United States Court of Appeals
For the First Circuit
No. 11-1078
OTHMANE IDY,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.
Saher J. Macarius, with whom Audrey Botros was on brief, for
petitioner.
Corey L. Farrell, Attorney, Office of Immigration Litigation,
with whom Tony West, Assistant Attorney General, Civil Division,
and Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, were on brief, for respondent.
March 23, 2012
THOMPSON, Circuit Judge. Petitioner Othmane Idy (Idy),
a native and citizen of Morocco, seeks review of a decision of the
Board of Immigration Appeals (BIA) affirming an immigration judge's
(IJ) removal order. Idy argues that the BIA erred in two ways:
first, by determining that his reckless-conduct convictions mean he
committed a crime involving moral turpitude; and second, by denying
him a waiver of inadmissibility. After careful consideration, we
dismiss the petition for review in part for lack of jurisdiction
and otherwise deny the petition.
I. BACKGROUND
A. Initiation of Removal Proceedings
On August 18, 2001, Idy was admitted to the United States
as a nonimmigrant visitor for pleasure. Idy's visa allowed him to
stay until February 17, 2002, but after the visa expired he
remained in the United States without authorization.
On December 24, 2004, Idy married Maria Velazquez, a
United States citizen. On February 13, 2006, Idy and Maria had an
argument that culminated in a physical altercation in their New
Hampshire home and criminal convictions for Idy (more on that
later). Nevertheless, on April 4, 2006, Maria filed an I-130
petition to establish that she and Idy were married. The
Department of Homeland Security (DHS) eventually approved the
petition, marking the first step toward a legal immigration status
for Idy.
-2-
But meanwhile, on April 18, 2006, DHS served Idy with a
Notice to Appear (NTA), charging him with removability under 8
U.S.C. § 1227(a)(1)(B) as an alien who remained in the United
States without authorization.1 On May 8, 2007, Idy filed written
pleadings admitting the NTA's factual allegations and conceding
removability. He also indicated that he would seek relief by
applying for an adjustment of status and a waiver of
inadmissibility under 8 U.S.C § 1182(h).2 And on July 9, 2007, Idy
did just that.
B. Evidence in the Record
On May 12, 2009, the IJ convened a hearing to address the
merits of Idy's applications for an adjustment of status and, if
1
This section of the Code provides as follows:
Any alien . . . in and admitted to the United States
shall, upon the order of the Attorney General, be removed
if the alien is within one or more of the following
classes of deportable aliens:
. . .
(B) Present in violation of law
Any alien who is present in the United States in
violation of this Act or any other law of the United
States, or whose nonimmigrant visa (or other
documentation authorizing admission into the United
States as a nonimmigrant) has been revoked under section
1201 of this title, is deportable.
2
Section 1182(h) gives the Attorney General discretion to
waive the crime-of-moral-turpitude bar on admissibility (among
other admissibility bars).
-3-
necessary, a § 1182(h) inadmissibility waiver. The evidence
presented to the IJ included four overlapping but occasionally
markedly different versions of the same set of events: (1) Idy's
and (2) Maria's separate statements to the Manchester Police in the
week following the February 2006 incident, and (3) and (4) their
separate testimonies before the IJ. This case does not turn on its
facts; nevertheless, because Idy's and Maria's testimonial shifts
shed some light on the case and — most pertinently — Idy's
convictions, we will now summarize each version.
1. Idy's Statements to the Manchester Police3
On February 13, 2006, Idy was very tired after work and
wanted to sleep.4 Not having had much time to find Maria a
Valentine's Day gift, Idy bought her chocolates, a picture frame,
and a teddy bear from Rite Aid. He placed the items on the table
where Maria could find them and went to sleep. When Maria came
home, Idy asked her, "Did you like the stuff?"; she did not
respond. He wished her a happy Valentine's Day and tried to hug
her but she pushed him away. Maria was upset that he only spent
$10.00 on her gift. They began to argue. Idy tried to avoid a
confrontation by going to bed, but Maria went "psycho" and
3
This section is drawn from Idy's interview with the
Manchester Police on February 15, 2006.
4
The dates of events in this case are not crystal-clear, but
the best we can tell is that they began in the late hours of
February 13, continued into the early hours of the 14th, and ended
with Idy's statement to the police on the 15th.
-4-
repeatedly pushed him, yelled at him, and told him to leave.
Instead of leaving, Idy went to sleep in the living room. Maria
followed him and started pushing him. Frustrated, he tried to
leave the apartment, but she pushed him in the chest to stop him.
Idy managed to shove his way out of the apartment, and Maria told
him not to come back.
Idy waited outside for the couple's friend Mouneer
Zarveen. They went to a pizzeria across the street. When he and
Zarveen returned to the apartment, Idy and Maria began to argue
again. Maria told Idy that she was going to make him "go through
hell." He tried to sleep on the couch but Maria threw an ashtray
at his chest and began pushing and hitting him. She picked up a
metal table lamp and hit him with it three times; one of the blows
hit his right hand. As Zarveen tried to pull Maria away, Idy took
the lamp from her. He pushed her hard several times and then
grabbed her face and shoved her away. Idy stood in front of Maria
holding the lamp while she sat on the couch with her hands in front
of her face in a defensive position. Intending to break a clay pot
on the floor, Idy "calm[ly]" walked over to the pot and "flipped
it" in Maria's direction; it hit her in the head and broke upon
impact.
Maria sat on the couch bleeding and crying. She told Idy
to leave. He called his friend Raoof to pick him up. At 6 the
next morning, Zarveen called Idy and told him that Maria was in the
-5-
hospital. That same day, Idy went to the Manchester Police
Department and gave a voluntary statement about the incident. He
claimed that he had acted in self-defense and had not intentionally
hit Maria.
2. Maria's Statements to the Manchester Police5
Idy was Maria's first love. In the beginning of their
relationship he treated her fine, but then he became controlling
and limited her interactions with her friends and family. Idy did
not let her go out, he made her do "womanly duties,"6 and he
threatened to leave her if she did not obey him. Eventually, he
became physically abusive and his pushes and slaps progressed into
kicks and punches. He gave Maria two black eyes and assaulted her
approximately five times during a "bad month." Afterwards, Idy
would apologize and tell her that it was not going to happen again;
she believed him because he was her "world." Maria never reported
the abuse to the police because Idy made her feel like he was the
only one she had, and she did not want him to go to jail or be sent
away.
When Maria came home on February 13, 2006, she saw two
chocolate hearts and a teddy bear on the table. Idy asked her if
5
This section is drawn from Maria's interview with the
Manchester Police on February 21, 2006, seven days after the
altercation.
6
Maria defined "womanly duties" as cleaning the house and
washing the laundry.
-6-
she had found the gifts; she told him that she had seen the bear
and chocolates but had been expecting roses. They discussed it,
she said "thank you," and then they went to bed. Idy wanted to
sleep but Maria wanted to watch a movie with him. He asked her to
scratch his back and she said "no." They started arguing, and he
told her that she was being "fucking stupid." Idy pushed Maria
away and went to sleep in the living room. She began to cry and
followed him. Maria grabbed Idy and told him that she loved him.
He pushed her away. She tried to hug him. Idy punched her in the
face.
Maria left the living room to check her eye and when she
returned, Idy was lying on the loveseat, covered with a blanket.
She looked for "something small" to throw at Idy in an attempt not
to hurt him. She picked up an ashtray and threw it at him and then
grabbed a lamp and threw it at his feet. At this point, Idy "got
crazy." He picked up the lamp with both hands and hit her in the
head and arm with its base five or six times. Idy continued to hit
Maria with the lamp while she stood with both hands in front of her
face, trying to protect herself. She made her way to the couch
where Zarveen was sleeping and, "screaming [her] lungs out" because
"the pain was so painful," jumped on him so he could protect her.
Zarveen woke up and began to yell at Idy to "stop." Maria fell
backwards on the couch; Idy tried to hit her again. Maria blacked
out from the blows and when she regained consciousness she prayed,
-7-
"Please, God, don't let me die." She asked Zarveen to take her to
the hospital.
3. Idy's Immigration Hearing Testimony
Consistent with his first account of events, Idy claimed
that the fight started because he did not get Maria "adequate"
gifts for Valentine's Day. He awoke to Maria screaming that her
gifts were not "beautiful" or "sufficient." Idy told Maria that he
would take her out the following day but she went over to the bed
and began kicking him. She followed him and continued to beat him
even after he left the room to sleep on the living room couch.
Yelling, she threw an ashtray and a table lamp at him. He pushed
her away but she kept "hitting" him, so he swung the lamp's cord to
defend himself.
Idy left the apartment, and when he returned with
Zarveen, Maria came out of the bedroom and told him to leave. She
began hitting him again. He "angr[ily]" pushed the flowerpot off
the table, and it hit her in the head. Idy "immediately" left the
apartment and called his friend Abdalla to pick him up. He told
Abdalla that he had just had a fight with his wife and needed a
place to stay. On February 15, 2006, the morning after the
incident, Zarveen called Idy and told him that the police wanted to
talk to him.
Idy testified that he only found out that the flowerpot
had hit Maria in the head after he was arrested, when he read about
-8-
her injuries in the newspaper. He also claimed that he had no
knowledge of the laceration on Maria's left arm or her bruised eye.
Idy continued to assert that he had not planned to hurt Maria and
only had intended to push the flowerpot off the table. Idy
testified that he was not aware that Zarveen had seen what occurred
between him and Maria; this contradicted his previous statement to
the police in which he claimed that Zarveen tried to get Maria away
from him during the incident. Finally, Idy testified that the
police threatened him and told him that they would send him to jail
if he did not answer their questions.
4. Maria's Immigration Hearing Testimony
After a separation spanning from February 2006 to
February 2008, Maria and Idy reunited and her testimony became more
consistent with his account of events. Maria testified that she
had seen the gifts on the table that evening and considered them
thoughtless and "cheap." She pushed Idy out of the bed and
followed him into the living room. They began to argue and she
swore at him because he had left the gifts on the table rather than
giving them to her personally. Maria threw an ashtray at Idy and
it hit him on his legs, stomach, or back. Idy left the apartment
and when he returned with Zarveen, she and Idy continued to argue
while Zarveen "was chopped out" on the couch. Maria threw an
ashtray at Idy again, followed by a metal lamp. Then she walked
toward him and tried to grab the lamp and hit him with it. Maria
-9-
claimed that she did not remember what happened next, but during
the struggle for the lamp, Idy hit her. She testified that when he
"slung" the flowerpot at her, it caused a "big bump" on her head,
which made her feel dizzy and fall on the couch. Zarveen took her
to the hospital.
Maria also testified that all of her statements that Idy
physically abused her were lies. She denied that she and Idy had
had any physical altercations prior to the February 14, 2006
incident. Maria opined that Idy might not have been aware that the
flowerpot had hit her because he turned away. She claimed that she
was "angry with [her] situation" and wanted to harm Idy so she told
the police that there were numerous incidents of abuse. Maria
testified that her mother was there and told her to tell the police
anything that would put Idy in jail. She also claimed that she was
overmedicated on painkillers when she talked to the police and just
wanted them to leave her alone.
C. Injuries and Convictions
Maria sustained blunt trauma to the top of her head and
injuries to her forearm, back, and eye as a result of the
altercation. The injury to her head caused a blood clot in her
brain. As a result, she underwent a six-hour brain surgery and was
hospitalized for one week.
On February 16, 2006, Idy was charged with first degree
assault. However, on February 20, 2008, Idy pled to three counts
-10-
of reckless conduct and was sentenced to eleven months in jail
followed by two years of probation.7
D. Immigration Decision
On November 2, 2009, the IJ determined that Idy was
ineligible for an adjustment of status because of his convictions.
Although the IJ found parts of Idy's testimony regarding the
February 14, 2006 incident "implausible" and "inconsistent" with
the Manchester Police Department reports, he declined to make an
adverse credibility finding against Idy. Instead, ruling as a
matter of law, he found that moral turpitude inhered in the
statutory definition of reckless conduct. Then, as a matter of
discretion, he denied Idy's request for an inadmissibility waiver,
finding that Idy had not established that Maria would suffer
"extreme hardship" if he were removed to Morocco. The BIA affirmed
the IJ's decision in a separate opinion and entered an order
dismissing Idy's appeal on December 22, 2010. On January 20, 2011,
Idy filed a timely petition for review.
7
The exact language of Idy's convictions states the following
(emphasis added):
OTHAMANE IDY . . . on or about the 15th day of February,
2006, at Manchester, did commit the crime of Reckless
Conduct, in that Othmane Idy recklessly engaged in
conduct that placed or may have placed another in danger
of serious bodily injury, when he placed Maria Idy in
danger of serious bodily injury by throwing a flower pot
from a table in close proximity to her, contrary to the
form of the statute and against the peace and dignity of
the State.
-11-
II. JURISDICTION
Before proceeding to the merits of the appeal, we note
that a jurisdictional issue forecloses part of Idy's argument.
Under 8 U.S.C. § 1252(a)(2)(B)(i), "no court shall have
jurisdiction to review . . . any judgment regarding the granting of
relief under section 1182(h)" — the discretionary waiver of
inadmissibility for certain aliens. The exception to this rule is
that we retain jurisdiction over "constitutional claims or
questions of law raised upon a petition for review . . . ." 8
U.S.C. § 1252(a)(2)(D).
In his petition for review, Idy does challenge the legal
basis for the immigration courts' moral-turpitude ruling, but he
does not raise any legal or constitutional issue regarding the
denial of the inadmissibility waiver. Instead, he only challenges
the immigration courts' exercise of discretion in denying such a
waiver. Section 1252(a)(2)(B)(i) therefore deprives us of
jurisdiction over the inadmissibility-waiver issue. In the end,
our review is limited to one legal question: whether Idy's reckless
conduct convictions constitute crimes involving moral turpitude.
III. STANDARD OF REVIEW
Where, as here, the BIA adopted and affirmed the IJ's
ruling, and discussed some of the bases for the IJ's opinion, we
review both the BIA's and IJ's opinions. Zheng v. Gonzales, 475
F.3d 30, 33 (1st Cir. 2007). The BIA's legal conclusions receive
-12-
de novo review, but we give "appropriate deference to the agency's
interpretation of the underlying statute in accordance with
administrative law principles." Gailius v. INS, 147 F.3d 34, 43
(1st Cir. 1998). Specifically, we afford Chevron deference to the
BIA's statutory interpretation, applying the agency's
interpretation unless it is arbitrary, capricious, or clearly
contrary to law. Mejia-Orellana v. Gonzales, 502 F.3d 13, 16 & n.1
(1st Cir. 2007); Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir. 1999).
IV. ANALYSIS
A. Why the Moral-Turpitude Issue Matters
Let us take a step back for a moment. It is uncontested
that Idy is presently removable. An adjustment of status could
cure this problem, if Idy is eligible. His eligibility for a
status adjustment hinges on whether his criminally sanctioned
reckless conduct involved moral turpitude: if so, he cannot adjust
his status; if not, it is possible he can.8 Against this backdrop,
we proceed.
B. What Is a Crime Involving Moral Turpitude?
Our question, again, is whether Idy committed a crime
involving moral turpitude. Normally we would begin by analyzing
the language of 8 U.S.C. § 1182(a)(2)(A)(i)(I), the statute that
8
A discretionary waiver could have gotten Idy around the
removability problem, too, but we have already said we have no
power to alter the immigration courts' denial of the waiver even if
we were so inclined.
-13-
renders inadmissible any immigrant who has committed "a crime
involving moral turpitude," to determine what Congress intended
those particular words to mean. But in this arena it is well
established that "Congress left the term 'crime involving moral
turpitude' to future administrative and judicial interpretation."
Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 1994).
Turning, then, to such post-enactment interpretations, we
have in the past accepted the BIA's definition of moral turpitude
as conduct that "shocks the public conscience as being inherently
base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society in
general" — conduct that "is per se morally reprehensible and
intrinsically wrong . . . ." Maghsoudi, 181 F.3d. at 14. We have
found moral turpitude in crimes involving some aggravating factor
like "serious physical injury." See, e.g., Nguyen v. Reno, 211
F.3d 692, 695 (1st Cir. 2000). And although we have not explicitly
said so before, we now endorse the BIA's uncontroversial position
that a reckless state of mind can under some circumstances be
sufficient to support a finding of moral turpitude. The BIA has
consistently held that to be the rule. See, e.g., Matter of
Franklin, 20 I. & N. Dec. 867, 870 (B.I.A. 1994) (holding that
Missouri's reckless conduct statute establishes a crime involving
moral turpitude); Matter of Wojtkow, 18 I. & N. Dec. 111, 112-13
(B.I.A. 1981) (holding that New York's reckless conduct statute
-14-
establishes a crime involving moral turpitude); Matter of Medina,
15 I. & N. Dec. 611, 613-14 (B.I.A. 1976) (holding that Illinois's
reckless conduct statute establishes a crime involving moral
turpitude). Applying Chevron deference, our sister circuits have
agreed that the BIA's interpretation is reasonable. See, e.g.,
Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004) (holding that
"the BIA did not act unreasonably in concluding New York's first
degree reckless endangerment statute is a crime involving moral
turpitude"); Franklin v. INS, 72 F.3d 571, 573 (8th Cir. 1995)
(affirming Franklin, 20 I. & N. Dec. 867, as reasonable). We
agree, too.
To determine whether a crime is one involving moral
turpitude, we first look to "[t]he inherent nature of the crime of
conviction, as defined in the criminal statute," to see whether it
fits the parameters outlined above. Maghsoudi, 181 F.3d at 14. If
so, our inquiry may end there; however, if the face of the statute
is insufficient for us to make a moral-turpitude determination
(e.g., if the statute contains both crimes that involve moral
turpitude and crimes that do not) then we may look to the record of
conviction — the indictment, plea, verdict, and sentence. Id.
Before conducting this exercise here, we must dispatch
one of Idy's arguments: he says that for an assault-based crime to
involve moral turpitude, it must involve a death. But we have
squarely rejected this argument before, so it is simply beyond
-15-
debate that crimes involving moral turpitude are not limited to
those causing death. See Nguyen, 211 F.3d at 695 (rejecting the
argument that death to another person is a necessary element of a
crime involving moral turpitude); see also Knapik v. Ashcroft, 384
F.3d 84, 90 n.5 (3d Cir. 2004) (noting that the petitioner's "good
fortune in not . . . killing anyone does not change the quality of
his actions"). With that out of the way, we turn to the question
whether reckless conduct as defined by New Hampshire law inherently
involves moral turpitude.
C. New Hampshire's Reckless-Conduct Crime Involves Moral Turpitude
Under New Hampshire criminal law, "[a] person is guilty
of reckless conduct if he recklessly engages in conduct which
places or may place another in danger of serious bodily injury."
N.H. Rev. Stat. Ann. § 631:3 (2011). Section 626:2 defines
"recklessly" as follows:
A person acts recklessly with respect to a
material element of an offense when he is
aware of and consciously disregards a
substantial and unjustifiable risk that the
material element exists or will result from
his conduct. The risk must be of such a
nature and degree that, considering the
circumstances known to him, its disregard
constitutes a gross deviation from the conduct
that a law-abiding person would observe in the
situation.
And § 625:11 defines "serious bodily injury" as "any harm to the
body which causes severe, permanent or protracted loss of or
-16-
impairment to the health or of the function of any part of the
body."
Recall that we owe deference to the BIA's determination
that New Hampshire's reckless conduct statute is a crime involving
moral turpitude, if that determination is neither arbitrary nor
contrary to law. Here, the BIA held that the statute contains both
"reprehensible conduct" and "some degree of scienter," and
therefore that Idy's convictions were for a crime involving moral
turpitude. Specifically, the BIA adopted the IJ's determination
that reckless conduct is necessarily reprehensible because its
definition includes an aggravating factor — "serious bodily injury"
— and satisfies the scienter element because it requires a classic
formulation of recklessness — actual awareness and a conscious
disregard for a "substantial and unjustifiable risk." See N.H.
Rev. Stat. Ann. §§ 626:2, 631:3. This determination is plainly
reasonable, and it perfectly reflects the state of the law of
crimes involving moral turpitude; therefore, we are bound to
conclude that reckless conduct under New Hampshire law is
inherently a crime involving moral turpitude. See Nguyen, 211 F.3d
at 695; see also Matter of Franklin, 20 I. & N. Dec. 867, 870
(B.I.A. 1994).9
9
Idy seems to be concerned that our conclusion will render
morally turpitudinous all assault crimes, but any such concern is
misplaced. Our decision involves only New Hampshire's reckless-
conduct statute, N.H. Rev. Stat. Ann. § 631:3, which features an
aggravating factor and therefore falls at the more serious end of
-17-
V. CONCLUSION
For the reasons stated above, we dismiss the petition in
part for lack of jurisdiction and deny the petition in all other
respects. So ordered.
the assault spectrum. (In New Hampshire, reckless conduct falls
under the umbrella of "Assault and Related Offenses." See N.H.
Rev. Stat. Ann ch. 631.) We express no opinion on other assault
crimes.
-18-