Partyka v. Attorney General of U.S., 04-2804.

• Decision Date: 11 August 2005
• Docket Number: No. 04-2804.,04-2804.
• Citation: 417 F.3d 408
• Parties: Marek PARTYKA, Petitioner v. * ATTORNEY GENERAL OF the UNITED STATES, Respondent. * (Pursuant to F.R.A.P. 43(c)).
• Court: U.S. Court of Appeals — Third Circuit

417 F.3d 408

Marek PARTYKA, Petitioner v. * ATTORNEY GENERAL OF the UNITED STATES, Respondent * (Pursuant to F.R.A.P. 43(c)).

No. 04-2804.

United States Court of Appeals, Third Circuit.

Argued March 30, 2005.

Filed August 11, 2005.

Joseph C. Hohenstein (Argued), James J. Orlow, Orlow & Orlow, Philadelphia, PA, for Petitioner.

Bryan S. Beier (Argued), Linda S. Wernery, Jocelyn L. Wright, William C. Peachey, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before ALITO, SMITH, and ROSENN Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The conviction of Marek Partyka ("Partyka" or "Petitioner") for violating a New Jersey criminal statute by assaulting a local law enforcement officer and the ensuing order of removal require us to wade into the amorphous morass of moral turpitude law. As a result of an altercation between Petitioner, then aged twenty, and his father, local police and their K-9 dog responded to a call for assistance. A scuffle soon ensued between the officers and Partyka as he attempted to free himself from the chomping jaws of the police dog. Partyka pled guilty to one count of third degree aggravated assault under the New Jersey statute and the New Jersey Superior Court imposed a sentence of ninety days' house arrest and two years' probation.

The Immigration and Naturalization Service ("INS") instituted deportation proceedings for Petitioner's removal to Poland on the ground that his conviction for causing bodily injury to a law enforcement officer involved moral turpitude under § 237(a)(2)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(i). The Immigration Judge ("IJ") concluded that Partyka's crime involved moral turpitude and that he was removable. The Board of Immigration Appeals ("BIA") affirmed without opinion. Partyka timely filed a petition for review in this Court. We grant the petition for review and will vacate the BIA's order of removal.

I.

Partyka, a native and citizen of Poland, was admitted to the United States as a lawful permanent resident in June 1999, when he was eighteen years-old. Less than two years later, a dispute erupted between Partyka and his father at his father's home in New Jersey, and the police were summoned. When the officers arrived, Partyka's father reported that his son had been drinking and had choked him. The officers observed Partyka pacing on an outdoor, second-floor landing of his father's apartment building, with a cigarette in one hand, and his other hand in his pocket. One officer thought Partyka was hiding something in his concealed hand, and ordered him to remove his hand from his pocket and to descend the staircase to the ground floor. Partyka allegedly became enraged, threw his cigarette at the officer, and refused to remove his hand from his pocket or to descend the staircase.

According to the police reports, Partyka took no physical action toward the police until the K-9 police unit arrived. At that time, Partyka, having been informed that he was under arrest, came down the steps toward the police officers and kicked at the K-9 police dog accompanying the arresting officers. The dog attacked him, biting him repeatedly on his legs, head, and face. The dog seized Partyka on the right calf and the left leg, inflicting multiple lacerations and punctures to both legs. The officers reported that, before they gained control of Partyka, he spat at, wrestled with, kicked, and punched them. Upon completion of the arrest, Partyka was committed to the local hospital for his injuries from the dog bites. He was diagnosed with "traumatic arthrotomy, left knee, secondary to dog bite; multiple lacerations and punctures of the right and left lower extremities secondary to dog bites." He remained hospitalized for three days. The police dog received veterinary attention. There is no report of the officers having received medical care.

In May 2001, Partyka was charged with, inter alia, two counts of aggravated assault on a law enforcement officer in the third degree, in violation of N.J. Stat. Ann. § 2C:12-1b(5)(a). He pled guilty to one count of third degree aggravated assault on a law enforcement officer, and the other charges were dropped. The Superior Court entered a judgment of conviction and sentenced Partyka to ninety days' house arrest and two years' probation.

In April 2002, the INS¹ initiated removal proceedings against Partyka, charging him with being removable under § 237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i), as an alien having been convicted of a crime involving moral turpitude within five years of admission for which a sentence of one year or longer may be imposed.

Partyka moved to terminate the removal proceedings, arguing that he was not convicted of a crime involving moral turpitude. The IJ denied the motion, and applying Board precedents, explained in a written decision that, "aggravated assault against a police officer, which results in bodily injury, and which involves knowledge . . . that . . . force is directed to the officer who is performing an official duty, constitutes a crime involving moral turpitude." IJ Dec. & Order at 2-3 (citing Matter of Danesh, 19 I. & N. Dec. 669, 673, 1988 WL 235462 (BIA 1988)).

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIA's final order of removal. Our review of the BIA's legal determinations is de novo. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.2004). Because the BIA in Partyka's case affirmed the IJ's decision without opinion, we review the IJ's decision. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.2003) (en banc). Whether an IJ's determination is entitled to Chevron deference, Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), when the BIA affirms without opinion remains an open question in this circuit. See Smriko, 387 F.3d at 289 n. 6; Coraggioso v. Ashcroft, 355 F.3d 730, 733 (3d Cir.2004). We need not answer this question now, however, because we owe no deference to the IJ's interpretation of a state criminal statute. See Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (explaining that we accord Chevron deference to the BIA's determination that a particular crime involves moral turpitude but we accord no deference to the BIA's determination of "the elements . . . of a particular criminal statute deemed to implicate moral turpitude"). We conclude that the IJ erroneously interpreted the New Jersey aggravated assault statute.

III.

Under the INA, an alien is deportable if he:

(I) is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed. . . .

8 U.S.C. § 1227(a)(2)(A)(i).

Partyka was convicted of a crime within five years of his admission to this country, and although the New Jersey Superior Court imposed a light sentence of ninety days' house arrest and two years' probation, the crime carried a potential sentence of one year or longer. Therefore, he is deportable if his crime "involves moral turpitude."

Whether an alien's crime involves moral turpitude is determined by the criminal statute and the record of conviction, not the alien's conduct. Knapik, 384 F.3d at 88, 90-91; De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002). Under this categorical approach, we read the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute. Hamdan v. INS, 98 F.3d 183, 189 (5th Cir.1996); Matter of Marchena, 12 I. & N. Dec. 355, 357, 1967 WL 14033 (BIA 1967). As a general rule, a criminal statute defines a crime involving "moral turpitude only if all of the conduct it prohibits is turpitudinous." Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir.2003) (quoting Hamdan, 98 F.3d at 187); see also Matter of C-, 5 I. & N. Dec. 65, 69-70, 1953 WL 7403 (BIA 1953). Where a statute covers both turpitudinous and non-turpitudinous acts, however, it is "divisible," and we then look to the record of conviction to determine whether the alien was convicted under that part of the statute defining a crime involving moral turpitude. See, e.g., Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005); Chanmouny v. Ashcroft, 376 F.3d 810, 813 (8th Cir.2004); Hamdan, 98 F.3d at 187; Matter of Ajami 22 I. & N. Dec. 949, 950, 1999 WL 487022 (BIA 1999).

Thus, we first focus on the elements of the New Jersey statute. Then, we examine the meaning of "moral turpitude" under BIA precedents and federal case law. Because we conclude that moral turpitude does not inhere in all violations of the New Jersey statute, we turn to Partyka's record of conviction to determine whether he was convicted under a subsection involving moral turpitude.

A. The New Jersey Statute

The New Jersey aggravated assault statute effective at the time of Partyka's arrest and indictment provided that a person is guilty of aggravated assault for committing a

simple assault as defined in subsection a. (1), (2) or (3) of this section upon:

(a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority . . . .

N.J. Stat. Ann. § 2C:12-1b(5)(a) (West 1995 & Supp.2004), amended by 2001 N.J. Sess. Law Serv. ch. 215, § 1.² Under subsection a, one is guilty of simple assault if one:

(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

(2) Negligently causes bodily injury to another with a deadly weapon; or

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

Id. § 2C:12-1a(1)-(3).

Aggravated assault on a law enforcement officer is a crime of the third degree if the officer suffers bodily injury. Id. § 2C:12-1b(11). Partyka pled guilty to aggravated assault in the third degree, and thus he does not...