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Media Alerts - Hernandez-Cruz v. Attorney General USA - Third Circuit
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September 8, 2014
  Hernandez-Cruz v. Attorney General USA - Third Circuit
Headline: Pennsylvania Conviction for Endangering the Welfare of a Child Does Not Constitute a Crime Involving Moral Turpitude - Pennsylvania EWOC Offenders Are Still Eligible for Cancellation of Removal Review

Area of Law: Immigration and Criminal Law

Issues Presented: Does a Pennsylvania Conviction for Endangering the Welfare of a Child Constitutes a Crime Involving Moral Turpitude?

Brief Summary: Defendant Luis Alberto Hernandez-Cruz, a Mexican citizen, entered the United States without inspection in 1998. Eleven years later, he pled guilty to simple assault and endangering the welfare of a child. The Department of Homeland Security eventually issued a Notice to Appear, charging that Defendant was removable as an alien present in the United States without being admitted or paroled and was removable as an alien convicted of a crime involving moral turpitude (CIMT). Defendant conceded that he was removable as an alien present in the United States without being admitted or paroled, but denied that he was removable as an alien convicted of CIMT. He subsequently applied for cancellation of removal. The Immigration Judge (IJ) concluded that Defendant was removable as an alien convicted of CIMT. The IJ determined that simple assault was not a CIMT, but that endangering the welfare of a child constituted a CIMT, and thus made Defendant statutorily ineligible for cancellation of removal. Defendant appealed the decision to the Board of Immigration Appeals (BIA). The BIA affirmed the IJ's rulings. Defendant filed a petition for review. The Third Circuit granted review of the BIA's conclusions and held that Pennsylvania child endangerment conviction does not constitute CIMT. The Third Circuit reversed the decision of the BIA and remanded for further proceedings.

Extended Summary: Defendant, a thirty-four year old citizen of Mexico, entered the United States without inspection in 1998. Eleven years later, he pled guilty in the Court of Common Pleas of Lebanon County, Pennsylvania to simple assault and endangering the welfare of a child. The charges stemmed from an incident in which Defendant struck his stepson, who was ten years old at the time. A few months after the guilty plea, the Department of Homeland Security issued a Notice to Appear, charging that Defendant was removable as an alien present in the United States without being admitted or paroled. DHS later filed additional charges that alleged Defendant was removable as an alien convicted of a crime involving moral turpitude (CIMT) for his simple assault and endangering the welfare of a child convictions. Defendant conceded to removability as an alien present in the United Stats without being admitted or paroled but denied removability as an alien convicted of a CIMT. Defendant subsequently applied for cancellation of removal as a nonresident, asserting that his United States citizen children would experience exceptional and extremely unusual hardship upon his removal.

The Immigration Judge (IJ) concluded that Defendant was removable as an alien present in the United States without being admitted or paroled. The IJ also concluded Defendant was removable as an alien convicted of CIMT. Having determined that Defendant was an alien convicted of CIMT, the IJ concluded that Defendant was statutorily ineligible for cancellation of removal and denied his application. The IJ also concluded that Defendant had successfully established that his removal would result in extreme and unusual hardship to his children, and had Defendant not been convicted of a CIMT, the IJ would find Defendant statutorily eligible for cancellation of removal and would grant his application.

Defendant appealed the decision to the Board of Immigration Appeals (BIA). The BIA affirmed the IJ's rulings that Defendant's simple assault conviction was not a CIMT but that the endangering the welfare of a child conviction was a CIMT. Thus, the BIA also found Defendant statutorily ineligible for cancellation of removal. Defendant filed a petition for review.

The Third Circuit concluded that Pennsylvania's child endangerment statute prohibits a broad range of conduct, and since the least culpable conduct punishable under the statute was not morally turpitudinous, Defendant's child endangerment conviction does not constitute CIMT. The Third Circuit used examples that would qualify as endangering the welfare of a child but would not be considered morally turpitudinous. Examples included leaving a child unattended in a vehicle for several minutes or negligently placing an infant in a bathtub with hot water that caused second or third degree burns. The Third Circuit reasoned that though these offenses are condemnable, they are not morally turpitudinous. Therefore, the Third Circuit held Pennsylvania's endangering the welfare of a child conviction does not constitute a CIMT.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133288p.pdf

Panel (if known): Fuentes, Greenaway, and Nygaard, Circuit Judges

Argument Date: June 24, 2014

Date of Issued Opinion: September 4, 2014

Docket Number: No. 13-3288

Decided: Reversed and remanded for further proceedings

Case Alert Author: Katie Cooper Davis

Counsel: Jamie Jasso, Esq. for the Petitioner Luis Alberto Hernandez-Cruz; Stuart F. Delery, Esq., Shelley R. Goad, Esq., Regina Byrd, Esq., Katharine E. Clark, Esq for Respondent Attorney General Of The United States Of America.

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/08/2014 12:50 PM     3rd Circuit  

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