Salomon-Bajxac v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-3711
___________
EDGAR ORACIO SALOMON-BAJXAC,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-380-845)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 3, 2014
Before: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Opinion filed: March 7, 2014)
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OPINION
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PER CURIAM
Petitioner Edgar Salomon-Bajxac petitions for review of a final order of removal
issued by the Board of Immigration Appeals (BIA). For the reasons detailed below, we
will deny the petition for review.
Salomon-Bajxac is a citizen of Guatemala. In 2010, the Department of Homeland
Security charged him with being removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien
present without being admitted. Salomon-Bajxac conceded removability but applied for
cancellation of removal. The government contended that Salomon-Bajxac had
committed a crime involving moral turpitude — he was convicted in 2003 in New Jersey
state court of third-degree aggravated assault on a law-enforcement officer in violation of
N.J. Stat. Ann. § 2C:12-1(b)(5)(a) — which rendered him ineligible for cancellation of
removal pursuant to 8 U.S.C. § 1229b(b)(1)(C).
The Immigration Judge (IJ) agreed with the government, denied Salomon-
Bajxac’s application for cancellation of removal, and ordered him removed. Salomon-
Bajxac appealed to the BIA, which dismissed the appeal. Salomon-Bajxac then filed a
timely petition for review to this Court.
We have jurisdiction over Salomon-Bajxac’s petition for review pursuant to 8
U.S.C. § 1252(a). The Court reviews the BIA’s legal determinations de novo, except
when Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), requires the
Court to defer to the BIA. Mehboob v. Att’y Gen., 549 F.3d 272, 275 (3d Cir. 2008).
The Court defers, under Chevron, “to the BIA’s definition of moral turpitude,” and to its
“determination that a certain crime involves moral turpitude.” Id. (quotation marks,
citation omitted).
2
The BIA did not err here. We have explained that “the hallmark of moral
turpitude is a reprehensible act with an appreciable level of consciousness or
deliberation.” Totimeh v. Att’y Gen., 666 F.3d 109, 114 (3d Cir. 2012) (quotation marks,
alterations omitted). Typically, in determining whether a crime involves moral turpitude,
we employ a “categorical approach” that “focus[es] on the underlying criminal statute
rather than the alien’s specific act.” Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004)
(quotation marks omitted). Under that approach, a criminal statute categorically involves
moral turpitude “only if all of the conduct [the statute] prohibits is turpitudinous.”
Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005). However, if the statute is
“divisible” — that is, it “covers both turpitudinous and nonturpitudinous acts” — we turn
to a modified categorical approach, and “look to the record of conviction to determine
whether the alien was convicted under [a] part of the statute defining a crime involving
moral turpitude.” Id.
In Partyka, we applied this analysis to the very statute at issue here, N.J. Stat. Ann.
§ 2C:12-1(b)(5)(a), and concluded that it covers both turpitudinous and nonturpitudinous
conduct. More specifically, the statute provides that an individual is guilty of aggravated
assault if he “[c]ommits a simple assault as defined in subsection a. (1), (2) or (3) of this
section upon . . . [a]ny law enforcement officer.” § 2C:12-1(b)(5)(a). Subsections (1),
(2), and (3), meanwhile, state that a person is guilty of assault if he “(1) [a]ttempts to
cause or purposely, knowingly or recklessly causes bodily injury to another; or (2)
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[n]egligently causes bodily injury to another with a deadly weapon; or (3) [a]ttempts by
physical menace to put another in fear of imminent serious bodily injury.” N.J. Ann.
Stat. § 2C:12-1(a). We then concluded that negligent assault, as proscribed by § 2C:12-
1(a)(2), is not turpitudinous, while purposeful, knowing, or reckless assault, as proscribed
by § 2C:12-1(a)(1), does involve moral turpitude. Partyka, 417 F.3d at 416.1 We
therefore ruled that in assessing whether convictions under § 2C:12-1(b)(5)(a) qualify as
crimes involving moral turpitude, it is necessary to use the modified categorical approach
to determine which subsection of § 2C:12-1(a) the alien violated. See id. We will thus
employ that approach here.
In applying the modified categorical approach, we may review “the indictment,
plea, verdict, and sentence.” Id. (quotation marks omitted). Here, the indictment
specifically alleges that Salomon-Bajxac “purposely did attempt to cause bodily injury to
and/or purposely, knowingly or recklessly did cause bodily injury to Detective Edward
Rivera.”2 Thus, the record of conviction unequivocally shows that Salomon-Bajxac
violated § 2C:12-1(a)(1); this subsection, we concluded in Partyka, involves moral
turpitude. See id.; see also Totimeh, 666 F.3d at 114 (noting that moral turpitude may
1
In Partyka, we noted that aggravated assault on a law-enforcement officer is a
crime of the third degree if the officer suffers a bodily injury, and because petitioner in
that case pleaded guilty to third-degree aggravated assault — like Salomon-Bajxac did
here — he could not dispute that his assault caused injury. See Partyka, 417 F.3d at 412.
2
The fact that the indictment (like § 2C:12-1(a)(1)) includes criminal attempt is of
no consequence. As the Court observed in Partyka, “[t]he attempts described in
subsection (a)(1) and (3) require specific intent,” and thus involve the requisite state of
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inhere in crimes committed recklessly); Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir.
2004) (accepting legal standard for crimes of moral turpitude that the BIA applied here);
In re Danesh, 19 I. & N. Dec. 669, 673 (BIA 1988) (concluding that similar crime
involved moral turpitude). Therefore, the BIA did not err in concluding that Salomon-
Bajxac was convicted of a crime involving moral turpitude, which rendered him
ineligible for cancellation of removal.3
Accordingly, we will deny the petition for review.
mind for a crime involving moral turpitude. 417 F.3d at 412 n.3.
3
Salomon-Bajxac also complains that the BIA did not address his cancellation-of-
removal application on the merits. Contrary to his argument, the BIA’s analysis was
perfectly permissible — “agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.” INS v. Bagamasbad, 429
U.S. 24, 25 (1976).
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