Knapik v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

9-17-2004

Knapik v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-2787

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 PRECEDENTIAL
Peter D. Keisler
UNITED STATES Assistant Attorney General, Civil Division
COURT OF APPEALS Emily Anne Radford, Esquire
FOR THE THIRD CIRCUIT Assistant Director
Douglas E. Ginsburg, Esquire
John M . McAdams, Jr., Esquire
No. 03-2787 Aviva L. Poczter, Esquire
Nicole Nardone, Esquire (Argued)
Department of Justice Civil Division
JAN KNAPIK, Office of Immigration Litigation
P.O. Box 878
Petitioner Ben Franklin Station
Washington, DC 20044
v.
Attorneys for Respondent
*JOHN ASHCROFT, Attorney General
of the United States

Respondent OPINION OF THE COURT

AM BRO, Circuit Judge
On Petition for Review
of a Final Order of the Jan Knapik challenges the decision
Board of Immigration Appeals of the Board of Immigration Appeals
(No. A74-902-513) (BIA) that his conviction for attempted
reckless endan germent is a crime
invo lving m or a l tur pitude u n d er
Argued June 25, 2004 § 237(a)(2)(A)(i) of the Immigration and
Nationality Act (“INA”), 8 U.S.C.
Before: AMBRO, BECKER and § 1227(a)(2)(A)(i). Knapik argues that
GREENBERG, Circuit Judges crimes with a mens rea no greater than
recklessness cannot involve moral
(Opinion filed : September 17, 2004) turpitude because such crimes require
intent. He also argues that, even assuming
Steven Lyons, Esquire (Argued) reckless endan germent is a crime
Martin C. Liu and Associates, PLLC involving moral turpitude, attempted
627 Greenwich St., 12th Floor reckless endangerment is not. For the
New York, NY 10014 reasons that follow, we affirm the BIA’s
d e t e r m in a t i o n t h a t th e r e c k le s s
Attorney for Petitioner endangerment statute in this case defines a
crime involving moral turpitude, but we Knapik with a notice to appear, charging
agree with Knapik that his conviction for him with removability under 8 U.S.C.
attempted reckless endangerment is not § 1227(a)(2)(A)(i), which allows the
such a crime. Attorney General to order the removal of
any alien who has been convicted of a
I. Factual and Procedural Background
crime involving moral turpitude within
Knapik is a citizen of Slovakia. He five years of admission and for which a
legally entered the United States in June sentence of one year or more may be
1995. On September 16, 1996, he adjusted imposed. At the removal hearing, the
his status to that of lawful permanent Immigration Judge (“IJ”) held that
resident. He resides in New Jersey with Knapik’s conviction constitutes a crime
his father and sister who are both lawful involving moral turpitude and ordered him
permanent residents. In August 2000, removed from the United States. Knapik
Knapik pled guilty to the crime of timely appealed to the BIA.
attempted reckless endangerment in the
In May 2003, the BIA affirmed the
first degree in violation of New York
IJ’s decision. The BIA first observed that
Penal Law § 120.25.1 The plea arose from
attempt offenses are crimes involving
an incident in which, while intoxicated,
moral turpitude if the underlying offense
Knapik drove at an excessive rate of speed
involves moral turpitude. The BIA next
against the flow of traffic on the Staten
addressed the issue of criminal
Island Expressway. He pled guilty, was
recklessness. Relying on prior decisions,
sentenced to and served four months in
it concluded that moral turpitude can lie in
jail.
criminally reckless behavior. The BIA
In April 2000, the Immigration and also examined the aggravating factors in
Nationalization Service (INS) 2 served New York’s reckless endangerment
statute, analogized to prior BIA cases
involving manslaughter and assault with a
1
Section 120.25 provides: “A deadly weapon, and distinguished prior
person is guilty of reckless endangerment BIA cases involving simple assault. Taken
in the first degree when, under together, the BIA concluded that the
circumstances evincing a depraved elements of depravity, recklessness and
indifference to human life, he recklessly grave risk of death to another person are
engages in conduct which creates a grave sufficient to establish moral turpitude.
risk of death to another person.”
Knapik timely filed a petition for
2
On March 1, 2003, the INS ceased review of the BIA’s decision. We have
to exist as an independent agency within
the United States Department of Justice
and the INS’s functions were transferred to L. No. 107-296, §§ 441, 451, 471, 116
the Department of Homeland Security. Stat. 2135 (2002). The BIA remains
See Homeland Security Act of 2002, Pub. within the Department of Justice.

2
jurisdiction to review final orders of term encompasses. Particularly, he
removal pursuant to 8 U.S.C. § 1252(a). contends the BIA’s determination that
recklessness crimes may constitute moral
II. Standard of Review
turpitude is not entitled to deference. The
Under Chevron, U.S.A., Inc. v. First, Second, Fifth and Eighth Circuits,
Natural Res. Def. Council, Inc., 467 U.S. however, have concluded that courts
837 (1984), we review an agency’s should defer not only to the BIA’s
construction of a statute it administers definition of moral turpitude but also to its
under a two-step inquiry. If congressional determination that the elements of a
intent is clear from the statute’s language, criminal statute satisfy that definition. See
we must give effect to it as written. Id. at Cabral v. INS, 15 F.3d 193, 195 (1st Cir.
842-43. If Congress’s intent is silent or 1994) (“We therefore inquire whether the
ambiguous, we must decide if the agency’s agency interpretation was arbitrary,
action is based on “a permissible capricious, or clearly contrary to the
construction of the statute.” Id. at 843. statute.”); Michel v. INS, 206 F.3d 253,
263 (2d Cir. 2000) (stating that “in order to
We afford deference, however, only
affirm the BIA’s determination [in regard
when an agency construes or interprets a
to moral turpitude], we need only conclude
statute it administers. See id. at 843-44.
that its interpretation is reasonable and that
In Francis v. Reno, we refused to afford
it ‘considered the matter in a detailed and
Chevron deference to the BIA’s
reasoned fashion’” (citation omitted));
interpretation of the term “felony” as used
Hamdan v. INS, 98 F.3d 183, 184-85 (5th
in 18 U.S.C. § 16 because it is a general
Cir. 1996) (“We accord deference to the
criminal statute not implicating the BIA’s
BIA’s interpretation of questions such as
expertise. 269 F.3d 162, 168 (3d Cir.
those before us here” — i.e., whether
2001). In Sandoval v. Reno, we declined
Hamden’s record of conviction “support[s]
to give deference to the BIA’s decision as
a finding of moral turpitude.”); Franklin v.
to the effective date of a statute because
the “issue [of] a statute's effective date is
not one that implicates agency expertise in
“moral turpitude.” The term is not defined
a meaningful way. . . .” 166 F.3d 225, 239
in the INA, and “legislative history leaves
(3d Cir. 1999). Accordingly, we must
no doubt . . . that Congress left the term
decide which aspects of the BIA’s decision
‘crime involving moral turpitude’ to future
are entitled to Chevron deference.
administrative and judicial interpretation.”
Knapik argues that Chevron Cabral v. INS, 15 F.3d 193, 195 (1st Cir.
deference applies only to what “moral 1994); see also Jordan v. De George, 341
turpitude” means, 3 not to what crimes that U.S. 223, 234 (1951) (Jackson, J.,
dissenting) (stating that “Congress did not
see fit to state what meaning it attributes to
3
We clearly afford Chevron the phrase ‘crime involving moral
deference to the BIA’s definition of turpitude’”).

3
INS, 72 F.3d 571, 572 (8th Cir. 1995) III. Analysis
(stating “we must decide whether the BIA
An alien, even if a lawful
has reasonably interpreted its statutory
permanent resident, is subject to removal
mandate to deport aliens convicted of
if he or she has been convicted of a crime
crimes involving moral turpitude”). In
“involving moral turpitude” within five
contrast, the Ninth Circuit reviews de novo
years of the date of admission and the
whether a particular criminal statute
conviction is one for which a sentence of
involves moral turpitude. See, e.g.,
one year or longer may be imposed. 8
Rodriguez-Herrera v. INS, 52 F.3d 238,
U.S.C. § 1227(a)(2)(A)(i)(I)-(II). As for
240 n.4 (9th Cir. 1995); cf. Franklin, 72
the length of sentence requirement, though
F.3d at 578 (Bennett, J., dissenting)
Knapik received but a four month
(recognizing “a split of authority, or, at
s e n t e n c e , f i r st d e g r e e r e c k l es s
least, a fundamental difference in approach
endangerment is a class D felony, N.Y.
to or perception of the issue”).
Penal Law § 120.25, punishable by up to
We adopt the majority position and seven years imprisonment, id. at §
conclude that the BIA’s determination that 70.00(2)(d).
reckless endangerment crimes may involve
Thus the only issue we must decide
moral turpitude is entitled to Chevron
i s w h e t h e r a tt e m p t e d r e c k l e s s
deference. This issue goes to the heart of
endangerment in the first degree is a crime
the administrative scheme established
involving moral turpitude. This inquiry
under the INA. In this context, the BIA’s
entails a categorical approach, focusing on
conclusions as to reckless endangerment
the underlying criminal statute “rather than
implicate BIA expertise.
the alien’s specific act.” De Leon-
But in determining what the Reynoso v. Ashcroft, 293 F.3d 633, 635
elements are of a particular criminal (3d Cir. 2002) (citing Alleyne v. INS, 879
statute deemed to implicate moral F.2d 1177, 1185 (3d Cir. 1989)); see also
turpitude, we do not defer to the BIA. See Rodriguez-Herrera, 52 F.3d at 239-40
Michel, 206 F.3d at 262 (stating that when (stating that, in analyzing whether a crime
“the BIA is interpreting state or federal involves moral turpitude, “we must focus
criminal laws, we must review its decision on the crime categorically as defined by
de novo” (citing Hamdan, 98 F.3d at 185)). the statute, and not on the specific conduct
As discussed below, it is unclear what the of Rodriguez-Herrera”). Accordingly, “we
e l e m e n t s o f a t te m p t e d r e c k le s s look to the elements of the statutory state
endangerment (as opposed to reckless offense, not to the specific facts. We rely
endangerment) even are. This is not an on ‘what the convicting court must
issue that implicates the BIA’s expertise, necessarily have found to support the
and we decline to afford Chevron conviction and not to other conduct in
deference to the BIA’s decision relating to which the defendant may have engaged in
this matter. Our review of this issue is connection with the offense.’” Wilson v.
thus de novo. Ashcroft, 350 F.3d 377, 381-82 (3d. Cir.

4
2003) (quoting Steele v. Blackman, 236 Matter of Franklin, 20 I. & N. Dec. 867,
F.3d 130, 135 (3d Cir.2001)).4 868 (BIA 1994); Matter of Danesh, 19 I. &
N. Dec. 669, 670 (BIA 1988), and
Following the categorical approach,
decisions of our Court, see, e.g., De Leon-
and in light of our deferential review on
Reynoso, 293 F.3d at 636 (quoting with
the issue, the BIA did not act unreasonably
approval the following definitions of
in determining that New York’s reckless
moral turpitude: (1) “[c]onduct that is
endangerment statute defines a crime
contrary to justice, honesty, or morality”;
involving moral turpitude. But reviewing
and (2) “anything done contrary to justice,
de novo the BIA’s conclusions as to
honesty, principle, or good morals”
attempted reckless endangerment, we
(citations omitted)). As such, the BIA’s
conclude that the categorical nature of the
definition of moral turpitude was
moral turpitude inquiry compels the
reasonable.
conclusion that this crime does not involve
moral turpitude. Applying the BIA’s definition, the
New York statute under which Knapik was
A. Reckless Endangerment
convicted does not contain an intent
The BIA in this case defined moral requirement. To repeat, N.Y. Penal Law
turpitude as conduct that is inherently § 120.25 provides that a “person is guilty
base, vile, or depraved, contrary to the of reckless endangerment in the first
accepted rules of morality and the duties degree when, under circumstances
owed other persons, either individually or evincing a depraved indifference to human
to society in general. The BIA also noted life, he recklessly engages in conduct
that moral turpitude normally includes which creates a grave risk of death to
only acts that are malum in se (i.e., an act another person.”
that is inherently immoral). These
Knapik correctly notes that a strain
statements are in accord with long-
of BIA decisions equates moral turpitude
established BIA principles, see, e.g.,
with evil intent. Matter of Khourn, 21 I. &
N. Dec. 1041, 1046 (BIA 1997) (stating
4
Wilson is not a moral turpitude the BIA “has held that ‘evil intent’ is a
case. The language quoted related to requisite element for a crime involving
determining whether Wilson’s state drug moral turpitude” (citing Matter of Serna,
conviction constituted an “aggravated 20 I. & N. Dec. 579, 582 (BIA 1992)).
felony” under 8 U.S.C. § 1101(a)(43). See Matter of Flores, 17 I. & N. Dec. 225, 227
Wilson, 350 F.3d at 380-82. While (BIA 1980) (stating “evil or malicious
aggravated felony cases may be irrelevant intent is said to be the essence of moral
to the moral turpitude inquiry, we turpitude”); Matter of Abreu-Semino, 12 I.
nonetheless have endorsed a categorical & N. Dec. 775, 777 (BIA 1968)
approach for both types of cases. In this (concluding “crimes in which evil intent is
context, we believe the discussion in not an element, no matter how serious the
Wilson and similar cases is instructive. act or how harmful the consequences, do

5
not involve moral turpitude”). N. Dec. at 870-71, and Matter of Wojtkow,
18 I. & N. Dec. 111, 113 (BIA 1981),
In this vein, prior to 1976 the BIA
involve moral turpitude. Simple assault
was of the opinion that criminally reckless
does not. Matter of Fualaau, 21 I. & N.
conduct was not so debased as to involve
Dec. 475, 478 (BIA 1996).
moral turpitude. See, e.g., Matter of
Gantus-Bobadilla, 13 I. & N. Dec. 777 We hold that the BIA did not act
(BIA 1971). But in Matter of Medina the unreasonably in concluding New York’s
BIA reconsidered its position and first degree reckless endangerment statute
concluded “that moral turpitude can lie in is a crime involving moral turpitude. First
criminally reckless conduct.” 15 I. & N. degree reckless endangerment is a much
Dec. 611, 613 (BIA 1976). Examining the more severe offense than drunk driving,
Illinois definition of recklessness, the BIA which almost certainly does not involve
found persuasive that a moral turpitude. See Matter of Lopez-
Meza, 22 I. & N. Dec. 1188 (BIA 1999)
person acting recklessly
(expressing opinion that “a simple DUI
must consciously disregard a
offense” will almost never rise to the level
substantial and unjustifiable
of moral turpitude); cf. Dalton v. Ashcroft,
risk, and such disregard
257 F.3d 200, 205-06 (2d Cir. 2001)
must constitute a gross
(concluding that New York’s “driving
deviation from the standard
while intoxicated” statute does not
of care which a reasonable
constitute a “crime of violence” under the
person would exercise in the
INA). New York Penal Law § 120.25
situation. This definition of
contains aggravating factors, requiring that
recklessness requires an
a defendant create a “grave risk of death to
actual awareness of the risk
another person” “under circumstances
created by the criminal
evincing a depraved indifference to human
violator’s action.
life.” In this context, the BIA could
Id. at 613-14 (emphasis in text). reasonably conclude that the elements of
depravity, recklessness and grave risk of
In the twenty-eight years since
death, when considered together, implicate
Medina, the BIA consistently has
accepted rules of morality and the duties
interpreted moral turpitude to include
owed to society. Cf. Franklin, 72 F.3d at
recklessness crimes if certain statutory
573 (“In the framework of our deferential
aggravating factors are present. For
review, we cannot say the BIA has gone
example, the BIA limits moral turpitude to
beyond the bounds of reasonableness in
crimes in which a defendant consciously
finding that an alien who recklessly causes
disregards a substantial risk of serious
the death of her child by consciously
harm or death to another. Thus
disregarding a substantial and unjustifiable
recklessness crimes for assault with a
risk to life has committed a crime that
deadly weapon, Matter of Medina, or
manslaughter, Matter of Franklin, 20 I. &

6
involves moral turpitude.”). 5 [or she] engages in conduct which tends to
effect the commission of such crime.”
B. Attempted Reckless Endangerment
People v. Kassebaum, 744 N.E. 2d 694,
We do not disagree with previous 698 (N.Y. 2001) (emphasis added)
BIA decisions concluding attempt offenses (quoting N.Y. Penal Law § 110.00). Yet
can be crimes involving moral turpitude. by its very nature acting recklessly is
See, e.g., Matter of Davis, 20 I. & N. Dec. inconsistent with the mens rea required for
536, 545 (BIA 1992) (stating “[t]here is no attempt. A person cannot intend to
distinction for immigration purposes in commit a criminally reckless act. He or
respect to moral turpitude, between the she either acts recklessly or does not.
commission of the substantive crime and Addressing the statute at issue in our case,
the attempt to commit it” (citation the New York Appellate Division agreed
omitted)). We also take no issue with with this sentiment, concluding that the
previous BIA decisions that it cannot go “ c ri m e o f a t te m p t e d reckle s s
behind a valid final record of conviction endangerment is nonexistent since it is a
— i.e., that the BIA cannot examine the nonintent offense.” People v. Trepanier,
particular facts of a case. See, e.g., Matter 84 A.D. 2d 374, 380 (N.Y. App. Div.
of C-, 20 I. & N. Dec. 529, 532 (BIA 1982) (affirming the lower court’s decision
1992). In its opinion in this case, however, to dismiss the indictment as to this charge).
the BIA glosses over the peculiar conflict Further, New York courts have concluded
between attempt crimes and recklessness.6 in other contexts that the concept of an
Under New York law, a “person is atte mpte d r e c kl e s s n es s c r im e is
guilty of an attempt to commit a crime nonsensical. See, e.g., People v. Terry,
when, with intent to commit a crime, he 104 A.D. 2d 572, 573 (N.Y. App. Div.
1984) (stating “one cannot legally be
found guilty of attempted murder in the
5
We also reject Knapik’s second degree by reckless conduct”).
contention that his conviction is The only contrary authority in New
distinguishable from manslaughter or York is People v. Foster, 19 N.Y.2d 150
assault with a deadly weapon because the (1967). Foster was charged with
reckless endangerment statute does not manslaughter in the first degree and
require injury to an individual. With ultimately pled guilty to attempted
regard to reckless acts, moral turpitude manslaughter in the second degree. On
inheres in the conscious disregard of a appeal, Foster argued his conviction had
substantial and unjustifiable risk of severe no basis in law and violated due process.
harm or death. Knapik’s good fortune in The New York Court of Appeals rejected
not injuring or killing anyone does not this argument, concluding that Foster
change the quality of his actions. knowingly accepted his plea “in
6
satisfaction of an indictment charging a
As noted previously, we exercise
crime carrying a heavier penalty. In such
de novo review in resolving this issue.

7
case, there is no violation of defendant’s Cir. 2002) (quoting Drakes v. Zimski, 240
right to due process.” Id. at 153. F.3d 246, 248 (3d Cir. 2001)). 7 This
means, in the context of our case, that the
Our case, how eve r, is
elements of the underlying offense must
distinguishable from Foster. The concern
necessarily establish that all convictions
driving Foster was manipulation of the
involve moral turpitude. Wilson, 350 F.3d
state criminal process — i.e., a defendant
at 381-82. See also Michel, 206 F.3d at
may not induce a plea agreement, receive
263; Okoroha v. INS, 715 F.2d 380, 382
a reduced sentence and then challenge his
(8th Cir. 1983).8 Attempted reckless
or her conviction. See id. at 153-54 (“The
defendant declined to risk his chances with
a jury. He induced the proceeding of
7
which he now complains. . . . While there Valansi, like Wilson (see note 4
may be question whether a plea to and accompanying text), is an aggravated
attempted manslaughter is technically and felony, not moral turpitude, case.
logically consistent, such a plea should be 8
In an opinion issued the same day
sustained on the ground that it was sought
as the opinion in this case, we engaged in
by [the] defendant and freely taken as part
an extensive analysis of the categorical
of a bargain which was struck for the
approach as applied in aggravated felony
defendant’s benefit.” (emphasis added)).
cases. See Singh v. Ashcroft, No. 03-
In contrast, Knapik’s plea did not decrease
1532, __ F.3d __ (3d Cir. Sept. __, 2004).
the level of the charged offense or subject
Singh noted that while most prior Third
him to a less severe sentence. He was
Circuit cases had employed the “formal
charged with first degree reckless
categorical approach” from Taylor v.
endangerment and he pled guilty to
United States, 495 U.S. 575, 600 (1990) —
a t t em p t e d f i r st d e g r e e r e c k l es s
which focuses exclusively on the statutory
endangerment. More importantly, we are
elements of the underlying offense —
not reviewing a due process challenge to a
others deemed it permissible to look
state court conviction; we are assessing the
beyond the statutory elements of the
immigration implic ations of that
underlying offense.
conviction.
As noted previously, the moral In reconciling these cases, Singh
turpitude inquiry is categorical. De Leon- delineated two situations in which the
R eyn oso, 293 F.3d at 635; formal categorical approach properly may
Rodriguez-Herrera, 52 F.3d at 239-40. be abandoned. The first is when the terms
Under the categorical approach, we have of the statute on which removal is based
cautioned against going “beyond the invites inquiry into the facts of the
offense as charged and scrutiniz[ing] the underlying conviction. For example,
underlying facts” of a case to determine Nugent v. Ashcroft, 367 F.3d 162 (3d Cir.
whether a crime involves moral turpitude. 2004), and Munroe v. Ashcroft, 353 F.3d
Valansi v. Ashcroft, 278 F.3d 203, 214 (3d 225 (3d Cir. 2003), concerned 8 U.S.C.

8
 endangerment is not a crime involving
moral turpitude because, categorically
§ 1101(a)(43)(M)(i), which defines an speaking, the concept makes no sense.
aggravated felony as an offense that Attempt (necessarily requiring intent to
“involves fraud or deceit in which the loss commit a crime) is inconsistent with
to the victim or victims exceeds $10,000.” recklessness (which, by definition, implies
In both cases, however, the relevant acting without intent). Terry, 104 A.D. 2d
criminal statute did not include a “loss at 573; Trepanier, 84 A.D. 2d at 380. Put
greater than $10,000” element. See differently, we cannot say that a conviction
Nugent, 367 F.3d at 168 n.2 (quoting 18 for attempted reckless endangerment
Pa. Cons. Stat. § 3922(a)); Munroe, 353 necessarily involves moral turpitude
F.3d at 226 (citing N.J. Stat. Ann. § 2C:20- without also abandoning the categorical
4). Nonetheless, both Nugent and Munroe approach.9
found it proper to examine the amount of
loss established. See Nugent, 367 F.3d at
175 (noting the parties had “stipulated that convicted is divided into discrete
Nugent’s state conviction was based on a subsections, and (2) it was unclear from
bad check amounting to only $4,831.26”; the BIA’s decision which subsection it
Munroe, 252 F.3d at 226 (looking to the believed Hamdan was convicted under and
indictment and record of conviction). which subsections implicated moral
turpitude).
The second exception to the
categorical approach is when the Examination of these cases further
underlying criminal statute is written in the supports our position in this case. Both
disjunctive (i.e., the statute criminalizes Nugent and Munroe dealt with a provision
similar but legally distinct conduct) such of the INA, 8 U.S.C. § 1101(a)(43)(M)(i),
that some, but not all, convictions under not relevant to the moral turpitude inquiry.
the statute place the alien within the And unlike the statutes at issue in Valansi
removal category for im migra tion and Hamdan, New York’s reckless
purposes. Valansi was such a case. 278 endangerment statute is written neither in
F.3d at 214-17 (in entering plea for the disjunctive nor in subsections.
embezzlement of monies from her Accordingly, the Government has supplied
employer bank, petitioner avoided (and we can think of) no principled reason
admitting that she intended to defraud, not to apply the formal categorical
thus not qualifying as an aggravated felony approach.
for removal purposes). See also Hamdan,
9
98 F.3d at 187-89 (granting the petition for While the Government does not
review and remanding for further ask us specifically to abandon the
examination of the record of conviction categorical approach in cases such as ours
because (1) the Louisiana kidnapping (i.e., when it counsels against deportation),
statute under which Hamdan was that would be the effect. Under the

9
 *****
In this context, we affirm the BIA’s
decision that New York Penal Law
§ 120.25, reckless endangerment in the
first degree, is a crime involving moral
turpitude, but we reverse the BIA’s
conclusion that Knapik’s state conviction
for attempted reckless endangerment in the
first degree is a crime involving moral
turpitude. Therefore, we grant Knapik’s
petition for review and reverse the BIA’s
order of removal.

categorical approach, courts and the BIA
have long declined to consider arguments
that, despite the elements of an offense, an
alien’s individual conduct did not fit
w i t h in a p articular IN A -def ined
deportation category. See, e.g., Alleyne,
879 F.2d at 1185 (citations omitted);
Okabe v. INS, 671 F.2d 863, 864-65 (5th
Cir. 1982); Matter of C-, 20 I. & N. Dec. at
532 (citations omitted). Now that “the
shoe is on the other foot,” it would be
perverse irony to allow the Government to
use the categorical approach in petitioner
appeals but to abandon that approach when
the Government appeals.

10