                                    PRECEDENTIAL



      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                   No. 13-3288
                  _____________

       LUIS ALBERTO HERNANDEZ-CRUZ,
                           Petitioner

                         v.

     ATTORNEY GENERAL OF THE UNITED
           STATES OF AMERICA,
                            Respondent
               ____________

       On Petition for Review of an Order of the
           Board of Immigration Appeals
            (Agency No. A089-239-559)
     Immigration Judge: Hon. Rosalind K. Malloy

               Argued: June 24, 2014

Before: FUENTES, GREENAWAY, JR., and NYGAARD,
                  Circuit Judges.

         (Opinion Filed: September 4, 2014)




                         1
Jamie Jasso, Esq. [ARGUED]
Law Offices of Jaime Jasso
The Westlake Office
P.O. Box 3664
Westlake Village, CA 91359-0664

      Attorney for Petitioner

Stuart F. Delery, Esq.
Shelley R. Goad, Esq.
Regina Byrd, Esq.
Katharine E. Clark, Esq. [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

      Attorneys for Respondent
                      ____________

                OPINION OF THE COURT
                     ____________

FUENTES, Circuit Judge:

       Luis Alberto Hernandez-Cruz petitions for review of
his final order of removal. In his petition to this Court,
Hernandez-Cruz argues that his Pennsylvania conviction for
child endangerment does not constitute a crime involving
moral turpitude (“CIMT”) because his statute of conviction
“may be violated without implicating conduct that the Board .
. . has defined as—inherently base, vile, or depraved.”




                                2
Petitioner’s Br. 10. We agree. Applying the categorical
approach, we conclude that the least culpable conduct
criminalized under Pennsylvania’s child endangerment statute
does not implicate moral turpitude. Therefore, we grant the
petition for review and remand to the BIA for further
proceedings consistent with this opinion.

           I. Factual and Procedural Background

       Hernandez-Cruz, a thirty-four year-old citizen of
Mexico, entered the United States without inspection in 1998.
Eleven years later, he pled guilty in the Court of Common
Pleas of Lebanon County, Pennsylvania to simple assault, in
violation of 18 Pa. Cons. Stat. Ann. § 2701(a)(1), and
endangering the welfare of a child, in violation of 18 Pa.
Cons. Stat. Ann. § 4304(a)(1). The charges stemmed from an
incident in which Hernandez-Cruz struck his stepson, who
was ten years old at the time.

       A few months after Hernandez-Cruz’s guilty plea, the
Department of Homeland Security (“DHS”) issued a Notice
to Appear, charging that he was removable as an alien present
in the United States without being admitted or paroled. See
Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8
U.S.C. § 1182(a)(6)(A)(i). DHS later filed additional charges,
alleging that Hernandez-Cruz was removable as an alien
convicted of a CIMT. See INA § 212(a)(2)(A)(i)(I), 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). These additional charges were based on
his convictions for simple assault and child endangerment.
Hernandez-Cruz conceded removability as an alien present in
the United States without being admitted or paroled, but
denied removability as an alien convicted of a CIMT.




                              3
       Hernandez-Cruz subsequently applied for cancellation
of removal as a nonresident. During his removal proceedings,
Hernandez-Cruz testified in support of his application for
cancellation of removal and asserted that he believed his
United States citizen children would experience exceptional
and extremely unusual hardship upon his removal.

       The Immigration Judge concluded that Hernandez-
Cruz was removable as an alien present in the United States
without being admitted or paroled. See INA § 212(a)(6)(A)(i).
The IJ also held that Hernandez-Cruz was removable as an
alien convicted of a CIMT. See INA § 212(a)(2)(A)(i)(I).
With respect to the latter ground of removability, the IJ
determined that Hernandez-Cruz’s Pennsylvania conviction
for simple assault, in violation of 18 Pa. Cons. Stat. Ann.
§ 2701(a)(1), was not a CIMT because Pennsylvania’s simple
assault statute “does not include an aggravating factor.” AR
23. However, the IJ held that his conviction for child
endangerment, in violation of 18 Pa. Cons. Stat. Ann.
§ 4304(a)(1), constituted a CIMT because the statute requires
“awareness by the accused that his violation of his duty of
care, protection and support, is practically certain to result in
the endangerment to his children’s welfare.” AR 24-25.

      Having determined that Hernandez-Cruz was
convicted of a CIMT, the IJ concluded that Hernandez-Cruz
was statutorily ineligible for cancellation of removal and
denied his application.1 The IJ noted, however, that

1
       To qualify for cancellation of removal as a
nonpermanent resident, an alien must demonstrate that: (A)
he has maintained continuous physical presence in the United
States for at least ten years before his application for




                               4
Hernandez-Cruz had successfully established that his removal
would result in extreme and unusual hardship to his children,
as is required for cancellation of removal. The IJ made clear
that, had Hernandez-Cruz not been convicted of a CIMT, “the
Court would find that [he] is statutorily eligible for the relief
of cancellation of removal, and, as a matter of discretion,
would grant [his] application.” AR 27.

       Hernandez-Cruz appealed the decision to the BIA. In a
written opinion, the BIA affirmed the IJ’s ruling that
Hernandez-Cruz’s Pennsylvania simple assault conviction
was not a CIMT. The BIA also affirmed the IJ’s
determination that his Pennsylvania conviction for child
endangerment qualified as a CIMT. The BIA agreed with the
IJ that, because Hernandez-Cruz had been convicted of a


cancellation; (B) he has been a person of good moral
character during this same period; (C) he has not been
convicted of particular criminal offenses; and (D) his
“removal would result in exceptional and extremely unusual
hardship to [his] spouse, parent, or child, who is a citizen of
the United States or an alien lawfully admitted for permanent
residence.” INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1)
(eligibility requirements for nonpermanent residents).
        As to the criminal offenses that bar cancellation of
removal under INA § 240A(b)(1)(C), a nonpermanent
resident applicant must show that he has not been
convicted of an offense under INA § 212(a)(2), 8 U.S.C. §
1182(a)(2); INA § 237(a)(2), 8 U.S.C. § 1227(a)(2); or INA §
237(a)(3), 8 U.S.C. § 1227(a)(3). The relevant provision in
this case is INA § 212(a)(2)(A)(i)(I), 8 U.S.C. §
1182(a)(2)(A)(i)(I), which renders inadmissible “any alien
convicted of . . . a crime involving moral turpitude.”




                               5
CIMT, he was statutorily ineligible for cancellation of
removal. Accordingly, the BIA dismissed Hernandez-Cruz’s
appeal. Hernandez-Cruz timely filed a petition for review.2

                    II. Standard of Review

       “Where, as here, the BIA issues a written decision on
the merits, we review its decision and not the decision of the
IJ.” Bautista v. Att’y Gen., 744 F.3d 54, 57 (3d Cir. 2014).
This Court reviews the BIA’s conclusions of law de novo
subject to the principles of deference set forth in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 844 (1984). See Bautista, 744 F.3d at 58. “Chevron
teaches us to defer to the BIA’s determination that a certain
crime involves moral turpitude when that determination is
reasonable.” Mehboob v. Att’y Gen., 549 F.3d 272, 276 (3d
Cir. 2008) (citing Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir.
2004)). However, we do not accord deference to the BIA’s
interpretation of criminal statutes. See Knapik, 384 F.3d at 88.
Rather, we review the agency’s interpretation of criminal
statutes de novo. See id.

                    III.   Legal Background

       The INA does not define the term “moral turpitude.”
However, both the BIA and this Court have defined morally
turpitudinous conduct 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. It is well-settled

2
  We have jurisdiction to review the BIA’s final order of
removal pursuant to 8 U.S.C. § 1252(a).




                               6
that “the hallmark of moral turpitude is a reprehensible act
committed with an appreciable level of consciousness or
deliberation.” Partyka v. Att’y Gen., 417 F.3d 408, 414 (3d
Cir. 2005). Additionally, it “is the nature of the act itself and
not the statutory prohibition of it which renders a crime one
of moral turpitude.” Totimeh v. Att’y Gen., 666 F.3d 109, 114
(3d Cir. 2012) (internal quotation marks omitted).

        We apply the categorical approach to determine
whether a conviction constitutes a CIMT. See Jean-Louis v.
Att’y Gen., 582 F.3d 462, 465-66 (3d Cir. 2009). The
categorical approach requires courts to “compare the elements
of the statute forming the basis of the defendant’s conviction
with the elements of the ‘generic’ crime—i.e., the offense as
commonly understood.” Descamps v. United States, 133 S.
Ct. 2276, 2281 (2013). In assessing whether a conviction
qualifies as a CIMT, we consider hypothetical conduct
criminalized under the statute at issue. See Jean-Louis, 582
F.3d at 471. Specifically, “we look to the elements of the
statutory offense to ascertain the least culpable conduct
hypothetically necessary to sustain a conviction under the
statute.” Id. (citing Partyka, 417 F.3d at 411). The
“possibility of conviction for non-turpitudinous conduct,
however remote, is sufficient to avoid removal.” Id.

                           IV. Analysis

      The BIA unreasonably concluded that the least
culpable conduct punishable under Pennsylvania’s child
endangerment statute implicates moral turpitude. Under
Pennsylvania law, “[a] parent, guardian or other person
supervising the welfare of a child under 18 years of age, or a
person that employs or supervises such a person, commits an




                               7
offense if he knowingly endangers the welfare of the child by
violating a duty of care, protection or support.” 18 Pa. Cons.
Stat. Ann. § 4304(a)(1). To sustain a conviction under
§ 4304(a)(1), a defendant must both knowingly endanger the
child’s welfare and knowingly violate a duty of care. See
Commonwealth v. Retkofsky, 860 A.2d 1098, 1099-1100 (Pa.
Super. Ct. 2004); Commonwealth v. Chapman, 763 A.2d 895,
900 (Pa. Super. Ct. 2000).

       In its decision below, the BIA held that a conviction
under § 4304(a)(1) constitutes a CIMT because the statute’s
“‘knowingly’ scienter requirement is coupled with [an]
aggravating factor,” namely “endangerment to a child with
whom the defendant has a special relationship and duty to
protect.” AR 4. The BIA reasoned that the fact “the offender
had to know that the victim was a child whom he was charged
to protect” means “the offense reflected the requisite degree
of depravity and thus constitutes a CIMT.” Id. To the
contrary, the combination of a knowing mens rea and the
violation of a duty of care owed to a child, without anything
more, does not necessarily implicate moral turpitude.

       While § 4304(a)(1) requires a knowing mens rea, it
criminalizes a broad swath of conduct because it “imposes a
duty on parents and other caretakers to not risk any kind of
harm, not just bodily injury, to a minor child in his or her
care.” Commonwealth v. Coppedge, 984 A.2d 562, 563 (Pa.
Super. Ct. 2009) (emphasis added). The statute “does not
require the actual infliction of physical injury. Nor does it
state a requirement that the child or children be in imminent
threat of physical harm.” Commonwealth v. Wallace, 817
A.2d 485, 491 (Pa. Super. Ct. 2002). Moreover,
Pennsylvania’s child endangerment statute even prohibits




                              8
omissions to act. See Commonwealth v. Cardwell, 515 A.2d
311, 315 (Pa. Super. Ct. 1986) (“We conclude that a parent’s
duty to protect his or her child requires affirmative
performance to prevent harm and that failure to act may mean
that the parent ‘knowingly endangers the welfare of the
child.’” (quoting § 4304(a)(1)).

        There are countless examples of non-turpitudinous
conduct that could be criminalized under § 4304(a)(1).
Hernandez-Cruz poses two examples of such conduct. In the
first, an individual exceeds the speed limit by 5 mph while
transporting a child passenger to whom he owes a duty of
care. See Reply Br. 5. In the second, an individual slows
down, but fails to stop completely at a stop sign, while
transporting a child passenger to whom he owes a duty of
care. See id. at 5-6. In both examples, if the individual acts
with a knowing mens rea, the conduct is punishable under
§ 4304(a)(1) because the individual has knowingly
endangered a child’s welfare by violating a duty of care.
However, neither example involves conduct that is
“inherently base, vile, or depraved, contrary to the accepted
rules of morality.” See Knapik, 384 F.3d at 89. Similarly, a
father could knowingly endanger his son’s welfare and
violate his duty of care by leaving his son alone in the car for
five minutes. A mother also could knowingly endanger her
10-year-old daughter’s welfare and violate her duty of care by
leaving her daughter unattended in the swimming pool for ten
minutes. Leaving a child alone in the car or unattended in the
swimming pool for a few minutes might be poorly advised,
but it is not “inherently base, vile, or depraved.” Contra
Totimeh, 666 F.3d at 116 (“Sexual assault, child abuse, and
spousal abuse are no doubt inherently vile and elicit strong
outrage.”).




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        When making a CIMT determination, “proof of actual
application of the statute of conviction to the conduct asserted
is unnecessary.”Jean-Louis, 582 F.3d at 471. Nevertheless, it
is instructive to consider cases in which Pennsylvania courts
have upheld convictions under § 4304(a)(1) in the absence of
morally turpitudinous conduct. In Coppedge, for example, the
Pennsylvania Superior Court sustained a § 4304 conviction
based on evidence that a mother scalded her three-year-old
daughter in hot bath water, causing the girl to suffer second-
and third-degree burns. 984 A.2d at 562. The court in
Coppedge held that a parent’s failure to check the water
temperature before placing her child in a bathtub is
punishable under § 4304(a)(1), reasoning that “[i]t is
impossible to place one’s own child in scalding hot bath
water . . . without knowingly violating a duty of care by not
checking the water before placing the child in the tub.” Id. at
563. In another case, the Superior Court upheld a § 4304
conviction based on evidence that the defendant allowed his
children to live with filth and vermin in a dilapidated home
with no working furnace for heat and with water running into
the electrical box, thereby creating a fire hazard. See Wallace,
817 A.2d at 492. In affirming the conviction, the court
explained that the defendant’s “inaction clearly endangered
his children’s welfare.” Id. Clearly, there is nothing
“inherently base, vile, or depraved” about failing to check
bath water before placing a child in a tub nor is there anything
“inherently base, vile, or depraved” about exposing children
to filthy living conditions. See Knapik, 384 F.3d at 89.

       Because the least culpable conduct necessary to sustain
a conviction under § 4304(a)(1) does not implicate moral
turpitude, Hernandez-Cruz’s child endangerment conviction




                              10
does not qualify as a CIMT. The BIA went “beyond the
bounds of reasonableness” in concluding otherwise. See
Knapik, 384 F.3d at 90 (quoting Franklin v. INS, 72 F.3d 571,
573 (8th Cir. 1995)). Therefore, we grant Hernandez-Cruz’s
petition for review and reverse the BIA’s CIMT
determination. Our grant of the petition directly affects the
BIA’s ruling with respect to Hernandez-Cruz’s eligibility for
cancellation of removal, since the BIA held that he was
statutorily ineligible for cancellation based on his conviction
for a CIMT. Accordingly, we remand the case to the BIA for
further proceedings because the Board still needs to address
whether Hernandez-Cruz satisfies the other criteria required
for cancellation of removal. See INA § 240A(b)(1), 8 U.S.C.
§ 1229b(b)(1) (eligibility requirements for nonpermanent
residents).

                         V. Conclusion

       Pennsylvania’s child endangerment statute prohibits a
broad range of conduct. Since the least culpable conduct
punishable under § 4304(a)(1) is not morally turpitudinous,
Hernandez-Cruz’s child endangerment conviction does not
constitute a CIMT. Therefore, we grant the petition for review
and remand for further proceedings.




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