Mehboob v. Atty Gen USA , 175 F. App'x 559 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-14-2006
Mehboob v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1952
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-1952
____________
GHULAM MEHBOOB,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,
Respondents
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A 46 188 944)
Immigration Judge Grace A. Sease
____________
Submitted Under Third Circuit LAR 34.1(a)
February 13, 2006
Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.
(Filed: April 14, 2006)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
This case requires us to decide whether a crime with no mens rea requirement may
reasonably be said to involve “moral turpitude.” We hold that the Board of Immigration
Appeals, the agency charged with making that determination in the first instance, has not
explained itself sufficiently for us to evaluate its reasoning. We will accordingly vacate
the Board’s decision and remand for reconsideration and a fuller explanation.
I.
A.
Ghulam Mehboob is a lawful permanent resident who has lived in the United
States since 1997. In 2001, he was convicted of misdemeanor indecent assault under
Pennsylvania law, 18 Pa. Cons. Stat. § 3126, and sentenced to two years’ probation and a
fine of $146. In September of 2004, the Department of Homeland Security initiated
removal proceedings against him under 8 U.S.C. § 1227(a)(2)(A)(i), which provides for
the deportation of aliens who commit crimes “involving moral turpitude.”1 Immigration
Judge Grace Sease determined that Mehboob was removable, and the Board of
1
The Notice To Appear alleging removability under § 1227(a)(2)(A)(i) is dated
September 9, 2004. (App. 48.) Another Notice To Appear, dated July 12, 2002, see App.
46, but not apparently served on Mehboob until August 6, 2004 (App. 47), alleged
removability under §§ 1101(a)(43)A) (aggravated felony) and 1227(a)(2)(E)(i) (child
abuse). The Board did not decide whether those provisions justified removal, basing its
ruling solely on § 1227(a)(2)(A)(i). (A.R. 3) (BIA decision) (“Because respondent is
removable on this charge, we need not express an opinion as to whether the crime would
also support the ‘aggravated felony’ and ‘crime of child abuse’ charges pending against
him.”). Because the Board did not rule on the other charges, they are not before us here.
2
Immigration Appeals affirmed in an unpublished per curiam opinion. We have
jurisdiction under 8 U.S.C. § 1252. Dia v. Ashcroft, 353 F.3d 228, 234 (3d Cir. 2003).
II.
A.
When we assess the effects of prior convictions on an immigrant’s legal status
under the INA, we do not consider the immigrant’s actual conduct; we look instead only
to the statute of conviction and ascertain the least culpable conduct which could support a
conviction under that statute. Partyka v. Attorney Gen., 417 F.3d 408, 411-12 (3d Cir.
2005). When an immigrant is convicted under a statute with several divisible provisions,
we consider only the provision or provisions under which he was convicted, see id. at
411; In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999), and, if more than one provision is
applicable, we identify the least culpable conduct that could support conviction under any
of them. Partyka, 417 F.3d at 411. We look to state law to ascertain the elements of state
crimes. Id.; Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004).
B.
Under current BIA caselaw as construed by controlling precedent in this Circuit,
the set of crimes “involving moral turpitude” for purposed of the INA is determined with
reference to the mens rea required for conviction, Partyka, 417 F.3d at 413 (citing In re
Khourn, 21 I. & N. Dec. 1041, 1046 (BIA 1997); In re Flores, 17 I. & N. Dec. 225, 227
(BIA 1980), and the threshold condition for moral turpitude under § 1227 is a mens rea of
3
at least recklessness; crimes requiring proof of negligence or lesser mens rea are not
crimes of moral turpitude under the INA. Id. at 414-16.
C.
Under Pennsylvania law, a person is guilty of indecent assault if he or she “has
indecent contact with the complainant or causes the complainant to have indecent contact
with the person” and one of several triggering conditions is met, including, relevant to
this case, that “the person does so without the complainant’s consent,” 18 Pa. Cons. Stat.
§ 3126(a)(1), or that “the complainant is less than 16 years of age and the person is four
or more years older than the complainant and the complainant and the person are not
married to each other,” id. § 3126(a)(8).2 Indecent contact is defined as “any touching of
the sexual or other intimate parts of the person for the purpose of arousing or gratifying
sexual desire, in either person.” Id. § 3101.
Mehboob’s conviction implicates the two subparagraphs of § 3126 noted above,
(a)(1) and (a)(8). The element common to the two provisions, “indecent contact,”
requires a mens rea of purpose, as is clear from the definition quoted above. Physical
contact is not “indecent” unless undertaken “for the purpose” of sexual gratification. Id.
2
The other triggering conditions are: the use of forcible compulsion, 18 Pa. Cons.
Stat § 3126(a)(2); the threat of forcible compulsion, id. § 3126(a)(3); that the complainant
is unconscious or unaware of the contact, id. § 3126(a)(4); the use of intoxicants to impair
the complainant’s control over her conduct, id. § 3126(a)(5); that the complainant suffers
from a mental disability rendering her incapable of consent, id. § 3126(a)(6); or that the
complainant is under thirteen, id. § 3126 (a)(7). Neither Mehboob nor the government
contend that any of these other conditions apply; therefore we will focus, as do the
parties, on (a)(1) and (a)(8).
4
§ 3101. The provisions differ, however, in the “triggering conditions” necessary for
liability: subsection (a)(1) involves the complainant’s consent, while subsection (a)(8)
involves the complainant’s age.
As to subsection (a)(1), the Pennsylvania courts have held that it contains an
implied mens rea requirement of recklessness. The state must prove that the defendant
was at least reckless with respect to the complainant’s lack of consent. Commonwealth v.
Carter, 418 A.2d 537, 541 (Pa. Super. Ct. 1980) (“In the present case, appellant was not
charged with subsection (2) but with subsection (1) and for the reasons above, the proper
element of intent is not ‘knowing’ but at least recklessness. . . . [A]t a minimum,
recklessness [must] be established before the evidence is sufficient for a guilty verdict.”);
see also Commonwealth v. Thomson, 673 A.2d 357, 359 (Pa. Super. Ct. 1996)
(reaffirming holding in Carter).
As to subsection (a)(8), the Pennsylvania courts have held that, “[t]o prove the
crime of indecent assault, the Commonwealth must prove all the elements provided for in
18 Pa.C.S. § 3126.” Commonwealth v. Morales, 40 Pa. D. & C. 4th 456, 462 (1998).
Those elements, as noted above, are limited to the contact itself, the complainant’s age,
and the age difference between the defendant and the complainant. Mens rea is not a
statutory element of (a)(8), nor – in contradistinction to subsection (a)(1) – has any
5
mental state of the defendant been held by the courts to be implicitly required for
conviction.3
Unlike subsection (a)(1), therefore, which requires recklessness, subsection (a)(8)
defines a strict liability offense. The elements of (a)(8) do not include the defendant’s
mental state, and therefore the least culpable conduct that could support a conviction
under (a)(8) is conduct without any culpable mental state at all, not even negligence.
The least culpable conduct reached by § 3126, in other words, is factually
consensual sexual contact between an adult defendant and an underage complainant
whom the defendant honestly and reasonably believes to be an adult. Such a defendant
may be convicted under subsection (a)(8) without having any knowledge that he had
engaged in the prohibited conduct.4 In these circumstances, mens rea would appear to be
absent, and thus, under Board precedent, so would moral turpitude.
3
Pennsylvania law does provide a “mistake of age” defense to indecent assault.
Section 3102 provides that “[w]hen criminality depends on the child’s being below a
critical age older than 14 years, it is a defense for the defendant to prove by a
preponderance of the evidence that he or she reasonably believed the child to be above
the critical age.” 18 Pa. Cons. Stat. § 3102. However, the existence of a separate
statutory or common law defense (which only underscores the lack of a mens rea
requirement as to the age element) is irrelevant to our “least culpable conduct” test, which
is restricted to the elements of the crime, and concerns only the minimum set of facts the
government must make out to secure a conviction.
4
We emphasize that the relevant knowledge is knowledge of fact, not of law. It is
not that the defendant intended to engage in sexual contact with a minor but didn’t know
that such contact was prohibited, but rather that the defendant didn’t intend to engage in
sexual contact with a minor at all.
6
It therefore makes a difference to any assessment of the moral turpitude inherent in
Mehboob’s § 3126 conviction whether he was convicted under (a)(1) or (a)(8). However,
the criminal complaint, which is the only record evidence of the charging provision,
references “Section 3126” without specification of a subsection. The complaint’s
description of “acts committed by the accused” reads: “The defendant unlawfully
engaged in indecent contact with the complainant, age 15, a customer in [Mehboob’s]
store, by pinching her cheek and touching her breast.” The Board’s opinion also does not
specify a particular charging provision, instead characterizing the offense as “defined by
reference to nonconsensual or otherwise abusive sexual contact.” This characterization
obfuscates the distinction between (a)(1) and (a)(8), a distinction which could be
dispositive in this case, because the two provisions require different levels of mens rea.
The Board’s explanation is, in its entirety, as follows:
We are satisfied that the respondent’s crime, which is defined by reference
to nonconsensual or otherwise abusive sexual contact, is one in which moral
turpitude necessarily inheres. See, e.g., Maghsoudi v. INS, 181 F.3d 8,
14-15 (1st Cir. 1999) (indecent assault under Massachusetts law is a crime
involving moral turpitude); Matter of Z-, 7 I. & N. Dec. 253 (BIA 1956)
(indecent assault under Connecticut law is a crime involving moral
turpitude). We note in particular that because the respondent’s offense
involved sexually abusive conduct it is not comparable to the conventional
“assault” crime at issue in Matter of Fualaau, 21 I. & N. Dec. 475 (BIA
1996).
This is not much to work with, and the cited cases are no help. The decision in
Maghsoudi relied on the consent element, see 181 F.3d at 15 (“Given that lack of consent
was an element of the crime to which Maghsoudi pleaded guilty, a determination that the
7
crime involved moral turpitude is consistent with earlier Board determinations.”), and in
Matter of Z- the statute penalized the acts themselves, which were criminal regardless of
consent and regardless of the complainant’s age, 7 I. & N. Dec. at 254 (“[C]onsent is no
defense; and . . . in view of the nature of the offense, it might well be questioned whether
consent would justify a disregard of the invasion of the public welfare and morality of the
state which would be caused by the acts forbidden, even in the absence of the statutory
provision.”). In both cases, the act the defendant intended to commit was itself forbidden
(indeed, in Matter of Z-, it could not even be named). By contrast, no intention to touch
an underage person is required or implied by conviction under (a)(8). The least culpable
conduct that could support conviction under § 3126 (a)(8) involves intent to engage in
perfectly legal activity.
The third case, Fualaau, cuts against the Board’s decision in this case, and the
Board’s cursory attempt at distinguishing it fails to impress. In Fualaau, the Board, in
holding that an assault conviction did not involve moral turpitude, stated explicitly that
“an analysis of an alien’s intent is critical to a determination regarding moral turpitude.”
21 I. & N. Dec. at 478. The Board found turpitude lacking even though a mens rea of
recklessness was an element of the offense, because the actus reus did not involve
“serious bodily injury.” Id. It is not self-evident to us that the statute at issue in that case
is “not comparable” to the statute at issue in this one, and the Board has failed to supply
an argument supporting that assertion.
8
We may surmise that in analyzing § 3126, the Board was thinking only about
(a)(1) and not (a)(8). Under Pennsylvania law, as we have seen, (a)(1) requires a mens
rea of recklessness. Perhaps the Board reasoned that any nonconsensual sexual touching
is infliction of “serious bodily injury,” and that the statute thus links mens rea and actus
reus as contemplated in Fualaau. This sort of rationale might be properly applied to
(a)(1), but it has no application to (a)(8), which has no mens rea requirement at all. The
Board’s opinion simply does not address (a)(8).
Such an inadequate analysis does not make for satisfactory lawmaking, and it is
unredeemed by the briefs on appeal. Both parties focus their arguments on (a)(1), the
consent provision, and neither side addresses what for us is the crucial question: whether
a strict liability offense such as (a)(8) can reasonably be said to be a “crime involving
moral turpitude.” We have no way of telling, from the Board’s opinion, whether it
thought that Mehboob was convicted exclusively under (a)(1), or whether it thought that
(a)(8) defines a crime of moral turpitude. The former proposition is not supported by the
record, and the latter is arguably inconsistent with longstanding Board precedent as
adumbrated and approved in Partyka. In such circumstances we cannot approve the
Board’s opinion.
III.
We emphasize, however, that the Board may be within its authority to extend its
interpretation of “moral turpitude” to the crime defined by (a)(8). Executive branch
agencies are entitled to revise their interpretations of ambiguous statutes assigned to them
9
for implementation, and courts must defer to reasonable agency interpretations. On
remand, the Board needs to explain explicitly why, in its view, 18 Pa. Cons. Stat.
§ 3126(a)(8) does or does not define a crime of moral turpitude under 8 U.S.C.
§ 1227(a)(2)(A)(i). Because “unpublished precedent is a dubious basis for demonstrating
the type of inconsistency which would warrant rejection of deference,” De Osorio v. INS,
10 F.3d 1034, 1042 (4th Cir. 1993), “[w]e will not bind the BIA with a single
non-precedential, unpublished decision any more than we ourselves are bound by our
own unpublished orders.” Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993).
IV.
For the foregoing reasons, we will grant the petition for review and remand the
case in order that the Board may expressly decide whether § 3126 (a)(8) defines a crime
of moral turpitude.
SCIRICA, Chief Judge, concurring.
In Partyka v. Attorney General, we compared reckless assault to criminally
negligent assault, and concluded the latter did not qualify as a crime involving moral
turpitude for purposes of 8 U.S.C § 1227(a)(2)(A)(i). 417 F.3d 408, 416 (3d Cir. 2005)
(“We hold that negligently inflicted bodily injury lacks the inherent baseness or depravity
that evinces moral turpitude . . . .”). We did not address the question presented in this
case, whether a purposeful sex crime that does not require proof of mens rea for one
10
element can qualify as a crime involving moral turpitude. Several courts of appeals have
held similar sex crimes to involve moral turpitude. See Franklin v. INS, 72 F.3d 571, 588
(8th Cir. 1995) (“Courts have consistently held that statutory rape is a crime involving
moral turpitude, even though it has no intent element, because such a crime is ‘usually
classed as rape,’ which ‘manifestly involves moral turpitude.’”) (citation omitted); Castle
v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (collecting cases); see also Sheikh v.
Gonzales, 427 F.3d 1077, 1082 (8th Cir. 2005) (contributing to the delinquency of a
minor); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (incest).
As the majority has noted, there is no precedential case nor Board precedent on
this issue. Accordingly, I agree that we should remand so that the Board might answer in
the first instance whether 18 Pa. Cons. Stat § 3126(a)(8)—which requires a purposeful
touching but for which the legislature removed proof of lack of consent for a special class
of victims—is a crime involving moral turpitude.
11