NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-1399
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MANUEL CASTILLO-LOPEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A200-864-012)
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 6, 2018
Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges.
(Filed: November 8, 2018)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Manuel Castillo-Lopez petitions for review of a decision of the Board of
Immigration Appeals. The BIA deemed Castillo-Lopez ineligible for cancellation of
removal because his New Jersey criminal conviction was a crime involving moral
turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). For the reasons that follow, we
will deny the petition for review.
I1
In 2012, Castillo-Lopez was convicted of aggravated assault after he recklessly
caused bodily injury to a uniformed police officer in violation of N.J. Stat. § 2C:12-
1b(5)(a). Applying the modified categorical approach, the BIA deemed that conviction a
CIMT, which made Castillo-Lopez ineligible for cancellation of removal. In his petition
for review, Castillo-Lopez offers three challenges which we will address in turn.
A
Castillo-Lopez first claims N.J. Stat. § 2C:12-1b(5) is indivisible and thus not
categorically a CIMT. This argument is foreclosed by our decision in United States v.
Abdullah, -- F.3d --, 2018 WL 4702225, at *4 (3d Cir. Oct. 2, 2018). In that case, we
stated that § 2C:12-1b not only is divisible into three alternative degrees of conduct, but
1
Whether Castillo-Lopez’s crime of conviction was a CIMT is a question of law,
which we have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). See Mayorga v.
Att’y Gen., 757 F.3d 126, 128 n.2 (3d Cir. 2014). We review de novo the BIA’s
unpublished, single-member decision, which is not entitled to Chevron deference. See
Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014).
2
is also “further divisible into a number of different third-degree aggravated assault
offenses.” Id. And, as in Abdullah, the Model Criminal Jury Charge for § 2C:12-1b(5)
indicates that New Jersey treats subsections (5)(a) through (5)(k) as separate elements.
See id. (considering New Jersey’s jury instructions to determine whether § 2C:12-1b is
divisible among subsections); New Jersey Model Jury Charges (Criminal), “Aggravated
Assault - Upon Law Enforcement Officer (Attempting to Cause or Purposely, Knowingly
or Recklessly Causing Bodily Injury) (N.J.S.A. 2C:12-1b(5)(a), (b), (c), (d), (e), (f), (g))”
(revised Dec. 3, 2001) n.1 (noting that the model jury instruction is drafted to address
only aggravated assault against a law enforcement officer and that, if a different
subsection is at issue, the jury instruction “must be adapted to fit the facts of [that] case”).
Because the relevant state statute is divisible, the BIA did not err in applying the
modified categorical approach to determine which subsection of § 2C:12-1b(5) Castillo-
Lopez violated.
B
Castillo-Lopez next argues that his conviction under § 2C:12-1b(5) is not a CIMT
under the modified categorical approach. Castillo-Lopez concedes, as he must, that a
review of his plea colloquy indicates that he violated subsection (a) of § 2C:12-1b(5)
because he recklessly caused bodily injury to a “law enforcement officer acting in the
performance of his duties while in uniform or exhibiting evidence of his authority.” N.J.
Stat. Ann. § 2C:12-1b(5)(a) (West 2010) (effective Jan. 4, 2011 through April 19, 2012).
3
The crux of Castillo-Lopez’s argument is that he committed a simple assault,
which is typically not a CIMT. And he argues the fact that his victim was a law
enforcement officer does not make his crime turpitudinous, even though New Jersey law
elevated the crime to aggravated assault based on the status of the victim. We are
unpersuaded by this argument.
“[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 408,
414 (3d Cir. 2005). In our prior analysis of the statute at issue here, we stated (in dicta)
that we would affirm a finding of moral turpitude for an intentional, knowing, or reckless
infliction of bodily injury to a law enforcement officer. See id. at 416. And we have
observed elsewhere as well that certain serious criminal conduct committed recklessly
may reflect moral turpitude. See Totimeh v. Att’y Gen., 666 F.3d 109, 114 (3d Cir. 2012).
In view of our prior decisions, we hold that the BIA did not err when it concluded that
Castillo-Lopez is ineligible for cancellation of removal for having committed a CIMT.
C
Finally, Castillo-Lopez contends that the CIMT statute (8 U.S.C.
§ 1182(a)(2)(A)(i)(I)) is void for vagueness as applied to him. This argument is
foreclosed by our decision in Moreno v. Attorney General, where we rejected a
vagueness challenge to the same statute and emphasized that we have “consistently
defined” the bounds of moral turpitude. 887 F.3d 160, 166 (3d Cir. 2018). Moreover,
Castillo-Lopez cannot credibly claim he lacked fair notice of the CIMT standard when
4
we first recognized his crime a CIMT in 2005, well before his conviction. See Partyka,
417 F.3d at 416.
* * *
For the reasons stated, we will deny Castillo-Lopez’s petition for review.
5