Pichardo v. Immigration & Naturalization Service

United States Court of Appeals,

Fifth Circuit.

No. 96-60001.

Juan PICHARDO, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Jan. 31, 1997.

Petition for Review of an Order of the Board of Immigration
Appeals.

Before JOLLY, JONES and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Juan Pichardo ("Pichardo"), a citizen of the Dominican

Republic, petitions this Court for review of a final order of

deportation of the Board of Immigration Appeals ("BIA") which

denied Pichardo's application for relief from deportation under §§

212(c) and 212(h) of the Immigration and Nationality Act ("the

Act"), 8 U.S.C. §§ 1182(c) and 1182(h). Because we lack

jurisdiction, we deny the petition.

FACTS AND PROCEEDINGS BELOW

Pichardo is a 47-year old citizen of the Dominican Republic

who entered the United States as a lawful permanent resident in

1969. The Immigration and Naturalization Service ("INS") issued an

Order to Show Cause against Pichardo on May 19, 1992 charging

Pichardo with being deportable pursuant to section 241(a)(2)(A)(ii)

of the Act, 8 U.S.C. § 1251(a)(2)(A)(ii), for having been convicted

after entry of two crimes involving moral turpitude that did not

arise out of a single scheme of criminal conduct.

1
 Pichardo did not contest his deportability, but in April 1993,

filed applications for relief from deportation under sections

212(c) and 212(h) of the Act. At the hearing on the applications,

the INS submitted judgment and conviction records for Pichardo from

the Commonwealth of Pennsylvania. The records indicated the

following convictions: (1) larceny, receiving stolen goods, and

conspiracy to commit burglary (1972) (sentenced to one-year term of

probation); (2) aggravated assault (1978) (sentenced to not less

than 111/2 months nor more than 23 months); and (3) involuntary

deviate sexual intercourse, indecent assault, endangering the

welfare of children, corruption of minors, and incest (1988)

(sentenced to not less than five nor more than 20 years).

After a hearing, the Immigration Judge ("IJ") denied

Pichardo's applications for relief from deportation and entered a

deportation order against him. Pichardo appealed the IJ's denials

to the BIA. After reviewing the IJ's balancing of the equities

related to the § 212(c) application and the record related to the

"extreme hardship" required for a § 212(h) waiver, the BIA

affirmed. In re Pichardo (A18 867 573), (BIA Dec. 4, 1995).

Pichardo now petitions this Court for review of the BIA's decision.

DISCUSSION

A. Recent Amendments to our Jurisdiction

During the pendency of Pichardo's appeal to this Court, the

Anti-Terrorism and Effective Death Penalty Act of 19961 ("AEDPA")

1
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"),
Pub.L. 104-132, 110 Stat. 1214 (April 24, 1996).

2
was enacted. It amended our jurisdiction over final orders of the

BIA so as to preclude our review of certain matters. See Mendez-

Rosas v. INS, 87 F.3d 672 (5th Cir.1996), cert. denied, --- U.S. --

--, 117 S.Ct. 694, --- L.Ed.2d ---- (Jan. 6, 1997). The Illegal

Immigration Reform and Immigrant Responsibility Act of 19962

("IIRIRA") was also enacted during the pendency of Pichardo's

appeal, and it, among other things, amended the AEDPA's amendments

of our jurisdiction of BIA final orders of deportation. We have

previously determined that the AEDPA's withdrawal of jurisdiction

applies to appeals of BIA final deportation orders pending at the

time of the AEDPA's enactment. Id. Because the relevant amendment

of the IIRIRA is likewise jurisdictional in nature, it is also

applicable to appeals pending at the time of the effective date of

the IIRIRA's relevant provision.3 See Id. at 674. We turn to the

combined amendments of the AEDPA and the IIRIRA to determine if

their jurisdiction withdrawal includes the case at hand.

Section 440(a) of the AEDPA, together with section 306(d) of

the IIRIRA, amended our source of appellate jurisdiction by

providing, in pertinent part, that "[a]ny final order of

deportation against an alien who is deportable by reason of having

committed a criminal offense ... covered by section

2
The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, was
signed into law by President Clinton on September 30, 1996.
3
The relevant IIRIRA provision, section 306(d), has its own
effective date that is different than most of the IIRIRA's
provisions. See IIRIRA § 306(d) (effective date as if enacted with
the AEDPA).

3
241(a)(2)(A)(ii) for which both predicate offenses are, without

regard to the date of their commission, otherwise covered by

section 241(a)(2)(A)(i), shall not be subject to review by any

court" (emphasis added). Section 241(a)(2)(A)(ii) of the Act is

the section under which Pichardo was found deportable. It provides

for deportability for aliens with two or more after-entry

convictions of crimes involving moral turpitude, that did not arise

from a single scheme of criminal misconduct, regardless of whether

confinement was imposed or whether the convictions were in a single

trial. See 8 U.S.C. § 1251(a)(2)(A)(ii).

According to the plain language of the combined amendments of

the AEDPA and the IIRIRA, judicial review is precluded for

deportation orders based on 8 U.S.C. § 1251(a)(2)(A)(ii) only when

two of the moral turpitude offenses supporting deportation are

covered by section 241(a)(2)(A)(i) of the Act, disregarding the

provision related to the date of the crime's commission. "Any

final order of deportation against an alien who is deportable by

reason of having committed a criminal offense ... covered by

section 241(a)(2)(A)(ii) for which both predicate offenses are,

without regard to the date of their commission, otherwise covered

by section 241(a)(2)(A)(i), shall not be subject to review by any

court" (emphasis added). AEDPA § 440(a), IIRIRA § 306(d), 8 U.S.C.

§ 1105a(a)(10) (1996) (to be recodified at 8 U.S.C. § 1252)

(emphasis added). We next inquire as to whether at least two of

Pichardo's convictions that serve as the basis for his deportation

are covered by section 241(a)(2)(A)(i) of the Act.

4
 Section 241(a)(2)(A)(i) of the Act was also amended by the

AEDPA. See AEDPA, § 435 (1996), 8 U.S.C. § 1251(a)(2)(A)(i) (as

amended). However, in contrast with AEDPA § 440(a), the

jurisdiction withdrawal provision, AEDPA § 435 includes an express

provision for its effective date. See Mendez-Rosas, 87 F.3d at

675. Section 435 of the AEDPA provides that it "shall apply to

aliens against whom deportation proceedings are initiated after the

date of the enactment of this Act." AEDPA, § 435(b) (1996). The

AEDPA was enacted in April 1996 and Pichardo's Order to Show Cause

was issued in 1992. Thus, the unamended version of section

241(a)(2)(A)(i) of the Act is to be followed for Pichardo since his

deportation proceedings were initiated before the AEDPA's

enactment. Pursuant to amended 8 U.S.C. § 1105a(a)(10), we must

determine if at least two of Pichardo's convictions that serve as

the basis for his deportation are covered by section

241(a)(2)(A)(i) of the Act, as unamended and disregarding that

provision's reference to the date of the alien's crimes.

Section 241(a)(2)(A)(i), as unamended and omitting any

reference to the date of the crime's commission per the command of

IIRIRA § 306(d), reads as follows.

an alien who—

(I) is convicted of a crime involving moral turpitude ...
after the date of entry, and

(II) either is sentenced to confinement or is confined
therefor in a prison or correctional institution for one
year or longer,

is deportable.

8 U.S.C. § 1251(a)(2)(A)(i) (unamended) (emphasis added). Thus,

5
the convictions precluding jurisdiction must have been (1) for

crimes involving moral turpitude and (2) their sentences or

confinements must have been for one year or longer.

B. Application of the AEDPA/IIRIRA Jurisdiction Provisions

Pichardo did not receive confinement for his 1972 conviction,

but rather, probation. Thus, that conviction fails to meet the

qualifying criteria. Pichardo's 1988 conviction satisfies the

criteria in that it was for a crime unquestionably involving moral

turpitude and he received a sentence in excess of one year.

Because at least two of Pichardo's convictions for crimes

involving moral turpitude that serve as the basis for his

deportation must satisfy the conditions of unamended section

241(a)(2)(A)(i) of the Act (disregarding any consideration of the

date of the crime's commission), Pichardo's third conviction must

meet the conditions in order to trigger the judicial review bar

enacted by the AEDPA and the IIRIRA. His third conviction was for

aggravated assault and Pichardo was sentenced to a minimum prison

term of 111/2 months with a maximum of 23 months. The facts

confront us with two questions: (1) whether such a prison term is

to be considered a term of one year or more, and (2) whether

aggravated assault under the Pennsylvania statute is a crime

involving moral turpitude.

For purposes of exclusion and deportation proceedings, an

indeterminate sentence is to be considered a sentence for the

maximum term imposed. Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th

Cir.1992); see also Nguyen v. INS, 53 F.3d 310 (10th Cir.1995);

6
In re D-, Int.Dec. 3236, 1994 WL 284067 (BIA 1994). Pichardo

received a sentence of 111/2 to 23 months for his aggravated

assault conviction, and the maximum of his sentence, 23 months, is

in excess of one year's confinement, thus fulfilling one of the

requisite conditions of section 241(a)(2)(A)(i).

Regarding the other necessary condition, the Act does not

define the term "moral turpitude" and legislative history does not

reveal congressional intent. See Hamdan v. INS, 98 F.3d 183, 185

(5th Cir.1996). Congress left the term to future administrative

and judicial interpretation. Cabral v. INS, 15 F.3d 193, 195 (1st

Cir.1994). A determination that a crime involves moral turpitude

for purposes of deportation is a question of law, which we review

de novo. Hamdan, 98 F.3d at 185. Whether a crime involves moral

turpitude depends upon the inherent nature of the crime, as defined

in the statute concerned, rather than the circumstances surrounding

the particular transgression. Okabe v. INS, 671 F.2d 863, 865 (5th

Cir.1982). When considering this question, we are limited to the

statute and to Pichardo's record of conviction. Id.

While we do accord some deference to the BIA's interpretation

of questions such as this, see Hamdan, 98 F.3d at 185, no findings

regarding moral turpitude were made related to Pichardo's

aggravated assault conviction.4 However, the BIA has summarized

4
The IJ did not make any findings as to whether the aggravated
assault conviction was for a crime involving moral turpitude.
Rather, he found that Pichardo was deportable as charged under 8
U.S.C. § 1251(a)(2)(A)(ii) for having been convicted of two crimes
after entry not arising out of a single scheme of criminal
misconduct. He did treat the 1988 convictions as all arising from
a single scheme and as involving moral turpitude. In re Pichardo-

7
the judicial and administrative interpretation of the general

definition of moral turpitude, and we have previously relied on its

definition. See Id. at 186.

Moral turpitude refers generally to conduct that shocks the
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. Moral turpitude has
been defined as an act which is per se morally reprehensible
and intrinsically wrong or malum in se, so it is the nature of
the act itself and not the statutory prohibition of it which
renders a crime one of moral turpitude. Among the tests to
determine if a crime involves moral turpitude is whether the
act is accompanied by a vicious motive or a corrupt mind.

Id. (quoting In re Hamdan, at 4 (BIA Jan. 5, 1995) (citations

omitted)); see also In re Fualaau, Int.Dec. 3285, 1996 WL 413576,

at 3 (BIA 1996) (en banc ).

Following Okabe's direction, we turn to the Pennsylvania

statute. The Pennsylvania aggravated assault statute provides for

four categories of aggravated assault.5 Among them are "attempt"

Lora (A 18 867 573), at 13, 14 (June 23, 1993). Because
deportability under 8 U.S.C. § 1251(a)(2)(A)(ii) may be based on
convictions for crimes for which no confinement is imposed, see id.
("Any alien who at any time after entry is convicted of two or more
crimes involving moral turpitude, not arising out of a single
scheme of criminal misconduct, regardless of whether confined
therefor ...") (emphasis added), it is unclear which of Pichardo's
other two convictions the IJ regarded as involving moral turpitude
to serve as the second moral turpitude crime necessary to satisfy
the grounds for deportability under 8 U.S.C. § 1251(a)(2)(A)(ii).
The IJ was not required to designate which of the other two
convictions involved moral turpitude and had no reason to, not
knowing in 1993 what information might be needed in the record for
our post-AEDPA determination of jurisdiction. However, larceny has
been suggested to involve moral turpitude. See United States v.
Smith, 420 F.2d 428, 432 (5th Cir.1970); In re Serna, Int.Dec.
3188, 1992 WL 301779, at 3 (BIA 1992).
5
Pichardo was convicted under 18 Pa.Cons.Stat. § 2702, which
appears below as it did in 1978, the year of Pichardo's conviction.

§ 2702. Aggravated assault

8
offenses. There is no distinction for immigration purposes with

respect to moral turpitude between the commission of a crime and

the attempt to commit it. In re Davis, Int.Dec. 3181, 1992 WL

443920, at 15 (BIA 1992). We thus examine the commission offenses

in the statute for the elements typically involved in assault that

have resulted in findings of moral turpitude. Those are bodily

injury together with a minimum mens rea of recklessness. See In re

Fualaau, at 4; In re Danesh, 19 I & N Dec. 669, 1988 WL 235462, at

4 (BIA 1988). All four categories of commission offenses in 18

Pa.Cons.Stat. § 2702 involve these two elements. 6 In addition, §

(a) Offense defined.—A person is guilty of aggravated
assault if he:

(1) attempts to cause serious bodily injury to
another, or causes such injury intentionally,
knowingly, or recklessly under circumstances
manifesting extreme indifference to the value of
human life;

(2) attempts to cause or intentionally, knowingly
or recklessly causes serious bodily injury to a
police officer making or attempting to make a
lawful arrest;

(3) attempts to cause or intentionally or knowingly
causes bodily injury to a police officer making or
attempting to make a lawful arrest; or

(4) attempts to cause or intentionally or knowingly
causes bodily injury to another with a deadly
weapon.
6
We examine all of the statute's categories of offenses
because the record does not reflect that Pichardo was convicted
under a particular subsection of the Pennsylvania statute, but
generally under 18 Pa.Cons.Stat. § 2702. As a general rule, if a
statute encompasses both acts that do and do not involve moral
turpitude, a finding of moral turpitude cannot be sustained.
Hamdan, 98 F.3d at 187. We are thus required to examine all the
categories for moral turpitude before finding that Pichardo was
convicted for a crime involving moral turpitude.

9
2702(a)(4)'s assault with a deadly weapon has long been regarded to

involve moral turpitude. See In re Medina, 15 I & N Dec. 611, 612

(BIA 1976). Having found the elements typical to moral turpitude

findings to be necessary elements of the statute's commission

offenses, all the requisite conditions have been satisfied that

trigger the AEDPA's and IIRIRA's judicial review bar.7

CONCLUSION

Because this Court lacks jurisdiction, the petition for review

is DISMISSED.

7
We note that in the future, such a lengthy inquiry into our
jurisdiction will likely be unnecessary as the IIRIRA repeals 8
U.S.C. § 1105a, currently our source of judicial review, and
replaces it with other judicial review provisions, one of which
precludes review of decisions regarding the granting of relief
under section 212(h) or under section 212(c), the two grounds of
relief for which Pichardo applied. IIRIRA § 306(a)(2)(B) & (C).
However, this provision, along with other restrictive provisions
regarding judicial review of decisions regarding § 212(i) (fraud
waiver), § 240A (cancellation of removal), § 240B (voluntary
departure), and § 245 applications for adjustment of status, is not
effective for purposes of this case. See IIRIRA § 306(c)
(explaining effective date).

10