                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-1399
                                      ____________

                             MANUEL CASTILLO-LOPEZ,

                                                       Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,

                                                      Respondent
                                      ____________

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A200-864-012)
                                     ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 6, 2018

           Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges.

                                (Filed: November 8, 2018)

                                      ____________

                                        OPINION *
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       Manuel Castillo-Lopez petitions for review of a decision of the Board of

Immigration Appeals. The BIA deemed Castillo-Lopez ineligible for cancellation of

removal because his New Jersey criminal conviction was a crime involving moral

turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). For the reasons that follow, we

will deny the petition for review.

                                             I1

       In 2012, Castillo-Lopez was convicted of aggravated assault after he recklessly

caused bodily injury to a uniformed police officer in violation of N.J. Stat. § 2C:12-

1b(5)(a). Applying the modified categorical approach, the BIA deemed that conviction a

CIMT, which made Castillo-Lopez ineligible for cancellation of removal. In his petition

for review, Castillo-Lopez offers three challenges which we will address in turn.

                                             A

       Castillo-Lopez first claims N.J. Stat. § 2C:12-1b(5) is indivisible and thus not

categorically a CIMT. This argument is foreclosed by our decision in United States v.

Abdullah, -- F.3d --, 2018 WL 4702225, at *4 (3d Cir. Oct. 2, 2018). In that case, we

stated that § 2C:12-1b not only is divisible into three alternative degrees of conduct, but


       1
        Whether Castillo-Lopez’s crime of conviction was a CIMT is a question of law,
which we have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). See Mayorga v.
Att’y Gen., 757 F.3d 126, 128 n.2 (3d Cir. 2014). We review de novo the BIA’s
unpublished, single-member decision, which is not entitled to Chevron deference. See
Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014).

                                             2
is also “further divisible into a number of different third-degree aggravated assault

offenses.” Id. And, as in Abdullah, the Model Criminal Jury Charge for § 2C:12-1b(5)

indicates that New Jersey treats subsections (5)(a) through (5)(k) as separate elements.

See id. (considering New Jersey’s jury instructions to determine whether § 2C:12-1b is

divisible among subsections); New Jersey Model Jury Charges (Criminal), “Aggravated

Assault - Upon Law Enforcement Officer (Attempting to Cause or Purposely, Knowingly

or Recklessly Causing Bodily Injury) (N.J.S.A. 2C:12-1b(5)(a), (b), (c), (d), (e), (f), (g))”

(revised Dec. 3, 2001) n.1 (noting that the model jury instruction is drafted to address

only aggravated assault against a law enforcement officer and that, if a different

subsection is at issue, the jury instruction “must be adapted to fit the facts of [that] case”).

Because the relevant state statute is divisible, the BIA did not err in applying the

modified categorical approach to determine which subsection of § 2C:12-1b(5) Castillo-

Lopez violated.

                                               B

       Castillo-Lopez next argues that his conviction under § 2C:12-1b(5) is not a CIMT

under the modified categorical approach. Castillo-Lopez concedes, as he must, that a

review of his plea colloquy indicates that he violated subsection (a) of § 2C:12-1b(5)

because he recklessly caused bodily injury to a “law enforcement officer acting in the

performance of his duties while in uniform or exhibiting evidence of his authority.” N.J.

Stat. Ann. § 2C:12-1b(5)(a) (West 2010) (effective Jan. 4, 2011 through April 19, 2012).


                                               3
       The crux of Castillo-Lopez’s argument is that he committed a simple assault,

which is typically not a CIMT. And he argues the fact that his victim was a law

enforcement officer does not make his crime turpitudinous, even though New Jersey law

elevated the crime to aggravated assault based on the status of the victim. We are

unpersuaded by this argument.

       “[T]he 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). In our prior analysis of the statute at issue here, we stated (in dicta)

that we would affirm a finding of moral turpitude for an intentional, knowing, or reckless

infliction of bodily injury to a law enforcement officer. See id. at 416. And we have

observed elsewhere as well that certain serious criminal conduct committed recklessly

may reflect moral turpitude. See Totimeh v. Att’y Gen., 666 F.3d 109, 114 (3d Cir. 2012).

In view of our prior decisions, we hold that the BIA did not err when it concluded that

Castillo-Lopez is ineligible for cancellation of removal for having committed a CIMT.

                                              C

       Finally, Castillo-Lopez contends that the CIMT statute (8 U.S.C.

§ 1182(a)(2)(A)(i)(I)) is void for vagueness as applied to him. This argument is

foreclosed by our decision in Moreno v. Attorney General, where we rejected a

vagueness challenge to the same statute and emphasized that we have “consistently

defined” the bounds of moral turpitude. 887 F.3d 160, 166 (3d Cir. 2018). Moreover,

Castillo-Lopez cannot credibly claim he lacked fair notice of the CIMT standard when
                                              4
we first recognized his crime a CIMT in 2005, well before his conviction. See Partyka,

417 F.3d at 416.

                                    *      *       *

      For the reasons stated, we will deny Castillo-Lopez’s petition for review.




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