Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2008

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Precedential or Non-Precedential: Precedential

Docket No. 07-1799




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Mehboob v. Atty Gen USA" (2008). 2008 Decisions. Paper 175.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/175


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                  PRECEDENTIAL

    UNITED STATES COURT OF APPEAL
        FOR THE THIRD CIRCUIT


                  No. 07-1799


            GHULAM MEHBOOB,

                                         Petitioner

                       v.

ATTORNEY GENERAL OF THE UNITED STATES,

                                         Respondent


   On Petition for Review from an Order of the
         Board of Immigration Appeals
              (BIA-1: A46-188-944)
   Immigration Judge: Hon. Grace A. Sease


            Argued October 21, 2008
      BEFORE: SMITH and COWEN , Circuit Judges
           and THOMPSON*, District Judge

                 (Filed: November 26, 2008)

Michael S. Henry, Esq. (Argued)
2336 South Broad Street
Philadelphia, PA 19145-0000

Counsel for Petitioner

Jeffrey L. Menkin, Esq. (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000

Counsel for Respondent




                         OPINION




*Honorable Anne E. Thompson, Senior United States District
Judge for the District of New Jersey, sitting by designation.



                             2
COWEN, Circuit Judge.
      In this petition for review of the Board of Immigration
Appeals’ (“BIA”) order of removability, we must decide
whether a conviction for indecent assault under 18 Pa. Cons.
Stat. § 3126(a)(8), a strict liability offense, is a crime involving
moral turpitude. Because the offense combines a reprehensible
act with deliberate conduct, we conclude that indecent assault
under Pennsylvania law is a crime involving moral turpitude,
and consequently, the petition for review will be denied.
                                 I.
       Petitioner, Ghulam Mehboob, is seeking review of the
BIA’s final order of removal and denial of his application for
termination of removal proceedings. Mehboob, a native and
citizen of Pakistan, was lawfully admitted to the United States
as an immigrant in December, 1997. On December 7, 2001,
Mehboob was convicted of a misdemeanor, indecent assault, in
violation of 18 Pa. Cons. Stat. § 3126(a),1 for touching the

  1
      The statute provides:
          A person is guilty of indecent assault if the
        person has indecent contact with the complainant
        . . . for the purpose of arousing sexual desire in
        the person or the complainant and:
                 (1) the person does so without the
                 complainant’s consent;
                 (2) the person does so by forcible
                 compulsion;
                 (3) the person does so by threat of
                 forcible compulsion that would

                                 3
breast of a 15 year old girl, who was a customer in his store. He
was sentenced to two years of probation and fined $146. The
record of conviction, however, did not specify the sub-section


             prevent resistance by a person of
             reasonable resolution;
             (4) the complainant is unconscious
             or the person knows that the
             complainant is unaware that the
             indecent contact is occurring;
             (5) the person has substantially
             impaired the complainant’s power
             to appraise or control his or her
             conduct by administering or
             employing, without the knowledge
             of the com plainan t, drugs,
             intoxicants or other means for the
             purpose of preventing resistance;
             (6) the complainant suffers from a
             mental disability which renders the
             complainant incapable of consent;
             (7) the complainant is less than 13
             years of age; or
             (8) 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.
18 Pa. Cons. Stat. § 3126(a).

                               4
of § 3126(a) under which Mehboob was convicted.
       Following the conviction, the Department of Homeland
Security (“DHS”) initiated removal proceedings against
Mehboob under 8 U.S.C. § 1227(a)(2)(A)(i), which provides
for the deportation of aliens who commit crimes involving
moral turpitude. An Immigration Judge (“IJ”) determined that
Mehboob was removable for having committed a crime
involving moral turpitude, and the BIA affirmed. Mehboob
then petitioned this Court for review. The panel vacated the
decision because the BIA had not sufficiently explained its
reasoning and remanded the case to the BIA for reconsideration
and fuller explanation. Mehboob v. Att’y Gen. of the U.S., 175
Fed. Appx. 559 (3d Cir. 2006).
       On remand, the BIA affirmed its previous conclusion
that Mehboob had committed a crime involving moral turpitude
and dismissed the appeal. Mehboob petitioned this Court for
review of the BIA’s order of removal. We have jurisdiction
over Mehboob’s petition for review pursuant to 8 U.S.C. §
1252(a).
                               II.
        This Court reviews the BIA’s legal determinations de
novo, except when Chevron v. Natural Resources Defense
Council, 

(1984), requires us to defer to the BIA.
Wang v. Ashcroft, 

, 349 (3d Cir. 2004). Chevron
deference is required “when an agency construes or interprets
a statute that it administers” and the agency’s interpretation is
“based on a permissible interpretation of the statute.” Knapik
v. Ashcroft, 

, 87 (3d Cir. 2004). Accordingly, we
defer, under Chevron, “to the BIA’s definition of moral

                               5
turpitude,” 

n.3, as well as the BIA’s determination that
a certain crime involves moral turpitude,2 

. No
deference, however, is given to the BIA’s parsing of the
elements of the underlying crime. See id.; see also Partyka v.
Att’y Gen. of the U.S., 

, 411 (3d Cir. 2005) (“[W]e
owe no deference to the IJ’s interpretation of a state criminal
statute.”).
                               III.
       An alien is subject to removal pursuant to 8 U.S.C. §
1227(a)(2)(i) if she or he “is convicted of a crime involving
moral turpitude,” the crime is committed within five years of the
date of admission, and the sentence that may be imposed for the
crime of conviction is one year or longer. Mehboob was
convicted of indecent assault, in violation of 18 Pa. Cons. Stat.
§ 3126(a), on December 7, 2001. That date was four years from
his admission to the United States in December, 1997. The
offense carried a potential sentence of more than one year in
jail. The question of Mehboob’s removability hinges on
whether indecent assault under Pennsylvania law is a crime


   2
     Whether to defer to the BIA on the determination that a
certain crime involves moral turpitude was specifically
addressed by Knapik v. Ashcroft. While noting that the Ninth
Circuit reviews de novo whether a particular crime involves
moral turpitude, we adopted the majority position, also held by
the First, Second, Fifth, and Eighth Circuits, and concluded that
the BIA’s determination that a certain crime involves moral
turpitude is entitled to Chevron 

.


                                6
involving moral turpitude.
        The Third Circuit has adopted a categorical approach to
identifying crimes involving moral turpitude. 

; 

. This “categorical” inquiry is
based on “the criminal statute and the record of conviction, not
the alien’s conduct.” 

. When a statute
is “divisible,” meaning that it prohibits several different types
of conduct, we “look to the record of conviction to determine
whether the alien was convicted under [a] part of the statute
[which] defin[es] a crime involving moral turpitude.” 

sub-section is specified in the record of conviction, we
begin our categorical inquiry with the sub-section requiring the
least culpability. Accordingly, a crime involves moral turpitude
when “the least culpable conduct necessary to sustain a
conviction under the statute” can be considered morally
turpitudinous. 

Turpitude
        Morally turpitudinous conduct is inherently base, vile, or
depraved; contrary to the accepted rules of morality and the
duties owed other persons, either individually or to society in
general. 

. To determine whether a
particular crime involves moral turpitude, we ask whether the
criminal act is “accompanied by a vicious motive or a corrupt
mind.” 

rule that has been culled from the
answer to this question is that “evil intent is a requisite element
for a crime involving moral turpitude.” 

       Applying this general rule, we have found that, in
addition to intentional crimes, serious crimes committed

                                7
recklessly—that is, “with a conscious disregard of a substantial
and unjustifiable risk that serious injury or death would
follow”—can be found to involve moral turpitude. This Court,
however, has drawn a line at recklessness, and has held that
moral turpitude does not inhere in a crime merely requiring a
mental state of negligence. Compare 

(holding that “negligently inflicted bodily injury lacks the
inherent baseness or depravity that evinces moral turpitude”)
with 

(affirming the BIA’s decision that
first degree reckless endangerment is “a crime involving moral
turpitude”). Thus, the “hallmark” of moral turpitude has
become “a reprehensible act with an appreciable level of
consciousness or deliberation.” 

.
              B. Least Culpable Conduct
       Mehboob was convicted of indecent assault under 18 Pa.
Cons. Stat. § 3126(a), which contains eight sub-sections.
Section 3126(a) is therefore divisible, so we look at the record
of conviction. The record of conviction in this case does not
specify the sub-section under which Mehboob was convicted.
Therefore, we look at the sub-section that requires the least
culpability, sub-section (a)(8), to determine whether it is a crime
involving moral turpitude.
       Sub-section (a)(8) is violated when there is “indecent
contact with the complainant” when “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.” The term “indecent contact” is
defined as “[a]ny touching of the sexual or other intimate parts
of the person for the purpose of arousing or gratifying sexual

                                8
desire, in either person.” 18 Pa. Cons. Stat. § 3101. Thus, the
elements of this offense consist of: (1) purposeful contact; (2)
the complainant’s age; and (3) the age difference between the
defendant and the complainant. There is no mens rea element
as to the age of the victim; nor has any mental state ever been
implied by the Pennsylvania courts. As such, sub-section (a)(8)
defines a strict liability offense.
        The least culpable conduct that would sustain a
conviction under § 3126(a)(8) would be consensual contact for
the purpose of sexual gratification between a 19 year old and a
15 year old. Thus, indecent assault under Pennsylvania law can
be a crime involving moral turpitude if such contact between a
19 year old and a 15 year old can be considered inherently base,
vile, or depraved or is contrary to the accepted rules of morality.
In other words, if it is found to combine “a reprehensible act
with an appreciable level of consciousness or deliberation.”

.
              C. Analysis
       Chevron teaches us to defer to the BIA’s determination
that a certain crime involves moral turpitude when that
determination is reasonable. 

. In its
decision, the BIA distinguished strict liability “morality
offenses,” which it found to be so manifestly contrary to
community mores that they are subject to a presumption of
culpability, from other, regulatory “public welfare” offenses,
which impose strict liability primarily for policy imperatives and
are less directly tied to universal community values.
Specifically focusing on 18 Pa. Cons. Stat. § 3126(a)(8), the
BIA held that, as a classic morality offense, sub-section (a)(8)

                                9
described a crime involving moral turpitude, despite the fact
that the statute does not contain a mens rea element as to the
complainant’s age.    We do not find this conclusion to be
unreasonable.
       The absence of a mens rea as to a particular element in
the statute of conviction does not necessarily connote an
absence of moral culpability on the part of the violator. Strict
liability morality offenses, like indecent assault under §
3126(a)(8), are crimes involving moral turpitude because of the
community consensus that such offenses, which are enacted for
the protection of the child, are inherently antisocial and
depraved. In re Mehboob, at 3 (B.I.A. Feb. 16, 2007); Pet’r
App. at 4. In this case, the community consensus is that
indecent contact between a person less than 16 years of age and
another person who is four or more years older is reprehensible
and socially unacceptable. The Pennsylvania Supreme Court
has found that sub-section (a)(8) serves the legitimate societal
purpose of protecting minors from sexual aggressors. See
Commonwealth v. Albert, 

, 1154 (Pa. 2000)
(recognizing that “older, more mature individuals are in a
position that would allow them to take advantage of the
immaturity and poor judgment of very young minors”).
       Legislatures often remove mens rea elements from sex
offenses on the basis of community consensus that certain
conduct should not be permitted with children under a certain
age. Enacting strict liability offenses such as § 3126(a)(8),
makes it easier for the state to punish behavior that the
community disapproves of because the state is not required to



                              10
prove that the perpetrator knew the actual age of the victim.3
But just because actual knowledge of the victim’s age is not an
element of the crime does not mean that the perpetrator was not
motivated by moral turpitude. Indeed, it would seem impossible
to commit an offense, such as the one defined by subsection
(a)(8), without violating accepted rules of morality.
       Thus, the same community consensus that obviates the
need to prove knowledge of the actual age of the victim at a
criminal trial also categorizes § 3126(a)(8) as a crime involving
moral turpitude. Accordingly, we hold that the absence of mens
rea as to a specific element of a crime does not necessarily
preclude a finding that a strict liability sex offense involves
moral turpitude. It is the nature of the crime, in addition to the
particular elements, that determines whether it involves moral
turpitude. See Castle v. I.N.S., 

, 1066 & n.5 (4th
Cir. 1976).

  3
     This presumptive culpability is offset by a mistake of fact
defense, which allows a defendant to prove by a preponderance
of the evidence that she or he reasonably believed the child to
be above the age of 16. 18 Pa. Cons. Stat. § 3102. The
availability of this defense in a criminal prosecution, however,
cannot be used in the immigration context to back into the
conclusion that an individual knew the complainant to be under
age. Under our immigration precedents, the categorical inquiry
is limited to the elements of the offense; it does not encompass
separate statutory or common law defenses that are available to
a criminal defendant. We cannot presume from the fact of
Mehboob’s conviction that he knew the child to be under the
age of 16.

                               11
        This conclusion does not, as Mehboob suggests, abandon
the categorical approach; nor does it remove the evil intent
element from the definition of moral turpitude. Mehboob
argues that indecent assault under § 3126(a)(8) cannot be a
crime involving moral turpitude because a person could be
convicted without either engaging in inherently base, vile or
depraved conduct, or having a vicious motive or corrupt mind.
He asserts that the least culpable conduct does not rise to the
level of moral turpitude because society would not find a 19
year old’s act of touching a 15 year old to be morally
reprehensible. Indeed, this is the position of the Court of
Appeals for the Ninth Circuit, which held in a recent decision
that statutory rape under California law could not be categorized
as a crime involving moral turpitude because the least culpable
conduct that could support a conviction under the statute might
be “socially unacceptable,” but was not “inherently base, vile,
or depraved.” Quintero-Salazar v. Keisler, 

, 693
(9th Cir. 2007).
       However, Pennsylvania, as gauged by the enactments of
the state legislature, appears to believe that the touching of a
person who is less than 16 years of age by a person who is four
or more years older for the purpose of arousing or gratifying
sexual desire is offensive to public moral values. This view is
supported by the fact that the offense is named indecent assault.
See Webster’s 3d New Int’l Dictionary 1147 (1986) (defining
indecent as “altogether unbecoming . . . not conforming to
generally accepted standards of morality”).
       A survey of the cases reveals the consensus that moral
turpitude inheres in strict liability sex offenses. See, e.g.,
Sheikh v. Gonzales, 

, 1082 (8th Cir. 2005)

                               12
(concluding that an IJ did not abuse her discretion in finding
that the misdemeanor offense of contributing to the delinquency
of a minor was a crime involving moral turpitude); Castle v.
I.N.S., 

, 1066 (4th Cir. 1976) (holding that “a
man’s carnal knowledge of a fifteen year old girl, not his wife,
is so basically offensive to American ethics and accepted moral
standards as to constitute moral turpitude per se”); Marinell v.
Ryan, 

, 475-76 (2d Cir. 1961) (“no doubt” that the
indecent touching of a child under the age of sixteen involves
moral turpitude); Pino v. Nicolls, 

, 240 (1st Cir.
1954) (“cannot . . . be questioned” that assault on a child under
sixteen years of age with the intent to unlawfully and carnally
know her “belongs in the category of crimes involving moral
turpitude”); see also Marciano v. I.N.S., 

(8th Cir.
1971); Ng Sui Wing v. United States, 

(7th Cir.
1931); Matter of Dingena, 11 I. & N. Dec. 723 (B.I.A. 1966);
Matter of Garcia, 11 I. & N. Dec. 521 (B.I.A. 1966); Matter of
R—, 3 I. & N. Dec. 562 (B.I.A. 1949).
       Moreover, indecent assault, as defined by § 3126(a)(8),
is not devoid of mens rea. Although it may not require
knowledge of the complainant’s age, it does require the
purposeful conduct, namely the touching of the sexual or other
intimate parts of a person in order to arouse or gratify sexual
desire. See Model Penal Code § 2.02(2). While this type of
purposeful conduct on its own might not be viewed as
reprehensible, when it is carried out on a person less than 16
years of age by another person who is four or more years older,
society’s accepted rules of morality are violated. It is the
combination of arousing or gratifying sexual desires by
touching a child under the age of 16 that is inherently base, vile,

                                13
and depraved.
       Drawing a line at penetration, such that statutory rape
offenses would be considered morally turpitudinous, but
indecent assault offenses would not, as Mehboob has suggested,
would not change our conclusion. Not only is penetration
somewhat of an arbitrary demarcation between conduct that is
socially acceptable and conduct that is not, it is also not
supported by case law or the community consensus. Although
a majority of the cases in this area have considered statutory
rape offenses, several have found crimes not requiring
penetration to involve moral turpitude. See, e.g., Marinell, 

(indecent touching); Matter of Garcia, 11 I. & N. Dec.
521 (taking indecent liberties with a child); Matter of Imber, 16
I. & N. Dec. 256 (sexual misconduct and immoral advances).
In addition, the community consensus, as displayed through the
enactments of the Pennsylvania legislature, condemns any type
of sexual contact between a person less than 16 years of age and
another person who is four or more years older, regardless of
penetration. Consequently, Mehboob’s argument that indecent
assault is not a crime of moral turpitude because it only involves
touching, and not penetration, is unavailing.
                              IV.
       The BIA’s determination, that indecent assault under 18
Pa. Cons. Stat. § 3126(a)(8) is a crime involving moral
turpitude, is not unreasonable. The petition for review will be
denied.




                               14