Patrick King v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 21-3100 ___________ PATRICK JUNIOR KING, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A205-905-449) Immigration Judge: Kuyomars Q. Golparvar ____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 19, 2022 ____________ Before: CHAGARES, Chief Judge, McKEE and PORTER, Circuit Judges (Filed: October 13, 2022) ____________ OPINION* ____________ CHAGARES, Chief Judge. * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Patrick Junior King petitions this Court to review a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”) order of removal. For the reasons that follow, we will grant the petition for review. I.1 King, a native and citizen of Jamaica, arrived in the United States in August 2016 pursuant to a visa, which later expired. He pleaded guilty in January 2020 to third-degree felony fleeing or eluding a police officer in violation of 75 Pa. Cons. Stat. § 3733(a). The Government initiated removal proceedings and charged King as removable for having overstayed his visa and for having been convicted of a crime involving moral turpitude (“CIMT”) within five years of entering the United States. See 8 U.S.C. §§ 1227(a)(1)(B), (a)(2)(A)(i). King later married a United States citizen and has applied to adjust to the status of lawful permanent resident. The IJ held a hearing and issued an opinion. The IJ decided that King had conceded both of the removability charges and so did not analyze whether the felony fleeing conviction qualifies as a CIMT. The BIA determined on appeal that this was error because King had not conceded the CIMT issue. The BIA therefore considered whether the conviction qualifies as a CIMT, concluding that a Pennsylvania felony fleeing conviction is categorically a CIMT because it involves a culpable mental state of 1 Because we write for the parties, we recite only those facts pertinent to our decision. 2 willfulness and applies to reprehensible conduct.2 King timely filed this petition for review. II.3 Central to this matter is whether King’s felony conviction for fleeing or eluding qualifies as a CIMT. That crime is defined under Pennsylvania law as follows: (a) Offense defined.-- 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, commits an offense as graded in subsection (a.2). (a.2) Grading -- . . . (2) 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 (relating to driving under influence of alcohol or controlled substance); (ii) crosses a State line; or …

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