                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2679




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                                                                NOT PRECEDENTIAL


                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                ____________________

                                     NO. 05-2679
                                ____________________


                                  GARY CAMPBELL,
                                         Petitioner


                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                                ____________________

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                              (Board No. A37-777-481)
                             ______________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                February 27, 2006
            Before: SLOVITER, FUENTES and BECKER, Circuit Judges.

                                 (Filed: April 3, 2006)

                             ________________________

                                     OPINION
                             ________________________

BECKER, Circuit Judge.

       Gary Campbell, a native and citizen of Jamaica, petitions for review of a final

order of removal of the Board of Immigration Appeals (“BIA”). We will deny the
petition.

       Campbell was admitted to the United States as a lawful permanent resident in

1982. In 1990, he was convicted of attempting to sell cocaine, and in 2002, he was

convicted of menacing in the second degree. Both convictions occurred in New York

state court. On March 12, 2002, the former Immigration and Naturalization Service

issued Campbell a Notice to Appear (“NTA”) and charged him with removability.

       The Immigration Judge (IJ) determined that Campbell was removable under §

237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1227(a)(2)(A)(iii), because the 1990 drug conviction was for an aggravated felony. The

IJ further concluded that Campbell was removable under INA § 237(a)(2)(A)(ii), 8 U.S.C.

§ 1227(a)(2)(A)(ii), because he had been convicted of two crimes involving moral

turpitude, the drug crime and the menacing crime. The IJ also considered and rejected

Campbell’s argument that he was eligible for relief under former § 212(c) and § 240A of

the INA, 8 U.S.C. § 1229b. In a written opinion, the BIA affirmed the IJ’s decision.

       Writing solely for the parties, we limit our discussion to our ratio decidendi. We

must first determine whether Campbell has committed two crimes of moral turpitude,

rendering him removable under § 237(a)(2)(A)(ii). Campbell does not contest that the

drug sale was a crime involving moral turpitude, but he argues that the menacing charge

did not involve moral turpitude. The BIA’s determination that menacing is a crime

involving moral turpitude “is entitled to Chevron deference.” See Knapik v. Ashcroft, 384

F.3d 84, 88 (3d Cir. 2004).

                                            2
       Campbell was convicted of menacing in the second degree under N.Y. Penal Law

§ 120.14, which provides:

       A person is guilty of menacing in the second degree when:

       1. He or she intentionally places or attempts to place another person in
       reasonable fear of physical injury, serious physical injury or death by
       displaying a deadly weapon, dangerous instrument or what appears to be a
       pistol, revolver, rifle, shotgun, machine gun or other firearm; or

       2. He or she repeatedly follows a person or engages in a course of conduct
       or repeatedly commits acts over a period of time intentionally placing or
       attempting to place another person in reasonable fear of physical injury,
       serious physical injury or death . . . .

       So long as all offenses under the statute would constitute crimes involving moral

turpitude, we need not look to the individual circumstances of Campbell’s offense. See

Partyka v. Ashcroft, 417 F.3d 408, 411 (3d Cir. 2005). Moral turpitude has been defined

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.”

Knapick, 384 F.3d at 89. Other courts and the BIA have found offenses that involve

intentionally placing an individual in fear of physical injury to be morally turpitudinous.

See Chanmouny v. Ashcroft, 376 F.3d 810, 813-15 (8th Cir. 2004) (stating that a crime

involved moral turpitude where the petitioner “was convicted of threatening to commit a

crime of violence with the purpose to terrorize another.”); Ramirez v. Ashcroft, 361 F.

Supp. 2d 650, 659 (S.D. Tex. 2005) (citing Chanmouny); In re Ajami, 22 I. & N. Dec.

949, 951 (BIA 1999) (“[I]ntentional transmission of threats is evidence of a vicious

motive or a corrupt mind.”). In light of these decisions, we defer to the BIA’s

                                              3
determination that Campbell has been convicted of two crimes involving moral turpitude.

       Because Campbell has been convicted of two crimes involving moral turpitude, the

decisive issue becomes whether he may simultaneously apply for relief under former §

212(c) and § 240A. The reason why Campbell needs both forms of relief may be

explained as follows. Campbell does not dispute that he is removable under §

237(a)(2)(A)(iii) because he has committed an aggravated felony (the drug sale).

However, because Campbell pled guilty to the crime prior to the repeal of § 212(c), the

Attorney General may waive removal under § 212(c).1 In order to prevail, Campbell must

not only receive § 212(c) relief from removability on the basis of the aggravated felony,

but he must also receive § 240A relief from removal on the basis of the two crimes of

moral turpitude. Because the conviction for the menacing crime occurred after the repeal

of § 212(c), Campbell cannot look to § 212(c) to avoid being removed due to two

convictions for crimes involving moral turpitude. Campbell therefore seeks to use §

240A, a provision currently in force, to avoid removal for the two crimes involving moral

turpitude.

       Campbell is ineligible for relief under § 240A, which precludes cancellation of

removal for an alien who has been convicted of an aggravated felony. See 8 U.S.C. §

1229b(a)(3). Under Rodriguez-Munoz v. Gonzales, 419 F.3d 245 (3d Cir. 2005), it is


1
 Former § 212 (c) provided that the Attorney General could cancel removal of a lawful
permanent resident with certain convictions. The Supreme Court held in INS v. St. Cyr,
533 U.S. 289 (2001), that aliens who pled guilty to offenses prior to the repeal of § 212
(c) could still qualify for relief under the repealed provision.
                                             4
irrelevant to the issue of § 240A relief that Campbell’s aggravated felony conviction (the

drug sale) was waived for purposes of § 212(c). In Rodriguez-Munoz, we explained that

although the petitioner’s earlier aggravated felony conviction was waived under § 212(c),

that conviction “remain[ed] an aggravated felony for purposes of precluding his

application for cancellation of removal under § 240A.” Id. at 249.

       Because Campbell committed two crimes of moral turpitude, and because he is

ineligible for relief under § 240A, we deny the petition for review.




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