Jackson Ndungu v. Attorney General United StatesJackson Ndungu v. Attorney General United States
Immigration Judge: Kuyomars Q. Golparvar
Argued Before a Merits Panel on January 10, 2023
Reargued En Banc on October 9, 20241
Before: JORDAN, PHIPPS, and ROTH, Circuit Judges
(Filed: January 13, 2025)
Andrew J. Mahon [ARGUED MERITS]
BARLEY SNYDER
100 E Market Street
York, PA 17401
Christopher R. Healy [ARGUED EN BANC]
Kaitlin L. O‘Donnell
Sierra Stockley
TROUTMAN PEPPER LOCKE
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Counsel for Petitioner Jackson Njai Ndungu
Ryan M. Chabot
Olivia Greene
Cassandra Mitchell
Alan E. Schoenfeld
WILMERHALE
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Counsel for Amicus American Immigration Lawyers Association in Support of Petitioner
Michael B. Kimberly [ARGUED EN BANC]
Charles H. Seidell
MCDERMOTT WILL & EMERY
500 N Capitol Street NW
Washington, DC 20001
Counsel for Amicus National Association of Criminal Defense Lawyers in Support of Petitioner
IMMIGRANT DEFENSE PROJECT
P.O. Box 1765
New York, NY 10027
Counsel for Amicus Heartland Alliance‘s National Immigrant Justice Center, Immigrant Defense Project, and National Immigration Project of the National Lawyers Guild in Support of Petitioner
Margaret A. Kopel
NATIONALITIES SERVICE CENTER
1216 Arch Street
4th Floor
Philadelphia, PA 19107
Counsel for Amicus Nationalities Service Center in Support of Petitioner
James P. Davy
ALL RISE TRIAL & APPELLATE
P.O. Box 15216
Philadelphia, PA 19125
Counsel for Amicus Former Executive Office of Immigration Review Judges in Support of Petitioner
Jonathan A. Robbins [ARGUED MERITS]
Erik R. Quick
UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent Attorney General United States of America
OPINION OF THE COURT
PHIPPS, Circuit Judge.
By statute, lawfully admitted noncitizens are subject to deportation for committing two or more crimes involving moral turpitude on separate occasions. See
I. BACKGROUND
A. Jackson Ndungu Lawfully Enters the United States in 2009
Because Kenya does not participate in the Visa Waiver Program2 and is ineligible for another form of country-specific visa waiver, citizens of Kenya must obtain a visa to lawfully enter the United States. Based on Kenya‘s historically low rates of immigration to the United States, however, persons chargeable to Kenya by birth or otherwise may qualify for the Diversity Immigrant Visa Program.3 That Program, which is also referred to as the “Diversity Program” or the “Green Cаrd Lottery,” randomly selects among the applicants in a region those who may apply for a fixed number of immigrant visas,4 which allow
Jackson Ndungu, a native and citizen of Kenya, submitted a petition under the Diversity Program and was selected to apply for one of the 55,000 immigrant visas authorized for the 2008 fiscal year. See Immigration Act of 1990, Pub. L. No. 101-649, § 131, 104 Stat. 4978, 4997–99 (1990) (codified at
While in the United States, Ndungu was convicted of several crimes under Pennsylvania law. He pleaded nolo contendere in 2014 and 2019 to separate charges of felony fleeing or attempting to elude law enforcement, and those each resulted in convictions under 75 Pa. Cons. Stat. § 3733(a.2)(2). Also, in between those two convictions, in December 2016, Ndungu was convicted of two related counts of simple assault in violation of 18 Pa. Cons. Stat. § 2701(a)(1).6
B. The Deportation Consequences for Convictions for Multiple Crimes Involving Moral Turpitude
Convictions for certain classes of crimes subject lawful permanent residents to deportation. See
Act of 1917 supplemented that exclusion provision with deportation consequences for noncitizens who, while in the United States, were convicted of a crime involving moral turpitude – commonly abbreviated as a “CIMT.” One of those grounds for deportation added by that legislation was the commission of multiple CIMTs that each resulted in the noncitizen‘s imprisonment for over a year.8 The Immigration and Nationality Act of 1952 amended that provision by adding as a ground for deportation the commission of “two crimes involving moral turpitude, not arising out of a single scheme” regardless of the length of the term of imprisonment associated with those crimes. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 241(a)(4), 66 Stat. 163, 204 (1952). Since 1996, the multiple-CIMT removal provision has had the following text:
Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
(“The term ‘moral turpitude’ first appeared in the Act of March 3, 1891, 26 Stat. 1084 . . . .“).
1. Definitional Ambiguity and Resolution
Although Congress has long used “moral turpitude” in the immigration statutes, it has never defined that term. See Larios v. Att‘y Gen., 978 F.3d 62, 69 (3d Cir. 2020) (“There is no statutory definition of a crime involving moral turpitude . . . .“); Silva-Trevino, 24 I. & N. Dec. 687, 689 n.1 (A.G. 2008) (“The absence of a statutory definition dates back to 1891, when the term first appeared in the immigration context . . . .“), vacated on other grounds, 26 I. & N. Dec. 550 (A.G. 2015). Without a statutory definition, the Supreme Court, in Jordan v. De George, 341 U.S. 223 (1951), after surveying federal and state caselaw, including one of its own decisions, gave the term some meaning by ruling that the term CIMT is broad enough to encompass “crimes in which fraud was an ingredient.” Id. at 232; see also United States ex rel. Volpe v. Smith, 289 U.S. 422, 423–24 (1933) (concluding the possession and passing of counterfeit war saving stamps was “plainly a crime involving moral turpitude“).9
Over time, this Court has resolved much of that ambiguity. It has done so not by looking to the common-law meaning of CIMT, and for good reason: it is not clear that the term had an established meaning prior to its inclusion in the immigration statute. See Note, Crimes Involving Moral Turpitude, 43 Harv. L. Rev. 117, 118 n.7 (1929) (reporting that no case in English
law used that term); cf. Taylor v. United States, 495 U.S. 575, 598–99 (1990) (rejecting a common-law meaning of burglary in the context of a federal statute‘s use of that term for purposes of a sentencing enhancement). Nor has this Court surveyed the law from every state that uses the term ‘moral turpitude’ in its laws to find a consensus generic meaning of the term CIMT at the time of the statute‘s enactment. Cf. Taylor, 495 U.S. at 598-99 (relying on the consensus generic meaning of ‘burglary‘); cf. also Mathis v. United States, 579 U.S. 500, 503 (2016) (describing the “generic” version of the crime as the elements of “the offense as commonly understood“); Esquivel-Quintana v. Sessions, 581 U.S. 385, 394 (2017) (explaining that the relevant date for the commonly understood meaning is the date of the statute‘s enactment). So while reliance on such a federal generic standard is common in other contexts, see, e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190 (2007); Mathis, 579 U.S. at 503–04; Esquivel-Quintana, 581 U.S. at 394, it does not appear that there is any binding precedent attempting such a consensus-of-meaning
over time they relied instead on the persuasive power of the agency‘s definitions,12 and they have resulted in a two-element standard for a CIMT consisting of an actus reus and a mens rea.13 For the actus reus, the crime must involve reprehensible conduct, meaning an act that is “inherently base, vile, or depraved contrary to the accepted rules of morality and the duties owed to other persons, either individually or to society in general.” Larios, 978 F.3d at 69 (quoting Javier, 826 F.3d at 130–31); Ortega-Lopez, 27 I. & N. Dec. 382, 385 (B.I.A. 2018). And for the mens rea, the crime must be committed with a culpable mental state. Specific intent, deliberateness, or willfulness satisfies that requirement as does recklessness, defined as “a conscious disregard of a substantial and unjustifiable risk that serious
603 U.S. 369, 402–03 (2024) (“For those reasons, delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise. The better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch.“).
injury or death would follow.” Partyka v. Att‘y Gen., 417 F.3d 408, 414 (3d Cir. 2005); id. at 414–16 (explaining that recklessness in the presence of aggravating factors qualifies as a culpable mental state); cf. Mehboob v. Att‘y Gen., 549 F.3d 272, 276 (3d Cir. 2008) (“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.“).
2. Methodological Direction14
The Supreme Court has provided methodological guidance for determining whether
Starting with its decision in Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court gave greater dimension to that elemental matching method, referred to as the “categorical approach.” See id. at 588–602; see also
Moncrieffe v. Holder, 569 U.S. 184, 190–95 (2013); Nijhawan v. Holder, 557 U.S. 29, 34–39 (2009); Duenas-Alvarez, 549 U.S. at 190–94. In the immigration context, that approach is tethered to one term in the Immigration and Nationality Act as amended – the word “convicted,” see
for a prior conviction to qualify as
C. The Removal Proceedings Against Ndungu Premised on 8 U.S.C. § 1227(a)(2)(A)(ii)
Based on his criminal history, DHS charged Ndungu with removability under
must prove to sustain a conviction.‘” (quoting Elements of Crime, Black‘s Law Dictionary (10th ed. 2014))); see also Descamps v. United States, 570 U.S. 254, 257 (2013); Moncrieffe, 569 U.S. at 198.
In 2017, DHS idеntified two putative CIMTs that Ndungu had committed – his 2016 simple assault convictions and his 2014 conviction for fleeing-or-eluding – as bases for removal under
After Ndungu‘s April 2019 conviction for felony fleeing-or-eluding-law-enforcement, DHS again charged Ndungu with removability under
to property). In response, Ndungu moved to terminate the removal proceedings, arguing that neither сrime constituted a CIMT. DHS did not oppose that motion, and the Immigration Judge terminated the proceedings without prejudice. Ndungu does not now argue that those 2015 proceedings have res judicata effect (although he did before the Immigration Court, which rejected the contention).
2014 and 2019. In response, Ndungu argued that res judicata principles precluded DHS from relying on his 2014 fleeing-or-eluding conviction as a predicate CIMT because DHS had previously tried to remove him based on that conviction. Ndungu also contended that the felony fleeing-or-eluding offense under Pennsylvania law did not constitute a CIMT.20
After a multi-day hearing, the Immigration Judge issued an interlocutory order that rejected both of those defenses. With respect to res judicata, the Immigration Judge determined that although final orders of removal may preclude later claims, the order in the 2017 removal proceedings did not satisfy the elements of that defense. And, in reviewing Ndungu‘s felony fleeing-or-eluding convictions from 2014 and 2019, the Immigration Judge concluded that they both qualified as CIMTs under the categorical approach. Accordingly, the Immigration Judge sustained the charge of removability.21
Ndungu аdministratively appealed that decision to the Board of Immigration Appeals. He disputed the Immigration Court‘s non-application of res judicata and its conclusion that his felony convictions for fleeing-or-eluding each constituted a CIMT. The BIA affirmed the Immigration Court‘s ruling and issued a final order of removal. But in so doing, the BIA did not cite
admission, commits a CIMT punishable by at least one year in prison. Id. Nonetheless, the BIA conducted an analysis consistent with
Without success on administrative appeal, Ndungu filed a timely petition in this Court to review the BIA‘s final order of removal. See
After the panel initially heard oral argument on the petition, thе Court voted for en banc rehearing and requested supplemental briefing. After an en banc oral argument, the majority of active judges voted to remand the case to the panel for disposition.
II. DISCUSSION
Congress, through a statutory provision referred to as the “criminal-alien bar,”22 has limited judicial review of final orders of removal for non-citizens convicted of certain types of crimes. That rule mandates that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” identified offenses, including multiple CIMTs.
In his petition, Ndungu argues that the agency erred as a matter of law in two respects: by rejecting the application of res judicata and by concluding that felony fleeing-or-eluding under Pennsylvania law is categorically a CIMT. As legal questions, those two issues are outside the criminal-alien bar and are within this Court‘s jurisdiction. See Sasay, 13 F.4th at 295–96; Grijalva Martinez v. Att‘y Gen., 978 F.3d 860, 864 n.2 (3d Cir. 2020).
A. Administrative Claim Preclusion: An Agency‘s Application of Res Judicata to Its Own Prior Final Orders
Courts have developed the doctrines of res judicata (for claims) and collateral estoppel (for issues) that define the preclusive effects of their own final judgments on civil cases in subsequent civil suits. In creating federal agencies and empowering them with adjudicative functions, Congress is presumed to have “legislated with an expectation” not merely that agencies could determine the preclusive effect that they would afford to their own orders in future administrative proceedings but even more: that final agency orders would be presumed to have res judicata and collateral estoppel effects on later agency adjudications. Astoria Fed. Sav. & Loan Ass‘n v. Solimino, 501 U.S. 104, 108 (1991); see Duvall v. Att‘y Gen., 436 F.3d 382, 387 (3d Cir. 2006) (“Congress may be presumed, when enacting a statute granting to an agency
adjudicatory authority, to mandate adherence to the doctrine of collateral estoppel.“).23
But that expectation imputed to Congress is not absolute. There cannot be administrative preclusion “when a statutory purpose to the contrary is evident.” Astoria, 501 U.S. at 108 (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)). And administrative preclusion should not be applied under unsuitable circumstances, which depend on “the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures.” Id. at 109–10.
Consistent with those principles, this Court has acknowledged the general applicability of administrative claim preclusion to final orders of removal. See Duhaney v. Att‘y Gen., 621 F.3d 340, 348 (3d Cir. 2010)
1. The Agency‘s Rationale for Rejecting Res Judicata
The Immigration Court analyzed Ndungu‘s res judicata argument using this Court‘s three-element formulation of that affirmative defense. One articulation of those elements is the following:
- A final judgment on the merits in a prior suit;
- A subsequent suit based on the same cause of action; and
- Involvement of the same parties or their privies in both suits.
See In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008). The Immigration Court also acknowledged that this Court takes a transactional approach to the same-cause-of-action requirement so that for removal proceedings, the relevant transaction is the “factual occurrence or conviction upon which a charge of removability is based.” Decision of the Immigration Judge at 3 (JA22) (quoting Duhaney, 621 F.3d at 348-49).
The Immigration Court then evaluated whether the final order in Ndungu‘s 2017 removal proceedings had a preclusive effect. The Immigration Judge reasoned that the order lacked claim preclusive force because, despite being a ruling on the merits, the order terminated the proceedings “without considering whether the Fleeing or Attempting to Elude Officer conviction constituted a CIMT.” Id.
On administrative appeal, the BIA adopted the entirety of the Immigration Judge‘s analysis of res judicata as its own, so the rationale in the Immigration Judge‘s decision is the object of judicial review. See Garland v. Ming Dai, 593 U.S. 357, 371 (2021) (“By adopting that analysis as its own, the BIA‘s decisional path . . . includes that analysis.“); Garcia v. Att‘y Gen., 665 F.3d 496, 502 (3d Cir. 2011), as amended (Jan. 13, 2012) (“When the BIA adopts or defers to the underlying
decision of the IJ, we review the IJ‘s opinion as the decision of the agency.“).
2. De Novo Review of the Agency‘s Legal Conclusion
In his present petition, Ndungu challenges that decision. He contends that because the Immigration Judge in the 2017 proceedings did not order his removal based on his 2014 fleeing-or-eluding conviction, DHS is barred from again relying on that conviction as grounds for removal. In making that argument, Ndungu asserts that in the 2019 proceedings, the Immigration Judge found only one elemental shortcoming in his res judicata defense – the final-judgment-on-the-merits requirement. According to Ndungu, that element was met becаuse the order in the 2017 removal proceedings was a final judgment on the merits.
Even if it was of “less than ideal clarity,”24
Ndungu‘s removal on the ground that the combination of those two convictions satisfies
But in charging Ndungu with removal in 2019, DHS did not rely on those same two convictions. Instead, it identified the predicate offenses as his 2014 and 2019 fleeing-or-eluding convictions. Thus, the cause of action in the 2019 removal proceedings is different from the cause of action in the 2017 proceedings.
Nonetheless, Ndungu insists that res judicata should apply. He focuses on the fact that the charges in both the 2017 and the 2019 proceedings relied on his 2014 fleeing-or-eluding conviction as a basis for removal. But a conviction for one CIMT does not by itself define the transaction for removal under
B. The Challenge under the Categorical Approach to the Predicate Fleeing-or-Eluding Offenses as Crimes Involving Moral Turpitude
Ndungu also challenges the agency‘s legal conclusion that his two convictions for felony fleeing-or-eluding qualify as CIMTs. In upholding the ruling of the Immigration Court, the BIA relied on a realistic-probability exception to the categorical approach by reasoning with respect to Ndungu‘s two felony fleeing-or-eluding convictions that “the minimum conduct [for which Ndungu] has a realistic probability of being prosecuted under the statute entails ‘reprehensible conduct’ to warrant treatment as a
1. The BIA Misconstrued Circuit Precedent for the Realistic-Probability Exception to the Categorical Approach.
The Supreme Court has articulated two strands of realistic-probability considerations that bear on the categorical approach.
First, in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), the Supreme Court explained that realistic-probability considerations could negate an elemental match under the categorical approach. Id. at 193. Even when the elements of a state offense categorically match those of a federal offense, a categorical mismatch is possible if there is “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. So, under Duenas-Alvarez, a match between the elements of a state offense and those in the federal standard does not satisfy the categorical approach if there is a realistic probability that the state would construe its offense to reach conduct outside of the federal standard. Although it was not necessary in Duenas-Alvarez or in either of the Supreme Court‘s two subsequent decisions referencing realistic-probability considerations, Moncrieffe v. Holder, 569 U.S. 184 (2013), and United States v. Taylor, 596 U.S. 845 (2022), to apply those considerations, they are permitted under the categorical approach.
Second, the Moncrieffe decision, in addition to reaffirming the legitimacy of the Duenas-Alvarez realistic-probability considerations, identified a distinct use of those considerations, as a means of preserving a categorical match. Moncrieffe, 569 U.S. at 191. For context, as part of an in terrorem argument, the Government contended that state offenses that would otherwise categorically match a federal standard may no longer do so when there are exceptions to the federal standard. Id. at 205-06. In particular, the Government identified the antique-firearms exception to federal gun prohibitions, see
To obtain a categorical match between Ndungu‘s state offenses and a CIMT, the BIA relied on a distinct variation of realistic-probability considerations. It examined whether “the minimum conduct [for which Ndungu had] a realistic probability of being prosecuted under the statute entails ‘reprehensible conduct’ to warrant treatment as a CIMT.” BIA Decision
Rather than abide by that limitation, the BIA applied realistic-probability considerations as a means of arriving at a categorical match — not to negate or preserve a preexisting match. Accordingly, it was not permissible for the BIA to rely on realistic-probability considerations as it did. See Salmoran, 909 F.3d at 81; see also Jean-Louis, 582 F.3d at 481 (seriously doubting, pre-Moncrieffe, that “the logic of the Supreme Court in Duenas-Alvarez . . . is transferable to the CIMT context“). For that reason, under this Court‘s precedent, the BIA erred in its application of the categorical approach.
2. Ndungu‘s Fleeing-or-Eluding Convictions Do Not Qualify as CIMTs.
Ordinarily, an agency‘s error in formulating the correct legal standard for one of its orders is a basis for vacating and remanding. See Fed. Power Comm‘n v. Idaho Power Co., 344 U.S. 17, 20 (1952) (recognizing the general appropriateness of a remand to an agency once “an error of law is laid bare” by a reviewing court). But when a remand would be futile, it is unnecessary. See Vurimindi v. Att‘y Gen., 46 F.4th 134, 140 (3d Cir. 2022). To be futile, the issue for potential remand must involve a “purely legal question” that “does not implicate the agency‘s expertise,” does not require factfinding, and receives de novo review. Id.
The question presented here asks whether Ndungu‘s fleeing-or-eluding convictions constitute CIMTs under the categorical approach. The scope of that issue, which is already circumscribed by the criminal-alien bar,
a. The Scope of Fact-Finding Under the Categorical Approach Is Limited to Determining the Elements of the Offense of Conviction.
Although the categorical approach does not involve any consideration of the factual basis for a prior conviction, identifying the offense of conviction is essential to the categorical matching process. And it is permissible for a tribunal to ascertain factually the offense of conviction. See Pereida, 592 U.S. at 238 (“When applying the categorical approach, this Court has long acknowledged that to ask what crime the defendant was convicted of committing is to ask a question of fact.“).
But when a statute is “divisible,” meaning that it provides separate, alternative elements for a criminal offense, the statutory basis of the conviction does not conclusivеly identify the elements of the conviction. See Descamps v. United States, 570 U.S. 254, 262 (2013) (explaining that a statute is divisible when it provides “multiple, alternative versions of the crime“); see also Mathis, 579 U.S. at 505-06. In that situation, it is permissible for a tribunal to make a factual inquiry into the precise elemental formulation of the offense of conviction. See Descamps, 570 U.S. at 263.
b. The Pennsylvania Felony of Vehicular Fleeing or Attempting to Elude Law Enforcement Is Divisible in Two Respects.
i. The Structural Components of 75 Pa. Cons. Stat. § 3733
Section 3733, the statute under which Ndungu was twice convicted for felony fleeing-or-eluding, has two relevant components: the definition of the offense and its grading factors (also referred to as “aggravating factors“).
The offense is defined at the beginning of subsection (a) of the statute.
Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop . . . .
In terms of punishment,
An offense under subsection (a) constitutes a felony of the third degree if the driver while fleeing or attempting to elude a police officer does any of the following:
- (i) commits a violation of section 3802 (rеlating to driving under influence of alcohol or controlled substance);
- (ii) crosses a State line; or
- (iii) endangers a law enforcement officer or member of the general public due to the driver engaging in a high-speed chase.
ii. The Dual Divisibility of § 3733
From its structure,
The divisibility between the misdemeanor and felony subsections results from the different punishments imposed by those subsections. As a matter of law, if
Section 3733 is also divisible between the different aggravating factors. Even though each grading factor carries the same potential penalty, that alone does not render divisibility impossible. Rather, in assessing the divisibility of state criminal statutes, federal courts defer to constructions of the statute provided by an “authoritative source[] of state law.” Mathis, 579 U.S. at 518; see also Singh, 839 F.3d at 283 (“When a ruling from an ‘authoritative source[] of state law’ resolving this means-or-elements question ‘exists, a . . . judge need only follow what it says.‘” (alterations in original) (quoting Mathis, 579 U.S. at 518)). A ruling from the highest court in a state carries that weight, as does a ruling from an intermediate state appellate court in the absence of “persuasive data that the highest court of the state would decide otherwise.” Singh, 839 F.3d at 283 n.5; see also Pesikan v. Att‘y Gen., 83 F.4th 222, 228 (3d Cir. 2023). Under that standard, a ruling by the Superior Court of Pennsylvania is ordinarily an authoritative source of Pennsylvania state law. See Singh, 839 F.3d at 283 n.5. And in Commonwealth v. Bowen, 55 A.3d 1254 (Pa. Super. Ct. 2012), the Superior Court explained that in amending the statute in 2006, the Pennsylvania General Assembly “created a new, aggravated version оf the offense . . . [that] introduced additional elements which must be proven beyond a reasonable doubt and graded the offense as a felony.” Id. at 1268 (emphasis added); see also Commonwealth v. Moffitt, 305 A.3d 1095, 1101-02 (Pa. Super. Ct. 2023) (treating the grading factors in
Ndungu contests the second axis of
To the contrary, the model jury instructions for Pennsylvania align with the Superior Court‘s holding. Those instructions, although not binding on Pennsylvania courts, may be considered as persuasive authority in the divisibility analysis. See Vurimindi, 46 F.4th at 147 & n.10; see also Pesikan, 83 F.4th at 229-30 & n.11. For
c. The Elements of Grading Factor (iii) Do Not Categorically Match the Elements of a Crime Involving Moral Turpitude.
Although the categorical approach permits courts to determine the precise offense of conviction, courts do not have free rein to consider any and all information in that fact-finding endeavor. See Taylor v. United States, 495 U.S. 575, 601 (1990) (inferring from legislative silence that Congress did not intend “an elaborate factfinding process regarding the defendant‘s prior offenses” as part of the categorical approach); Shepard v. United States, 544 U.S. 13, 16 (2005) (holding that courts may not consider police reports and criminal complaint applications in determining the offense of conviction under the categorical approach); Ramos, 892 F.3d at 607 (explaining that although courts may “look beyond the text of a divisible statute” to determine the specific statutory section that “provided the basis for the prior conviction,” they may not “scour the record to ascertain the factual conduct giving rise to the prior conviction“). Instead, courts may consider a limited set of judicial records, often referred to as ”Shepard documents,” to determine the offense of conviction. See Shepard, 544 U.S. at 16, 26 (listing documents that may be considered in the context of a guilty plea and permitting consideration of any “comparable judicial record of this information“). Those include the charging documents, jury instructions, a written plea agreement, transcripts of any plea colloquy, any explicit factual findings made by the court to which the defendant assented, and verdict slips. See Nijhawan v. Holder, 557 U.S. 29, 41-42 (2009) (recognizing as Shepard documents the charging documents, plea agreements, transcripts of plea colloquies,
When a court engages in this fact-finding to identify the precise elements of a conviction pursuant to a divisible statute, it is said to engage in the modified categorical approach. In that situation, the conclusiveness of the Shepard and other statutorily permitted documents determines the scope of the categorical matching analysis. If those documents indicate which of the alternative elemental formulations of the offense was the legal basis for the conviction, then only that identified alternative needs to be evaluated categorically. See Descamps, 570 U.S. at 263 (“Applied in that way — which is the only way we have ever allowed — the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.“). But if the Shepard and other statutorily permitted documents cannot identify which of the alternative elemental formulations of the offense was the basis for the conviction, then each of the alternatives cannot be ruled out as the grounds for the conviction, and the conviction must be examined categorically. See Pereida, 592 U.S. at 240 (explaining where the Shepard documents are unclear the government must “show that all of the statute‘s offenses [meet] the federal definition” (emphasis in original)); cf. United States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018) (explaining that “[w]ithout Shepard documents, the categorical and modified categorical approaches are the same,” so that the categorical approach must be applied to each subsection of a divisible statute).
In this case, the agency‘s fact-finding under the modified categorical approach was able to identify the precise subsection for Ndungu‘s 2014 conviction but not for his 2019 conviction. In reviewing the criminal information, which is a Shepard document (but not one of the additional statutorily identified sources),31 the Immigration Court found that Ndungu‘s 2014 conviction for felony fleeing-or-eluding was for endangering others due to a high-speed chase pursuant to grading factor (iii) of
With this Court‘s jurisdiction circumscribed by the criminal-alien bar, the agency‘s factual findings control the scope of the categorical matching analysis. The finding that the 2014 conviction was pursuant to grading factor (iii) of
Much of the culpable conduct under grading factor (iii) of
But under the categorical approach, it does not matter that most occasions of criminal conduct under a statute would qualify as a CIMT — every instance must do so. See Taylor, 596 U.S. at 857-58; United States v. Brasby, 61 F.4th 127, 135 (3d Cir. 2023). And the conduct criminalized under grading factor (iii) of
In sum, without revisiting any of the agency‘s factual findings, de novo review of the pure legal question of categorical matching reveals that the agency erred as a matter of law in ordering Ndungu‘s removal. Because the fleeing-or-eluding offense under grading factor (iii) is not a CIMT under the categorical approach, neither of Ndungu‘s felony fleeing-or-eluding convictions qualifies as a predicate offense for removal under
III. CONCLUSION
For the foregoing reasons, we will grant the petition.