764 F.3d 281 (3rd Cir. 2014), 13-3288, Hernandez-Cruz v. Attorney General of United States

Docket Nº:13-3288
Citation:764 F.3d 281
Opinion Judge:FUENTES, Circuit Judge:
Party Name:LUIS ALBERTO HERNANDEZ-CRUZ, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent
Attorney:Jamie Jasso, Esq. [ARGUED], Law Offices of Jaime Jasso, The Westlake Office, Westlake Village, CA, Attorney for Petitioner. Stuart F. Delery, Esq., Shelley R. Goad, Esq., Regina Byrd, Esq., Katharine E. Clark, Esq. [ARGUED], U.S. Department of Justice, Office of Immigration Litigation, Civil Divi...
Judge Panel:Before: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges.
Case Date:September 04, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
SUMMARY

Hernandez, a 34-year-old Mexican citizen, entered the U.S. without inspection in 1998. In 2009, he pled guilty to simple assault and endangering the welfare of a child, stemming from striking his 10-year-old stepson. DHS issued a Notice to Appear, charging that Hernandez was removable as an alien convicted of a crime involving moral turpitude (CIMT), 8 U.S.C. 1182(a)(2)(A)(i)(I). Hernandez... (see full summary)

 
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Page 281

764 F.3d 281 (3rd Cir. 2014)

LUIS ALBERTO HERNANDEZ-CRUZ, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

No. 13-3288

United States Court of Appeals, Third Circuit

September 4, 2014

         Argued June 24, 2014.

Page 282

          On Petition for Review of an Order of the Board of Immigration Appeals. (Agency No. A089-239-559). Immigration Judge: Hon. Rosalind K. Malloy.

         Jamie Jasso, Esq. [ARGUED], Law Offices of Jaime Jasso, The Westlake Office, Westlake Village, CA, Attorney for Petitioner.

         Stuart F. Delery, Esq., Shelley R. Goad, Esq., Regina Byrd, Esq., Katharine E. Clark, Esq. [ARGUED], U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., Attorneys for Respondent.

         Before: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges.

          OPINION

Page 283

         FUENTES, Circuit Judge:

         Luis Alberto Hernandez-Cruz petitions for review of his final order of removal. In his petition to this Court, Hernandez-Cruz argues that his Pennsylvania conviction for child endangerment does not constitute a crime involving moral turpitude (" CIMT" ) because his statute of conviction " may be violated without implicating conduct that the Board . . . has defined as--inherently base, vile, or depraved." Petitioner's Br. 10. We agree. Applying the categorical approach, we conclude that the least culpable conduct criminalized under Pennsylvania's child endangerment statute does not implicate moral turpitude. Therefore, we grant the petition for review and remand to the BIA for further proceedings consistent with this opinion.

         I. Factual and Procedural Background

         Hernandez-Cruz, a thirty-four year-old citizen of Mexico, entered the United States without inspection in 1998. Eleven years later, he pled guilty in the Court of Common Pleas of Lebanon County, Pennsylvania to simple assault, in violation of 18 Pa. Cons. Stat. Ann. § 2701(a)(1), and endangering the welfare of a child, in violation of 18 Pa. Cons. Stat. Ann. § 4304(a)(1). The charges stemmed from an incident in which Hernandez-Cruz struck his stepson, who was ten years old at the time.

         A few months after Hernandez-Cruz's guilty plea, the Department of Homeland Security (" DHS" ) issued a Notice to Appear, charging that he was removable as an alien present in the United States without being admitted or paroled. See Immigration and Nationality Act (" INA" ) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). DHS later filed additional charges, alleging that Hernandez-Cruz was removable as an alien convicted of a CIMT. See INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I). These additional charges were based on his convictions for simple assault and child endangerment. Hernandez-Cruz conceded removability as an alien present in the United States without being admitted or paroled, but denied removability as an alien convicted of a CIMT.

         Hernandez-Cruz subsequently applied for cancellation of removal as a nonresident. During his removal proceedings, Hernandez-Cruz testified in support of his application for cancellation of removal and asserted that he believed his United States citizen children would experience exceptional and extremely unusual hardship upon his removal.

         The Immigration Judge concluded that Hernandez-Cruz was removable as an alien present in the United States without being admitted or paroled. See INA § 212(a)(6)(A)(i). The IJ also held that Hernandez-Cruz was removable as an alien convicted of a CIMT. See INA § 212(a)(2)(A)(i)(I). With respect to the latter ground of removability, the IJ determined that Hernandez-Cruz's Pennsylvania conviction for simple assault, in violation of 18 Pa. Cons. Stat. Ann. § 2701(a)(1), was not a CIMT because Pennsylvania's simple assault statute " does not include an aggravating factor." AR 23. However, the IJ held that his conviction for child endangerment, in violation of 18 Pa. Cons. Stat. Ann. § 4304(a)(1), constituted a CIMT because the statute requires " awareness by the accused that his violation of his duty of care, protection and support, is practically certain to result in...

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