                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-17-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-2787




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                        PRECEDENTIAL
                                       Peter D. Keisler
         UNITED STATES                 Assistant Attorney General, Civil Division
        COURT OF APPEALS               Emily Anne Radford, Esquire
      FOR THE THIRD CIRCUIT            Assistant Director
                                       Douglas E. Ginsburg, Esquire
                                       John M . McAdams, Jr., Esquire
              No. 03-2787              Aviva L. Poczter, Esquire
                                       Nicole Nardone, Esquire (Argued)
                                       Department of Justice Civil Division
            JAN KNAPIK,                Office of Immigration Litigation
                                       P.O. Box 878
                    Petitioner         Ben Franklin Station
                                       Washington, DC 20044
                   v.
                                               Attorneys for Respondent
*JOHN ASHCROFT, Attorney General
       of the United States

                    Respondent                OPINION OF THE COURT


                                       AM BRO, Circuit Judge
       On Petition for Review
        of a Final Order of the                   Jan Knapik challenges the decision
     Board of Immigration Appeals      of the Board of Immigration Appeals
          (No. A74-902-513)            (BIA) that his conviction for attempted
                                       reckless endan germent is a crime
                                       invo lving m or a l tur pitude u n d er
         Argued June 25, 2004          § 237(a)(2)(A)(i) of the Immigration and
                                       Nationality Act (“INA”), 8 U.S.C.
    Before: AMBRO, BECKER and          § 1227(a)(2)(A)(i). Knapik argues that
     GREENBERG, Circuit Judges         crimes with a mens rea no greater than
                                       recklessness cannot involve moral
(Opinion filed : September 17, 2004)   turpitude because such crimes require
                                       intent. He also argues that, even assuming
Steven Lyons, Esquire (Argued)         reckless endan germent is a crime
Martin C. Liu and Associates, PLLC     involving moral turpitude, attempted
627 Greenwich St., 12th Floor          reckless endangerment is not. For the
New York, NY 10014                     reasons that follow, we affirm the BIA’s
                                       d e t e r m in a t i o n t h a t th e r e c k le s s
      Attorney for Petitioner          endangerment statute in this case defines a
crime involving moral turpitude, but we           Knapik with a notice to appear, charging
agree with Knapik that his conviction for         him with removability under 8 U.S.C.
attempted reckless endangerment is not            § 1227(a)(2)(A)(i), which allows the
such a crime.                                     Attorney General to order the removal of
                                                  any alien who has been convicted of a
I. Factual and Procedural Background
                                                  crime involving moral turpitude within
       Knapik is a citizen of Slovakia. He        five years of admission and for which a
legally entered the United States in June         sentence of one year or more may be
1995. On September 16, 1996, he adjusted          imposed. At the removal hearing, the
his status to that of lawful permanent            Immigration Judge (“IJ”) held that
resident. He resides in New Jersey with           Knapik’s conviction constitutes a crime
his father and sister who are both lawful         involving moral turpitude and ordered him
permanent residents. In August 2000,              removed from the United States. Knapik
Knapik pled guilty to the crime of                timely appealed to the BIA.
attempted reckless endangerment in the
                                                          In May 2003, the BIA affirmed the
first degree in violation of New York
                                                  IJ’s decision. The BIA first observed that
Penal Law § 120.25.1 The plea arose from
                                                  attempt offenses are crimes involving
an incident in which, while intoxicated,
                                                  moral turpitude if the underlying offense
Knapik drove at an excessive rate of speed
                                                  involves moral turpitude. The BIA next
against the flow of traffic on the Staten
                                                  addressed the issue of criminal
Island Expressway. He pled guilty, was
                                                  recklessness. Relying on prior decisions,
sentenced to and served four months in
                                                  it concluded that moral turpitude can lie in
jail.
                                                  criminally reckless behavior. The BIA
      In April 2000, the Immigration and          also examined the aggravating factors in
Nationalization Service (INS) 2 served            New York’s reckless endangerment
                                                  statute, analogized to prior BIA cases
                                                  involving manslaughter and assault with a
       1
          Section 120.25 provides: “A             deadly weapon, and distinguished prior
person is guilty of reckless endangerment         BIA cases involving simple assault. Taken
in the first degree when, under                   together, the BIA concluded that the
circumstances evincing a depraved                 elements of depravity, recklessness and
indifference to human life, he recklessly         grave risk of death to another person are
engages in conduct which creates a grave          sufficient to establish moral turpitude.
risk of death to another person.”
                                                        Knapik timely filed a petition for
       2
         On March 1, 2003, the INS ceased         review of the BIA’s decision. We have
to exist as an independent agency within
the United States Department of Justice
and the INS’s functions were transferred to       L. No. 107-296, §§ 441, 451, 471, 116
the Department of Homeland Security.              Stat. 2135 (2002). The BIA remains
See Homeland Security Act of 2002, Pub.           within the Department of Justice.

                                              2
jurisdiction to review final orders of              term encompasses.            Particularly, he
removal pursuant to 8 U.S.C. § 1252(a).             contends the BIA’s determination that
                                                    recklessness crimes may constitute moral
           II. Standard of Review
                                                    turpitude is not entitled to deference. The
        Under Chevron, U.S.A., Inc. v.              First, Second, Fifth and Eighth Circuits,
Natural Res. Def. Council, Inc., 467 U.S.           however, have concluded that courts
837 (1984), we review an agency’s                   should defer not only to the BIA’s
construction of a statute it administers            definition of moral turpitude but also to its
under a two-step inquiry. If congressional          determination that the elements of a
intent is clear from the statute’s language,        criminal statute satisfy that definition. See
we must give effect to it as written. Id. at        Cabral v. INS, 15 F.3d 193, 195 (1st Cir.
842-43. If Congress’s intent is silent or           1994) (“We therefore inquire whether the
ambiguous, we must decide if the agency’s           agency interpretation was arbitrary,
action is based on “a permissible                   capricious, or clearly contrary to the
construction of the statute.” Id. at 843.           statute.”); Michel v. INS, 206 F.3d 253,
                                                    263 (2d Cir. 2000) (stating that “in order to
        We afford deference, however, only
                                                    affirm the BIA’s determination [in regard
when an agency construes or interprets a
                                                    to moral turpitude], we need only conclude
statute it administers. See id. at 843-44.
                                                    that its interpretation is reasonable and that
In Francis v. Reno, we refused to afford
                                                    it ‘considered the matter in a detailed and
Chevron deference to the BIA’s
                                                    reasoned fashion’” (citation omitted));
interpretation of the term “felony” as used
                                                    Hamdan v. INS, 98 F.3d 183, 184-85 (5th
in 18 U.S.C. § 16 because it is a general
                                                    Cir. 1996) (“We accord deference to the
criminal statute not implicating the BIA’s
                                                    BIA’s interpretation of questions such as
expertise. 269 F.3d 162, 168 (3d Cir.
                                                    those before us here” — i.e., whether
2001). In Sandoval v. Reno, we declined
                                                    Hamden’s record of conviction “support[s]
to give deference to the BIA’s decision as
                                                    a finding of moral turpitude.”); Franklin v.
to the effective date of a statute because
the “issue [of] a statute's effective date is
not one that implicates agency expertise in
                                                    “moral turpitude.” The term is not defined
a meaningful way. . . .” 166 F.3d 225, 239
                                                    in the INA, and “legislative history leaves
(3d Cir. 1999). Accordingly, we must
                                                    no doubt . . . that Congress left the term
decide which aspects of the BIA’s decision
                                                    ‘crime involving moral turpitude’ to future
are entitled to Chevron deference.
                                                    administrative and judicial interpretation.”
       Knapik argues that Chevron                   Cabral v. INS, 15 F.3d 193, 195 (1st Cir.
deference applies only to what “moral               1994); see also Jordan v. De George, 341
turpitude” means, 3 not to what crimes that         U.S. 223, 234 (1951) (Jackson, J.,
                                                    dissenting) (stating that “Congress did not
                                                    see fit to state what meaning it attributes to
       3
         We clearly afford Chevron                  the phrase ‘crime involving moral
deference to the BIA’s definition of                turpitude’”).

                                                3
INS, 72 F.3d 571, 572 (8th Cir. 1995)                                       III. Analysis
(stating “we must decide whether the BIA
                                                                     An alien, even if a lawful
has reasonably interpreted its statutory
                                                          permanent resident, is subject to removal
mandate to deport aliens convicted of
                                                          if he or she has been convicted of a crime
crimes involving moral turpitude”). In
                                                          “involving moral turpitude” within five
contrast, the Ninth Circuit reviews de novo
                                                          years of the date of admission and the
whether a particular criminal statute
                                                          conviction is one for which a sentence of
involves moral turpitude.        See, e.g.,
                                                          one year or longer may be imposed. 8
Rodriguez-Herrera v. INS, 52 F.3d 238,
                                                          U.S.C. § 1227(a)(2)(A)(i)(I)-(II). As for
240 n.4 (9th Cir. 1995); cf. Franklin, 72
                                                          the length of sentence requirement, though
F.3d at 578 (Bennett, J., dissenting)
                                                          Knapik received but a four month
(recognizing “a split of authority, or, at
                                                          s e n t e n c e , f i r st d e g r e e r e c k l es s
least, a fundamental difference in approach
                                                          endangerment is a class D felony, N.Y.
to or perception of the issue”).
                                                          Penal Law § 120.25, punishable by up to
       We adopt the majority position and                 seven years imprisonment, id. at §
conclude that the BIA’s determination that                70.00(2)(d).
reckless endangerment crimes may involve
                                                                  Thus the only issue we must decide
moral turpitude is entitled to Chevron
                                                          i s w h e t h e r a tt e m p t e d r e c k l e s s
deference. This issue goes to the heart of
                                                          endangerment in the first degree is a crime
the administrative scheme established
                                                          involving moral turpitude. This inquiry
under the INA. In this context, the BIA’s
                                                          entails a categorical approach, focusing on
conclusions as to reckless endangerment
                                                          the underlying criminal statute “rather than
implicate BIA expertise.
                                                          the alien’s specific act.”         De Leon-
          But in determining what the                     Reynoso v. Ashcroft, 293 F.3d 633, 635
elements are of a particular criminal                     (3d Cir. 2002) (citing Alleyne v. INS, 879
statute deemed to implicate moral                         F.2d 1177, 1185 (3d Cir. 1989)); see also
turpitude, we do not defer to the BIA. See                Rodriguez-Herrera, 52 F.3d at 239-40
Michel, 206 F.3d at 262 (stating that when                (stating that, in analyzing whether a crime
“the BIA is interpreting state or federal                 involves moral turpitude, “we must focus
criminal laws, we must review its decision                on the crime categorically as defined by
de novo” (citing Hamdan, 98 F.3d at 185)).                the statute, and not on the specific conduct
As discussed below, it is unclear what the                of Rodriguez-Herrera”). Accordingly, “we
e l e m e n t s o f a t te m p t e d r e c k le s s       look to the elements of the statutory state
endangerment (as opposed to reckless                      offense, not to the specific facts. We rely
endangerment) even are. This is not an                    on ‘what the convicting court must
issue that implicates the BIA’s expertise,                necessarily have found to support the
and we decline to afford Chevron                          conviction and not to other conduct in
deference to the BIA’s decision relating to               which the defendant may have engaged in
this matter. Our review of this issue is                  connection with the offense.’” Wilson v.
thus de novo.                                             Ashcroft, 350 F.3d 377, 381-82 (3d. Cir.

                                                      4
2003) (quoting Steele v. Blackman, 236             Matter of Franklin, 20 I. & N. Dec. 867,
F.3d 130, 135 (3d Cir.2001)).4                     868 (BIA 1994); Matter of Danesh, 19 I. &
                                                   N. Dec. 669, 670 (BIA 1988), and
        Following the categorical approach,
                                                   decisions of our Court, see, e.g., De Leon-
and in light of our deferential review on
                                                   Reynoso, 293 F.3d at 636 (quoting with
the issue, the BIA did not act unreasonably
                                                   approval the following definitions of
in determining that New York’s reckless
                                                   moral turpitude: (1) “[c]onduct that is
endangerment statute defines a crime
                                                   contrary to justice, honesty, or morality”;
involving moral turpitude. But reviewing
                                                   and (2) “anything done contrary to justice,
de novo the BIA’s conclusions as to
                                                   honesty, principle, or good morals”
attempted reckless endangerment, we
                                                   (citations omitted)). As such, the BIA’s
conclude that the categorical nature of the
                                                   definition of moral turpitude was
moral turpitude inquiry compels the
                                                   reasonable.
conclusion that this crime does not involve
moral turpitude.                                          Applying the BIA’s definition, the
                                                   New York statute under which Knapik was
      A. Reckless Endangerment
                                                   convicted does not contain an intent
       The BIA in this case defined moral          requirement. To repeat, N.Y. Penal Law
turpitude as conduct that is inherently            § 120.25 provides that a “person is guilty
base, vile, or depraved, contrary to the           of reckless endangerment in the first
accepted rules of morality and the duties          degree when, under circumstances
owed other persons, either individually or         evincing a depraved indifference to human
to society in general. The BIA also noted          life, he recklessly engages in conduct
that moral turpitude normally includes             which creates a grave risk of death to
only acts that are malum in se (i.e., an act       another person.”
that is inherently immoral).          These
                                                          Knapik correctly notes that a strain
statements are in accord with long-
                                                   of BIA decisions equates moral turpitude
established BIA principles, see, e.g.,
                                                   with evil intent. Matter of Khourn, 21 I. &
                                                   N. Dec. 1041, 1046 (BIA 1997) (stating
       4
         Wilson is not a moral turpitude           the BIA “has held that ‘evil intent’ is a
case. The language quoted related to               requisite element for a crime involving
determining whether Wilson’s state drug            moral turpitude” (citing Matter of Serna,
conviction constituted an “aggravated              20 I. & N. Dec. 579, 582 (BIA 1992)).
felony” under 8 U.S.C. § 1101(a)(43). See          Matter of Flores, 17 I. & N. Dec. 225, 227
Wilson, 350 F.3d at 380-82. While                  (BIA 1980) (stating “evil or malicious
aggravated felony cases may be irrelevant          intent is said to be the essence of moral
to the moral turpitude inquiry, we                 turpitude”); Matter of Abreu-Semino, 12 I.
nonetheless have endorsed a categorical            & N. Dec. 775, 777 (BIA 1968)
approach for both types of cases. In this          (concluding “crimes in which evil intent is
context, we believe the discussion in              not an element, no matter how serious the
Wilson and similar cases is instructive.           act or how harmful the consequences, do

                                               5
not involve moral turpitude”).                     N. Dec. at 870-71, and Matter of Wojtkow,
                                                   18 I. & N. Dec. 111, 113 (BIA 1981),
        In this vein, prior to 1976 the BIA
                                                   involve moral turpitude. Simple assault
was of the opinion that criminally reckless
                                                   does not. Matter of Fualaau, 21 I. & N.
conduct was not so debased as to involve
                                                   Dec. 475, 478 (BIA 1996).
moral turpitude. See, e.g., Matter of
Gantus-Bobadilla, 13 I. & N. Dec. 777                      We hold that the BIA did not act
(BIA 1971). But in Matter of Medina the            unreasonably in concluding New York’s
BIA reconsidered its position and                  first degree reckless endangerment statute
concluded “that moral turpitude can lie in         is a crime involving moral turpitude. First
criminally reckless conduct.” 15 I. & N.           degree reckless endangerment is a much
Dec. 611, 613 (BIA 1976). Examining the            more severe offense than drunk driving,
Illinois definition of recklessness, the BIA       which almost certainly does not involve
found persuasive that a                            moral turpitude. See Matter of Lopez-
                                                   Meza, 22 I. & N. Dec. 1188 (BIA 1999)
       person acting recklessly
                                                   (expressing opinion that “a simple DUI
       must consciously disregard a
                                                   offense” will almost never rise to the level
       substantial and unjustifiable
                                                   of moral turpitude); cf. Dalton v. Ashcroft,
       risk, and such disregard
                                                   257 F.3d 200, 205-06 (2d Cir. 2001)
       must constitute a gross
                                                   (concluding that New York’s “driving
       deviation from the standard
                                                   while intoxicated” statute does not
       of care which a reasonable
                                                   constitute a “crime of violence” under the
       person would exercise in the
                                                   INA). New York Penal Law § 120.25
       situation. This definition of
                                                   contains aggravating factors, requiring that
       recklessness requires an
                                                   a defendant create a “grave risk of death to
       actual awareness of the risk
                                                   another person” “under circumstances
       created by the criminal
                                                   evincing a depraved indifference to human
       violator’s action.
                                                   life.” In this context, the BIA could
Id. at 613-14 (emphasis in text).                  reasonably conclude that the elements of
                                                   depravity, recklessness and grave risk of
       In the twenty-eight years since
                                                   death, when considered together, implicate
Medina, the BIA consistently has
                                                   accepted rules of morality and the duties
interpreted moral turpitude to include
                                                   owed to society. Cf. Franklin, 72 F.3d at
recklessness crimes if certain statutory
                                                   573 (“In the framework of our deferential
aggravating factors are present.      For
                                                   review, we cannot say the BIA has gone
example, the BIA limits moral turpitude to
                                                   beyond the bounds of reasonableness in
crimes in which a defendant consciously
                                                   finding that an alien who recklessly causes
disregards a substantial risk of serious
                                                   the death of her child by consciously
harm or death to another.            Thus
                                                   disregarding a substantial and unjustifiable
recklessness crimes for assault with a
                                                   risk to life has committed a crime that
deadly weapon, Matter of Medina, or
manslaughter, Matter of Franklin, 20 I. &

                                               6
involves moral turpitude.”). 5                      [or she] engages in conduct which tends to
                                                    effect the commission of such crime.”
B. Attempted Reckless Endangerment
                                                    People v. Kassebaum, 744 N.E. 2d 694,
       We do not disagree with previous             698 (N.Y. 2001) (emphasis added)
BIA decisions concluding attempt offenses           (quoting N.Y. Penal Law § 110.00). Yet
can be crimes involving moral turpitude.            by its very nature acting recklessly is
See, e.g., Matter of Davis, 20 I. & N. Dec.         inconsistent with the mens rea required for
536, 545 (BIA 1992) (stating “[t]here is no         attempt. A person cannot intend to
distinction for immigration purposes in             commit a criminally reckless act. He or
respect to moral turpitude, between the             she either acts recklessly or does not.
commission of the substantive crime and             Addressing the statute at issue in our case,
the attempt to commit it” (citation                 the New York Appellate Division agreed
omitted)). We also take no issue with               with this sentiment, concluding that the
previous BIA decisions that it cannot go            “ c ri m e o f a t te m p t e d reckle s s
behind a valid final record of conviction           endangerment is nonexistent since it is a
— i.e., that the BIA cannot examine the             nonintent offense.” People v. Trepanier,
particular facts of a case. See, e.g., Matter       84 A.D. 2d 374, 380 (N.Y. App. Div.
of C-, 20 I. & N. Dec. 529, 532 (BIA                1982) (affirming the lower court’s decision
1992). In its opinion in this case, however,        to dismiss the indictment as to this charge).
the BIA glosses over the peculiar conflict          Further, New York courts have concluded
between attempt crimes and recklessness.6           in other contexts that the concept of an
       Under New York law, a “person is             atte mpte d r e c kl e s s n es s c r im e is
guilty of an attempt to commit a crime              nonsensical. See, e.g., People v. Terry,
when, with intent to commit a crime, he             104 A.D. 2d 572, 573 (N.Y. App. Div.
                                                    1984) (stating “one cannot legally be
                                                    found guilty of attempted murder in the
       5
           We also reject Knapik’s                  second degree by reckless conduct”).
contention that his conviction is                           The only contrary authority in New
distinguishable from manslaughter or                York is People v. Foster, 19 N.Y.2d 150
assault with a deadly weapon because the            (1967).      Foster was charged with
reckless endangerment statute does not              manslaughter in the first degree and
require injury to an individual. With               ultimately pled guilty to attempted
regard to reckless acts, moral turpitude            manslaughter in the second degree. On
inheres in the conscious disregard of a             appeal, Foster argued his conviction had
substantial and unjustifiable risk of severe        no basis in law and violated due process.
harm or death. Knapik’s good fortune in             The New York Court of Appeals rejected
not injuring or killing anyone does not             this argument, concluding that Foster
change the quality of his actions.                  knowingly accepted his plea “in
       6
                                                    satisfaction of an indictment charging a
        As noted previously, we exercise
                                                    crime carrying a heavier penalty. In such
de novo review in resolving this issue.

                                                7
case, there is no violation of defendant’s                 Cir. 2002) (quoting Drakes v. Zimski, 240
right to due process.” Id. at 153.                         F.3d 246, 248 (3d Cir. 2001)). 7 This
                                                           means, in the context of our case, that the
         Our      case,       how eve r,         is
                                                           elements of the underlying offense must
distinguishable from Foster. The concern
                                                           necessarily establish that all convictions
driving Foster was manipulation of the
                                                           involve moral turpitude. Wilson, 350 F.3d
state criminal process — i.e., a defendant
                                                           at 381-82. See also Michel, 206 F.3d at
may not induce a plea agreement, receive
                                                           263; Okoroha v. INS, 715 F.2d 380, 382
a reduced sentence and then challenge his
                                                           (8th Cir. 1983).8 Attempted reckless
or her conviction. See id. at 153-54 (“The
defendant declined to risk his chances with
a jury. He induced the proceeding of
                                                                  7
which he now complains. . . . While there                           Valansi, like Wilson (see note 4
may be question whether a plea to                          and accompanying text), is an aggravated
attempted manslaughter is technically and                  felony, not moral turpitude, case.
logically consistent, such a plea should be                       8
                                                                   In an opinion issued the same day
sustained on the ground that it was sought
                                                           as the opinion in this case, we engaged in
by [the] defendant and freely taken as part
                                                           an extensive analysis of the categorical
of a bargain which was struck for the
                                                           approach as applied in aggravated felony
defendant’s benefit.” (emphasis added)).
                                                           cases. See Singh v. Ashcroft, No. 03-
In contrast, Knapik’s plea did not decrease
                                                           1532, __ F.3d __ (3d Cir. Sept. __, 2004).
the level of the charged offense or subject
                                                           Singh noted that while most prior Third
him to a less severe sentence. He was
                                                           Circuit cases had employed the “formal
charged with first degree reckless
                                                           categorical approach” from Taylor v.
endangerment and he pled guilty to
                                                           United States, 495 U.S. 575, 600 (1990) —
a t t em p t e d f i r st d e g r e e r e c k l es s
                                                           which focuses exclusively on the statutory
endangerment. More importantly, we are
                                                           elements of the underlying offense —
not reviewing a due process challenge to a
                                                           others deemed it permissible to look
state court conviction; we are assessing the
                                                           beyond the statutory elements of the
immigration implic ations of that
                                                           underlying offense.
conviction.
       As noted previously, the moral                             In reconciling these cases, Singh
turpitude inquiry is categorical. De Leon-                 delineated two situations in which the
R eyn oso, 293 F.3d at 635;                                formal categorical approach properly may
Rodriguez-Herrera, 52 F.3d at 239-40.                      be abandoned. The first is when the terms
Under the categorical approach, we have                    of the statute on which removal is based
cautioned against going “beyond the                        invites inquiry into the facts of the
offense as charged and scrutiniz[ing] the                  underlying conviction.     For example,
underlying facts” of a case to determine                   Nugent v. Ashcroft, 367 F.3d 162 (3d Cir.
whether a crime involves moral turpitude.                  2004), and Munroe v. Ashcroft, 353 F.3d
Valansi v. Ashcroft, 278 F.3d 203, 214 (3d                 225 (3d Cir. 2003), concerned 8 U.S.C.

                                                       8
                                                    endangerment is not a crime involving
                                                    moral turpitude because, categorically
§ 1101(a)(43)(M)(i), which defines an               speaking, the concept makes no sense.
aggravated felony as an offense that                Attempt (necessarily requiring intent to
“involves fraud or deceit in which the loss         commit a crime) is inconsistent with
to the victim or victims exceeds $10,000.”          recklessness (which, by definition, implies
In both cases, however, the relevant                acting without intent). Terry, 104 A.D. 2d
criminal statute did not include a “loss            at 573; Trepanier, 84 A.D. 2d at 380. Put
greater than $10,000” element.           See        differently, we cannot say that a conviction
Nugent, 367 F.3d at 168 n.2 (quoting 18             for attempted reckless endangerment
Pa. Cons. Stat. § 3922(a)); Munroe, 353             necessarily involves moral turpitude
F.3d at 226 (citing N.J. Stat. Ann. § 2C:20-        without also abandoning the categorical
4). Nonetheless, both Nugent and Munroe             approach.9
found it proper to examine the amount of
loss established. See Nugent, 367 F.3d at
175 (noting the parties had “stipulated that        convicted is divided into discrete
Nugent’s state conviction was based on a            subsections, and (2) it was unclear from
bad check amounting to only $4,831.26”;             the BIA’s decision which subsection it
Munroe, 252 F.3d at 226 (looking to the             believed Hamdan was convicted under and
indictment and record of conviction).               which subsections implicated moral
                                                    turpitude).
       The second exception to the
categorical approach is when the                            Examination of these cases further
underlying criminal statute is written in the       supports our position in this case. Both
disjunctive (i.e., the statute criminalizes         Nugent and Munroe dealt with a provision
similar but legally distinct conduct) such          of the INA, 8 U.S.C. § 1101(a)(43)(M)(i),
that some, but not all, convictions under           not relevant to the moral turpitude inquiry.
the statute place the alien within the              And unlike the statutes at issue in Valansi
removal category for im migra tion                  and Hamdan, New York’s reckless
purposes. Valansi was such a case. 278              endangerment statute is written neither in
F.3d at 214-17 (in entering plea for                the disjunctive nor in subsections.
embezzlement of monies from her                     Accordingly, the Government has supplied
employer bank, petitioner avoided                   (and we can think of) no principled reason
admitting that she intended to defraud,             not to apply the formal categorical
thus not qualifying as an aggravated felony         approach.
for removal purposes). See also Hamdan,
                                                           9
98 F.3d at 187-89 (granting the petition for                  While the Government does not
review and remanding for further                    ask us specifically to abandon the
examination of the record of conviction             categorical approach in cases such as ours
because (1) the Louisiana kidnapping                (i.e., when it counsels against deportation),
statute under which Hamdan was                      that would be the effect. Under the

                                                9
                 *****
        In this context, we affirm the BIA’s
decision that New York Penal Law
§ 120.25, reckless endangerment in the
first degree, is a crime involving moral
turpitude, but we reverse the BIA’s
conclusion that Knapik’s state conviction
for attempted reckless endangerment in the
first degree is a crime involving moral
turpitude. Therefore, we grant Knapik’s
petition for review and reverse the BIA’s
order of removal.




categorical approach, courts and the BIA
have long declined to consider arguments
that, despite the elements of an offense, an
alien’s individual conduct did not fit
w i t h in a p articular IN A -def ined
deportation category. See, e.g., Alleyne,
879 F.2d at 1185 (citations omitted);
Okabe v. INS, 671 F.2d 863, 864-65 (5th
Cir. 1982); Matter of C-, 20 I. & N. Dec. at
532 (citations omitted). Now that “the
shoe is on the other foot,” it would be
perverse irony to allow the Government to
use the categorical approach in petitioner
appeals but to abandon that approach when
the Government appeals.

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