The aggravating factors, standing alone,
cannot give rise to moral turpitude. Two federal immigration
cases involving assaults on law enforcement officers, often
cited by the BIA, illustrate this point. See United States ex
rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933); Ciambelli
ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass. 1926).

        In Zaffarano, the alien was convicted of second degree
assault under New York law, but his record of conviction
failed to specify the elements of his crime. A panel of the
Second Circuit Court of Appeals consisting of the venerable
Learned Hand, Augustus N. Hand, and Judge Swan, vacated
the order of removal, observing that not all second degree
assaults involve moral turpitude. An assault lacking such
depravity, the court explained, is committed by a person “to
prevent or resist execution of any lawful process or mandate
of any court or officer, or the lawful apprehension or
detention of himself or of any other person.” Id. at 758.
Although recognizing that assaulting a law enforcement
officer during the course of his duties is more serious than
assaulting a private person, the court concluded that there is
no moral turpitude inherent in “putting forth the mildest form
of intentional resistance against an officer attempting to . . .
apprehend or detain the accused or another.” Id. In this
scenario, the assault is a byproduct of an attempt to evade
arrest, not the result of a deliberate attempt to injure the
officer. Without venturing an opinion on whether moral
turpitude inheres in resisting arrest, we think that the essence
of Zaffarano’s holding, that the actor’s state of mind is key to
a finding of moral turpitude, remains sound.

                              15
         Similarly, this focus on state of mind guided the
federal court’s holding in Ciambelli that an alien’s assault on
a police officer during the course of his official duties, even
when armed with a dangerous weapon, was not a crime
involving moral turpitude. In that case, the assault occurred
when the officer interceded in a barroom brawl. Ciambelli,
12 F.2d at 465. It was apparent from the record of conviction
that the alien did not use the weapon on the officer, but the
court’s holding turned on the alien’s mind state. It explained
that assault committed “in the heat of anger,” such as during a
fight, lacks “such inherent baseness or depravity as to” evince
moral turpitude. Id. at 466. The court recognized, however,
that if the alien had “deliberately assaulted an officer of the
law with a dangerous weapon and with felonious intent, or for
the purpose of interfering with the officer in the performance
of his duty,” then his crime might have involved moral
turpitude. Id. (emphasis added).

       The BIA has consistently adhered to the premise of
Zaffarano and Ciambelli by taking into account the crime’s
culpability requirements in determining whether it involves
moral turpitude. See, e.g., Matter of Torres-Varela, 23 I. &
N. Dec. 78 (BIA 2001) (interim decision). The BIA has
seldom found moral turpitude to inhere in an assault that lacks
specific intent, and in the absence of specific intent, it has
found depravity only if there is deliberate conduct and an
aggravating factor. Compare Matter of Fualaau, 21 I. & N.
Dec. 475, 478 (BIA 1996) (reckless assault without an
aggravating dimension lacks moral turpitude), with Matter of
Medina, 15 I. & N. Dec. at 614 (reckless assault with a deadly
weapon involves moral turpitude).

                              16
       In its one published decision involving negligent
assault, the BIA found no moral turpitude. In Matter of
Perez-Contreras, the Board declared that an assault which
causes “bodily harm accompanied by substantial pain” and
“considerable suffering,” lacks moral turpitude when
committed “with criminal negligence.” Matter of Perez-
Contreras, 20 I. & N. Dec. 615, 617 (BIA 1992) (quoting
Wash. Rev. Code § 9A.36.031(1)(f)). Although there were no
aggravating factors under the statute at issue there, the
Board’s decision focused on the absence of a scienter
requirement. It explained: “Where knowing or intentional
conduct is an element of an offense, we have found moral
turpitude to be present. However, where the required mens
rea may not be determined from the statute, moral turpitude
does not inhere.” Id. at 618 (citing Matter of Danesh, 19 I. &
N. Dec. 669).

        The Attorney General contends that Matter of Danesh
is directly on point, and urges us to apply it here to affirm the
BIA’s order of removal. In that case, the alien was convicted
for aggravated assault under Texas law, for, as the BIA
described the crime, “having knowingly and intentionally
caused bodily injury to a peace officer who was in the lawful
discharge of his official duty when [the alien] knew the
person assaulted was a peace officer.” 19 I. & N. Dec. at 670
(emphasis added). The Board concluded that this aggravated
assault involved moral turpitude. Notably, it acknowledged
that the first element of aggravated assault under the Texas
statute is simple assault, which requires either the intentional,
knowing, or reckless infliction of bodily injury. Id. at 673 n.1
(citing Tex. Penal Code § 22.02(a)(2)(A)). Subsequently, in
its decision in Matter of Perez-Contreras, the BIA cited
Matter of Danesh for the proposition that assault involves
moral turpitude only if the statute requires scienter. See
Matter of Perez-Contreras, 20 I. & N. Dec. at 618. Thus, a


                               17
careful reading of Matter of Danesh militates against the
Attorney General’s contention that moral turpitude inheres in
causing bodily injury to a law enforcement officer with a
deadly weapon as a result of mere negligence.

        For the foregoing reasons, we conclude that moral
turpitude does not inhere in the least culpable conduct under
N.J. Stat. Ann. § 2C:12-1b(5)(a).6 However, if we can
determine from Partyka’s record of conviction that he was
convicted for violating a subsection of the statute requiring
intentional, knowing, or reckless infliction of bodily injury,
then Matter of Danesh would apply, and we would agree with
the IJ’s finding of moral turpitude.

              C. Partyka’s Record of Conviction

       Under the general rule governing moral turpitude
determinations, “absent specific evidence to the contrary in
the record of conviction, the statute must be read at the
minimum criminal conduct necessary to sustain a conviction
under the statute.” Hamdan, 98 F.3d at 189 (citing United
States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939)).
The record of conviction includes “the indictment, plea,
verdict, and sentence.” Chanmouny, 376 F.3d at 812 (citing
Matter of Ajami, 22 I. & N. Dec. at 950).

        The administrative record before us contains the
Indictment, Judgment of Conviction, and Statement of
Reasons and Sentence. Partyka’s plea agreement is not part
of the record. The Indictment charges that Partyka “did


  6
        Accordingly, we disagree with the court in Rebelo,
insofar as it concluded that the least culpable conduct under N.
J. Stat. Ann. § 2C:12-1b(5)(a) involves moral turpitude. See
Rebelo, 358 F. Supp. 2d at 417-21.

                              18
commit a simple assault as defined in [N.J. Stat. Ann. §]
2C:12-1a causing bodily injury to” two law enforcement
officers while they were “acting in the performance of [their]
duties, while in uniform or exhibiting evidence of [their]
authority, contrary to the provisions of the N.J.S. 2C:12-
1b(5).” It does not specify under which subsection of the
simple assault statute Partyka was charged. Likewise, the
Judgment of Conviction and Statement of Reasons and
Sentence do not reveal the level of criminal culpability
involved.

        Therefore, we must decide whether Partyka’s crime
involves moral turpitude based on the least culpable conduct
required to secure a conviction under the New Jersey statute.
As we have concluded, supra § III.A, the least culpable
conduct under the statute is the negligent infliction of bodily
injury with a deadly weapon. We hold that negligently
inflicted bodily injury lacks the inherent baseness or depravity
that evinces moral turpitude, see supra § III.B, and therefore,
Partyka was not convicted of such a crime.

                              IV.

       Accordingly, Partyka is not deportable, not having
committed a crime involving moral turpitude under §
237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i). His
petition for review is granted and the BIA’s order of removal
will be vacated.




                              19
ALITO, Circuit Judge, concurring in the judgment in part and
dissenting in part:

        I concur in the judgment insofar as it grants the petition
for review. I agree with the majority that the Immigration Judge
misread the New Jersey assault statute when he said that “all the
offenses [covered by that statute] require[] at a minimum an
intent to cause bodily injury.” IJ Dec. & Order at 3 n.2. In fact,
under the provision at issue here, N.J.S.A. § 2C:12-1(b)(5)(a),
the minimum mens rea with respect to the infliction of bodily
injury without the use of a deadly weapon is recklessness, and
the minimum mens rea for the infliction of bodily injury with a
deadly weapon is negligence.            In light of the IJ’s
misinterpretation of the New Jersey statute, we should grant the
petition for review and remand to the Board of Immigration
Appeals so that the Board can apply its understanding of the
concept of a crime of moral turpitude to the New Jersey statute
as properly construed.




        The majority sees no need for a remand because it is
confident that the petitioner’s offense was not a crime of moral
turpitude under the BIA’s interpretation of that concept. The
majority interprets the BIA’s decisions as generally holding that
an assault cannot be a crime of moral turpitude unless the
perpetrator has the “specific intent” to inflict bodily injury or at
least acts recklessly with respect to the infliction of such injury.
Maj. Op. at 12-14.




       I do not rule out this interpretation of the BIA’s
decisions, but this reading is at least debatable. In Matter of
Danesh, 19 I.& N. at 673 (emphasis added), the Board stated:


                                20
       In the case before us the respondent was
       convicted of aggravated assault on a peace
       officer. Under Texas law that offense requires
       that the following elements be present: (1) the
       person assaulted must sustain bodily injury; (2)
       the accused must know that the person assaulted
       is a peace officer; and (3) the peace officer must
       be engaged in the lawful discharge of an official
       duty . . . . [W]e conclude that an aggravated
       assault against a peace officer, which results in
       bodily harm to the victim and which involves
       knowledge by the offender that his force is
       directed to an officer who is performing an
       official duty, constitutes a crime that involves
       moral turpitude.




        This language suggests that, contrary to the majority’s
interpretation, the Board may think that the unintentional
infliction of bodily injury upon a person known to be a police
officer who is performing an official duty constitutes a crime of
moral turpitude. Indeed, that is how the IJ in this case seems to
have interpreted Matter of Danesh. The IJ wrote:




       An aggravated assault against a police officer,
       which results in bodily injury, and which involves
       knowledge by the respondent that his force is
       directed to the officer who is performing an
       official duty, constitutes a crime involving moral
       turpitude. See Matter of Danesh, 19 I & N Dec.
       669, 673 (BIA 1988) . . . .



                               21
App. 42-43. The BIA affirmed the IJ’s decision without
opinion. Therefore, I am afraid that the majority may be relying
on a mistaken reading of the Board’s decisions. This approach
is puzzling because the BIA is the final authority on the meaning
of its own decisions.

       For these reasons, while I concur in the judgment insofar
as it grants the petition for review, I must dissent from the
majority’s unexplained refusal to remand to the BIA.




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