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


4-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1952




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                                                    NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                          No. 05-1952
                         ____________

                     GHULAM MEHBOOB,

                                Petitioner

                                v.

     ATTORNEY GENERAL OF THE UNITED STATES;
 SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,

                                Respondents
                         ____________

                 On Petition for Review from an
            Order of the Board of Immigration Appeals
                    (Board No. A 46 188 944)
               Immigration Judge Grace A. Sease
                          ____________

            Submitted Under Third Circuit LAR 34.1(a)
                       February 13, 2006

Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.

                     (Filed: April 14, 2006)
                         ____________

                   OPINION OF THE COURT
                        ____________
FISHER, Circuit Judge.

       This case requires us to decide whether a crime with no mens rea requirement may

reasonably be said to involve “moral turpitude.” We hold that the Board of Immigration

Appeals, the agency charged with making that determination in the first instance, has not

explained itself sufficiently for us to evaluate its reasoning. We will accordingly vacate

the Board’s decision and remand for reconsideration and a fuller explanation.

                                             I.

                                            A.

       Ghulam Mehboob is a lawful permanent resident who has lived in the United

States since 1997. In 2001, he was convicted of misdemeanor indecent assault under

Pennsylvania law, 18 Pa. Cons. Stat. § 3126, and sentenced to two years’ probation and a

fine of $146. In September of 2004, the Department of Homeland Security initiated

removal proceedings against him under 8 U.S.C. § 1227(a)(2)(A)(i), which provides for

the deportation of aliens who commit crimes “involving moral turpitude.”1 Immigration

Judge Grace Sease determined that Mehboob was removable, and the Board of



       1
        The Notice To Appear alleging removability under § 1227(a)(2)(A)(i) is dated
September 9, 2004. (App. 48.) Another Notice To Appear, dated July 12, 2002, see App.
46, but not apparently served on Mehboob until August 6, 2004 (App. 47), alleged
removability under §§ 1101(a)(43)A) (aggravated felony) and 1227(a)(2)(E)(i) (child
abuse). The Board did not decide whether those provisions justified removal, basing its
ruling solely on § 1227(a)(2)(A)(i). (A.R. 3) (BIA decision) (“Because respondent is
removable on this charge, we need not express an opinion as to whether the crime would
also support the ‘aggravated felony’ and ‘crime of child abuse’ charges pending against
him.”). Because the Board did not rule on the other charges, they are not before us here.

                                             2
Immigration Appeals affirmed in an unpublished per curiam opinion. We have

jurisdiction under 8 U.S.C. § 1252. Dia v. Ashcroft, 353 F.3d 228, 234 (3d Cir. 2003).

                                            II.

                                            A.

       When we assess the effects of prior convictions on an immigrant’s legal status

under the INA, we do not consider the immigrant’s actual conduct; we look instead only

to the statute of conviction and ascertain the least culpable conduct which could support a

conviction under that statute. Partyka v. Attorney Gen., 417 F.3d 408, 411-12 (3d Cir.

2005). When an immigrant is convicted under a statute with several divisible provisions,

we consider only the provision or provisions under which he was convicted, see id. at

411; In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999), and, if more than one provision is

applicable, we identify the least culpable conduct that could support conviction under any

of them. Partyka, 417 F.3d at 411. We look to state law to ascertain the elements of state

crimes. Id.; Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004).

                                            B.

       Under current BIA caselaw as construed by controlling precedent in this Circuit,

the set of crimes “involving moral turpitude” for purposed of the INA is determined with

reference to the mens rea required for conviction, Partyka, 417 F.3d at 413 (citing In re

Khourn, 21 I. & N. Dec. 1041, 1046 (BIA 1997); In re Flores, 17 I. & N. Dec. 225, 227

(BIA 1980), and the threshold condition for moral turpitude under § 1227 is a mens rea of



                                             3
at least recklessness; crimes requiring proof of negligence or lesser mens rea are not

crimes of moral turpitude under the INA. Id. at 414-16.

                                                C.

       Under Pennsylvania law, a person is guilty of indecent assault if he or she “has

indecent contact with the complainant or causes the complainant to have indecent contact

with the person” and one of several triggering conditions is met, including, relevant to

this case, that “the person does so without the complainant’s consent,” 18 Pa. Cons. Stat.

§ 3126(a)(1), or that “the complainant is less than 16 years of age and the person is four

or more years older than the complainant and the complainant and the person are not

married to each other,” id. § 3126(a)(8).2 Indecent contact is defined as “any touching of

the sexual or other intimate parts of the person for the purpose of arousing or gratifying

sexual desire, in either person.” Id. § 3101.

       Mehboob’s conviction implicates the two subparagraphs of § 3126 noted above,

(a)(1) and (a)(8). The element common to the two provisions, “indecent contact,”

requires a mens rea of purpose, as is clear from the definition quoted above. Physical

contact is not “indecent” unless undertaken “for the purpose” of sexual gratification. Id.


       2
         The other triggering conditions are: the use of forcible compulsion, 18 Pa. Cons.
Stat § 3126(a)(2); the threat of forcible compulsion, id. § 3126(a)(3); that the complainant
is unconscious or unaware of the contact, id. § 3126(a)(4); the use of intoxicants to impair
the complainant’s control over her conduct, id. § 3126(a)(5); that the complainant suffers
from a mental disability rendering her incapable of consent, id. § 3126(a)(6); or that the
complainant is under thirteen, id. § 3126 (a)(7). Neither Mehboob nor the government
contend that any of these other conditions apply; therefore we will focus, as do the
parties, on (a)(1) and (a)(8).

                                                4
§ 3101. The provisions differ, however, in the “triggering conditions” necessary for

liability: subsection (a)(1) involves the complainant’s consent, while subsection (a)(8)

involves the complainant’s age.

       As to subsection (a)(1), the Pennsylvania courts have held that it contains an

implied mens rea requirement of recklessness. The state must prove that the defendant

was at least reckless with respect to the complainant’s lack of consent. Commonwealth v.

Carter, 418 A.2d 537, 541 (Pa. Super. Ct. 1980) (“In the present case, appellant was not

charged with subsection (2) but with subsection (1) and for the reasons above, the proper

element of intent is not ‘knowing’ but at least recklessness. . . . [A]t a minimum,

recklessness [must] be established before the evidence is sufficient for a guilty verdict.”);

see also Commonwealth v. Thomson, 673 A.2d 357, 359 (Pa. Super. Ct. 1996)

(reaffirming holding in Carter).

       As to subsection (a)(8), the Pennsylvania courts have held that, “[t]o prove the

crime of indecent assault, the Commonwealth must prove all the elements provided for in

18 Pa.C.S. § 3126.” Commonwealth v. Morales, 40 Pa. D. & C. 4th 456, 462 (1998).

Those elements, as noted above, are limited to the contact itself, the complainant’s age,

and the age difference between the defendant and the complainant. Mens rea is not a

statutory element of (a)(8), nor – in contradistinction to subsection (a)(1) – has any




                                              5
mental state of the defendant been held by the courts to be implicitly required for

conviction.3

       Unlike subsection (a)(1), therefore, which requires recklessness, subsection (a)(8)

defines a strict liability offense. The elements of (a)(8) do not include the defendant’s

mental state, and therefore the least culpable conduct that could support a conviction

under (a)(8) is conduct without any culpable mental state at all, not even negligence.

       The least culpable conduct reached by § 3126, in other words, is factually

consensual sexual contact between an adult defendant and an underage complainant

whom the defendant honestly and reasonably believes to be an adult. Such a defendant

may be convicted under subsection (a)(8) without having any knowledge that he had

engaged in the prohibited conduct.4 In these circumstances, mens rea would appear to be

absent, and thus, under Board precedent, so would moral turpitude.




       3
         Pennsylvania law does provide a “mistake of age” defense to indecent assault.
Section 3102 provides that “[w]hen criminality depends on the child’s being below a
critical age older than 14 years, it is a defense for the defendant to prove by a
preponderance of the evidence that he or she reasonably believed the child to be above
the critical age.” 18 Pa. Cons. Stat. § 3102. However, the existence of a separate
statutory or common law defense (which only underscores the lack of a mens rea
requirement as to the age element) is irrelevant to our “least culpable conduct” test, which
is restricted to the elements of the crime, and concerns only the minimum set of facts the
government must make out to secure a conviction.
       4
        We emphasize that the relevant knowledge is knowledge of fact, not of law. It is
not that the defendant intended to engage in sexual contact with a minor but didn’t know
that such contact was prohibited, but rather that the defendant didn’t intend to engage in
sexual contact with a minor at all.

                                             6
       It therefore makes a difference to any assessment of the moral turpitude inherent in

Mehboob’s § 3126 conviction whether he was convicted under (a)(1) or (a)(8). However,

the criminal complaint, which is the only record evidence of the charging provision,

references “Section 3126” without specification of a subsection. The complaint’s

description of “acts committed by the accused” reads: “The defendant unlawfully

engaged in indecent contact with the complainant, age 15, a customer in [Mehboob’s]

store, by pinching her cheek and touching her breast.” The Board’s opinion also does not

specify a particular charging provision, instead characterizing the offense as “defined by

reference to nonconsensual or otherwise abusive sexual contact.” This characterization

obfuscates the distinction between (a)(1) and (a)(8), a distinction which could be

dispositive in this case, because the two provisions require different levels of mens rea.

       The Board’s explanation is, in its entirety, as follows:

       We are satisfied that the respondent’s crime, which is defined by reference
       to nonconsensual or otherwise abusive sexual contact, is one in which moral
       turpitude necessarily inheres. See, e.g., Maghsoudi v. INS, 181 F.3d 8,
       14-15 (1st Cir. 1999) (indecent assault under Massachusetts law is a crime
       involving moral turpitude); Matter of Z-, 7 I. & N. Dec. 253 (BIA 1956)
       (indecent assault under Connecticut law is a crime involving moral
       turpitude). We note in particular that because the respondent’s offense
       involved sexually abusive conduct it is not comparable to the conventional
       “assault” crime at issue in Matter of Fualaau, 21 I. & N. Dec. 475 (BIA
       1996).

       This is not much to work with, and the cited cases are no help. The decision in

Maghsoudi relied on the consent element, see 181 F.3d at 15 (“Given that lack of consent

was an element of the crime to which Maghsoudi pleaded guilty, a determination that the


                                              7
crime involved moral turpitude is consistent with earlier Board determinations.”), and in

Matter of Z- the statute penalized the acts themselves, which were criminal regardless of

consent and regardless of the complainant’s age, 7 I. & N. Dec. at 254 (“[C]onsent is no

defense; and . . . in view of the nature of the offense, it might well be questioned whether

consent would justify a disregard of the invasion of the public welfare and morality of the

state which would be caused by the acts forbidden, even in the absence of the statutory

provision.”). In both cases, the act the defendant intended to commit was itself forbidden

(indeed, in Matter of Z-, it could not even be named). By contrast, no intention to touch

an underage person is required or implied by conviction under (a)(8). The least culpable

conduct that could support conviction under § 3126 (a)(8) involves intent to engage in

perfectly legal activity.

       The third case, Fualaau, cuts against the Board’s decision in this case, and the

Board’s cursory attempt at distinguishing it fails to impress. In Fualaau, the Board, in

holding that an assault conviction did not involve moral turpitude, stated explicitly that

“an analysis of an alien’s intent is critical to a determination regarding moral turpitude.”

21 I. & N. Dec. at 478. The Board found turpitude lacking even though a mens rea of

recklessness was an element of the offense, because the actus reus did not involve

“serious bodily injury.” Id. It is not self-evident to us that the statute at issue in that case

is “not comparable” to the statute at issue in this one, and the Board has failed to supply

an argument supporting that assertion.



                                               8
       We may surmise that in analyzing § 3126, the Board was thinking only about

(a)(1) and not (a)(8). Under Pennsylvania law, as we have seen, (a)(1) requires a mens

rea of recklessness. Perhaps the Board reasoned that any nonconsensual sexual touching

is infliction of “serious bodily injury,” and that the statute thus links mens rea and actus

reus as contemplated in Fualaau. This sort of rationale might be properly applied to

(a)(1), but it has no application to (a)(8), which has no mens rea requirement at all. The

Board’s opinion simply does not address (a)(8).

       Such an inadequate analysis does not make for satisfactory lawmaking, and it is

unredeemed by the briefs on appeal. Both parties focus their arguments on (a)(1), the

consent provision, and neither side addresses what for us is the crucial question: whether

a strict liability offense such as (a)(8) can reasonably be said to be a “crime involving

moral turpitude.” We have no way of telling, from the Board’s opinion, whether it

thought that Mehboob was convicted exclusively under (a)(1), or whether it thought that

(a)(8) defines a crime of moral turpitude. The former proposition is not supported by the

record, and the latter is arguably inconsistent with longstanding Board precedent as

adumbrated and approved in Partyka. In such circumstances we cannot approve the

Board’s opinion.

                                             III.

       We emphasize, however, that the Board may be within its authority to extend its

interpretation of “moral turpitude” to the crime defined by (a)(8). Executive branch

agencies are entitled to revise their interpretations of ambiguous statutes assigned to them

                                              9
for implementation, and courts must defer to reasonable agency interpretations. On

remand, the Board needs to explain explicitly why, in its view, 18 Pa. Cons. Stat.

§ 3126(a)(8) does or does not define a crime of moral turpitude under 8 U.S.C.

§ 1227(a)(2)(A)(i). Because “unpublished precedent is a dubious basis for demonstrating

the type of inconsistency which would warrant rejection of deference,” De Osorio v. INS,

10 F.3d 1034, 1042 (4th Cir. 1993), “[w]e will not bind the BIA with a single

non-precedential, unpublished decision any more than we ourselves are bound by our

own unpublished orders.” Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993).

                                             IV.

       For the foregoing reasons, we will grant the petition for review and remand the

case in order that the Board may expressly decide whether § 3126 (a)(8) defines a crime

of moral turpitude.




SCIRICA, Chief Judge, concurring.

       In Partyka v. Attorney General, we compared reckless assault to criminally

negligent assault, and concluded the latter did not qualify as a crime involving moral

turpitude for purposes of 8 U.S.C § 1227(a)(2)(A)(i). 417 F.3d 408, 416 (3d Cir. 2005)

(“We hold that negligently inflicted bodily injury lacks the inherent baseness or depravity

that evinces moral turpitude . . . .”). We did not address the question presented in this

case, whether a purposeful sex crime that does not require proof of mens rea for one

                                             10
element can qualify as a crime involving moral turpitude. Several courts of appeals have

held similar sex crimes to involve moral turpitude. See Franklin v. INS, 72 F.3d 571, 588

(8th Cir. 1995) (“Courts have consistently held that statutory rape is a crime involving

moral turpitude, even though it has no intent element, because such a crime is ‘usually

classed as rape,’ which ‘manifestly involves moral turpitude.’”) (citation omitted); Castle

v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (collecting cases); see also Sheikh v.

Gonzales, 427 F.3d 1077, 1082 (8th Cir. 2005) (contributing to the delinquency of a

minor); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (incest).

       As the majority has noted, there is no precedential case nor Board precedent on

this issue. Accordingly, I agree that we should remand so that the Board might answer in

the first instance whether 18 Pa. Cons. Stat § 3126(a)(8)—which requires a purposeful

touching but for which the legislature removed proof of lack of consent for a special class

of victims—is a crime involving moral turpitude.




                                            11
