Samuel Deemi v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 17-2287
____________
SAMUEL DEEMI,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A078-495-330)
Immigration Judge: Daniel A. Morris
Argued on January 22, 2020
Before: AMBRO, MATEY and ROTH, Circuit Judges
(Opinion filed: January 12, 2021)
Stephen L. Wohlgemuth (ARGUED)
Williams & Connolly
725 12th Street, N.W.
Washington, DC 20005
Counsel for Petitioner
Victoria M. Braga (ARGUED)
Sunah Lee
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
O P I N I O N*
ROTH, Circuit Judge:
Samuel Deemi was convicted of second-degree sexual assault under New Jersey
law for having sex with a patient formerly under his care at a mental health facility. On
his release from prison, the Department of Homeland Security (DHS) sought to remove
him to Liberia, his country of origin, on two grounds: under 8 U.S.C. § 1227(a)(1)(D)(i)
as an alien whose conditional permanent residence was terminated and under 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an alien who was convicted of an aggravated felony. Deemi
denied that he had committed an aggravated felony but conceded that he was removable
based on the termination of his permanent residence. Deemi then applied for an
adjustment of status and a waiver of inadmissibility. His application was denied by the
Immigration Judge (IJ), and the Board of Immigration Appeals (BIA) dismissed his
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
appeal. For the reasons that follow, we hold that the BIA erred in categorizing Deemi’s
offense as a crime involving moral turpitude (CIMT) because the BIA failed to explain its
departure from established precedent. We will vacate the BIA’s removal order and
remand this case for further proceedings on Deemi’s petition for relief from removal
under section 1227(a)(1)(D)(i).
I. BACKGROUND AND PROCEDURAL HISTORY
Deemi is a native of Liberia. He entered the United States in 2000 as a
nonimmigrant visitor and became a conditional permanent resident in 2007 after
marrying a United States citizen. In 2002, he began working as a caregiver at the Arc of
Hunterdon County, a mental health facility, where he was responsible for supervising
higher-functioning patients. One of his patients was K.S., a woman with an I.Q. between
52 and 64 and the judgment level of a seven- or eight-year-old. 1 One night in February
2009, Deemi went to visit a friend at an apartment complex where the New Jersey
Division of Developmental Disabilities had placed K.S. Deemi encountered K.S. there
and recognized her from the time when she was under his care. He knew that she
suffered from bipolar disorder. The two spoke and then had sex in Deemi’s car.
The encounter had a profound effect on K.S. According to personnel at the Arc,
K.S. was left “increasingly vulnerable,” “endured an extreme amount of trauma” that
would continue “for her lifetime,” and has needed much ongoing “reeducation,
1
State v. Deemi, No. A-1883-10T4, 2012 WL 685889, at *1 (N.J. Super. Ct. App. Div.
Mar. 5, 2012).
3
counseling, [and] intense support.” 2 The encounter was also the basis for Deemi’s
conviction in May 2010 for second-degree sexual assault under N.J. Stat. Ann. § 2C:14-
2c(2), which criminalizes any “act of sexual penetration with another person” who is
“detained in a hospital, prison or other institution” when the actor “has supervisory or
disciplinary power over the victim by virtue of the actor’s legal, professional or
occupational status.” 3 He was sentenced to seven years in prison.
On Deemi’s release from prison, he was served with the DHS Notice to Appear.
He applied for a waiver of inadmissibility under 8 U.S.C. § 1182(h) and an adjustment of
status under 8 U.S.C. § 1255(a).
The IJ denied Deemi’s application in its entirety, concluding that Deemi had not
established exceptional and extremely unusual hardship. Having thus determined that
Deemi’s inadmissibility could not be waived, the IJ entered an order directing Deemi’s
removal to Liberia.
The BIA largely affirmed the IJ’s decision. First, the BIA held that although
Deemi’s conviction under § 2C:14-2c(2) could no longer qualify as an aggravated felony
after we declared 18 U.S.C. § 16(b) 4 to be unconstitutionally vague in Baptiste v.
Attorney General, 5 Deemi was still removable as an alien whose conditional residence
was terminated. Second, the BIA held that sexual assault under § 2C:14-2c(2)
categorically constituted a CIMT because “the intentional sexual penetration of a victim,
2
Administrative Record (AR) 401–02.
3
Id. at 375.
4
18 U.S.C. § 16 defines a crime of violence.
5
841 F.3d 601, 621 (3d Cir. 2016).
4
who is a member of a vulnerable class the statute seeks to protect due to the unequal
positions of power and inherent coerciveness of the situation, is inherently base and
contrary to accepted rules of morality.”6 Thus, under 8 U.S.C. § 1182(a)(2)(A)(i)(I),
Deemi was statutorily ineligible for adjustment of status. Third, the BIA held that
Deemi’s offense was “violent or dangerous” under 8 C.F.R. § 1212.7(d) because “the
sexual assault of a vulnerable victim, who is at risk of suffering greater psychological
harm than normal, is an exploitive and predatory act.”7 Finally, the BIA affirmed the IJ’s
discretionary denial of a waiver of inadmissibility to Deemi. It noted that “his family
would suffer significant hardship if he were removed” after “[t]aking into account the
country conditions of Liberia and the financial impact of [Deemi’s] departure to his wife
and children,” but ultimately agreed with the IJ that Deemi could not meet “the
heightened standard of exceptional and extremely unusual hardship.” 8
Having determined that Deemi was not entitled to a waiver of inadmissibility and
an adjustment of status, the BIA dismissed his appeal. Deemi petitioned for review of
that decision.
II. DISCUSSION
We have jurisdiction over this timely petition for review of a final order of
removal under 8 U.S.C. §§ 1252(a)(1) and 1252(b)(1). Although our jurisdiction only
extends to final orders of removal and thus only to decisions of the BIA, 9 we also review
6
AR 4–5 (internal quotation marks omitted).
7
Id. at 5.
8
Id. at 6.
9
Abdulai v. Ashcroft, 239 F.3d 542, 548–49 (3d Cir. 2001).
5
the IJ’s decision to the extent it is adopted, affirmed, or substantially relied upon by the
BIA. 10
The first issue we must address is whether sexual assault under § 2C:14-2c(2) is
categorically a CIMT. This is a legal question that we review de novo. 11
Whether sexual assault under § 2C:14-2c(2) is a CIMT is relevant in determining
whether Deemi’s waiver of inadmissibility under 8 U.S.C. § 1182(h) is permissible. We
apply the categorical approach to determine whether a particular offense constitutes a
CIMT. 12 The categorical approach requires that we first “ascertain the least culpable
conduct hypothetically necessary to sustain a conviction” under the relevant statute and
then ask whether that conduct is “morally turpitudinous;” in other words, whether it is
“inherently base, vile, or depraved; [or] contrary to the accepted rules of morality and the
duties owed to other persons, either individually or to society in general.” 13
Section 2C:14-2c(2) provides that an actor is guilty of sexual assault if he
“commits an act of sexual penetration with another person” when the other person “is on
probation or parole, or is detained in a hospital, prison or other institution and the actor
has supervisory or disciplinary power over the victim by virtue of the actor’s legal,
10
Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011), as amended (Jan. 13, 2012);
Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009), as amended (Nov. 4, 2009).
11
See Moreno v. Att’y Gen., 887 F.3d 160, 163 (3d Cir. 2018). While we ordinarily
accord deference to the BIA’s determination of whether a particular offense constitutes a
CIMT, “such deference is not required where, as here, ‘we are asked to review an
unpublished, non-precedential decision issued by a single BIA member.’” Id. (citing
Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014).
12
Moreno, 887 F.3d at 163.
13
Id. (internal quotation marks omitted).
6
professional or occupational status.” The victim is not required to be in custody to be
considered “detained” under this section; it suffices that the victim is subject to rules and
penalties imposed by a supervising authority. 14 In addition, so long as the defendant has
supervisory or disciplinary authority over the victim, conviction may be obtained even
where force or coercion is absent. 15 Consent is likewise irrelevant because detainees are
deemed “legally incapable of giving knowing and free consent to proscribed sexual
conduct with the supervisors” who hold power over them. 16
Citing judicial interpretations of § 2C:14-2c(2), Deemi argues that the least
culpable conduct hypothetically necessary to sustain a conviction under the section
involves a defendant who has sexual intercourse with a willing adult without realizing or
knowing that the willing adult is within his or her supervisory or disciplinary control.
Deemi contends that this possibility distinguishes convictions under § 2C:14-2c(2) from
CIMTs on two grounds. First, CIMTs almost always involve an intent to harm someone;
the “hallmark” of a CIMT is an appreciable level of consciousness or deliberation.
Deemi believes, however, that the least culpable conduct under § 2C:14-2c(2) requires
neither intent to harm nor knowledge of the victim’s detainee status. 17 Second, sexual
offenses against children are generally considered CIMTs. In contrast, he believes
§ 2C:14-2c(2) protects a class of persons that includes adults who are fully capable of
14
State v. Martin, 561 A.2d 631, 635–36 (N.J. Super. Ct. App. Div. 1989). At the time, §
2C:14-2c(2) was § 2C:14-2c(3).
15
State v. Spann, 617 A.2d 247, 249 (N.J. 1993).
16
Martin, 561 A.2d at 636–37.
17
Id. at 16–20 (internal quotation marks omitted).
7
consenting to sexual relationships and not as “vulnerable” as children.
In holding that offenses under § 2C:14-2c(2) are categorically turpitudinous, the
BIA compared them to offenses “such as statutory rape, sexual indecency with a minor,
or incest” that have been considered turpitudinous “due to the inherent, vulnerable nature
of the victim.”18 The BIA reasoned that even though § 2C:14-2c(2) applies irrespective
of whether there was proof of consent, “the intentional sexual penetration of a victim,
who is a member of a vulnerable class the statute seeks to protect due to the ‘unequal
positions of power and inherent coerciveness of the situation,’ is inherently base and
contrary to accepted rules of morality.” Thus, a conviction under that section is
categorically turpitudinous. 19 While expressing no opinion on whether we agree with this
ultimate conclusion, we hold that the BIA acted arbitrarily and capriciously in arriving at
it without considering established precedent.
We begin with the observation that “[a]lthough an agency can change or adapt its
policies, it acts arbitrarily if it departs from its established precedents without
‘announcing a principled reason’ for the departure.” 20 Here, the BIA was required to at
least consider its own established precedent in Matter of Silva-Trevino. 21 In Silva-
Trevino, the BIA held that for an offense to constitute a CIMT, it must involve
18
AR 4.
19
Id. at 5.
20
Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002); accord I.N.S. v. Yueh-Shaio
Yang, 519 U.S. 26, 32 (1996) (holding that once an agency announces and follows a
general policy, “an irrational departure from that policy (as opposed to an avowed
alteration of it) could constitute action that must be overturned as ‘arbitrary, capricious,
[or] an abuse of discretion’ within the meaning of the Administrative Procedure Act”).
21
26 I. & N. Dec. 826 (BIA 2016).
8
“reprehensible conduct and a culpable mental state.” 22 That case concerned an alien who
had pleaded no contest to a charge of indecency with a child under Tex. Penal Code Ann.
§ 21.11, which broadly criminalized sexual contact with anyone under the age of
seventeen. The BIA held that an offense under § 21.11 was not categorically
turpitudinous because it “is broad enough to punish behavior that is not accompanied by
the defendant’s knowledge that the victim was a minor.” 23
The holding of Silva-Trevino is consistent with our reading in Jean-Louis v.
Attorney General of the BIA’s interpretation of moral turpitude. There we declined to
designate as a CIMT an offense that does not require knowledge of the victim’s status. 24
In Jean-Louis, we considered whether, under 18 Pa. Cons. Stat. § 2701(b)(2), simple
assault against a child under twelve years of age was categorically turpitudinous. 25 After
concluding that § 2701(b)(2) “permits a conviction . . . where the defendant did not know
that the victim was under 12 years old,” we held that such an offense was not
22
Id. at 834.
23
Id. at 835. Notably, the BIA in Silva-Trevino explicitly reserved the question of
whether crimes like statutory rape, which the BIA considered to be “a distinct category of
crimes that require the penetration of the child or similar conduct” without “requir[ing] a
perpetrator to have knowledge of the age of the victim,” constitute CIMTs. Id. at 834
n.9. In fact, the BIA did later have the opportunity to address whether § 2C:14-2c(2)
categorically constitutes a CIMT when it decided In Re Riaz Hussain Malik, No. AXXX
XX5 267, 2017 WL 8787251 (BIA Dec. 11, 2017). There, the BIA, in an unpublished
decision issued by a single board member, stated that a conviction under § 2C:14-2c(2)
“does not require the lack of consent and would not necessarily constitute a crime
involving moral turpitude because it could involve adults engaging in consensual
activity.” Id. at *4. While non-precedential, Malik is directly on-point.
24
582 F.3d 462 (3d Cir. 2009).
25
Id. at 464.
9
categorically turpitudinous. 26
In the present case, the BIA failed to consider the fact that § 2C:14-2c(2), as
interpreted by New Jersey courts, apparently does not require the perpetrator to know the
status of the victim. The BIA’s decision thus ignores Silva-Trevino. If the BIA intends
to depart from its own precedent, it should provide a reasonable explanation for its
departure. Having failed to do so, it acted arbitrarily. We will not affirm such a
decision. 27
In order that the BIA may have the opportunity to review its holding on whether §
2C:14-2c(2) is a CIMT, taking into consideration its decision in Silva-Trevino, we will
remand this case to the BIA for further proceedings consistent with this opinion. 28
Accordingly, we will grant the petition for review, vacate the BIA’s removal order, and
remand this case to the BIA.
26
Id. at 468–69.
27
See Johnson, 286 F.3d at 705.
28
In view of the remand on the CIMT issue, it is not necessary for us at this time to
consider whether Deemi’s offense was “violent or dangerous” and/or whether waiver of
inadmissibility is permissible in this case.
10