                                     PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                  No. 16-3625
                 _____________

     ROMAN ILDEFONSO-CANDELARIO,
                         Petitioner

                        v.

ATTORNEY GENERAL OF THE UNITED STATES OF
               AMERICA,
                           Respondent
            _______________

     On Petition for Review of an Order of the
       United States Department of Justice
         Board of Immigration Appeals
              (BIA 1:A208-443-783)
    Immigration Judge: Hon. Walter A. Durling
                _______________

              Argued June 12, 2017
     Before: JORDAN, KRAUSE, Circuit Judges and
               STEARNS *, District Judge.

                  (Filed: August 3, 2017)
                    _______________

Daniel B. Conklin [ARGUED]
The Shagin Law Group
120 South Street
The Inns of St. Jude
Harrisburg, PA 17101
      Counsel for Petitioner

Chad A. Readler
John S. Hogan
Brianne W. Cohen
Rebecca H. Phillips [ARGUED]
Stefanie A. Svoren-Jay
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
                    _______________


      *
        Honorable Richard G. Stearns, United States District
Court Judge for the District of Massachusetts, sitting by
designation.




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STEARNS, District Judge.

       Petitioner Roman Ildefonso-Candelario challenges a
ruling of the Board of Immigration Appeals (BIA) upholding
an Immigration Judge’s determination that he is statutorily
ineligible for cancellation of removal because of a prior
conviction for a crime involving moral turpitude. For the
following reasons, we will grant the petition and remand to
the BIA for further proceedings.

                       I. Background

       Ildefonso-Candelario, a citizen of Mexico, entered the
United States unlawfully, allegedly in 1996. In October of
2015, he pled guilty in Pennsylvania state court to a
misdemeanor count of obstructing the administration of law
or other governmental function. See 18 Pa. Cons. Stat.
§ 5101. The following March, Immigration and Customs
Enforcement (ICE) took Ildefonso-Candelario into custody,
charging him with being removable as a result of being an
alien present without admission or parole. See 8 U.S.C.
§ 1182(a)(6)(A)(i).     At his first hearing before the
Immigration      Judge,    Ildefonso-Candelario     conceded
removability on the basis of his prior unlawful entry, but
announced his intention to seek cancellation of removal. See
id. § 1229b(b)(1)(A)-(D). In response, counsel for ICE
suggested that Ildefonso-Candelario’s prior conviction might
qualify as a crime involving moral turpitude, 1 see id.

      1
         The word “turpitude” is a 15th-century borrowing
into the English language of the French “turpitude” or the
Latin “turpitudo,” meaning “base.”     Turpitude, Oxford
English Dictionary (2d ed. 1989); see, e.g., William




                             3
§ 1182(a)(2)(A)(i)(I), which would render him statutorily
ineligible for cancellation of removal, see id.
§ 1229b(b)(1)(C).

        Shortly thereafter, the Immigration Judge issued an
initial ruling holding that section 5101 was “categorically” a
crime involving moral turpitude. On the same day that the
Immigration Judge issued his ruling, ICE added a charge of
removability for committing a crime involving moral
turpitude against Ildefonso-Candelario.              See id.
§ 1227(a)(2)(i)(I). At his next hearing before the Immigration
Judge, Ildefonso-Candelario moved for reconsideration of the
Immigration Judge’s ruling on section 5101.               The
Immigration       Judge     rejected    Ildefonso-Candelario’s
arguments, again holding that section 5101 is categorically a
morally turpitudinous crime. The Immigration Judge then
ordered Ildefonso-Candelario removed to Mexico. Ildefonso-
Candelario took an appeal to the BIA.

       A single member of the BIA upheld the ruling “[f]or
the reasons given by the Immigration Judge.” App. at 4. This
timely petition followed. While the petition was pending, the
government moved to remand the matter to the BIA for
further consideration. That motion was referred to the merits
panel for our consideration.

                        II. Discussion



Shakespeare, Antony and Cleopatra act 4, sc. 6 (“I am alone
the villain of the earth, and feel I am so most. O Antony, thou
mine of bounty, how wouldst thou have paid my better
service, when my turpitude thou dost so crown with gold!”).




                              4
        When the BIA adopts an immigration judge’s decision
and reasoning, we review both rulings. See Quao Lin Dong v.
Att’y Gen., 638 F.3d 223, 227 (3d Cir. 2011). Whether an
offense is a crime involving moral turpitude is a question of
law subject to de novo review. See Javier v. Att’y Gen., 826
F.3d 127, 130 (3d Cir. 2016). Typically, we accord so-called
Chevron deference 2 to the BIA’s reasonable determination
that an offense is a turpitudinous crime. Mehboob v. Att’y
Gen., 549 F.3d 272, 275 (3d Cir. 2008). Here, however, the
government concedes that the BIA’s decision—a non-
precedential disposition issued by a single member—is not
entitled to Chevron deference. See Mahn v. Att’y Gen., 767
F.3d 170, 173 (3d Cir. 2014). In any event, we do not defer
to the BIA’s interpretation of criminal statutes. Mehboob,
549 F.3d at 275.

       To determine whether an offense involves moral
turpitude, the BIA and this court apply a categorical
approach. 3 See, e.g., Partyka v. Att’y Gen., 417 F.3d 408, 411
(3d Cir. 2005). Under the categorical approach, we examine
the elements of the offense “to ascertain the least culpable
conduct necessary to sustain [a] conviction under the statute.”
Jean-Louis v. Att’y Gen., 582 F.3d 462, 465-66 (3d Cir.
2009). A morally turpitudinous offense involves “conduct

      2
        The doctrine is derived from Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984).
      3
        The government does not suggest that section 5101 is
a divisible offense, which would permit application of the
modified categorical approach. See Chavez-Alvarez v. Att’y
Gen., 850 F.3d 583, 587-88 (3d Cir. 2017).




                              5
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 v.
Ashcroft, 384 F.3d 84, 89 (3d Cir. 2004). “[T]he hallmark of
moral turpitude is a reprehensible act committed with an
appreciable level of consciousness or deliberation.” Partyka,
417 F.3d at 414. If an offense can be committed without
rising to this level of depravity, it is not categorically a crime
involving moral turpitude. See Mahn, 767 F.3d at 174.

      Section 5101, the Pennsylvania statute at issue,
provides:

       A person commits a misdemeanor of the second
       degree if he intentionally obstructs, impairs or
       perverts the administration of law or other
       governmental function by force, violence,
       physical interference or obstacle, breach of
       official duty, or any other unlawful act, except
       that this section does not apply to flight by a
       person charged with crime, refusal to submit to
       arrest, failure to perform a legal duty other than
       an official duty, or any other means of avoiding
       compliance with law without affirmative
       interference with governmental functions.

The Immigration Judge and the BIA analogized the statute to
those considered in a line of BIA decisions addressing
convictions for fraudulently and deliberately obstructing
governmental functions. In Matter of Flores, 17 I. & N. Dec.
225 (BIA 1980), the BIA concluded that a conviction for
falsifying immigration papers, 18 U.S.C. § 1426(b), qualified
as a crime of moral turpitude. As the BIA observed, “crimes




                                6
in which fraud [is] an ingredient have always been regarded
as involving moral turpitude.” Id. at 228 (quoting Jordan v.
De George, 341 U.S. 223, 232 (1951)). Because the offense
at issue in Matter of Flores required that an offender “impair
or obstruct an important function of a department of the
government by defeating its efficiency or destroying the value
of its lawful operations by deceit, graft, trickery, or dishonest
means,” id. at 229, and that the offender have knowledge of
the counterfeit nature of the papers, the BIA held that
“fraudulent conduct is implicit in the statute,” id. at 230. The
BIA subsequently relied on Matter of Flores in holding that a
conviction under a Pennsylvania statute forbidding making
written false statements to government officials “with intent
to mislead a public servant in performing his official
function,” 18 Pa. Cons. Stat. § 4904(a), also involved moral
turpitude. Matter of Jurado-Delgado, 24 I. & N. Dec. 29, 33-
35 (BIA 2006). In such cases, “it is the intent to mislead that
is the controlling factor.” Id. at 35.

       The problem with this analogy is that section 5101
encompasses non-fraudulent as well as fraudulent conduct,
such as obstruction by “physical interference or obstacle.”
The Immigration Judge recognized the breadth of this
monition, but concluded that the fact that a perpetrator
“intentionally obstructs, impairs or perverts the administration
of law or other governmental function” categorically
incorporates morally turpitudinous conduct.          The BIA
adopted this reasoning, citing Matter of Jurado-Delgado for
the proposition that “the ‘controlling factor’ is the intent to
obstruct, impair, or pervert the lawful operations of
government.” App. at 5.




                               7
       This interpretation is unsupportable. To begin, as the
government concedes, Matter of Jurado-Delgado focused on
the intent to mislead, not the mere intent to obstruct. 24 I. &
N. Dec. at 35. Thus, the intent to impair or obstruct
governmental functions, standing alone, is not morally
turpitudinous under the BIA’s decisions; the obstruction must
occur “by deceit, graft, trickery, or dishonest means.” 4 Id.

       With that bedrock interpretative principle in mind,
section 5101 plainly sweeps in conduct which does not
involve fraudulent or deceptive efforts to hinder government
action. Nothing in the text of the statute requires fraudulent
or otherwise deceptive conduct as a necessary element of
committing the offense. Applications of the statute in state
cases confirm this reading.           In Commonwealth v.
Mastrangelo, for example, a defendant was convicted under
section 5101 after shouting profanities and insults at a “meter
maid” who ticketed his car, intimidating her from patrolling
the street where defendant’s business was located for
approximately a week. 414 A.2d 54, 55-56 (Pa. 1980). The
defendant’s “course of disorderly conduct,” the Pennsylvania
Supreme Court held, “intentionally obstructed a meter maid
from carrying out her lawful duties.” Id. at 60. Similarly, in
Commonwealth v. Ripley, the Superior Court concluded that
section 5101 covered the actions of protestors who used
“lock-boxes” to link themselves together to block an

      4
          We note that this understanding of the BIA’s
precedents and the definition of moral turpitude accords with
other Circuits that have addressed statutes involving
obstruction, perjury, or false statements. See Flores-Molina
v. Sessions, 850 F.3d 1150, 1171-72 (10th Cir. 2017)
(collecting cases).




                              8
intersection and “physically obstruct lawful police efforts to
ensure that public streets were free from obstruction.” 833
A.2d 155, 161 (Pa. Super. 2003). The locks “interfere[d] with
police efforts to disperse the protest” and were covered “in tar
and chicken wire, for the sole purpose of slowing down police
efforts to disassemble the human chain.” Id.

       The list of examples could go on. Further discussion
would be largely supererogatory, however, because the
government admits that section 5101 cannot categorically be
a crime involving moral turpitude under Matter of Flores and
Matter of Jurado-Delgado. Whatever may be said of the
examples offered of conduct prosecuted under section 5101,
neither involves fraud or the obstruction of governmental
functions “by deceit, graft, trickery, or dishonest means.” 5
Matter of Flores, 17 I. & N. Dec. at 229.

       5
         Ildefonso-Candelario devotes much of his brief to the
proposition that minor assaults on law enforcement officers
generally do not involve moral turpitude unless “there is
deliberate conduct and an aggravating factor,” such as the use
of a deadly weapon, Partyka, 417 F.3d at 415, or an element
of intentionally inflicted bodily injury, see Matter of Danesh,
19 I. & N. Dec. 669, 673 (BIA 1988). No such aggravating
factor is required under section 5101.               See, e.g.,
Commonwealth v. Love, 896 A.2d 1276, 1283-85 (Pa. Super.
2006) (affirming a conviction under section 5101 for pushing
a courtroom bailiff who was attempting to quiet defendant’s
wife). The government, however, does not attempt to defend
the decisions below on this ground, acknowledging in its brief
that any physical obstacle can suffice, and that the “physical
obstruction need not be forceful or violent.” Resp’t Br. at 16
n.3.




                               9
       Instead of defending the conclusion that section 5101
is categorically a crime involving moral turpitude, the
government requests a remand without decision to permit the
BIA to reconsider its position in the matter. See Ren v.
Gonzales, 440 F.3d 446, 448 (7th Cir. 2006); see generally
SKF USA Inc. v. United States, 254 F.3d 1022, 1027-30 (Fed.
Cir. 2001) (outlining approaches to agency remand requests).
The government points out that the BIA is generally entitled
to Chevron deference for reasonable interpretations of
ambiguous terms, Mehboob, 549 F.3d at 275, and theorizes
that the BIA might conjure up an interpretation of the term
“moral turpitude” enabling a conclusion that section 5101
categorically involves “conduct that is inherently base, vile,
or depraved,” Knapik, 384 F.3d at 89.

        Yet the government has been unable, either in its brief
or at oral argument, to articulate any understanding of the
phrase “crime involving moral turpitude” that could plausibly
encompass section 5101. This is not because of a failure of
imagination. It instead reflects the simple fact that there is no
conceivable way to describe the least culpable conduct
covered by section 5101 — such as the illegal but nonviolent
political protest described in Ripley — as inherently vile, or
as “a reprehensible act committed with an appreciable level of
consciousness or deliberation.” Partyka, 417 F.3d at 414.
Moreover, no “emerging case law,” Ren, 440 F.3d at 448,
involving either section 5101 or the definition of moral
turpitude in other contexts calls for giving the BIA a second
bite at the apple. See Jean-Louis, 582 F.3d at 469 (declining
to remand where the relevant legal materials, including BIA
decisions, “lead[] inexorably to the conclusion” that an
offense is not morally turpitudinous).




                               10
       Under the circumstances, we see no reason for
remanding without correcting the legal error apparent on the
face of the petition. See Mayorga v. Att’y Gen., 757 F.3d
126, 134 (3d Cir. 2014); cf. City of Arlington v. FCC, 133 S.
Ct. 1863, 1874 (2013) (“[W]here Congress has established an
ambiguous line, the agency can go no further than the
ambiguity will fairly allow.”).         We thus deny the
government’s request for a voluntary remand and hold that 18
Pa. Cons. Stat. § 5101 is not categorically a crime involving
moral turpitude.

                       III. Conclusion

      For the foregoing reasons, we will grant Ildefonso-
Candelario’s petition and remand to the BIA for further
proceedings consistent with this opinion.




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