                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4110




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                                                               NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            _______________

                                  No. 06-4110
                                _______________

                          ROBERT HENRY ANDRES

                                               Petitioner,

                                          v.

             ATTORNEY GENERAL OF THE UNITED STATES

                                            Respondent.
                                   __________

                    On Petition for Review of a Final Order
                     of the Board of Immigration Appeals
                              (No. A77 027 695)

                Honorable Eugene Pugliese, Immigration Judge
                             _______________

                  Submitted Under Third Circuit LAR 34.1(a)
                              January 8, 2008

               Before: FUENTES and JORDAN, Circuit Judges
                        and DITTER*, District Judge.

                            (Filed: January 30, 2008)
                               _______________

                          OPINION OF THE COURT
                              _______________

*Honorable J. William Ditter, Jr., District Court Judge for the Eastern District of
                     Pennsylvania, sitting by designation.
DITTER, District Judge.

       This is an appeal from a Board of Immigration Appeals’ (“BIA”) final order of

removal. The BIA affirmed the immigration judge’s determination that: 1) Petitioner’s

conviction for aggravated assault was a crime of moral turpitude making him subject to

removal; 2) Petitioner was not eligible for an Immigration and Nationality Act § 212(h)

waiver; and 3) Petitioner’s change in status from a conditional to a permanent legal

resident had no impact on the issue of his removability.

       For the reasons that follow we affirm the order of the BIA.

       Robert Henry Andres is a 30 year-old divorced male, native and citizen of Peru, and

father of three minor children. He and his parents are lawful permanent residents. He has

siblings who are citizens and reside in New Jersey.

       Andres was admitted as a visitor in June 1996. He married a United States citizen

in September 1997, and on October 7, 1998, his status was adjusted to that of a conditional

lawful permanent resident based on his marriage. On September 16, 2002, Andres pleaded

guilty to attempting to cause significant bodily injury to his wife. Andres was placed on

probation for two years with conditions that included community service and anger

management counseling. In June 2003, Andres divorced his wife. He is supporting his

children pursuant to a court-imposed order.

       In March, 2004, Andres returned to the United States from a trip to Peru and was

placed in removal proceedings because of his criminal conviction. On July 26, 2004, with



                                              2
the removal proceedings still open, Andres’ conditional status was changed to permanent

lawful resident status.

        Following several hearings, the immigration judge found Andres removable as an

alien convicted of a crime of moral turpitude. In his March 31, 2005 oral decision, the

immigration judge also denied Andres’ request for a Section 212(h) waiver because

Andres could not establish continuous residency for at least seven years immediately

preceding the initiation of the removal proceedings.1 The immigration judge further

concluded that Andres’ change in status from conditional permanent lawful resident to

permanent lawful resident had no bearing on the removal proceedings as it was merely a

determination that his marriage was bona fide and did not address any issues concerning

his status resulting from his criminal record. In other words, a determination by the United

States Citizenship and Immigration Services concerning the validity of Andres’ marriage

did not impact the prior decision of the Department of Homeland Security to pursue a

petition for removal based on a criminal conviction that occurred during his residency.

        Generally, whether an alien’s crime involves moral turpitude is determined by the

criminal statute.2 Partyka v. Attorney General, 417 F.3d 408, 411 (3d Cir. 2005) (citing


    1
    As noted by the BIA, Andres’ lawful residence in the United States began in October
1998, and removal proceedings were instituted against him less than six years later, in
March of 2004.
    2
     The relevant statute provides that a person is guilty of aggravated assault if he
“[a]ttempts to cause significant bodily injury to another or causes significant bodily injury
purposely or knowingly or, under circumstances manifesting extreme indifference to the
value of human life recklessly causes such significant bodily injury.” See N.J. Rev. Stat.

                                             3
Knapik v. Ashcroft, 384 F.3d 84, 88, 90-91 (3d Cir. 2004)). However, where a statute also

includes lesser offenses, the facts must be evaluated to determine whether or not the alien

was convicted under that part of the statute that defines a crime involving moral turpitude.

Id. Andres contends the immigration judge decided that his was a crime involving moral

turpitude without evaluating the underlying facts as required when a statute includes non-

turpitudinous acts. We disagree.

       Andres is correct that during the July 29, 2004, hearing the immigration judge

stated: “I’m tempted to make a finding right now, Mr. Fernandez. An aggravated assault

tends to be a CIMT.” A.R. at 67. However, the immigration judge gave counsel the

opportunity to present evidence on this issue, and after making an initial finding that the

charges were sustained, he continued the case to October to permit counsel additional time

to prepare his arguments and agreed to revisit the issue of moral turpitude then. A.R. at 68.

At that hearing, Andres abandoned this claim. No evidence was offered nor argument

made that his crime did not involve moral turpitude; instead, the hearing concerned the

effect of Andres’ change of status from conditional to permanent resident alien and his

eligibility for a § 212(h) waiver. A.R. at 73-77. When the immigration judge noted that

Andres had previously denied the charge was for a crime involving moral turpitude,

counsel responded: “Yeah, well we’re denying because they’re charging him with

inadmissibility, but after they charged him with inadmissibility, they said here you are,



2C:12-1b(7).

                                              4
you’re admitted.” A.R. at 76. After a final hearing on March 31, 2005, the immigration

judge found Andres’ crime was one involving moral turpitude, specifically relying on the

underlying indictment and judgment of conviction.

       The BIA agreed with the immigration judge and affirmed his decision. Having also

examined the record of the state criminal proceedings, the BIA concluded that the crime

for which Andres’ was convicted had the required mens rea to constitute a crime involving

moral turpitude, reasoning that:

       Although the statute is divisible, the indictment in this case indicates that the
       respondent was charged with violating the portion of N.J. Rev. Stat. §2C:12-
       1(b)(7) prohibiting “attempts to cause significant bodily injury to another.”
       (See Exh. 2). An attempt to cause injury necessarily includes the intent to
       cause injury. Matter of G-R-, 2 I & N Dec. 733, 735 (BIA 1947). The
       United States Court of Appeals for the Third Circuit, where this case arises,
       has noted that an aggravated assault conviction involving the intentional
       infliction of bodily injury would be one involving moral turpitude. Partyka
       v. Attorney General, 417 F.3d 408, 416 (3d Cir. 2005). Additionally, we
       note that the fact that, according to the indictment, the victim was the
       respondent’s wife means his conviction would involve moral turpitude even
       if it required only a reckless state of mind. Matter of Fualaau, 21 I & N
       Dec. 475 (BIA 1996) (a reckless state of mind coupled with morally
       turpitudinous conduct can make an offense one of moral turpitude); Matter
       of Tran, 21 I & N Dec. 291, 294 (BIA 1996) (infliction of bodily harm on
       one’s spouse is an act of depravity).

A.R. at 2. The BIA also agreed that Andres’ resident status merely reflected its conditional

nature but did not effect the applicability of the seven year residence requirement. Thus,

Andres was not eligible for a § 212(h) waiver. A.R. at 2-3.

       Judicial review of removal orders is limited. Unless an alien has raised a

constitutional claim or a question of law, an order removing him for having committed a

                                               5
crime involving moral turpitude is not subject to judicial review. 8 U.S.C. §

1252(a)(2)(C); 1252(a)(2)(D). Here Andres has raised a question of law: whether his

crime was one involving moral turpitude. If his conviction was for a crime involving

moral turpitude, no further judicial review is authorized. See Alaka v. Attorney General,

456 F.3d 88, 102-103 (3d Cir. 2006).

       “The hallmark of moral turpitude is a reprehensible act committed with an

appreciable level of consciousness or deliberation.” Partyka, 417 F.3d at 414. Corrupt

scienter is the touchstone of moral turpitude. Id. at 413 (citing Michel v. INS, 206 F.3d

253, 263 (2d Cir. 2000)).

       Our review of the administrative record travels the same path as did the BIA’s

analysis. First, the applicable New Jersey statute makes unlawful an attempt to cause

significant bodily injury, actually doing so, or recklessly causing significant bodily injury

under circumstances manifesting extreme indifference to the value of human life.

       We need not concern ourselves with the reckless part of the statute, extreme as the

reckless conduct defined may be: the defendant pleaded guilty to the second count of an

indictment that charged aggravated assault in that he did attempt to cause significant

bodily injury to his wife. As did the BIA, we find that one who has been convicted of an

attempt to cause injury of necessity intended to cause injury. Partyka, 417 F.3d at 412 n.3

(citing United States v. Rebelo, 358 F. Supp. 2d 400, 416 (D.N.J. 2005)(“It is blackletter




                                              6
law that criminal attempt requires specific intent.”)). Intending to cause significant bodily

injury involves moral turpitude.

        Quite apart from the indictment and judgment of conviction, Andres’ own

description of what he did establishes he intended to cause significant bodily injury and

thus his was a crime of moral turpitude.

        I previously had a restraining order and I violated the restraining order by
        going to her house. She asked me for money for the children. She had
        called me before asking me to pass by because my daughter had a fever.
        After she asked me for the money we started arguing because I didn’t have
        the money. She started yelling then I pushed her, then some neighbor called
        the police. I had my hands around her neck and I pushed her in front of my
        children. The police came, she told them that I had a restraining order and
        they put me in jail.

A.R. at 175.

        Having agreed with the BIA that Andres was convicted of a crime involving moral

turpitude, we are precluded from reviewing Andres’ § 212(h) waiver claim or the impact

that his change of status had on his removability.3




    3
     These claims fail to raise a constitutional or legal issue that would overcome the
jurisdictional bar of § 1252(a)(2)(C). Andres’ assertion that the more than seven year
residency requirement in § 212(h) was not applicable to him because of the conditional
nature of his lawful permanent resident status is without merit. See 8 C.F.R. § 216.1
(“All references within this chapter to lawful permanent residents apply equally to
conditional permanent residents, unless otherwise specified.”). Whether his status was
conditional or not, he had been lawfully admitted for permanent residence and the
durational requirements of § 212(h) applied.

                                              7
