Knapik v. Ashcroft

• Decision Date: 17 September 2004
• Docket Number: No. 03-2787.,03-2787.
• Citation: 384 F.3d 84
• Parties: Jan KNAPIK, Petitioner v. *John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

384 F.3d 84

Jan KNAPIK, Petitioner v. *John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-2787.

United States Court of Appeals, Third Circuit.

Argued June 25, 2004.

Filed September 17, 2004.

Petition for review from the Board of Immigration Appeals.

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Steven Lyons, (Argued), Martin C. Liu and Associates, PLLC, New York, NY, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Emily Anne Radford, Assistant Director, Douglas E. Ginsburg, John M. McAdams, Jr., Aviva L. Poczter, Nicole Nardone, (Argued), Department of Justice Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before AMBRO, BECKER and GREENBERG, Circuit Judges.

AMBRO, Circuit Judge.

Jan Knapik challenges the decision of the Board of Immigration Appeals (BIA) that his conviction for attempted reckless endangerment is a crime involving moral turpitude under § 237(a)(2)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(i). Knapik argues that crimes with a mens rea no greater than recklessness cannot involve moral turpitude because such crimes require intent. He also argues that, even assuming reckless endangerment is a crime involving moral turpitude, attempted reckless endangerment is not. For the reasons that follow, we affirm the BIA's determination that the reckless endangerment statute in this case defines a crime involving moral turpitude, but we agree with Knapik that his conviction for attempted reckless endangerment is not such a crime.

I. Factual and Procedural Background

Knapik is a citizen of Slovakia. He legally entered the United States in June 1995. On September 16, 1996, he adjusted his status to that of lawful permanent resident. He resides in New Jersey with his father and sister who are both lawful permanent residents. In August 2000, Knapik pled guilty to the crime of attempted reckless endangerment in the first degree in violation of New York Penal Law § 120.25.¹ The plea arose from an incident in which, while intoxicated, Knapik drove at an excessive rate of speed against the flow of traffic on the Staten Island Expressway. He pled guilty, was sentenced to and served four months in jail.

In April 2000, the Immigration and Nationalization Service (INS)² served Knapik with a notice to appear, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(i), which allows the Attorney General to order the removal of any alien who has been convicted of a crime involving moral turpitude within five years of admission and for which a sentence of one year or more may be imposed. At the removal hearing, the Immigration Judge ("IJ") held that Knapik's conviction constitutes a crime involving moral turpitude and ordered him removed from the United States. Knapik timely appealed to the BIA.

In May 2003, the BIA affirmed the IJ's decision. The BIA first observed that attempt offenses are crimes involving moral turpitude if the underlying offense involves moral turpitude. The BIA next addressed the issue of criminal recklessness. Relying on prior decisions, it concluded that moral turpitude can lie in criminally reckless behavior. The BIA also examined the aggravating factors in New York's reckless endangerment statute, analogized to prior BIA cases involving manslaughter and assault with a deadly weapon, and distinguished prior BIA cases involving simple assault. Taken together, the BIA concluded that the elements of depravity, recklessness and grave risk of death to another person are sufficient to establish moral turpitude.

Knapik timely filed a petition for review of the BIA's decision. We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a).

II. Standard of Review

Under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we review an agency's construction of a statute it administers under a two-step inquiry. If congressional intent is clear from the statute's language, we must give effect to it as written. Id. at 842-43, 104 S.Ct. 2778. If Congress's intent is silent or ambiguous, we must decide if the agency's action is based on "a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.

We afford deference, however, only when an agency construes or interprets a statute it administers. See id. at 843-44, 104 S.Ct. 2778. In Francis v. Reno, we refused to afford Chevron deference to the BIA's interpretation of the term "felony" as used in 18 U.S.C. § 16 because it is a general criminal statute not implicating the BIA's expertise. 269 F.3d 162, 168 (3d Cir.2001). In Sandoval v. Reno, we declined to give deference to the BIA's decision as to the effective date of a statute because the "issue [of] a statute's effective date is not one that implicates agency expertise in a meaningful way...." 166 F.3d 225, 239 (3d Cir.1999). Accordingly, we must decide which aspects of the BIA's decision are entitled to Chevron deference.

Knapik argues that Chevron deference applies only to what "moral turpitude" means,³ not to what crimes that term encompasses. Particularly, he contends the BIA's determination that recklessness crimes may constitute moral turpitude is not entitled to deference. The First, Second, Fifth and Eighth Circuits, however, have concluded that courts should defer not only to the BIA's definition of moral turpitude but also to its determination that the elements of a criminal statute satisfy that definition. See Cabral v. INS, 15 F.3d 193, 195 (1st Cir.1994) ("We therefore inquire whether the agency interpretation was arbitrary, capricious, or clearly contrary to the statute."); Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000) (stating that "in order to affirm the BIA's determination [in regard to moral turpitude], we need only conclude that its interpretation is reasonable and that it `considered the matter in a detailed and reasoned fashion'" (citation omitted)); Hamdan v. INS, 98 F.3d 183, 184-85 (5th Cir.1996) ("We accord deference to the BIA's interpretation of questions such as those before us here" — i.e., whether Hamden's record of conviction "support[s] a finding of moral turpitude."); Franklin v. INS, 72 F.3d 571, 572 (8th Cir.1995) (stating "we must decide whether the BIA has reasonably interpreted its statutory mandate to deport aliens convicted of crimes involving moral turpitude"). In contrast, the Ninth Circuit reviews de novo whether a particular criminal statute involves moral turpitude. See, e.g., Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n. 4 (9th Cir.1995); cf. Franklin, 72 F.3d at 578 (Bennett, J., dissenting) (recognizing "a split of authority, or, at least, a fundamental difference in approach to or perception of the issue").

We adopt the majority position and conclude that the BIA's determination that reckless endangerment crimes may involve moral turpitude is entitled to Chevron deference. This issue goes to the heart of the administrative scheme established under the INA. In this context, the BIA's conclusions as to reckless endangerment implicate BIA expertise.

But in determining what the elements are of a particular criminal statute deemed to implicate moral turpitude, we do not defer to the BIA. See Michel, 206 F.3d at 262 (stating that when "the BIA is interpreting state or federal criminal laws, we must review its decision de novo" (citing Hamdan, 98 F.3d at 185)). As discussed below, it is unclear what the elements of attempted reckless endangerment (as opposed to reckless endangerment) even are. This is not an issue that implicates the BIA's expertise, and we decline to afford Chevron deference to the BIA's decision relating to this matter. Our review of this issue is thus de novo.

III. Analysis

An alien, even if a lawful permanent resident, is subject to removal if he or she has been convicted of a crime "involving moral turpitude" within five years of the date of admission and the conviction is one for which a sentence of one year or longer may be imposed. 8 U.S.C. § 1227(a)(2)(A)(i)(I)-(II). As for the length of sentence requirement, though Knapik received but a four month sentence, first degree reckless endangerment is a class D felony, N.Y. Penal Law § 120.25, punishable by up to seven years imprisonment, id. at § 70.00(2)(d).

Thus the only issue we must decide is whether attempted reckless endangerment in the first degree is a crime involving moral turpitude. This inquiry entails a categorical approach, focusing on the underlying criminal statute "rather than the alien's specific act." De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002) (citing Alleyne v. INS, 879 F.2d 1177, 1185 (3d Cir.1989)); see also Rodriguez-Herrera, 52 F.3d at 239-40 (stating that, in analyzing whether a crime involves moral turpitude, "we must focus on the crime categorically as defined by the statute, and not on the specific conduct of Rodriguez-Herrera"). Accordingly, "we look to the elements of the statutory state offense, not to the specific facts. We rely on `what the convicting court must necessarily have found to support the conviction and not to other conduct in which the defendant may have engaged in connection with the offense.'" Wilson v. Ashcroft, 350 F.3d 377, 381-82 (3d. Cir.2003) (quoting Steele v. Blackman, 236 F.3d 130, 135 (3d Cir. 2001)).⁴

Following the categorical approach, and in light of our deferential review on the issue, the BIA did not act unreasonably in determining that New York's reckless endangerment statute defines a crime involving moral turpitude. But reviewing de novo the BIA's conclusions as to attempted reckless endangerment, we conclude that the categorical nature of the moral turpitude inquiry compels the conclusion that this crime does not involve moral turpitude.

A. Reckless Endangerment

The BIA in this case defined moral turpitude as conduct that is inherently base, vile, or depraved, contrary to the accepted rules of...