PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                 No. 07-3311


           LYONEL JEAN-LOUIS,
                            Petitioner

                      v.

          ATTORNEY GENERAL
   OF THE UNITED STATES OF AMERICA,
                               Respondent


     Petition for Review of an Order of the
      United States Department of Justice
         Board of Immigration Appeals
             (BIA No. A25-450-823)
Immigration Judge: Honorable Rosalind K. Malloy


            Argued February 5, 2009
______________________________

    Before: RENDELL and ROTH, Circuit Judges and
              HAYDEN, District Judge*

                 (Filed: October 6, 2009)


Craig R. Shagin, Esq. [ARGUED]
The Shagin Law Group
The Inns of St. Judge
120 South Street
Harrisburg, PA 17101
  Counsel for Petitioner

Kevin J. Conway, Esq. [ARGUED]
Richard M. Evans, Esq.
Brooke M. Maurer, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
  Counsel for Respondent




__________________

   * Honorable Katharine S. Hayden, Judge of the United
     States District Court for the District of New Jersey
     (Newark), sitting by designation.


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______________________________

                  OPINION OF THE COURT


Rendell, Circuit Judge.

       We are called upon to decide whether simple assault
under Pennsylvania law, where the victim is under 12 years of
age and the assailant is over 20 years of age, is a crime involving
moral turpitude for purposes of cancellation of removal. In
doing so we must address a recent opinion of the Attorney
General that adopts a novel framework for determining whether
a petitioner has been convicted of a crime involving moral
turpitude (“CIMT”). We conclude that the petitioner was not
convicted of a CIMT, and that we will apply our established
methodology for analyzing CIMT, rather than the approach
recently adopted by the Attorney General.

I. Background and Procedural History

        Appellant Lyonel Jean-Louis, a native and citizen of
Haiti, was admitted to the United States in 1994 as a refugee,
and became a lawful permanent resident in 1996. In 2001, Jean-
Louis pled guilty to committing simple assault against a child
under twelve years of age, in violation of 18 Pa. Cons. Stat.
§§ 2701(b)(2).1 The Department of Homeland Security


  1
    Jean-Louis pled guilty to simple assault in violation of 18
Pa. C.S. § 2701(b)(2) on July 25, 2001. The Pennsylvania

                                3
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(“DHS”) subsequently filed a Notice to Appear (“NTA”),
charging Jean-Louis as removable under the Immigration and
Nationality Act (“INA”) § 237(a)(2)(E)(I). Jean-Louis conceded
removability but sought to cancel his removal under INA
§ 240(A)(a), 8 U.S.C. § 1229b(a).

       Under the INA, discretionary cancellation of removal is
available to an alien who has resided continuously in the United
States for seven years. INA § 240A(a)(2), 8 U.S.C.
§ 1229b(a)(2). An alien’s period of continuous residency
terminates, however, if he “commits an offense referred to in
section 1182(a)(2) of this title that renders the alien inadmissible
to the United States under section 1182(a)(2) of this title or
removable from the United States under section 1227(a)(2).”
INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).2 Crimes involving
moral turpitude are among the offenses listed in 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). Prior to his seventh year of residency in
the U.S., Jean-Louis struck his wife’s daughter, who was under
the age of 12, to discipline her and was subsequently convicted
of the Pennsylvania crime of simple assault, 18 Pa. C.S.
§ 2701(b)(2). The Immigration Judge (“IJ”) concluded, and the



simple assault statute was amended on June 22, 2001 (effective
in 60 days), P.L. 605, No. 48, § 1, and again on Dec. 9, 2002
(effective in 60 days), P.L. 1391, No. 172, § 1. Neither
amendment altered subpart 2701(b)(2).
  2
    An alien bears the burden of establishing his eligibility for
discretionary cancellation of removal. INA § 240(c)(4)(A)(i),
8 U.S.C. §1229a(c)(4)(A)(i).

                                 4
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Board of Immigration Appeals (“BIA”) affirmed, that Jean-
Louis’s conviction for simple assault of a child under 12 years
of age under subpart 2701(b)(2) constituted a CIMT, rendering
Jean-Louis ineligible for cancellation of removal.

       The Pennsylvania simple assault statute to which Jean-
Louis pled guilty provides in pertinent part:

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

       (1)   attempts to cause or intentionally,
       knowingly or recklessly causes bodily injury to
       another;

       (2)    negligently causes bodily injury to another
       with a deadly weapon; or

       (3)     attempts by physical menace to put another
       in fear of imminent serious bodily injury.

       (b)   G rad in g .--S im p le a ss a u lt is a
       misdemeanor of the second degree unless
       committed:

       ...

       (2) against a child under 12 years of age by an
       adult 21 years of age or older, in which case it is
       a misdemeanor of the first degree.


                               5
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18 Pa. C.S. § 2701 (emphasis added). Noting that, “[I]t is
unclear from the record of conviction whether the assault
Respondent committed was intentional, knowing, or reckless,”
the IJ assumed that Jean-Louis “recklessly” inflicted bodily
injury on another— the least culpable mental state specified in
§ 2701(a)(1). A. 113. Confining her analysis to that subpart of
the statute, the IJ did not address whether there was a culpability
requirement under subpart 2701(b)(2). Accordingly, the IJ did
not consider whether subpart 2701(b)(2) required the defendant
to have known of the underage status of the victim, or would
apply in a situation in which the defendant was not aware, and
had no reason to believe, that the victim was a minor. Instead,
the IJ reasoned that because the victim was under 12 years old,
the offense was a CIMT: “While the Court is cognizant of the
fact that simple assault is generally not considered to be a
CIMT, simple assault plus an aggravating factor is a CIMT.” A.
112 (internal citation omitted). The IJ cited as authority for this
proposition BIA opinions involving assaults that were
“aggravated” by other types of factors; specifically, they were
committed with a deadly weapon, committed against a law
enforcement officer, or resulted in the victim’s death. A. 112-13.
 Accordingly, the IJ concluded that Jean-Louis’s conviction of
simple assault under subpart 2701(b)(2) constituted a CIMT,
rendering Jean-Louis ineligible for cancellation of removal. The
BIA affirmed.3



  3
    Because the BIA issued a summary affirmance, we analyze
the IJ’s decision. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.
2003) (en banc).

                                6
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II. Discussion

       On appeal, Jean-Louis contends that he is eligible for
discretionary cancellation of removal because his conviction of
simple assault does not qualify as a CIMT.4 Crimes involving
moral turpitude have been held to require conduct that is
“inherently base, vile, or depraved.” Knapik v. Ashcroft, 384
F.3d 84, 89 (3d Cir. 2004) (internal citations omitted). In
determining whether a state law conviction constitutes a CIMT,
the agency, and we, have historically applied a “categorical”
approach, “focusing on the underlying criminal statute ‘rather
than the alien’s specific act.’” Id. at 88 (quoting DeLeon-


  4
     We summarily dispose of two other issues urged by Jean-
Louis on appeal. First, Jean-Louis contends that his rights under
INA § 239(a)(1)(C) & (D) and the Due Process Clause of the
U.S. Constitution were violated, because his Notice to Appear
failed to alert him to the CIMT issue.               Jean-Louis’s
constitutional claim fails at the outset, because an alien seeking
discretionary relief from removal has no cognizable liberty or
property interest. See Hernandez v. Gonzales, 437 F.3d 341,
345-46 (3d Cir. 2006).         Moreover, any such failure was
harmless, as Jean-Louis was adequately apprised of the issue,
having “prepared a brief on the topic [CIMT] in anticipation of
the objection.” Appellant’s Br. at 6; A. 132-33, 210.
       Jean-Louis’s second argument is that he is entitled to a
remand of his case to the IJ to have his claim for withholding of
removal decided. However, to date, Jean-Louis has not filed–or
sought leave to file–an application for withholding of removal,
despite ample opportunity to do so.

                                7
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Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002)). We
thus “look to the elements of the statutory state offense, not to
the specific facts,” reading the applicable statute to ascertain the
least culpable conduct necessary to sustain conviction under the
statute. Id. (quoting Wilson v. Ashcroft, 350 F.3d 377, 381 (3d
Cir. 2003)).

       Where a statute of conviction contains disjunctive
elements, some of which are sufficient for conviction of the
federal offense and others of which are not, we have departed
from a strict categorical approach. In such a case, we have
conducted a limited factual inquiry, examining the record of
conviction for the narrow purpose of determining the specific
subpart under which the defendant was convicted. See Singh v.
Ashcroft, 383 F.3d 144, 162 (3d Cir. 2004).5 We have applied
this “modified” categorical approach, even when clear sectional
divisions do not delineate the statutory variations, see Garcia v.
Att’y Gen., 462 F.3d 287, 293 n.9 (3d Cir. 2006), in order to
determine the least culpable conduct sufficient for conviction,
and, where a CIMT is asserted, measure that conduct for
depravity.




  5
    In Shepard v. United States, the Supreme Court opined that
the record of conviction includes the charging document, the
plea agreement or transcript of the plea colloquy in which the
defendant confirmed the factual basis for the plea, or a
comparable judicial record of information. 544 U.S. 13, 26
(2005).

                                 8
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        Here, the IJ, applying this methodology, concluded that
the reckless infliction of bodily injury constituted the least
culpable mental state sufficient for conviction under subpart
2701(a)(1). Significantly, however, the IJ did not consider the
state of mind required under subpart 2701(b)(2) as to the child’s
age. It could be read to require that the offender knew of the
age of the victim, or that the grading factor applies if the victim
was under 12, whether or not the defendant knew of her age.
Although we defer to the agency’s determination of whether an
offense constitutes a CIMT, we accord no deference to its
construction of a state criminal statute, as to which it has no
particular expertise. See Knapik, 384 F.3d at 88. Here, the
determination of the scienter or level of culpability under
subpart (b)(2) of the Pennsylvania assault statute is important,
for the BIA itself has drawn a distinction for purposes of
deciding whether an offense is a CIMT based on this very aspect
of culpability, as we discuss below. We thus disagree with the
IJ’s reasoning that the age of the victim should be considered an
“aggravating factor,” and conclude that a more thorough
analysis of the Pennsylvania criminal statute is in order.

       Because the parties did not address the minimum
culpability required under subpart 2701(b)(2), we requested
further briefing. In his supplemental brief, Jean-Louis urges the
Court to construe subpart 2701(b)(2) as written—it does not
expressly prescribe a mental state requirement, and thus none
applies. The government cites evidence consistent with Jean-
Louis’s interpretation of the statute, including the Pennsylvania
suggested jury instructions and accompanying Advisory
Committee Note, neither of which requires that a jury find that
the defendant knew, or should have known, that the victim was

                                9
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under 12.6 The government also specifically notes that subpart
2701(b)(2) is a grading factor, not an element of the substantive
offense.7 These aspects of the statute actually support Jean-
Louis’s position.

       Quite apart from the government’s concessions, we
independently conclude that no culpability requirement attaches,
explicitly or implicitly, to subpart 2701(b)(2). Unlike subpart
2701(a)(1), which expressly requires that the defendant
intentionally, knowingly, or recklessly inflict bodily injury,
subpart 2701(b)(2) does not specify the minimum culpability
required to trigger enhanced penalties. Nor is such a
requirement implicit in the statute. The determination that
subpart 2701(b)(2) sets forth a grading factor and not an element
of the offense is significant. As a “grading” factor, subpart

______________________________
      6
        The Advisory Committee Note to the Pennsylvania
Suggested Standard Criminal Jury Instructions for § 2701(b)(2)
is silent on the applicable mental state requirement: “Crimes
Code § 2701(b)(2) raises simple assault from a misdemeanor of
the second degree to a misdemeanor of the first degree where
the victim was under the age of 12 and the defendant was an
adult 21 years of age or older.” See Pa. SSJI (Crim), 15.2701G
(simple assault--child victim).
  7
    The government states, “The subsection under which Mr.
Jean-Louis was convicted is referred to in the statute as a
‘grading factor.’ According to Pennsylvania case law, ‘the
grading of the offense is not an element thereof.’” Respondent’s
Supplemental Br. at 3.

                               10
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2701(b)(2) does not trigger the statutory “gap-filling”
provisions,8 which provide a mental state requirement that


  8
    18 Pa. C.S. § 302(c) defines the requisite mental state when
the statute is silent on the culpability applicable to a material
element of an offense. It provides:

       Culpability required unless otherwise
       provided.--When the culpability sufficient to
       establish a material element of an offense is not
       prescribed by law, such element is established if
       a person acts intentionally, knowingly, or
       recklessly with respect thereto.

Id. (emphasis added).
        18 Pa. C.S. § 302(d), which serves a slightly different
function than § 302(c), defines the requisite mental state when
the statute defines the culpability sufficient for some, but not all,
material elements of an offense. It provides:

       Prescribed culpability requirement applies to
       all material elements.-- When the law defining
       an offense prescribes the kind of culpability that
       is sufficient for commission of an offense,
       without distinguishing among the material
       elements thereof, such provision shall apply to all
       the material elements of the offense, unless a
       contrary purpose plainly appears.

Id. (emphasis added).

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would be otherwise missing from “elements” of an offense. See
18 Pa. C.S. § 103 (defining “element[s] of an offense” as
“conduct or attendant circumstances . . . included in the
description of the forbidden conduct in the definition of the
offense”) (emphasis added); Commonwealth v. Shamberger, 788
A.2d 408, 418 (Pa. Super. 2001) (distinguishing “grading”
factors from the elements of an offense); accord Commonwealth
v. Passarelli, 789 A.2d 708, 714 (Pa. Super. 2001);
Commonwealth v. Kisner, 736 A.2d 672, 674 (Pa. Super. 1999).
The explicit designation of subpart 2701(b)(2) as a “grading”
factor is particularly strong evidence of the legislative intent
here, as the distinction between “grading” factors and
“elements” of an offense was already established in
Pennsylvania jurisprudence when subpart 2701(b)(2) was added
in 1988. P.L. 1275, No. 158, § 1 (Dec. 19, 1988); see, e.g.,
Commonwealth v. Sparks, 492 A.2d 720, 725 (Pa. Super. 1985);
Commonwealth v. Mathis, 463 A.2d 1167, 1170 (Pa. Super.
1983); Commonwealth v. Stauffer, 361 A.2d 383, 384 (Pa.
Super. 1976); Commonwealth v. McKennion, 240 A.2d 889, 892
(Pa. Super. 1975).9


    9
      Moreover, the designation of subpart 2701(b)(2) as a
“grading” factor has survived subsequent revisions of the simple
assault statute. 18 Pa. C.S. § 2701 (amended in 2001, June 22,
P.L. 605, No. 48, § 1; 2002, Dec. 9, P.L. 1391, No. 172, § 1).
We presume that the legislature is “aware of an administrative
or judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.”
Lorillard v. Pons, 434 U.S. 575, 580 (1978). Hence, we cannot
conclude that the legislature intended a culpability requirement

                              12
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       A recent decision of the New Hampshire Supreme Court
supports the proposition that the Pennsylvania gap-filling
provisions are inapplicable to subpart 2701(b)(2). In State v.
McCabe, 765 A.2d 176, 180-81 (N.H. 2001), the Court
considered what mental state requirement, if any, attached to
conduct–“use of a deadly weapon”–that appeared in the penalty
section of the offense of “criminal threatening.” The statute did
not specify a mental state requirement. Id. at 180. The Court
concluded that the New Hampshire gap-filling provision,
applicable solely to material elements of an offense, did not
govern, because “[t]he only statutory reference to the use of a
deadly weapon is contained in the penalty section” of the statute,
and the gap-filling provision applies solely to elements of an
offense, not to grading factors. Id. at 180-81; see State v. Polk,
927 A.2d 514, 516-17 (N.H. 2007) (holding that gap-filling
provision did not apply to conduct solely affecting grading of an
offense); see also State v. Demmons, 634 A.2d 998, 1000 (N.H.
1993) (noting that culpability requirement is only implied for
material elements of an offense).

       Thus, we conclude that the Pennsylvania assault statute
as written permits a conviction under subpart 2701(b)(2) where
the defendant did not know that the victim was under 12 years
old. This key fact distinguishes this case from the statute we
considered in Partyka v. Att’y Gen., 417 F.3d 408, 413 (3d Cir.
2005). There, we had to determine the minimum culpability
required for conviction of the offense of “aggravated assault,”


to inhere in subpart 2701(b)(2) when it adopted and retained
language achieving precisely the opposite result.

                               13
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defined under New Jersey law as the commission of simple
assault against “[a]ny 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 1995 & Supp. 2004). Concluding that commission of an
assault against a law enforcement officer was a material element
of the offense of aggravated assault, we cited United States v.
Rebelo, 358 F.Supp.2d 400, 418-19 (D.N.J. 2005), which
applied the New Jersey gap-filling provision, and held that the
offender had to have known that the victim was a police officer.
Partyka, 417 F.3d at 413. Crucial to our analysis—and to the
analysis in Rebelo upon which we relied—was the fact that the
relevant conduct appeared in the definition of the offense of
aggravated assault and thus was an element thereof. Id. (citing
Rebelo, 358 F.Supp.2d at 418-19). Because the offender had to
know that the victim was an officer, the offense reflected the
requisite degree of depravity and thus constituted a CIMT.
Here, by contrast, the age of the perpetrator and victim are
specified not in the definition of the offense but rather under the
separate statutory heading, “grading.” Regardless of how New
Jersey law treats “grading” factors, their status under
Pennsylvania law is clear. Where the conduct is included under
a statutory section entitled, “grading,” rather than under the
“definition” of the offense, the conduct is per se not an
“element” of the offense. See 18 Pa. C.S. § 103 (defining the
“elements” of an offense as solely conduct included in the
formal definition of the offense). Accordingly, the Pennsylvania
gap-filling provisions—that would ordinarily mandate a specific
mental state with respect to the victim’s age—do not apply to
subpart 2701(b)(2), and there is no culpability requirement as to
that subpart.

                                14
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        Based upon the foregoing analysis, we conclude that the
least culpable conduct necessary for conviction under subpart
2701(b)(2) would be a reckless assault by a person over 20 years
of age, where the victim, unbeknownst to the defendant, is under
12 years of age. One example might be where a reckless driver
strikes a vehicle bearing a child occupant. Such a scenario does
not appear to us to implicate “moral turpitude,” as that concept
has been viewed by the agency and developed under our
precedents. The BIA has observed that “[s]imple assaults have
generally been held not to involve moral turpitude.” Matter of
O---, 3 I. & N. Dec. 193, 194 (BIA 1948). It has repeatedly
opined that the hallmark of a CIMT, indeed, is an act
“accompanied by a vicious motive or a corrupt mind.” Matter of
Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992); see
Matter of Khourn, 21 I. & N. Dec. 1041, 1046 (BIA 1997);
Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994);
Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980) (“An evil
or malicious intent is said to be the essence of moral
turpitude.”); Matter of Abreu-Semino, 12 I. & N. Dec. 775, 777
(BIA 1968) (noting that “moral turpitude normally inheres in the
intent”); Matter of P---, 2 I. & N. Dec. 117, 121 (BIA 1944)
(“One of the criteria adopted to ascertain whether a particular
crime involves moral turpitude is that it be accompanied by a
vicious motive or corrupt mind. ‘It is in the intent that moral
turpitude inheres.’”) (quoting US ex rel. Meyer v. Day, 54 F.2d
336, 337 (2d Cir. 1931)). Courts of appeals have followed suit.
In Michel v. INS, the Court of Appeals for the Second Circuit
thus identified a “corrupt scienter” as the “touchstone of moral
turpitude.” 206 F.3d 253, 263 (2d Cir. 2000); see Chanmouny v.
Ashcroft, 376 F.3d 810, 814-15 (8th Cir. 2004); Hamdan v. INS,
98 F.3d 183,186 (5th Cir. 1996). And, in Partyka, the statute

                              15
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required that the defendant know the victim was a police officer.
417 F.3d at 413. Such depravity, however, is absent when a
defendant could be convicted for unwittingly injuring a
child—an act that, in our view, reflects a degree of malice no
greater than that exhibited by an assault recklessly committed
against an adult.

       We normally defer to the agency as to what conduct
constitutes a CIMT. Our view that reckless assault of a minor,
without more, does not constitute a CIMT is bolstered by a
recent decision of the Attorney General, Matter of Cristoval
Silva-Trevino, 24 I. & N. Dec. 687, 706-708 (A.G. 2008).
There, the Attorney General considered whether a statute
criminalizing intentional sexual acts directed at a child
constituted a CIMT. The statute did not include a mistake-of-
age defense. Hence, a defendant who did not know, and had no
reason to believe, that the complainant was a minor could face
conviction. The Attorney General concluded, therefore, that the
statute lacked the “hallmark of moral turpitude”—a
“reprehensible act committed with an appreciable level of
consciousness or deliberation.” Id. at 706 (quoting Partyka, 417
F.3d at 414). Significantly, the Attorney General stated,
“[W]hether the perpetrator knew or should have known the
victim’s age is a critical factor in determining whether his or her
crime involved moral turpitude for immigration purposes. A
finding of moral turpitude under the Act requires that a
perpetrator have committed the reprehensible act with some
form of scienter.” Id. Thus, in Silva-Trevino, the Attorney
General treated the perpetrator’s knowledge regarding the
victim’s age as a critical consideration informing the depravity
of the crime. As we noted above, the IJ here did not consider

                                16
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the culpability required under subpart 2701(b)(2) but merely
stated that it was an “aggravating factor,” which converted
simple assault into a CIMT, relying on case law that did not
involve age as a factor. However, our conclusion that subpart
2701(b)(2) has no mental state requirement, coupled with the
Attorney General’s stated view in Silva-Trevino that a
defendant’s knowledge regarding the age of his victim may
properly bear on the depravity of his conduct, leads inexorably
to the conclusion that the Pennsylvania crime of which Jean-
Louis was convicted was not a CIMT. While we would
normally remand to the agency for a “decision of a matter that
statutes place primarily in agency hands”—namely, the
determination of whether a criminal violation constitutes a
CIMT—the agency has spoken clearly that scienter as to age is
critical to the CIMT inquiry, and that the absence of a scienter
requirement is conclusive. See INS v. Ventura, 537 U.S. 12, 16
(2002); Matter of O---, 3 I. & N. Dec. at 194 (holding that
simple assault does not constitute a CIMT).10


   10
       We note that a BIA decision that the government urges
should control the analysis here is distinguishable. In Matter of
Tran, 21 I. & N. Dec. 291, 292, 294 (BIA 1996), the BIA held
that a California statute imposing criminal penalties on one who
“willfully inflicts upon any person with whom he or she is
cohabiting [corporal injury],” constitutes a CIMT. Id. at 292. In
reaching this conclusion, the BIA underscored the dependent
relationship among family members: “A person who cohabits
with or is the parent of the offender’s child maintains a
relationship of a familial nature with the perpetrator of the harm.
This relationship is likely to be one of trust and . . . dependency

                                17
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        The foregoing analysis tracks the modified categorical
approach that we have historically applied. Under that
approach, our inquiry concludes when we determine whether the
least culpable conduct sufficient to sustain conviction under the
statute “fits” within the requirements of a CIMT. However, in
the recent opinion we cited above, Matter of Cristoval Silva-
Trevino, the Attorney General suggested that more is required.
We asked the parties to brief two related issues: the effect of
Silva-Trevino on our existing methodology, and our duty to
follow Silva-Trevino, notwithstanding our contrary

 precedents. We conclude that deference is not owed to Silva-
Trevino’s novel approach and thus will apply our established
methodology.


. . . . Violence between the parties of such a relationship is
different from that between strangers or acquaintances, which
may or may not involve moral turpitude, depending on the
nature of the offense as delineated by statute.” Id. at 294. The
California statute, however, is readily distinguishable from the
Pennsylvania simple assault statute. Conviction under subpart
2701(b)(2) is possible absent the special relationship of
dependence between the defendant and victim that the BIA
perceived as critical in Matter of Tran. Under Pennsylvania law,
the assailant and the complainant, indeed, may be strangers.
Hence, Matter of Tran does not persuade us that a conviction
under subpart 2701(b)(2) reflects the requisite depravity to
constitute a CIMT.



                               18
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       In Silva-Trevino, as discussed earlier, the Attorney
General considered whether an alien’s conviction for indecency
with a child under Texas law constituted a CIMT, rendering the
alien inadmissible, and therefore ineligible for discretionary
cancellation of removal, under section 212(a)(2) of the INA,
8 U.S.C. § 1182(a)(2). The Attorney General urged that because
conflicting methodologies had been adopted by courts of
appeals in conducting the CIMT inquiry, producing a veritable
“patchwork of different approaches across the nation,” he would
use the case as “an opportunity to establish a uniform
framework” for adjudicating CIMT cases under the INA.11 Id.


  11
      The unusual circumstances of Silva-Trevino’s referral to,
and adjudication by, the Attorney General bear mention. After
the IJ determined that Silva-Trevino’s conviction under section
2.11(a)(1) of the Texas Penal Code constituted a CIMT,
rendering him removable, the BIA, applying the categorical
approach, concluded that his conviction did not meet the criteria
for a CIMT and, accordingly, vacated the decision of the IJ and
remanded the case. Subsequently, while the case was pending
before the IJ, the Attorney General certified the case to himself
sua sponte. Despite requests by Silva-Trevino’s counsel, the
Attorney General refused to identify the issues to be considered,
to define the scope of his review, to provide a briefing schedule,
or to apprise counsel of the applicable briefing procedure. In
fact, neither the IJ decision nor the Attorney General’s
certification order were made publicly available, thus denying
stakeholders, including immigrant and refugee advocacy
organizations, the opportunity to register their views. As a
result, the first opportunity of amici curiae to file comment was

                               19
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at 688. The Attorney General’s novel methodology departs
from our precedents in two significant respects.

        First, Silva-Trevino alters the focus of the categorical
analysis. Under the categorical approach that we followed in
Partyka, consistent with Supreme Court case law, we look to the
elements of the statutory offense to ascertain the least culpable
conduct hypothetically necessary to sustain a conviction under
the statute. Partyka, 417 F.3d at 411. Under our precedents, the
possibility of conviction for non-turpitudinous conduct, however
remote, is sufficient to avoid removal; proof of actual
application of the statute of conviction to the conduct asserted
is unnecessary. “As a general rule, a criminal statute defines a


after entry of the Attorney General’s opinion. See Br. of Amici
Curiae American Immigration Lawyers Ass’n, Florence
Immigrant and Refugee Rights Project, Immigrant Defense
Project of the N.Y. State Defenders Ass’n, Immigrant Legal
Resource Ctr., Nat’l Immigration Project of the Nat’l Lawyers
Guild, Nat’l Immigrant Justice Ctr., Refugio del Rio Grande,
Inc., and Washington Defenders Ass’n Immigration Project in
Support of Reconsideration, filed Dec. 5, 2008, available at
http://www.immigrantdefenseproject.org/docs/08_SilvaTrevin
oAmicusBrief.pdf.
        The amici curiae brief in support of reconsideration
echoes many of the concerns we express herein and, although no
challenge to these procedures is before us, the lack of
transparency, coupled with the absence of input by interested
stakeholders, only serves to dissuade us further from deferring
to the Attorney General’s novel approach.

                               20
______________________________

crime involving ‘moral turpitude only if all of the conduct it
prohibits is turpitudinous.’” Id. (internal citation omitted)
(emphasis added).

        Silva-Trevino eschews our approach of analyzing the
least culpable conduct hypothetically sufficient to sustain
conviction, in favor of a “realistic probability” test. 24 I.&N.
Dec. at 697. Under this approach, “in evaluating whether an
alien’s prior offense is categorically one that involved moral
turpitude, immigration judges should determine whether there
is a ‘realistic probability, not a theoretical possibility,’ that a
State or Federal criminal statute would be applied to reach
conduct that does not involve moral turpitude.” Id. at 689-90
(citation omitted). To demonstrate a “realistic probability” of
conviction, the alien must identify an actual conviction for
comparable conduct. Silva-Trevino explained,

       [The “realistic probability” approach] focuses the
       adjudicator on a criminal statute’s actual scope
       and application and tailors the categorical moral
       turpitude inquiry by asking whether, at the time of
       an alien’s removal proceeding, any actual (as
       opposed to hypothetical) case exists in which the
       relevant criminal statute was applied to conduct
       that did not involve moral turpitude. If the statute
       has not been so applied in any case (including the
       alien’s own case), the adjudicator can reasonably
       conclude that all convictions under the statute
       may categorically be treated as ones involving
       moral turpitude. In such circumstances, the
       history of adjudication generally establishes no

                                21
______________________________

       realistic probability that the statute, whatever its
       language may hypothetically allow, would
       actually be applied to acts that do not involve
       moral turpitude.

Id. (internal citation omitted) (emphasis added).

       Second, Silva-Trevino renders the strict “categorical”
approach not “categorical.” Prior to Silva-Trevino, we departed
from a strict categorical analysis only where the statute of
conviction featured disjunctive variations, some of which were
sufficient for conviction of the federal offense and others of
which were not. “We depart farther from the formal categorical
approach only where the language of a particular subsection [of
a statute] . . . invites inquiry into ‘the underlying facts of the
case.” Evanson v. Att’y Gen., 550 F.3d 284, 291-92 (3d Cir.
2008) (internal citation omitted). In such a case, we modified
the approach, but our inquiry remained a limited one, focused on
the crime of conviction: we reviewed only the record of the
conviction to ascertain the particular variation of the statute
under which the defendant was convicted. See Singh, 383 F.3d
at 147-48; Joseph v. Att’y Gen., 465 F.3d 123, 127 (3d Cir.
2006). Accordingly, the focus under the categorical approach
has always been the conviction, aimed at determining exactly
what the defendant was convicted of.

       Silva-Trevino, by contrast, directs adjudicators to depart
from a categorical approach, and to conduct an “individualized
moral turpitude inquiry,” in every instance in which a
“categorical analysis is not conclusive” as to whether the alien
was convicted of a CIMT. 24 I.& N. Dec. at 700. The aim of

                               22
______________________________

this “individualized” inquiry is to ascertain the alien’s particular
acts—to determine “whether the facts of the alien’s prior
conviction in fact involved moral turpitude”—not merely to
determine the elements of the statutory offense of which the
alien was convicted. Id. at 700, 708.

       Rather than limiting the CIMT inquiry to an examination
of the formal record of conviction, which could include the
charging document, the terms of the plea agreement or transcript
of the colloquy between judge and defendant in which the
factual basis for the plea is confirmed by the defendant, or some
comparable judicial record of this information, Shepard, 544
U.S. at 26; Evanson, 550 F.3d at 291, Silva-Trevino abandons
these restrictions: “I [Attorney General] conclude that the
evidentiary limitations of Taylor and Shepard do not apply for
purposes of making moral turpitude determinations.” 24 I.&N.
Dec. at 702. Hence, an adjudicator may, in his or her discretion,
consider not only evidence from the prior criminal proceedings
but also “any additional evidence or factfinding the adjudicator
determines is necessary or appropriate to resolve accurately the
moral turpitude question.” Id. at 687 (emphasis added). Silva-
Trevino sets no limitations on the kinds of evidence adjudicators
may consider.

        The Attorney General asserts that two aspects of the INA
support his authority to direct courts to employ his novel
approach and compel our deference. First, he contends that the
CIMT provisions in the immigration statute are ambiguous. He
urges that Congress employed conflicting terminology,
alternately using “convicted of” and “committed” throughout the
statute. In the Attorney General’s view, these terms, which cut

                                23
______________________________

in “different directions,” do not endorse a single methodology
for adjudicating CIMT cases, but rather confer discretion on the
Attorney General to define a reasonable approach. Id. at 693.
Second, the Attorney General urges that the phrase “crime
involving moral turpitude” invites, if not requires, a fact-
intensive inquiry as to whether the underlying conduct was
turpitudinous. Id. The Attorney General urges that deference is
owed to his interpretation of these provisions, and that the
methodology that he espouses is obligatory, notwithstanding our
contrary precedents.12


     12
         As a general rule, an agency’s construction of an
ambiguous statute under its purview, and in which it has special
expertise, is entitled to deference. Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)
(“Chevron’s premise is that it is for agencies, not courts, to fill
statutory gaps.”); Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984); Knapik, 384 F.3d at 88. The
INA delegates to the Department of Justice authority to interpret
and implement its provisions. See section 102(a)(1) of the INA,
8 U.S.C. §1103(a)(1).
       However, where Congress has spoken clearly on the
precise issue, no deference is owed to the agency’s
interpretation of a statute. See Chevron, 467 U.S. at 843 n.9 (“If
a court, employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise question
at issue, that intention is the law and must be given effect.”);
Chowdhury v. INS, 249 F.3d 970, 973 (9th Cir. 2001) (noting
that deference under Chevron “presupposes some ambiguity in
the governing statute”); Beltran-Tirado v. INS, 213 F.3d 1179,

                                24
______________________________

       We conclude that we are not bound by the Attorney
General’s view because it is bottomed on an impermissible
reading of the statute, which, we believe, speaks with the
requisite clarity. The ambiguity that the Attorney General
perceives in the INA is an ambiguity of his own making, not
grounded in the text of the statute, and certainly not grounded in
the BIA’s own rulings or the jurisprudence of courts of appeals
going back for over a century.13 The specific ambiguity is as to



1185 & n.10 (9th Cir. 2000); see In re Velazquez-Herrera, 24 I.
& N. Dec. 503, 513 (B.I.A. 2008). Further, where an agency
interpretation reflects an impermissible construction of the
statute, we will not defer to the agency’s view. See Chevron,
467 U.S. at 843; Okeke v. Gonzales, 407 F.3d 585, 588 (3d Cir.
2005) (noting that deference is only appropriate where agency’s
resolution of ambiguity is predicated on a “permissible
construction of the statute” (quoting Fatin v. INS, 12 F.3d 1233,
1239 (3d Cir. 1993))).
  13
    In the case, In re Velazquez-Herrera, the BIA explained the
historical roots of the categorical approach:

       For nearly a century, the Federal circuit courts of
       appeals have held that where a ground of
       deportability is premised on the existence of a
       “conviction” for a particular type of crime, the
       focus of the immigration authorities must be on
       the crime of which the alien was convicted, to the
       exclusion of any other criminal or morally
       reprehensible acts he may have committed. See,

                               25
______________________________

       e.g., Dalton v. Ashcroft, 257 F.3d 200, 204-05 (2d
       Cir. 2001); Goldeshtein v. INS, 8 F.3d 645, 647
       (9th Cir. 1993); Okabe v. INS, 671 F.2d 863, 865
       (5th Cir. 1982); Tseung Chu v. Cornell, 247 F.2d
       929, 935 (9th Cir. 1957); Ablett v. Brownell, 240
       F.2d 625, 627 (D.C. Cir. 1957); United States ex
       rel. Giglio v. Neelly, 208 F.2d 337, 340-41 (7th
       Cir. 1953); United States ex rel. McKenzie v.
       Savoretti, 200 F.2d 546, 548 (5th Cir. 1953);
       United States ex rel. Robinson v. Day, 51 F.2d
       1022, 1022-23 (2d Cir. 1931) (Hand, J.); United
       States ex rel. Mylius v. Uhl, 210 F. 860, 862-63
       (2d Cir. 1914).

24 I. & N. Dec. at 513; see United States v. Williams, 203 F.
155, 156 (D.C.N.Y. 1913) (applying categorical approach and
rejecting individualized inquiry into the alien’s particular acts).
Although we are generally reluctant to infer legislative intent
from inaction, we find significant that Congress has retained the
term “convicted” in the inadmissibility section, despite having
amended the statute over forty times since 1952. 8 U.S.C.
§ 1182 (historical notes); see In re Velazquez-Herrera, 24 I. &
N. Dec. at 515 (“[W]e must presume that Congress was familiar
with that fact (applicability of categorical approach) when it
made deportability under section 237(a)(2)(E)(i) depend on a
“conviction.” Had Congress wished to predicate deportability on
an alien’s actual conduct, it would have been a simple enough
matter to have done so.”) (internal citations omitted); see also
United States v. Wilson, 290 F.3d 347, 356 (D.C. Cir. 2002)

                                26
______________________________

the use of the words “convicted” and “committed.” The
inclusion of “committed,” the Attorney General urges, permits
inquiry into any and all acts—whether or not admitted by the
alien, and whether or not established by the record of
conviction—to determine whether the petitioner was convicted
of a CIMT. To say that this reading has been rejected is an
understatement: the BIA, 14 prior attorneys general,15 and
numerous courts of appeals have repeatedly held that the term
“convicted” forecloses individualized inquiry in an alien’s
specific conduct and does not permit examination of extra-
record evidence. 16 It could not be clearer from the text of the


(“Congress is presumed to preserve, not abrogate, the
background understandings against which it legislates.”).
  14
      See, e.g., Matter of Velazquez-Herrera, 24 I. & N. Dec. at
513; Matter of Babaisakov, 24 I. & N. Dec. 306, 311 (BIA
2007); Matter of Sweetser, 22 I. & N. Dec. 709, 715 (BIA
1999); Matter of Pichardo, 21 I. & N. Dec. 330, 335 (BIA
1996); Matter of Madrigal, 21 I. & N. Dec. 323, 327 (1996);
Matter of Franklin, 20 I. & N. Dec. at 868-69; Matter of S----,
2 I. & N. Dec. 559 (C.O., BIA 1946; A.G. 1947); Matter of S----
, 2 I. & N. Dec. 353, 357 (BIA, A.G. 1945); Matter of N----, 1
I. & N. Dec. 181 (BIA 1941).
  15
    See Op. Of Hon. Cummings, 39 Op. Att’y Gen. 215 (AG
1938); Op. Of Hon. Cummings, 37 Op. Att’y Gen. 293 (AG
1933).
  16
    In Gonzales v. Duenas-Alvarez, upon which the Attorney
General relies, the Supreme Court underscored federal courts’

                              27
______________________________

statute––which defines “conviction” as a “formal judgment of
guilt,” and which explicitly limits the inquiry to the record of




uniform application of the categorical, and modified categorical,
approach. 549 U.S. 183, 185-86 (2007); Matter of Babaisakov,
24 I. & N. Dec. at 311 (“We [BIA] have also traditionally
applied an analysis that closely resembles the categorical
approach to determine whether an alien has a ‘conviction’ that
falls within a federally defined category of crimes leading to
deportation.”).
        Although courts employ different labels to describe the
categorical and modified categorical approaches, the
fundamental methodology is the same. Each court begins with
an analysis of the statute of conviction. If the statute of
conviction is divisible, defining variations of the same offense,
some of which would constitute a CIMT and others of which
would not, inquiry into the record of conviction is permissible
solely to determine the particular subpart under which the alien
was convicted. Otherwise, scrutiny of the alien’s particular acts
is prohibited.      See, e.g., Partyka, 417 F.3d at 416;
Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 450 (4th Cir.
2005); Chanmouny, 376 F.3d at 812; Cabral v. INS, 15 F.3d 193
(1st Cir. 1994); Gonzalez-Alvarado v. INS, 39 F.3d 245 (9th
Cir.1994); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); United
States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939). The
Seventh Circuit Court of Appeals alone has recently abandoned
the categorical approach in moral turpitude cases. See Ali v.
Mukasey, 521 F.3d 737 (7th Cir. 2008).

                               28
______________________________

conviction or comparable judicial record evidence 17 —that the


  17
       The INA provides:

        In any proceeding under this chapter, any of the
following documents or records (or a certified copy of such an
official document or record) shall constitute proof of a criminal
conviction:
        (i) An official record of judgment and conviction.
        (ii) An official record of plea, verdict, and
        sentence.
        (iii) A docket entry from court records that
        indicates the existence of the conviction.
        (iv) Official minutes of a court proceeding or a
        transcript of a court hearing in which the court
        takes notice of the existence of the conviction.
        (v) An abstract of a record of conviction prepared
        by the court in which the conviction was entered,
        or by a State official associated with the State's
        repository of criminal justice records, that
        indicates the charge or section of law violated, the
        disposition of the case, the existence and date of
        conviction, and the sentence.
        (vi) Any document or record prepared by, or
        under the direction of, the court in which the
        conviction was entered that indicates the
        existence of a conviction.
        (vii) Any document or record attesting to the
        conviction that is maintained by an official of a
        State or Federal penal institution, which is the

                               29
______________________________

CIMT determination focuses on the crime of which the alien
was convicted—not the specific acts that the alien may have
committed. 8 U.S.C. § 1101(a)(48)(A). The statute presents no
ambiguity.

        Two recent opinions of the Second and Ninth Circuit
Courts of Appeals buttress this conclusion—Gertsenshteyn v.
U.S. Dept. of Justice, 544 F.3d 137 (2d Cir. 2008) and Tokatly
v. Ashcroft, 371 F.3d 613, 622 (9th Cir. 2004). Although these
opinions address “convicted” in the context of different removal
provisions, Congress has prescribed a single definition of
“convicted,” applicable to all removable offenses. See 8 U.S.C.
§ 1101(a)(1) and (48)(A) (defining “conviction”). 18



       basis for that institution's authority to assume
       custody of the individual named in the record.
8 U.S.C. § 1229a(c)(3)(B); see Conteh v. Gonzales, 461 F.3d 45,
54 (1st Cir. 2006) (“[T]he regulation’s catch-all provision
authorizes the admission of evidence for the sole purpose of
proving “the existence of a criminal conviction,” 8 C.F.R.
§ 1003.41(d) (emphasis supplied); it does not authorize the
admission of evidence for the purpose of proving the facts
underlying the offense of conviction.”).
  18
     See Duenas-Alvarez, 549 U.S. at 185-86 (“In determining
whether a conviction (say, a conviction for violating a state
criminal law that forbids the taking of property without
permission) falls within the scope of a listed offense (e.g., “theft
offense”), the lower courts uniformly have applied the approach
this Court set forth in Taylor v. United States, 495 U.S. 575, 110

                                30
______________________________

Accordingly, we find the reasoning in these cases applicable to
the CIMT provisions of the statute.

       In Tokatly v. Ashcroft, the Ninth Circuit Court of Appeals
concluded that a provision authorizing removal of an alien
convicted of a crime of domestic violence required application
of a categorical, or modified categorical, approach. 371 F.3d at
622. The Court stressed that this result flowed from Congress’s
inclusion of the word “convicted,” a clear and unambiguous
term:

       Like all of the other removal provisions we have
       analyzed in accordance with the categorical and
       modified categorical approach, the plain language
       of the “crime of domestic violence” provision
       clearly bases deportability on the nature of the
       alien’s conviction, rather than on the alien’s


S.Ct. 2143, 109 L.Ed.2d 607 (1990)).”) (emphasis added); see
also Chowdury, 249 F.3d at 973 (“When analyzing a statute we
. . . mak[e] every effort not to interpret a provision in a manner
that renders other provisions of the same statute inconsistent.’”
(quoting Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th
Cir. 1991))); Tokatly, 371 F.3d at 622; United States v.
Pacheco, 225 F.3d 148, 154 (2d Cir. 2000) (quoting United
States v. Bonanno Organized Crime Family, 879 F.2d 20, 24 (2d
Cir. 1989)) (“[W]e must ‘interpret [a] specific provision in a
way that renders it consistent with the tenor and structure of the
whole act or statutory scheme of which it is a part.’”) (internal
citations omitted).

                               31
______________________________

       actual conduct. We are required to determine
       whether Tokatly has been “convicted of a crime of
       domestic violence”-not whether he in fact
       committed such a crime. INA § 237(a)(2)(E)(i)
       (emphasis added). That the removable offense at
       issue is a “crime of domestic violence” in no way
       warrants a reversal of our fundamental method of
       determining whether an alien has been convicted
       of a removable offense under the Act.

Id. (emphasis added).

       The Second Circuit Court of Appeals has concluded,
similarly, that “convicted” mandates a categorical analysis.
Gertsenshteyn, 544 F.3d at 145-46. In Gertsenshteyn, the court
considered the validity of a novel framework, adopted by the
BIA, for adjudicating “aggravated felony” convictions under
8 U.S.C. § 1101(a)(43)(K)(ii). 544 F.3d at 138. The BIA had
specifically sought greater leeway to examine the particular
conduct underlying an alien’s prior conviction. As originally
enacted in April 1996, § 1101(a)(43)(K)(ii) defined as an
aggravated felony the commission of “an offense that . . . is
described in” any one of three federal statutory provisions
[18 U.S.C. §§ 2421, 2422, and 2423] ‘for commercial
advantage.’” Departing from the categorical and modified
categorical approaches, the BIA scrutinized evidence outside the
record of conviction to ascertain whether the alien was, in fact,
motivated by a desire “for commercial advantage.” The court
concluded that such an approach was foreclosed by the statute,
which required “conviction” of an aggravated felony. The
relevant passage in Gertsenshteyn is worth quoting at length:

                               32
______________________________

        Our holding today is grounded in
history-specifically, the history of why we have
applied the categorical approach to aggravated
felony inquiries in the removal context. The
prim ary reason w as that 8 U .S.C .
§ 1227(a)(2)(A)(iii)-the provision of the INA that
renders an alien removable for having been
convicted of an aggravated felony (leaving to
provision 8 U.S.C. § 1101(a)(43) the definition of
“aggravated felony”)-uses the word “convicted.”
That is, the INA premises removability not on
what an alien has done, or may have done, or is
likely to do in the future (tempting as it may be to
consider those factors), but on what he or she has
been formally convicted of in a court of law. . . .

       One way to ensure proper focus on the
conviction, we decided, was the method the
Supreme Court applied in Taylor and Shepard.
See Ming Lam Sui v. INS, 250 F.3d 105, 116-17
(2d Cir. 2001) (stating that “the Taylor opinion
provides valuable guidance” to a determination of
whether an alien’s offense constitutes an
“aggravated felony” under the INA because, like
the statute at issue in Taylor, “
§ 1227(a)(2)(A)(iii) renders deportable an alien
who has been ‘convicted’ of an aggravated
felony, not one who has ‘committed’ an
aggravated felony”). We also reasoned (1) that
“nothing in the legislative history [of 8 U.S.C.
§ 1227(a)(2)(A)(iii)] suggested a factfinding role

                        33
______________________________

       for the BIA in ascertaining whether an alien had
       committed an aggravated felony, just as, in
       Taylor, nothing suggested such a role for the
       sentencing court in evaluating the factual basis of
       a prior burglary conviction,” and (2) that “the
       practical evidentiary difficulties and potential
       unfairness associated with looking behind [an
       alien’s] offense of conviction were no less
       daunting in the immigration [context] than in the
       sentencing context.” Dulal-Whiteway, 501 F.3d at
       125-26 (internal quotation marks and citations
       omitted). In sum, our use of the categorical
       approach emanates from our understanding of
       what Congress intended when it drafted
       § 1227(a)(2)(A)(iii), a provision that, like the
       provision in Taylor and Shepard, requires the
       Government to prove the existence of a qualifying
       conviction in order to make its case.

 Id. at 145-46 (emphasis in original). Although the Court
construed “conviction” in the context of the aggravated felony
provision, the Court made clear that its rejection of the BIA’s
fact-intensive inquiry was premised on “conviction”—a
statutorily defined term—not on the particular offense for which
removal was sought:

               In the precedential opinion that the BIA
       issued in this case, it has taken a new approach.
       But it has done so not by reinterpreting 8 U.S.C.
       § 1227(a)(2)(A)(iii), the provision whose wording
       led it-and us-to adopt the categorical approach in

                               34
______________________________

        the first place. Rather, it has focused entirely on
        a subpart of § 1101(a)(43), the provision of the
        INA that defines “aggravated felony.” The BIA
        has authority to interpret that provision, and its
        interpretation-specifically, its sensible reading of
        the phrase “commercial advantage”-may well
        merit deference should the BIA reassert it in this
        case (on remand) or in others. But the BIA’s
        discussion of § 1101(a)(43)(K)(ii) gives us no
        reason to depart from its, and our own, precedents
        regarding the more fundamental question of what
        is required of the agency-in the interests of both
        fairness and efficiency-when an alien's
        removability hinges on the existence of a prior
        conviction.

 Id. at 146 (emphasis added); Conteh, 461 F.3d at 54; Chang v.
INS, 307 F.3d 1185, 1190 & n.2 (9th Cir. 2002) (noting that
term “conviction” necessarily limits inquiry to the elements of
the statute of conviction and the record of conviction); In re
Velazquez-Herrera, 24 I.&N. Dec. at 513 (noting that
“convicted” requires the “focus” of the immigration authorities
to be on the “crime of which the alien was convicted, to the
exclusion of any other criminal or morally reprehensible acts he
may have committed.”) (emphasis added).19


   19
     Because “convicted” has an unambiguous meaning, the
Attorney General must find support for his novel approach
elsewhere in the statute. The Attorney General attempts to do
just that, citing 8 U.S.C. § 1182(a)(2)(A)(i)(I), section

                                35
______________________________

        We also take issue with the Attorney General’s view that
the phrase “crime involving moral turpitude” invites inquiry into
an alien’s specific acts. The Attorney General’s argument is
premised on a fundamental misreading of the relevant language.
The Attorney General views “crime” and “involving moral
turpitude” as distinct grammatical units and, accordingly,
reasons that the clause “involving moral turpitude” modifies
“crime.” He thus concludes that Congress intended to authorize
inquiry into whether an alien committed the offense in a manner
reflecting depravity—that is whether the alien’s particular acts
“involv[ed] moral turpitude.” The Attorney General’s view,
however, overlooks a crucial fact: crime involving moral


212(a)(2)(A)(i)(I). However, that section, addressing acts
specifically “admitted” by the alien in the underlying criminal
proceeding, is narrowly drawn; it does not confer limitless
discretion on immigration judges to examine “any additional
evidence” deemed “appropriate.” Silva-Trevino, 24 I.&N. Dec.
at 687; see Connecticut Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992) (“[C]ourts must presume that a legislature says in
a statute what it means and means in a statute what it says
there.”); In re Velazquez-Herrera, 24 I. & N. Dec. at 507 (“If
that [statutory] language constitutes a plain expression of
congressional intent, it must be given effect.”); see also Conteh,
461 F.3d at 58 (“It seems obvious to us that the record of
conviction cannot encompass after-the-fact statements made in
a separate and subsequent proceeding.”). The Attorney
General’s reliance on section 212(a)(2)(A)(i)(I) as support for
a far-reaching inquiry into an alien’s specific acts is thus
misplaced.

                               36
______________________________

turpitude is a term of art, predating even the immigration statute
itself. See Jordan v. De George, 341 U.S. 223, 227 (1951);
Baxter v. Mohr, 37 Misc. 833, 76 N.Y.S. 982 (1902). As such,
its division into a noun and subordinate clause, as the Attorney
General seeks to do, distorts its intended meaning. It refers to
a specific class of offenses, not to all conduct that happens to
“involve” moral depravity, because of an alien’s specific acts in
a particular case. Because the Attorney General’s position is
premised on a clearly erroneous interpretation of “crime
involving moral turpitude,” no deference is owed to his view.

       M oreover, although the A ttorney General
observes–correctly–that “moral turpitude” is rarely an element
of the underlying crime triggering removal,20 it is the offense
that must be scrutinized for the requisite degree of depravity.
Because the INA requires the conviction of a crime—not the
commission of an act—involving moral turpitude, the central
inquiry is whether moral depravity inheres in the crime or its
elements–not the alien’s underlying conduct.21 In this way, the


  20
     In United States v. Uhl, decided almost one hundred years
ago, the court acknowledged the possibility that the statute
would be both overinclusive and underinclusive, but noted that
the interest in administrative efficiency justified this result. 203
F. 152, 153 (S.D.N.Y. 1913).
   21
     See Matter of Pichardo, 21 I. & N. Dec. at 335 (“As this
Board and the courts have consistently held in cases addressing
the issue of whether an alien is deportable under section
241(a)(2)(A)(i) of the Act for having been convicted of a crime

                                37
______________________________

concept of a crime involving moral turpitude does not lend itself
to an examination of acts, rather than elements of the crime, any
more than does the concept of “crime of violence” under section
101(a)(43)(F) of the INA. See 18 U.S.C. § 1101(a)(43)(F)
(defining “aggravated felony” as including a “crime of
violence”). Violence, like moral turpitude, is not an element of
the underlying offense; rather, we must look at the elements of
the crime and measure them against the requirement of
“violence.” See Ng v. Att’y Gen., 436 F.3d 392, 396-97 (3d Cir.
2006) (applying categorical approach to determination of
whether conviction constitutes a “crime of violence” under
section 101(a)(43)(F)); see also Shepard, 544 U.S. at 14
(limiting cognizable evidence to record of conviction in
determining whether prior conviction was for “violent felony”
under the Armed Career Criminal Act); Tokatly, 371 F.3d at 622
(“That the removable offense at issue is a “crime of domestic
violence” in no way warrants a reversal of our fundamental
method of determining whether an alien has been convicted of
a removable offense under the Act.”). The use of the term
“involves” in “crime involving moral turpitude” is no more
expansive than the word “of” in “crime of violence.”

      Nor do we believe that, as a practical matter,
determination of whether a conviction “fits” the requirements of
a CIMT requires examination of an alien’s underlying conduct.


involving moral turpitude, it is the nature of the crime, as
defined by statute and interpreted by the courts and as limited
and described by the record of conviction, which determines
whether an alien falls within the reach of that law.”).

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We are aware that the Seventh Circuit Court of Appeals recently
reached a contrary conclusion in Ali v. Mukasey, upon which the
Attorney General relies in Silva-Trevino. 521 F.3d at 741-42. In
Ali, the Seventh Circuit Court of Appeals concluded, “The need
to decide whether a crime is one of ‘moral turpitude’ . . . may
require some additional information, since the charging papers
that led to the prior conviction are not framed with such
classifications in mind . . . .” Id. Because the Seventh Circuit
represents the sole court of appeals to approve such a far-
reaching inquiry in the CIMT context, we consider its holding
and reasoning in some detail.

       In Ali, the court initially acknowledged its precedents
applying the categorical approach set forth in Shepard and
Taylor. Id. at 741; see Hashish v. Gonzales, 442 F.3d 572, 575
(7th Cir. 2006); Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th
Cir. 2005). The court, however, then abandoned these
precedents, providing three grounds for its decision: that (1) the
rationale for application of the categorical approach in criminal
proceedings is inapplicable in the immigration context; (2)
scrutiny of an alien’s specific acts is necessary to determine
whether a prior conviction fits the criteria of a CIMT; and (3) a
recent decision of the BIA permits examination of extra-record
evidence in conducting the CIMT inquiry, see Matter of
Babaisakov, 24 I. & N. Dec. at 311. None of these reasons
withstands scrutiny.

       First, the court reasons that the twin rationales for the
categorical approach articulated in Taylor—simplicity of
application and conservation of judicial resources—do not
“come into play” in the immigration context. Ali, 521 F.3d at

                               39
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741. We respectfully disagree. Administrative efficiency and
ease of application are equally, if not more, important in the
immigration context than in criminal proceedings.             See
Gertsenshteyn, 544 F.3d at 146 (noting that “the practical
evidentiary difficulties and potential unfairness associated with
looking behind [an alien’s] offense of conviction were no less
daunting in the immigration [context] than in the sentencing
context”). As the Ninth Circuit Court of Appeals, a circuit
experienced with managing crowded immigration dockets,
recently explained, “If we were to allow evidence that is not part
of the record of conviction as proof of whether an alien falls
within the reach of [an INA removal provision], we essentially
would be inviting the parties to present any and all evidence
bearing on an alien’s conduct leading to the conviction . . . .
Such an endeavor is inconsistent . . . with the streamlined
adjudication that a deportation hearing is intended to provide.”
Tokatly, 371 F.3d at 621 (quoting Matter of Pichardo, 21 I. & N.
Dec. at 335). Yet, the “invitation” that Tokatly strives to avoid
is extended to the parties in Ali: “[W]e now conclude that when
deciding how to classify convictions under criteria that go
beyond the criminal charge-such as . . . whether the crime is one
of ‘moral turpitude,’ the agency has the discretion to consider
evidence beyond the charging papers and judgment of
conviction.” Ali, 521 F.3d at 743. Ali sets no limitation on the
evidence admissible to establish an alien’s underlying conduct.

       Ali dismisses the administrative implications of its
ground-breaking approach, reasoning that immigration judges
may devote as much, or as little, time to examination of an
alien’s specific conduct as they see fit. Id. at 741. The court
reasons that whether an individualized inquiry would be unduly

                               40
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burdensome is an issue for the agency, not the judiciary, to
decide: “And how much time the agency wants to devote to the
resolution of particular issues is, we should suppose, a question
for the agency itself rather than the judiciary.” Id. We need not
weigh the respective costs and benefits of a fact-intensive
approach, or divine the agency’s view on the matter, as the BIA
has already spoken clearly and unequivocally. If Ali refers the
“question” to the BIA, id., the agency has previously answered
it:

              If we were to make an exception here and
       accept the respondent’s testimony as proof of his
       deportability . . . there would be no clear stopping
       point where this Board could limit the scope of
       seemingly dispositive but extrinsic evidence
       bearing on the respondent’s deportability. We
       believe that the harm to the system induced by the
       consideration of such extrinsic evidence far
       outweighs the beneficial effect of allowing it to
       form the evidentiary basis of a finding of
       deportability.

 Matter of Pichardo, 21 I. & N. Dec. at 335-36 (internal citation
omitted).

        Notwithstanding the agency’s prior rejection of a fact-
intensive inquiry, the court in Ali reasons that such an approach
is necessary to determine whether a prior conviction satisfies the
criteria of a CIMT, since “moral turpitude” is rarely an element
of the statute of conviction. But, this problem of “fit”—the
virtually inevitable incongruity between the statute of conviction

                               41
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and the elements of a CIMT—is not of recent vintage. Writing
nearly a century ago, Judge Noyes identified this as an inevitable
byproduct of the categorical approach:

       It is true that . . . some aliens who have been
       convicted of high crimes may be excluded
       although their particular acts evidence no
       immorality and that some who have been
       convicted of slight offenses may be admitted
       although the facts surrounding their commission
       may be such as to indicate moral obliquity. But
       such results always follow the use of fixed
       standards and such standards are, in my opinion,
       necessary for the efficient administration of the
       immigration laws.

 Uhl, 203 F. at 153. In the intervening one hundred years since
Uhl was decided, adjudicators have applied the categorical
approach to the CIMT inquiry without great difficulty. See also
In re Velazquez-Herrera, 24 I. & N. Dec. at 513. Ali fails to
identify a significant development–legal, policy, or
otherwise–justifying departure from our historic approach.

       Even if we were inclined to find, as did the court in Ali,
that an individualized inquiry would enable more precise
determinations regarding removal, and that this benefit
outweighed the administrative burden created, we believe our
discretion to adopt such an approach to be foreclosed by the
immigration statute itself, which predicates removal on
convicted conduct, and which, we conclude, expressly limits our
inquiry to the official record of judgment and conviction, or

                               42
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other comparable judicial record evidence. 8 U.S.C.
§§ 1229a(c)(3)(B), 1101(a)(48)(A); see Conteh, 461 F.3d at 54;
cf. Chevron, 467 U.S. at 842-43.

       Lastly, the Seventh Circuit Court of Appeals reasons that
a recent opinion of the BIA, Matter of Babaisakov, warrants
abandoning its precedents applying the categorical approach to
CIMT cases. 24 I. & N. Dec. at 311. Babaisakov, however, does
not support the far-reaching inquiry that the court adopts in Ali.
There, the BIA examined evidence outside the record of
conviction for the narrow purpose of determining whether the
monetary threshold for removal under section 101(a)(43)(M)
was met. Section 101(a)(43)(M) authorizes removal of an alien
who is convicted of an offense that “involves fraud or deceit in
which the loss to the victim or victims exceeds $10,000.”
(emphasis added). In approving resort to reliable evidence
outside the record of conviction to determine the loss amount,
the BIA stressed that a categorical approach would be
unworkable, as there is no federal or state fraud statute that
contains an element requiring loss to the victims exceeding
$10,000. Id. at 315.

       Shortly after Matter of Babaisakov was decided, we
adopted a position similar to that of the BIA and, eschewing a
categorical approach, held that section 101(a)(43)(M)’s
monetary requirement did not require jury determination of the
amount of victim loss in the underlying criminal proceeding.
Nijhawan v. Att’y Gen., 523 F.3d 387, 391-92 (3d Cir. 2008).
We reasoned, as the BIA did in Matter of Babaisakov, that a
contrary approach, requiring a loss amount to have been
ascertained by the jury in the prior criminal proceeding, would

                               43
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essentially gut this basis for removal and “impose a totally
impractical standard.” Id.

       The practical impediments to application of the
categorical approach identified in Nijhawan and Babaisakov,
however, are not present in the CIMT context. The BIA and
courts of appeals have determined whether moral turpitude
inheres in the convicted conduct using a categorical approach
for over a century. Hence, Nijhawan and Babaisakov do not
support abandoning our established methodology.

        Because we conclude that Ali misunderstands the import
of Babaisakov, violates clear statutory language requiring proof
of actual conviction, and ignores the BIA’s pronouncement that
a fact-intensive inquiry would be unduly burdensome, we do not
feel compelled to follow it.22


   22
      In Silva-Trevino, the Attorney General posits a series of
policy arguments to justify abandoning the categorical
approach—that an individualized inquiry would minimize the
impact of differences in state criminal codes on CIMT
adjudication, and remedy the current fractured approach to the
CIMT issue, in which courts of appeals apply different
methodologies. These policy benefits are largely beside the
point. Congress has spoken clearly and unambiguously and,
therefore, the agency is not free to disregard Congress’s
judgment, merely because it believes that it has fashioned a
better alternative, or that Congress’s approach is ill-advised. See
Chevron, 467 U.S. at 842-43; In re Velazquez-Herrera, 24 I. &
N. Dec. at 514 (“The principal difficulty with the DHS’s

                                44
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        The other aspect of Silva-Trevino—requiring proof of a
“realistic probability” that the statute of conviction would be
applied to non-turpitudinous conduct—is also wrong-headed.
This concept originated in Duenas-Alvarez, 549 U.S. at 185-86.
There, the Supreme Court considered whether conviction under
a California statute, imposing criminal penalties not only on one
who takes a vehicle without consent but also on one who is an
accessory or accomplice to such an unauthorized taking,
constitutes a “theft offense” under the 8 U.S.C.
§ 1101(a)(43)(G), and is thus removable. The alien urged that,
as a result of California courts’ application of the “natural and
probable consequences” doctrine, the California statute
criminalized conduct that is not “theft” and thus does not
warrant removal. Rejecting the alien’s view of the statute, the
Supreme Court reasoned that states routinely punish conduct of
an accomplice to theft as “theft,” and stated: “[I]n our view, to
find that a state statute creates a crime outside the generic
definition of a listed crime in a federal statute requires more
than the application of legal imagination to a state statute’s
language. It requires a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that
falls outside the generic definition of a crime.” Id. at 193.
Concluding that the alien had merely articulated a theoretical
possibility that the California statute would apply where the
defendant did not intend to commit the crimes resulting from his




position is that we simply have no authority to consider . . .
policy matters except as they may bear on the proper
interpretation of an otherwise ambiguous statute.”).

                                45
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acts, the Court concluded that the statute “fit” the generic
definition of a “theft offense.”

        Curiously, the phrase “realistic probability” has been
imported into the CIMT context, with several courts reasoning
that an alien may avoid removal only if he demonstrates a
“realistic probability” that non-turpitudinous conduct would,
indeed, be prosecuted as a crime under the particular statute at
issue. See, e.g., Nicanor-Romero v. Mukasey, 523 F.3d 992,
1005-1006 (9th Cir. 2008); United States v. Becerril-Lopez, 528
F.3d 1133, 1141 (9th Cir. 2008); Martinez v. Mukasey, 551 F.3d
113, 119 n.6 (2d Cir. 2008); United States v. Diaz-Ibarra, 522
F.3d 343, 348 (4th Cir. 2008). We seriously doubt that the logic
of the Supreme Court in Duenas-Alvarez, however, is
transferable to the CIMT context. In Duenas-Alvarez, the
hypothetical conduct asserted by the alien was not clearly a
violation of California law. In fact, the parties vigorously
disputed whether California courts would permit application of
the statute to a defendant who had committed acts resulting in
a crime, but where the commission of the crime itself was not
intended.     Here, by contrast, no application of “legal
imagination” to the Pennsylvania simple assault statute is
necessary. The elements of 2701 are clear, and the ability of the
government to prosecute a defendant under subpart
2701(b)(2)—even where the defendant is unaware of the
victim’s age—is not disputed.23 With all due respect to our


   23
     See United States v. Grisel, 488 F.3d 844, 850 (9th Cir.
2007) (en banc) (“Where, as here, a state statute explicitly
defines a crime more broadly than the generic definition, no

                               46
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sister courts of appeals who have imposed this additional step in
light of Duenas-Alvarez, we view the situation here as
sufficiently different from that of Duenas-Alvarez to raise
serious doubts as to its applicability.

        Other considerations support our refusal to import a
“realistic probability” test into the CIMT context. As the Ninth
Circuit Court of Appeals explained in Nicanor-Romero, “[T]his
court and others have developed a substantial body of case law
deciding whether various state criminal statutes fall within the
scope of the ‘crime involving moral turpitude’ offense.” 523
F.3d at 1004. This jurisprudence has provided predictability,
enabling aliens better to understand the immigration
consequences of a particular conviction. See id. Duenas-
Alvarez did not purport to alter our and other courts of appeals’
case law regarding the examination of the least culpable
criminal conduct in resolving the CIMT issue. As the en banc
court in Nicanor-Romero noted, the issue is not whether
potential offenders have been prosecuted; rather, the issue is
whether everyone prosecuted under that statute has necessarily
committed a CIMT. 523 F.3d at 1072.

       Also unanswered is whether the government or the alien
bears the burden of demonstrating a prior application of the


“legal imagination,” Duenas-Alvarez, 127 S.Ct. at 822, is
required to hold that a realistic probability exists that the state
will apply its statute to conduct that falls outside the generic
definition of the crime. The state statute’s greater breadth is
evident from its text.”); Becerril-Lopez, 528 F.3d at 1141.

                                47
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statute of conviction to non-turpitudinous conduct, and the
applicability of unreported criminal cases. Id. Although the INA
allocates the burden of establishing removability to the
government, see Notash v. Gonzales, 427 F.3d 693, 697 (9th
Cir. 2005), Duenas-Alvarez appears to shift this burden to the
alien, indicating that he must “show that the statute was so
applied in his own case” or point to “other cases in which the
state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues.” 549 U.S. at 194; see
Nicanor-Romero, 523 F.3d at 1004. These unresolved questions
strengthen our conclusion that the Supreme Court never
intended a sea-change in our case law regarding the
methodology for determining whether an alien has been
convicted of a CIMT.

       Based on the foregoing analysis, we will not defer to the
methodology adopted by the Attorney General, which we
conclude is predicated on an impermissible reading of the INA,
is contrary to Congress’s intent, and would overturn nearly a
century of jurisprudence. Accordingly, we will follow our
established methodology for adjudicating crimes involving
moral turpitude, as set forth in Partyka, and conclude that Jean-
Louis was not convicted of a CIMT.

III. Conclusion

      For the foregoing reasons, we will GRANT the petition,
REVERSE the order of the BIA, and REMAND the case to the
BIA for further proceedings consistent with this Opinion.



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