Emmanuel Mahn v. United States Attorney General

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-4377
_____________
EMMANUEL MAHN,
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. A078-780-110)
Immigration Judge: Hon. Andrew R. Arthur
Argued: June 25, 2014
Before: McKEE, Chief Judge, FUENTES and
GREENAWAY, JR., Circuit Judges.
(Opinion Filed: September 17, 2014)
Wayne P. Sachs, Esq. [ARGUED]
1518 Walnut Street, Suite 702
Philadelphia, PA 19102
Attorney for Petitioner
Charles S. Greene, III, Esq.
Zoe J. Heller, Esq.
Andrew B. Insenga, Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent
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OPINION OF THE COURT
____________
FUENTES, Circuit Judge:
Emmanuel Mahn petitions for review of his final order
of removal and contends that his Pennsylvania conviction for
reckless endangerment is not a crime involving moral
turpitude (“CIMT”). Applying the categorical approach, we
conclude that the least culpable conduct punishable under
Pennsylvania’s reckless endangerment statute does not
implicate moral turpitude. Therefore, we grant Mahn’s
petition for review and vacate the BIA’s removal order.
I. Factual and Procedural Background
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Emmanuel Mahn is a citizen of Liberia. In 2000, he
entered the United States as a refugee. Nearly five years later,
he adjusted his status to lawful permanent resident.
In 2007, Mahn pled guilty in the Court of Common
Pleas of Delaware County, Pennsylvania to theft by deception
and forgery. See 18 Pa. Cons. Stat. Ann. § 3922(a); 18 Pa.
Cons. Stat. Ann. § 4101(a).
The following year, Mahn pled guilty in the Court of
Common Pleas to recklessly endangering another person. See
18 Pa. Cons. Stat. Ann. § 2705. According to the affidavit of
probable cause and Mahn’s testimony during his removal
proceedings, Mahn had just picked his sister up from work.
As he was driving out of the parking lot, he lost control of his
car and crashed into the garage and laundry room of a house
located across the street. Although no one was injured,
Mahn’s car damaged the garage door and laundry room of the
house.
In December 2011, the Department of Homeland
Security issued Mahn a Notice to Appear, charging that he
was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having
“been convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct.” AR
409. This charge was based on: (1) Mahn’s convictions for
forgery and theft by deception, which were later deemed to
arise from the same criminal scheme, and (2) his conviction
for reckless endangerment. Mahn filed a motion to terminate
his removal proceedings, asserting that his reckless
endangerment conviction did not qualify as a CIMT.
The Immigration Judge denied Mahn’s motion to
terminate. The IJ pointed out that this Court in Knapik v.
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Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004), determined that
reckless endangerment, in violation of New York Penal Law
§ 120.25, qualifies as a CIMT. The IJ concluded that,
“consistent with Knapik, reckless endangerment under the
Pennsylvania statute in question is a crime involving moral
turpitude.” AR 320. The IJ also held that Mahn’s convictions
for forgery and theft by deception constituted CIMTs.
Accordingly, the IJ ruled that Mahn was removable as
charged. At a subsequent merits hearing, the IJ denied
Mahn’s applications for relief and protection from removal,
and the IJ ordered Mahn removed to Liberia.
Mahn appealed to the Board of Immigration Appeals
(“BIA”). On appeal, he argued that his reckless endangerment
conviction was not a CIMT. The BIA affirmed the IJ’s ruling
in an unpublished, non-precedential decision rendered by a
single Board member. Relying on Knapik, the BIA held that
Mahn’s reckless endangerment conviction constituted a
CIMT because “the statute under which [he] was convicted
defines recklessness as a conscious disregard of a substantial
risk of such a nature that it amounts to a gross deviation from
the standard of care of a reasonable person” and is “coupled
with the requirement that the conduct place another person in
danger of death or serious bodily injury.” AR 4. On these
grounds, the BIA dismissed the appeal. Mahn subsequently
filed this petition for review.
II. Standard of Review
“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., 744 F.3d 54, 57 (3d Cir. 2014)
(citing Catwell v. Att’y Gen., 623 F.3d 199, 205 (3d Cir.
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2010)). Typically, we review the BIA’s legal conclusions de
novo subject to the principles of deference set forth in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984). See Bautista, 744 F.3d at 58.
While we do not defer to the “BIA’s parsing of the elements
of the underlying crime,” we generally accord deference to
“the BIA’s determination that a certain crime involves moral
turpitude when that determination is reasonable.” Mehboob v.
Att’y Gen., 549 F.3d 272, 275-76 (3d Cir. 2008) (citing
Knapik, 384 F.3d at 88).
In this case, however, Chevron deference is
inappropriate because we are asked to review an unpublished,
non-precedential decision issued by a single BIA member.
Following United States v. Mead Corp., 533 U.S. 218 (2001),
“we accord Chevron deference only to agency action
promulgated in the exercise of congressionally-delegated
authority to make rules carrying the force of law.” De Leon-
Ochoa v. Att’y Gen., 622 F.3d 341, 348 (3d Cir. 2010) (citing
Mead, 533 U.S. at 226-27). Unpublished, single-member BIA
decisions are not “promulgated” under the BIA’s authority to
“make rules carrying the force of law.” Id. To the contrary,
these “decisions have no precedential value, do not bind the
BIA, and therefore do not carry the force of law except as to
those parties for whom the opinion is rendered.” Id. at 350.
Since Mead, several Courts of Appeals have declined to apply
Chevron deference to unpublished, single-member BIA
decisions. See, e.g., Arobelidze v. Holder, 653 F.3d 513, 520
(7th Cir. 2011); Carpio v. Holder, 592 F.3d 1091, 1097-98
(10th Cir. 2010); Barrios v. Holder, 581 F.3d 849, 859 (9th
Cir. 2009); Quinchia v. Att’y Gen., 552 F.3d 1255, 1258 (11th
Cir. 2008); Rotimi v. Gonzales, 473 F.3d 55, 57-58 (2d Cir.
2007). We join our sister circuits in concluding that
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unpublished, single-member BIA decisions are not entitled to
Chevron deference. At most, these decisions are persuasive
authority. See Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944).
III. Discussion
The Department of Homeland Security charged Mahn
as removable under 8 U.S.C. § 1227(a)(2)(A)(ii). That
provision sets forth that “[a]ny alien who at any time after
admission is convicted of two or more crimes involving moral
turpitude, not arising out of a single scheme of criminal
misconduct . . . is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii). It
is undisputed that Mahn’s convictions for forgery and theft by
deception constitute CIMTs arising from a single scheme of
criminal misconduct and that these convictions arose from a
distinct scheme from his reckless endangerment conviction.
Thus, Mahn’s removability turns on whether his reckless
endangerment conviction also is a CIMT.
While the Immigration and Nationality Act does not
define the term “moral turpitude,” the BIA and this Circuit
have defined morally turpitudinous conduct as “conduct that
is inherently base, vile, or depraved, contrary to the accepted
rules of morality and the duties owed other persons, either
individually or to society in general.” See Knapik, 384 F.3d at
89. “[T]he hallmark of moral turpitude is a reprehensible act
committed with an appreciable level of consciousness or
deliberation.” Partyka v. Att’y Gen., 417 F.3d 411, 414 (3d
Cir. 2005). Furthermore, it “is the nature of the act itself and
not the statutory prohibition of it which renders a crime one
of moral turpitude.” Totimeh v. Att’y Gen., 666 F.3d 109, 114
(3d Cir. 2012) (quotation marks omitted).
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We apply the categorical approach to assess whether a
conviction qualifies as a CIMT. See Jean-Louis v. Att’y Gen.,
582 F.3d 462, 465-66 (3d Cir. 2009). Under the categorical
approach, we “compare the elements of the statute forming
the basis of the defendant’s conviction with the elements of
the ‘generic’ crime—i.e., the offense as commonly
understood.” Descamps v. United States, 133 S. Ct. 2276,
2281 (2013). In particular, “we look to the elements of the
statutory offense to ascertain the least culpable conduct
hypothetically necessary to sustain a conviction under the
statute.” See Jean-Louis, 582 F.3d at 471 (citing Partyka, 417
F.3d at 411). The “possibility of conviction for non-
turpitudinous conduct, however remote, is sufficient to avoid
removal.” Id.
Mahn’s statute of conviction provides that “[a] person
commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person
in danger of death or serious bodily injury.”1 18 Pa. Cons.
1
The mental state of “recklessness” is virtually identical under
the New York statute at issue in Knapik and under
Pennsylvania law. In New York, “[a] person acts recklessly . .
. when he is aware of and consciously disregards a substantial
and unjustifiable risk” that is “of such nature and degree that
disregard thereof constitutes a gross deviation from the
standard of conduct that a reasonable person would observe in
the situation.” N.Y. Penal Law § 15.05(3). In Pennsylvania,
“[a] person acts recklessly . . . when he consciously
disregards a substantial and unjustifiable risk” that is “of such
a nature and degree that, considering the nature and intent of
the actor’s conduct and the circumstances known to him, its
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Stat. Ann. § 2705. Moral turpitude does not inhere in all
violations of section 2705, as the least culpable conduct
criminalized under this statute is merely reckless conduct that
“may place another person in danger of . . . serious bodily
injury.” Id. (emphasis added). Thus, even an individual who
drives through a red light on an empty street or speeds down
an empty thoroughfare could be punished under section 2705
so long as he or she has a reckless mens rea. Though
unlawful, such traffic offenses do not always rise to the level
of “conduct that is inherently base, vile, or depraved, contrary
to the accepted rules of morality.” See Knapik, 384 F.3d at 89.
The BIA erroneously relied on Knapik to conclude that
Mahn’s conviction for reckless endangerment was a CIMT.
Contrary to the BIA’s claims, the New York reckless
endangerment statute at issue in Knapik is not analogous to
Mahn’s statute of conviction. The statute we examined in
Knapik provides that a “person is guilty of reckless
endangerment in the first degree when, under circumstances
evincing a depraved indifference to human life, he recklessly
engages in conduct which creates a grave risk of death to
another person.” N.Y. Penal Law § 120.25 (emphasis added).
Applying Chevron deference, we held that the BIA did not
unreasonably conclude that a conviction under New York
Penal Law § 120.25 is a CIMT because the statute “contains
aggravating factors, requiring that a defendant create a ‘grave
risk of death to another person’ ‘under circumstances
evincing a depraved indifference to human life.’” Knapik, 384
F.3d at 90 (quoting § 120.25). In contrast to New York’s
disregard involves a gross deviation from the standard of
conduct that a reasonable person would observe in the actor’s
situation.” 18 Pa. Cons. Stat. Ann. § 302(b)(3).
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reckless endangerment statute, Mahn’s statute of conviction
does not contain the aggravating factors of depraved
indifference to human life and grave risk of death to another
person. Moreover, unlike the New York statute, which
requires reckless conduct that creates a grave risk of
endangerment, section 2705 only requires conduct that may
put a person in danger. Such conduct does not necessarily
implicate moral turpitude. Therefore, we conclude that a
conviction under section 2705 does not constitute a CIMT.
IV. Conclusion
Because the least culpable conduct punishable under
section 2705 is not morally turpitudinous, Mahn’s reckless
endangerment conviction does not qualify as a CIMT.
Accordingly, we grant Mahn’s petition for review and vacate
the BIA’s order of removal.
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