Baptiste v. Attorney Gen. U.S., No. 14–4476

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: GREENAWAY, JR., Circuit Judge.
• Citation: 841 F.3d 601
• Decision Date: 08 November 2016
• Docket Number: No. 14–4476
• Parties: Carlton Baptiste, a/k/a Carlton Baptist, Petitioner v. Attorney General United States of America, Respondent

841 F.3d 601

Carlton Baptiste, a/k/a Carlton Baptist, Petitioner
v.
Attorney General United States of America, Respondent

No. 14–4476

United States Court of Appeals, Third Circuit.

Argued: April 5, 2016
Filed: November 8, 2016

Michael L. Foreman, Esq., Penelope A. Scudder [ARGUED], Pennsylvania State University, Dickinson School of Law, 329 Innovation Boulevard, Suite 118, State College, PA 16802, Attorneys for Petitioner.

Jennifer J. Keeney, Esq., Jesse M. Bless, Esq. [ARGUED], Anthony C. Payne, Esq., Colette J. Winston, Esq., United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, D.C. 20044, Attorneys for Respondent.

Before: GREENAWAY, JR., SCIRICA and RENDELL, Circuit Judges.

OPINION OF THE COURT

GREENAWAY, JR., Circuit Judge.

Carlton Baptiste petitions for review of a decision of the Board of Immigration Appeals (“BIA”) ordering his removal as an alien convicted of: (1) an “aggravated felony” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), which is defined as, inter alia, a “crime of violence,” 18 U.S.C. § 16 ; and (2) two or more crimes involving moral turpitude (“CIMTs”) pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii).

Baptiste's petition requires us to decide whether the definition of a “crime of violence” provided in 18 U.S.C. § 16(b) is void for vagueness under the Due Process Clause of the Fifth Amendment. Section 16(b) and similarly worded statutes have come under attack in federal courts across the country after the Supreme Court's decision in Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which invalidated the so-called “residual clause” of the Armed Career Criminal

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Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague.

Although we initially conclude that Baptiste's New Jersey second-degree aggravated assault conviction was for a crime of violence pursuant to § 16(b), we are persuaded that the definition of a crime of violence in § 16(b) is unconstitutionally vague after Johnson . We therefore invalidate § 16(b) and hold that Baptiste was not convicted of an aggravated felony. However, we conclude that Baptiste is nonetheless removable because he was convicted of two or more CIMTs.

Accordingly, we will grant the petition in part as it relates to the BIA's aggravated felony determination, deny the petition in part as it relates to the BIA's CIMT determination, and remand the case to the BIA for further proceedings so that Baptiste may apply for any relief from removal that was previously unavailable to him as an alien convicted of an aggravated felony.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background

Petitioner Carlton Baptiste is a native of Trinidad and Tobago who was admitted to the United States as a lawful permanent resident in 1972. On December 15, 1978, Baptiste was convicted of atrocious assault and battery pursuant to former N.J. Stat. Ann. § 2A:90–1 (West 1969) (the “1978 Conviction”). There is no indication from the administrative record as to the facts underlying this conviction. Baptiste was sentenced to a suspended twelve-month term of imprisonment and placed on probation for one year.

Over thirty years later, on April 8, 2009, Baptiste was convicted of second-degree aggravated assault pursuant to N.J. Stat. Ann. § 2C:12–1b(1) (West 2005) (the “2009 Conviction”).¹ That statute provides that “[a] person is guilty of aggravated assault if he ... [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury.” N.J. Stat. Ann. § 2C:12–1b(1) (West 2005). As with his earlier conviction, there is no indication from the administrative record as to the facts underlying Baptiste's 2009 Conviction. There is also no indication from the administrative record as to whether Baptiste pleaded guilty to the attempt crime in the statute, or, if he pleaded guilty to the completed crime, to which mental state in the statute Baptiste pleaded guilty to possessing—purpose, knowledge or recklessness. See A.R. 334. He was sentenced to a five-year term of imprisonment.

B. Procedural History

In June 2013, the Department of Homeland Security (“DHS”) instituted removal proceedings against Baptiste. DHS asserted that, based on his 2009 Conviction, Baptiste was removable as an alien convicted of a crime of violence pursuant to 18 U.S.C. § 16 and, therefore, an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). DHS later asserted that Baptiste was also removable, based on both his 1978 Conviction and his 2009 Conviction, as an alien convicted of “two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct” pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). On October 8, 2013, the Immigration Judge (“IJ”) sustained both

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charges of removability. Baptiste appealed the IJ's determinations to the BIA.

The BIA agreed with the IJ's determination that the 2009 Conviction was for a crime of violence. It reasoned that, in order to qualify as a crime of violence under § 16(b), “the nature of [a] crime ... must be such that its commission ordinarily would present a risk that physical force would be used against the person ... of another, irrespective of whether the risk develops or harm actually occurs.” A.R. 4. Accordingly, the BIA determined that “the relevant question ... is whether the offense (whatever its mens rea may be) is one that inherently involves a person acting in conscious disregard of the risk that, in the course of its commission, he may ‘use’ physical force against the person of another.” A.R. 4. Under these principles, the BIA concluded that:

[A]n individual who undertakes to cause serious bodily injury to another under circumstances manifesting extreme indifference to human life necessarily disregards the substantial risk that in the course of committing that offense he will use physical force against another, either to effect the serious bodily injury that the statute requires or to overcome the victim's resistance or both.

A.R. 4–5.

The BIA also agreed with the IJ's determination that the 2009 Conviction was for a CIMT.² It examined the manner in which New Jersey courts have construed the recklessness crime in Baptiste's statute of conviction and observed that:

New Jersey courts hold that an individual acts under circumstances manifesting an extreme indifference to the value of human life if he acts with conscious awareness of the fact that his conduct bears a substantial risk that he will kill another and he conducts himself with no regard to that risk.

A.R. 5. Based on that observation, the BIA concluded that “an individual cannot form the culpable mental state and commit the culpable acts required for conviction ... without acting in a base, vile or depraved manner and without consciously disregarding a substantial risk that he will kill another.” A.R. 6.

Accordingly, the BIA dismissed Baptiste's appeal. Baptiste filed a timely petition for review with this Court on November 14, 2014.

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had appellate jurisdiction over the IJ's order of removal pursuant to 8 C.F.R. § 1003.1(b)(3). We have jurisdiction over Baptiste's petition for review of the BIA's dismissal of his appeal pursuant to 8 U.S.C. § 1252(a)(1).

“Where, as here, the BIA issues a written decision on the merits, we review its decision and not the decision of the IJ.” Bautista v. Att'y Gen. of the U.S. , 744 F.3d 54, 57 (3d Cir. 2014). Because an assessment of whether a crime constitutes a crime of violence pursuant to 18 U.S.C. § 16(b) implicates the criminal provisions of the U.S. Code, we exercise de novo review over the BIA's determination that the 2009 Conviction was for a crime of violence and, therefore, an aggravated felony. Aguilar v. Att'y Gen. of the U.S. , 663 F.3d 692, 695 (3d Cir. 2011). Similarly, we review Baptiste's due process challenge to the definition of a crime of violence in § 16(b) de novo. Abdulrahman v. Ashcroft , 330 F.3d 587, 595–96 (3d Cir. 2003).

841 F.3d 606

Since the BIA's determination that the 2009 Conviction was for a CIMT was made in an unpublished, non-precedential decision issued by a single BIA member, we do not accord that determination any deference, and it is “[a]t most ... persuasive authority.” Mahn v. Att'y Gen. of the U.S. , 767 F.3d 170, 173 (3d Cir. 2014). We therefore review the BIA's CIMT determination de novo as well.

III. ANALYSIS

A. Baptiste's 2009 Conviction was for a “crime of violence” under § 16(b)

An alien who is convicted of an “aggravated felony” after his admission to the United States is removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” is defined as, inter alia, a “crime of violence (as defined in [18 U.S.C. § 16 ], but not including a purely political offense) for...