Manuel Castillo-Lopez v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 18-1399 ____________ MANUEL CASTILLO-LOPEZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A200-864-012) ____________ Submitted Under Third Circuit L.A.R. 34.1(a) November 6, 2018 Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges. (Filed: November 8, 2018) ____________ OPINION * ____________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge. Manuel Castillo-Lopez petitions for review of a decision of the Board of Immigration Appeals. The BIA deemed Castillo-Lopez ineligible for cancellation of removal because his New Jersey criminal conviction was a crime involving moral turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). For the reasons that follow, we will deny the petition for review. I1 In 2012, Castillo-Lopez was convicted of aggravated assault after he recklessly caused bodily injury to a uniformed police officer in violation of N.J. Stat. § 2C:12- 1b(5)(a). Applying the modified categorical approach, the BIA deemed that conviction a CIMT, which made Castillo-Lopez ineligible for cancellation of removal. In his petition for review, Castillo-Lopez offers three challenges which we will address in turn. A Castillo-Lopez first claims N.J. Stat. § 2C:12-1b(5) is indivisible and thus not categorically a CIMT. This argument is foreclosed by our decision in United States v. Abdullah, -- F.3d --, 2018 WL 4702225, at *4 (3d Cir. Oct. 2, 2018). In that case, we stated that § 2C:12-1b not only is divisible into three alternative degrees of conduct, but 1 Whether Castillo-Lopez’s crime of conviction was a CIMT is a question of law, which we have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). See Mayorga v. Att’y Gen., 757 F.3d 126, 128 n.2 (3d Cir. 2014). We review de novo the BIA’s unpublished, single-member decision, which is not entitled to Chevron deference. See Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014). 2 is also “further divisible into a number of different third-degree aggravated assault offenses.” Id. And, as in Abdullah, the Model Criminal Jury Charge for § 2C:12-1b(5) indicates that New Jersey treats subsections (5)(a) through (5)(k) as separate elements. See id. (considering New Jersey’s jury instructions to determine whether § 2C:12-1b is divisible among subsections); New Jersey Model Jury Charges (Criminal), “Aggravated Assault - Upon Law Enforcement Officer (Attempting to Cause or Purposely, Knowingly or Recklessly Causing Bodily Injury) (N.J.S.A. 2C:12-1b(5)(a), (b), (c), (d), (e), (f), (g))” (revised Dec. 3, 2001) n.1 (noting that the model jury instruction is drafted to address only aggravated assault against a law enforcement officer and that, if a different subsection is at issue, the jury instruction “must be adapted to fit the facts of [that] case”). Because the relevant state statute is divisible, the BIA did not err in applying the modified categorical approach to determine which subsection of § 2C:12-1b(5) Castillo- Lopez violated. B Castillo-Lopez next argues that his ...

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