                                                                      NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                         No. 09-3478
                                        ____________

                              EDWARD LLOYD JOHNSON,
                                               Petitioner
                                       v.

                            ERIC H. HOLDER, JR.,
                  ATTORNEY GENERAL OF THE UNITED STATES
                               ____________

              ON PETTION FOR REVIEW FROM A FINAL ORDER
                  OF THE BOARD OF IMMIGRATION APPEALS
                             (BIA No. A-039-745-403)
                  Immigration Judge: Honorable Walter A. Durling
                                  ____________

                        Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    October 6, 2010
                  Before: SCIRICA, SMITH and WEIS, Circuit Judges.
                              (Filed: December 29, 2010)
                                     ____________

                             MEMORANDUM AND ORDER
                                  ___________


WEIS, Circuit Judge.

              Johnson, a Jamaican citizen and legal resident of the United States for 25

years, was charged as deportable for violating New York Penal Law § 165.15, prohibiting

theft of services -- in his case, failure to pay a subway fare or, colloquially, “turnstile

                                               1
jumping.” The government characterized these offenses as “crimes involving moral

turpitude” (“CIMT”), subjecting the alien to deportation under 8 U.S.C. §

1227(a)(2)(A)(ii). The alien was arrested and has been detained since 2007.

                At a hearing before an IJ in November 2007, the alien’s counsel admitted

the convictions under the New York statute, the maximum term of imprisonment for

which is “up to 1 year.” N.Y. SENT. Chart VII (listing authorized sentences for Class A

Misdemeanors); see N.Y. PENAL LAW § 165.15 (theft of services is a class A

misdemeanor). However, counsel stated to the IJ, “I’m actually not going admit the

charge of removability. I’ll let the Court make a decision on that. So I’ll deny that.”

                After several hearings, the IJ found that the alien was a member of a social

group comprised of mentally ill Jamaicans who are routinely singled out for persecution

by Jamaican police as well as jail guards and, if imprisoned in that country, would be

subject to conditions amounting to torture. On that basis, the IJ granted asylum but did

not specifically rule on the moral turpitude designation or the U.N. Convention Against

Torture.

                The government appealed to the BIA, which reversed the grant of asylum

because the alien had failed to establish an objectively well-founded fear of persecution.

The alien then filed this Petition for Review challenging only that ruling of a lack of well-

founded fear.

                Our review of the record in this Petition for Review has revealed a


                                               2
dispositive issue: whether the alien’s convictions are CIMT. That question has not been

ruled upon by either the BIA or the IJ and was not presented in the briefs.

              We have the power to raise on appeal an issue sua sponte when the interest

of justice requires it. See Robert Leflar, Appellate Judicial Opinions 126 (1974). See

also Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what questions may be

taken up and resolved for the first time on appeal is one left primarily to the discretion of

the courts of appeals, to be exercised on the facts of individual cases. We announce no

general rule”). Indeed, the landmark holding in Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938) -- that substantive state law is to be applied in diversity cases -- addressed an issue

never raised by the parties.

              In response to a pre-hearing inquiry by this Court, the alien’s counsel has

argued that the New York convictions are not CIMT. The government contends that we

lack jurisdiction because the alien has failed to exhaust administrative remedies under 8

U.S.C. § 1252(d)(1), which states, “[a] court may review a final order of removal only if .

. . the alien has exhausted all administrative remedies available to the alien as of right.”

              There is considerable debate as to whether “remedies” includes specific

issues in a particular proceeding. See Lin v. Att’y Gen., 543 F.3d 114, 119-20 & n.6 (3d

Cir. 2008) (summarizing discussion). Given the circumstances here, however, we need

not confront that question at this time. In this preliminary matter, there is no

administrative ruling to address, but rather the lack of a ruling on a dispositive issue -- in


                                               3
short, an incomplete record capable of supplementation on a question of law, not fact.

We do not rule on the merits, but instead defer such ruling until a complete record is

before us.

              The specific issue left open in the administrative proceeding is whether a

violation of the New York statute amounts to a crime involving moral turpitude. Just

what criminal activities fall in that category is far from clear, but both our precedents and

the BIA’s definition provide some guidance.

              The BIA has defined “moral turpitude 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.” Partyka v. Att’y Gen., 417 F.3d

408, 413 (3d Cir. 2005). We quoted that definition in Partyka and went on to say, “[a]

longstanding test employed by the BIA to determine the existence of moral turpitude,

which we find persuasive in a removal proceeding, asks ‘whether the act is accompanied

by a vicious motive or corrupt mind.’” Id. at 413.

              In Jean-Louis v. Att’y Gen., 582 F.3d 462, 477 (3d Cir. 2009), we

emphasized that CIMT “refers to a specific class of offenses, not to all conduct that

happens to ‘involve’ moral depravity, because of an alien’s specific acts in a particular

case.” “[I]t is the offense that must be scrutinized for the requisite degree of depravity. . .

. [T]he central inquiry is whether moral depravity inheres in the crime or its elements.”

Id. See also Knapik v. Att’y Gen., 384 F.3d 84, 89 (3d Cir. 2004) (noting the BIA


                                              4
definition of CIMT as conduct that is base, vile, depraved, or malum in se).

                The New York statutory provision under which Johnson was convicted

provides that

                “A person is guilty of theft of services when:

                “* * * *

                “(3) [w]ith intent to obtain railroad, subway . . .
                or any other public transportation service
                without payment of the lawful charge therefor,
                or to avoid payment of the lawful charge for
                such transportation service which has been
                rendered to him, he obtains or attempts to obtain
                such service or avoids or attempts to avoid
                payment therefor by force, intimidation, stealth,
                deception or mechanical tampering, or by
                 unjustifiable failure or refusal to pay.”

N.Y. PENAL LAW § 165.15(3).

                The criminal conviction here is based on avoiding payment of subway

transportation service, a narrow statutory offense. Rather than exploring the text of the

statute, the immigration judge and alien’s counsel analogized the offense to shoplifting

and agreed that, regardless of the amount involved, a CIMT had been established.

                The only record reference is the point occurred during a hearing before the

immigration judge on November 6, 2007.

                “Judge: ‘[W]hat is this? Jumping the turnstile?’
                Alien’s Counsel: ‘That’s my understanding. Yeah.’
                Judge: ‘It’s the same as shoplifting basically. You’re taking
                service, you’re taking merchandise. It’s stealing.’


                                                5
              Alien’s Counsel: ‘Correct.’
              Judge: ‘CIMT. It’s pretty clear about that.’”

              That simplistic analysis of the crime, and the failure to consider other CIMT

factors such as baseness, vileness, and moral depravity, created a serious gap in an

otherwise careful and compassionate presentation by counsel and review by the IJ. That

mutual lapse may have been caused by understandable and inadvertent confusion with the

term “theft offense” set forth in 8 U.S.C. § 1101(2)(43)(G), or simple oversight in

preparing the IJ opinion.

              The government contends that matters of this nature should be decided in

the first instance by the administrative agency, and we do not disagree. In Cruz v. Att’y

Gen., 452 F.3d 240 (3d Cir. 2006) we remanded to the BIA the question of whether an

alien remained guilty of a CIMT after the underlying conviction was vacated by state

court. Noting the importance of a decision by the agency in the first instance, we

remanded to the BIA for supplementation of the record as to whether the alien was

convicted of CIMT before we adjudicated the Petition for Review. That procedure is

particularly apt here because the problem is one of law rather than fact and will require

little additional work in the administrative process. See id. at 248-50; Saqr v. Holder, 580

F.3d 414 (6th Cir. 2009) (record inadequate to determine whether BIA considered IJ’s

ruling on an issue).

              In the circumstances here, particularly because we have identified an

important dispositive issue sua sponte, we conclude that the proper course of action is to

                                             6
remand to the BIA to determine if the alien’s conviction was for CIMT, and we will so

order. 1

                                              II.

               In 2007, the Attorney General ordered the alien to be placed on detention

pursuant to 8 U.S.C. § 1226(c), which provides that he “shall take into custody any alien

who . . . is deportable by reason of having committed” certain specific crimes, including

two or more crimes involving moral turpitude. Id. § 1226(c)(1)(B). The alien here has

been incarcerated for three years for a petty offense.

               8 U.S.C. § 1226(e) provides that “[n]o court may set aside” a decision of

the Attorney General “regarding the detention or release of any alien or the grant,

revocation, or denial of bond or parole.” However, the Supreme Court has held that the

federal courts retain jurisdiction over certain detention cases. See Demore v. Kim, 538

U.S. 520, 531-33 (2003). Justice Kennedy’s concurring (and controlling) opinion

cautioned that “due process requires individualized procedures to ensure that there is at

least some merit to the Immigration and Naturalization Service’s (INS) charge, and,

therefore, sufficient justification to detain a lawful permanent resident alien pending a

more formal hearing.” Id. at 532. “Were there to be an unreasonable delay by the INS in

pursuing and completing deportation proceedings, it could become necessary then to

inquire whether the detention is not to facilitate deportation, or to protect against risk of


1 We   observe also that, if the BIA determines that no CIMT is present, the deportation

                                               7
flight or dangerousness, but to incarcerate for other reasons.” Id. at 532-33.

               The IJ described the alien as “a forty-two-year old single male” who “while

. . . a quiet individual who poses no danger to himself or to others, apparently . . . refuses

to take prescribed medications to ameliorate a mental illness.”

              As we have indicated, there exists a substantial doubt whether the basis for

detention, commission of CIMT, is valid here. Moreover, the alien is neither violent nor

threatening and the crime is petty, carrying a statutory penalty of imprisonment “up to 1

year.” The need for individual assessment for continued detention here is apparent.

Accordingly, we will include on remand a direction for a prompt hearing to determine if a

release on nominal bond is appropriate.




proceedings will terminate because of failure to establish the underlying charge.

                                               8
____________________________

Please file the attached Memorandum.


                                           /s/ JOSEPH F. WEIS , JR.
                                           Circuit Judge

DATED:       December 29, 2010




                                       9
                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ____________

                                     No. 09-3478
                                    ____________

                                EDWARD JOHNSON,
                                           Petitioner
                                      v.

                           ERIC H. HOLDER, JR.
                 ATTORNEY GENERAL OF THE UNITED STATES
                              ____________

                ON PETTION FOR REVIEW FROM A FINAL ORDER
                  OF THE BOARD OF IMMIGRATION APPEALS
                             (BIA No. A-039-745-403)
                  Immigration Judge: Honorable Walter A. Durling
                                  ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 6, 2010
                 Before: SCIRICA, SMITH and WEIS, Circuit Judges.
                                   ____________

                                      ORDER

             This cause came to be heard on the record of the Board of Immigration

Appeals pursuant to a Petition for Review of the Board’s decision. On consideration

whereof, it is now here

             ORDERED by this Court that the case is REMANDED to the Board of

Immigration Appeals for supplementation of the record in accordance with the

Memorandum of this Court.


                                          10
               It is further ORDERED that on remand the alien be afforded a prompt

hearing to determine if he is to be released on bond, pending resolution of these

proceedings.

               This Court shall retain jurisdiction pending the proceedings on remand.

The Respondent is directed to file status reports 120 days from the date of this order and

every 120 days thereafter until the proceedings on remand are concluded.


                                                        By the Court,

                                                        /s/ JOSEPH F. WEIS, JR.
                                                        United States Circuit Judge

Dated:         December 29, 2010




                                            11
