                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 15-3308
                                     _____________

                           JOSÉ BELAMINO MARADIAGA,
                                               Petitioner
                                       v.

            ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                                          Respondent
                             ______________

       On Petition for Review of a Decision of the Board of Immigration Appeals
                                    (A089-241-148)
                                   ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 24, 2016
                                  ______________

  Before: MCKEE, Chief Judge,* FISHER, and GREENAWAY, JR., Circuit Judges.

                            (Opinion Filed: January 24, 2017)
                                   ______________

                                       OPINION**
                                     ______________

GREENAWAY, JR., Circuit Judge:


       *
        Judge Theodore McKee concluded his term as Chief of the United States Court of
Appeals for the Third Circuit on September 30, 2016. Judge Brooks Smith became Chief Judge
on October 1, 2016.
       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
      Petitioner José Belamino Maradiaga (“Maradiaga”) petitions for review of the

Board of Immigration Appeals’ (“BIA”) decision that he is ineligible for cancellation of

removal. We conclude that Maradiaga’s prior state-court conviction was for a crime

involving moral turpitude, and that under 18 U.S.C. § 1229b(b)(1) he is ineligible for

cancellation of removal. We will therefore deny his petition.

                                     I. Background

      Maradiaga, a native and citizen of Honduras, entered the United States in March

1999 as a nonimmigrant. In September 2002, he pled guilty to misdemeanor third-degree

assault, pursuant to New York Penal Law § 120.00(1). Maradiaga received three years of

probation.

      In October 2009, the Department of Homeland Security initiated removal

proceedings against Maradiaga, charging him with removability as a nonimmigrant

present in the United States beyond a temporary authorized period. In June 2013,

Maradiaga appeared before an immigration judge (“IJ”) and conceded removability. The

IJ denied Maradiaga’s request for cancellation of removal, concluding that Maradiaga’s

New York conviction was for a crime involving moral turpitude. The BIA remanded the

matter to determine whether the charge of removal was appropriate.

      On remand, DHS asserted a substitute charge of removal, charging Maradiaga

removable as a noncitizen present in the United States without being admitted or paroled.

Maradiaga conceded the substitute charge of removal. The IJ again denied Maradiaga’s

                                            2
request for cancellation of removal on the basis of his New York conviction.

       Maradiaga filed an appeal, which the BIA dismissed. Maradiaga then filed a

timely petition for review.

                        II. Jurisdiction and Standard of Review

       We have jurisdiction to review questions of law in petitions for review from the

BIA. 8 U.S.C. § 1252(a)(2)(D). We “review the administrative record on which the final

removal order is based.” Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 425 (3d Cir. 2011)

(quoting Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005)). “[T]hat means [we

review] only the BIA’s decision” unless the BIA’s decision “specifically references the

IJ’s decision.” Id.

       We review legal determinations by the BIA de novo, “subject to established

principles of deference.” Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). We defer

“to the BIA’s definition of moral turpitude, as well as the BIA’s determination that a

certain crime involves moral turpitude.” Mehboob v. Att’y Gen., 549 F.3d 272, 275 (3d

Cir. 2008) (footnote omitted) (citations omitted) (internal quotation marks omitted)

(citing Knapik v. Ashcroft, 384 F.3d 84, 87 & n.3 (3d Cir. 2004)). We do not defer,

however, to the BIA’s determination of what the elements are of a particular criminal

statute deemed to implicate moral turpitude. See Knapik, 384 F.3d at 88.

                                       III. Analysis

       Maradiaga first contends that he is eligible for cancellation of removal under 8

                                             3
U.S.C. § 1229b(b)(1)(C) because his 2002 New York conviction was not for a crime

involving moral turpitude. He alternatively argues that he is eligible for cancellation of

removal because of the “petty-offense exception” in 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

We conclude that Maradiaga’s New York conviction is for a crime involving moral

turpitude, and that he is ineligible for cancellation of removal notwithstanding the petty-

offense exception.

           A. Maradiaga was convicted of a crime involving moral turpitude

        The cancellation of removal statute, 8 U.S.C. § 1229b(b)(1)(C), states in relevant

part:

               The Attorney General may cancel removal of, and adjust to
               the status of an alien lawfully admitted for permanent
               residence, an alien who is inadmissible or deportable from the
               United States if the alien—
               ....
               (C) has not been convicted of an offense under section
               1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title.

        Both sections 1182(a)(2) and 1227(a)(2) include offenses regarding any noncitizen

who is convicted of a “crime involving moral turpitude.” 8 U.S.C. § 1182 (a)(2)(A)(i)(I);

id. § 1227(a)(2)(A)(i)(I). Crimes involving moral turpitude contain conduct that is

“inherently base, vile, or depraved.” Jean-Louis v. Att’y Gen., 582 F.3d 462, 465 (3d Cir.

2009) (quoting Knapik, 384 F.3d at 89). “[M]alicious intent is . . . the essence of moral

turpitude.” Id. at 469 (quoting Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980)).

        In determining whether a state law conviction is for a crime involving moral

                                             4
turpitude “we[] have historically applied a ‘categorical’ approach, ‘focusing on the

underlying criminal statute rather than the alien’s specific act.’” Id. at 465 (quoting

Knapik, 384 F.3d at 88) (some internal quotations marks omitted). Under the categorical

approach, “we read the applicable statute to ascertain the least culpable conduct

necessary to sustain a conviction under the statute.” Partyka v. Att’y Gen., 417 F.3d 408,

411 (3d Cir. 2005).

          If “a statute covers both turpitudinous and non-turpitudinous acts,” we employ the

modified categorical approach. Id. Under this approach, we “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.” Id. In such a case, we “examin[e] the

record of conviction for the narrow purpose of determining the specific subpart under

which the defendant was convicted.” Jean-Louis, 582 F.3d at 466 (citing Singh v.

Ashcroft, 383 F.3d 144, 162 (3d Cir. 2004)).

          Maradiaga was convicted under § 120.00 of the New York Penal Law, which

states:

                A person is guilty of assault in the third degree when:

                       1. With intent to cause physical injury to another
                       person, he causes such injury to such person or to a
                       third person; or
                       2. He recklessly causes physical injury to another
                       person; or
                       3. With criminal negligence, he causes physical injury
                       to another person by means of a deadly weapon or a
                       dangerous instrument.
                                               5
N.Y. Penal Law § 120.00.

       Our starting point is whether § 120.00 is divisible—that is, whether it includes

both crimes that are morally turpitudinous and crimes that are not. Both parties agree that

the statute is divisible because it criminalizes conduct that is not turpitudinous. Thus, we

apply the modified categorical approach, turning our focus to “the specific subpart under

which the defendant was convicted,” or § 120.00(1). Jean-Louis, 582 F.3d at 466.

       The BIA concluded that Maradiaga’s conviction under New York Penal Law §

120.00(1) was a categorical crime involving moral turpitude. The BIA noted that it had

previously held, in Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007), that § 120.00(1)

was a categorical crime involving moral turpitude “given the specific intent element and

the requirement of actual physical injury, which includes ‘impairment of physical

condition or substantial pain.’” App. vol. I at 4.

       Maradiaga argues on appeal that this conclusion was in error because although §

120.00(1) “identifies intentional conduct with physical injury,” it does not require

specific intent to injure. He does not attempt to distinguish his case from Matter of

Solon, rather he argues that Solon is wrongly decided because it interprets § 120.00(1) as

having a specific intent requirement.

       We begin by examining the elements of the New York criminal statute at issue.

“[I]n in determining what the elements are of a particular criminal statute deemed to

implicate moral turpitude, we do not defer to the BIA.” Knapik, 384 F.3d at 88. Thus,
                                              6
we undertake that inquiry here.

       Section 120.00(1) criminalizes actions that: “[w]ith intent to cause physical injury

to another person . . . cause[] such injury.” N.Y. Penal Law § 120.00(1). Thus, the

elements of the offense consist of: (1) specific intent to cause, (2) physical injury, and (3)

that the intended physical injury actually occurs. See People v. Juarez, 827 N.Y.S.2d

564, 567 (N.Y. Cty. Ct. 2006) (“In order to convict a defendant of the misdemeanor of

Assault in the Third Degree, the People must prove beyond a reasonable doubt the

specific intent of the defendant to cause physical injury, and the causing . . . of such

injury.”). Further, New York law makes clear that the “physical injury” element requires

substantial harm. See New York Penal Law § 10.00 (defining physical injury as

“impairment of physical condition or substantial pain”).

       The BIA has determined that § 120.00(1) is a crime involving moral turpitude; we

defer to this determination so long as it is reasonable. Knapik, 384 F.3d at 87 & n.3. We

conclude that it is a reasonable determination. The provision’s specific intent

requirement and its requirement that non-trivial injury occur meet the criteria the BIA has

established for crimes involving moral turpitude. See Matter of Flores, 17 I. & N. Dec. at

227 (“[M]alicious intent is . . . the essence of moral turpitude.”); Solon, 24 I. & N. Dec. at

241 (“[D]e minimis conduct or harm . . . is not ordinarily considered to be inherently vile,

depraved, or morally reprehensible.”).

       Maradiaga responds that § 120.00(1) is not a crime involving moral turpitude

                                              7
because it only requires “general intent and does not involve serious injury,” and that “[i]t

is more akin to the simple assault statutes that have been held not to be [crimes involving

moral turpitude].” Pet’r’s Br. at 13. Maradiaga provides no authority or hypotheticals to

support his view that non-turpitudinous conduct could be criminalized under § 120.00(1).

Further, New York cases interpreting the statute contradict his assertion. See, e.g.,

People v. Henderson, 708 N.E.2d 165, 166 (N.Y. 1999) (“[P]etty slaps, shoves, kicks and

the like delivered out of hostility, meanness and similar motives[] are not within the

definition of the statute.” (citation omitted) (internal quotation marks omitted)); People v.

Martini, 309 N.Y.S.2d 831, 833 (N.Y. Crim. Ct. 1970) (explaining that under New York

Penal Law, “minor assaultive conduct or petty batteries, i.e. so-called ‘technical assaults,’

are now covered by the offense of harassment,” as opposed to the offense of third-degree

assault).

       In conclusion, we find the BIA’s determination reasonable. We defer to its

conclusion that § 120.00(1) is a crime of moral turpitude.

B. Maradiaga is ineligible for cancellation of removal notwithstanding §
1182(a)(2)’s petty-offense exception

       Maradiaga alternatively argues that, even if § 120.00(1) is categorically a crime

involving moral turpitude, he is still eligible for cancellation of removal because he was

not convicted of an “offense” within the meaning of § 1229b(b)(1)(C).

       To reiterate, § 1229b makes ineligible for cancellation of removal any noncitizen

that has been “convicted of an offense under section 1182(a)(2), 1227(a)(2), or
                                              8
1227(a)(3).” § 1229b(b)(1)(C) (emphasis added). The relevant “offense” in § 1182(a)(2)

is a crime involving moral turpitude. However, under § 1182(a)(2) an offense will not be

considered a crime involving moral turpitude if it meets the petty-offense exception. Id.

§ 1182(a)(2)(A)(ii)(II). A “petty offense” is one for which (1) the maximum penalty

possible does not exceed imprisonment for one year and (2) the noncitizen was not

sentenced to a term of imprisonment in excess of 6 months. Id.

       Maradiaga argues, correctly, that he was not convicted of an offense under §

1182(a)(2) because his offense fits the definition of a petty offense—the maximum

penalty for a § 120.00(1) conviction is one year of imprisonment, and Maradiaga

received three years’ probation.

       His second and related charge is that he was not convicted of an “offense” under §

1227(a)(2) because § 1227 applies to deportability not inadmissibility. That is, even

though § 1227(a)(2) includes crimes involving moral turpitude, and does not include §

1182(a)(2)’s petty-offense exception, Maradiaga believes that because § 1227(a)(2)’s

immigration requirements do not apply to him, he was not convicted of an “offense”

under that statute.

       The government argues that § 1229b(b)(1)(C) cross references only the offenses in

the listed sections, not the entirety of those sections, and that as long as Maradiaga was

convicted of an offense under any of the statutes listed—§ 1182(a)(2), § 1227(a)(2), or §

1227(a)(3)—he is ineligible for cancellation.

                                             9
       The BIA shares the government’s view. Relying on its reasoning in Matter of

Cortez, 25 I. & N. Dec. 301 (BIA 2010), in which it held that “offenses” in §

1229b(b)(1)(C) refers only to language specifically pertaining to the criminal offense in

the relevant statutes and not the immigration consequences therein, the BIA concluded

that Maradiaga was ineligible for cancellation of removal. Maradiaga recognizes that

Cortez contradicts his argument, but argues that it was wrongly decided.

       This dispute turns on the meaning of § 1229b(b)(1)(C). Thus, we apply the

analysis set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842–45 (1984). Under Chevron, we must first consider “whether Congress

has directly spoken to the precise question at issue.” 467 U.S. at 842. “If Congress has

done so, the inquiry is at an end; the court ‘must give effect to the unambiguously

expressed intent of Congress.’” FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 132 (2000) (quoting Chevron, 467 U.S. at 843). If we conclude that Congress has

not addressed the issue, that is, if the statute is ambiguous, we “must respect the agency’s

construction of the statute so long as it is permissible.” Id. (citing INS v. Aguirre-

Aguirre, 526 U.S. 415, 424 (1999)).

       Maradiaga argues, through implication, that § 1229b(b)(1)(C) is ambiguous

because he does not contend that the plain meaning of the statute supports his view and

instead advances canons of construction generally applied when statutory language is

unclear. We assume arguendo that § 1229b(b)(1)(C) is ambiguous and thus per Chevron,

                                              10
we consider whether the agency’s interpretation of the statute is reasonable.

       Thus, per Chevron, we consider whether the agency’s interpretation of the statute

is reasonable. We conclude that it is. In Matter of Cortez, the BIA explained that only

language specifically pertaining to the criminal offense is considered in determining

whether a noncitizen is eligible for cancellation of removal. Matter of Cortez, 25 I. & N.

Dec. at 307. The BIA supported this interpretation by reference to the “language and

design of the statute as a whole.” Id. at 308 (quoting K Mart Corp. v. Cartier, Inc., 486

U.S. 281, 291 (1988)). Specifically, because in other provisions of §1229b Congress

explicitly distinguishes between noncitizens rendered inadmissible under § 1182(a)(2)

and those rendered removable under § 1227, the BIA reasoned that, had Congress

intended to make such a distinction in § 1229b(b)(1)(C), it would have done so. The BIA

further explained that its interpretation did not depart from, and was supported by, its

previous holdings. Id. at 308–10.

       The BIA’s interpretation also accords with those of our sister circuits. See

Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004) (“The plain language

of § 1229b indicates that it should be read to cross-reference a list of offenses in three

statutes, rather than the statutes as a whole.”); Nino v. Holder, 690 F.3d 691, 697–98 (5th

Cir. 2012) (“Section 1229b(b)(1)(C), without ambiguity, references Section 1227(a)(2) in

order to identify the kinds of offenses that will make an alien ineligible for cancellation

of removal.”).

                                              11
       The agency’s interpretation was not “arbitrary, capricious, or clearly contrary to

the statute.” Knapik, 384 F.3d at 87 (quoting Cabral v. INS, 15 F.3d 193, 195 (1st Cir.

1994)). In light of these circuit opinions and the BIA’s reasoned consideration of the

issue, we defer to the BIA’s determination that § 1229b(b)(1)(C) refers only to the

criminal offenses of the relevant statutes, and not the immigration consequences therein.1

       Therefore, to determine whether Maradiaga is ineligible for cancellation of

removal under § 1229b(b)(1)(C), we look to whether Maradiaga was convicted of a crime

involving moral turpitude under any of the statutes listed in the provision. While

Maradiaga could be eligible for the petty-offense exception of § 1182(a)(2), his

conviction falls within the meaning of § 1227(a)(2). He was thus convicted of an

“offense” listed in § 1227(a)(2) and is ineligible for cancellation of removal pursuant to §

1229b.2 Cf. Gonzalez-Gonzalez, 390 F.3d at 652–53 (holding that an unadmitted


1
  We conclude that the agency’s interpretation is reasonable notwithstanding Maradiaga’s
argument that the rule of lenity requires us to resolve any lack of clarity in his favor.
Some courts have used the rule of lenity to support a conclusion that the BIA’s
interpretation of a statute is unreasonable. See Vargas v. INS, 938 F.2d 358, 363 (2d Cir.
1991) (declining to defer to the BIA because its interpretation “runs afoul of the rule that
lingering ambiguities in deportation statutes must be construed in favor of the alien”
(internal quotation marks omitted)). Here, given the BIA’s reasoned and detailed
analysis, and Maradiaga’s failure to advance any non-conclusory assertions challenging
the BIA’s view, we cannot conclude that the BIA’s interpretation is unreasonable even
though the rule of lenity might support an interpretation favorable to Maradiaga.
2
  Maradiaga also argues that he was not convicted of an offense under § 1227(a)(2)
because § 1227(a)(2) requires that the crime be committed within five years of admission
and he was never “admitted.” This argument also fails. As explained above, we defer to
the BIA’s conclusion that the term “offenses” in § 1229b(b)(1)(C) refers only to the
criminal offenses listed in the statutes and does not encompass language referring to
                                             12
noncitizen who was convicted of a crime of domestic violence—a conviction that renders

an admitted noncitizen deportable under § 1227(a)(2) but that does not render an

unadmitted noncitizen inadmissible under § 1182(a)(2)—was ineligible for cancellation

of removal because “[t]he plain language of § 1229b indicates that it should be read to

cross-reference a list of offenses in three statutes, rather than the statutes as a whole”).

                                       IV. Conclusion

       For the foregoing reasons, we will deny Maradiaga’s petition for review.




immigration consequences. That the crime be committed within five years of admission
is an immigration consequence, and as such does not inform our analysis. Cf. Matter of
Cortez, 25 I. & N. Dec. 301, 307 (BIA 2010) (noting that the “statutory language of
sections [1182(a)(2), 1227(a)(2), and 1227(a)(3)] pertaining only to aspects of
immigration law, such as the requirement that the alien’s crime be committed ‘within five
years . . . after the date of admission,’ is not considered”).
                                              13
