January Litigation Updates

Ndungu v. Att'y Gen. U.S., No. 20-2562 (3d Cir. Jan. 13, 2025) (en banc)

Facts & Background

• Citizen of Kenya entered the United States on a visa. He was convicted of several crimes under Pennsylvania law: (1) 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) convicted in December 2016 of two related counts of simple assault in violation of 18 Pa. Cons. Stat. § 2701(a)(1).
• DHS sought to remove Ndungo under 8 U.S.C. § 1227(a)(2)(A)(ii) for committing 2 or more CIMTs based on his simple assault convictions from 2016 and convictions for fleeing or eluding in 2014 were crimes involving moral turpitude (CIMTs). However, the immigration judge (IJ) held that simple assault under Pennsylvania law did not constitute a CIMT, and thus DHS could not show convictions 2 or more CIMTs because that left only a single potential offense (the 2014 felony fleeing-or-eluding conviction). But in making this ruling the IJ noted that they believed this felony charge would be considered a CIMT.
• After his 2019 arrest, DHS again sought to remove Ndungo for committing 2 or more CIMTs based on his 2014 felony conviction and his 2019 felony conviction related to fleeing or attempting to elude law enforcement. Ndungo argued that res judicata barred DHS from seeking to remove him based on the 2014 conviction and that neither was a CIMT. The IJ disagreed and entered an order of removal.
• The BIA affirmed, although it cited 8 U.S.C. § 1227(a)(2)(A)(i) as the basis of removal (which authorizes deportation when someone within five years of admission, commits a CIMT punishable by at least one year in prison).

Notable Holdings & Rationale 

• The Third Circuit reversed the BIA. The opinion of the en banc court sets the standard moving forward for how to analyze potential CIMTs in the Third Circuit.
• In doing so, the Third Circuit explained the background of the deportation consequences of crimes involving moral turpitude. It also noted that "Congress has long used ‘moral turpitude’ in the immigration statutes, it has never defined that term." But that the Supreme Court directs courts to apply an elemental analysis instead of looking at the facts underlying the conviction to determine what is considered morally turpitudinous. "[F]or a prior conviction to qualify as a CIMT under the categorical approach, every means of committing that offense must satisfy the two CIMT elements – reprehensible conduct and a culpable mental state."
• Before conducting a categorical approach, the Third Circuit addressed the BIA's determination that these offenses can be considered a CIMT based on the "realistic probability test." The Third Circuit found that the BIA had applied a warped interpretation of the realistic probability test that was inconsistent with Third Circuit precedent. Under prior caselaw, the test is narrowly applied to limit what may be considered a CIMT, not to provide a separate basis for someone removable. Thus, the BIA erred in applying the test in this way.
• Next, the Third Circuit conducted a lengthy and extensive analysis of the fleeing and eluded convicted offenses and concluded they were not CIMTs. Some parts of the reasoning from this analysis are quoted below.
  • "Although the categorial 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."
  • "When a statute is ‘indivisible,’ meaning that it criminalizes only a single set of elements, that factual inquiry involves nothing more than the identification of the statute of conviction."
  • "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 conclusively identify the elements of the conviction. … In that situation, it is permissible for a tribunal to make a factual inquiry into the precise elemental formulation of the offense of conviction."
  • "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."
  • "[U]nder 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."
• Res judicata: The Third Circuit rejected the argument that DHS could not deport Ndungo based on his 2014 conviction because they already tried to rely on that conviction in the unsuccessful attempt to convict him 2017. The Third Circuit applied a transactional approach to res judicata and concluded that the 2019 proceedings should be treated as a different cause of action than the 2017 proceedings, and thus DHS was not barred from relying again on the 2014 conviction in these proceedings.