Jan Knapik v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2787
JAN KNAPIK,
Petitioner
v.
*JOHN ASHCROFT, Attorney General
of the United States
Respondent
On Petition for Review
of a Final Order of the
Board of Immigration Appeals
(No. A74-902-513)
Argued June 25, 2004
Before: AMBRO, BECKER and
GREENBERG, Circuit Judges
(Opinion filed : September 17, 2004)
Steven Lyons, Esquire (Argued)
Martin C. Liu and Associates, PLLC
627 Greenwich St., 12th Floor
New York, NY 10014
Attorney for Petitioner
Peter D. Keisler
Assistant Attorney General, Civil Division
Emily Anne Radford, Esquire
Assistant Director
Douglas E. Ginsburg, Esquire
John M. McAdams, Jr., Esquire
Aviva L. Poczter, Esquire
Nicole Nardone, Esquire (Argued)
Department of Justice Civil Division
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
AM BRO, Circuit Judge
Jan Knapik challenges the decision
of the Board of Immigration Appeals
(BIA) that his conviction for attempted
reckless endangerment is a crime
invo lving moral turpitude under
§ 237(a)(2)(A)(i) of the Immigration and
Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(2)(A)(i). Knapik argues that
crimes with a mens rea no greater than
recklessness cannot involve moral
turpitude because such crimes require
intent. He also argues that, even assuming
reckless endangerment is a crime
involving moral turpitude, attempted
reckless endangerment is not. For the
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
endangerment statute in this case defines a

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crime involving moral turpitude, but we
agree with Knapik that his conviction for
attempted reckless endangerment is not
such a crime.
I. Factual and Procedural Background
Knapik is a citizen of Slovakia. He
legally entered the United States in June
1995. On September 16, 1996, he adjusted
his status to that of lawful permanent
resident. He resides in New Jersey with
his father and sister who are both lawful
permanent residents. In August 2000,
Knapik pled guilty to the crime of
attempted reckless endangerment in the
first degree in violation of New York
Penal Law § 120.25.1 The plea arose from
an incident in which, while intoxicated,
Knapik drove at an excessive rate of speed
against the flow of traffic on the Staten
Island Expressway. He pled guilty, was
sentenced to and served four months in
jail.
In April 2000, the Immigration and
Nationalization Service (INS)2 served
Knapik with a notice to appear, charging
him with removability under 8 U.S.C.
§ 1227(a)(2)(A)(i), which allows the
Attorney General to order the removal of
any alien who has been convicted of a
crime involving moral turpitude within
five years of admission and for which a
sentence of one year or more may be
imposed. At the removal hearing, the
Immigration Judge (“IJ”) held that
Knapik’s conviction constitutes a crime
involving moral turpitude and ordered him
removed from the United States. Knapik
timely appealed to the BIA.
In May 2003, the BIA affirmed the
IJ’s decision. The BIA first observed that
attempt offenses are crimes involving
moral turpitude if the underlying offense
involves moral turpitude. The BIA next
addressed the issue of criminal
recklessness. Relying on prior decisions,
it concluded that moral turpitude can lie in
criminally reckless behavior. The BIA
also examined the aggravating factors in
New York’s reckless endangerment
statute, analogized to prior BIA cases
involving manslaughter and assault with a
deadly weapon, and distinguished prior
BIA cases involving simple assault. Taken
together, the BIA concluded that the
elements of depravity, recklessness and
grave risk of death to another person are
sufficient to establish moral turpitude.
Knapik timely filed a petition for
review of the BIA’s decision. We have
1 Section 120.25 provides: “A
person is guilty of reckless endangerment
in the first degree when, under
circumstances evincing a depraved
indifference to human life, he recklessly
engages in conduct which creates a grave
risk of death to another person.”
2 On March 1, 2003, the INS ceased
to exist as an independent agency within
the United States Department of Justice
and the INS’s functions were transferred to
the Department of Homeland Security.
See Homeland Security Act of 2002, Pub.
L. No. 107-296, §§ 441, 451, 471, 116
Stat. 2135 (2002). The BIA remains
within the Department of Justice.

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

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

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5
2003) (quoting Steele v. Blackman, 236
F.3d 130, 135 (3d Cir.2001)).4
Following the categorical approach,
and in light of our deferential review on
the issue, the BIA did not act unreasonably
in determining that New York’s reckless
endangerment statute defines a crime
involving moral turpitude. But reviewing
de novo the BIA’s conclusions as to
attempted reckless endangerment, we
conclude that the categorical nature of the
moral turpitude inquiry compels the
conclusion that this crime does not involve
moral turpitude.
A. Reckless Endangerment
The BIA in this case defined moral
turpitude as conduct that is inherently
base, vile, or depraved, contrary to the
accepted rules of morality and the duties
owed other persons, either individually or
to society in general. The BIA also noted
that moral turpitude normally includes
only acts that are malum in se (i.e., an act
that is inherently immoral). These
statements are in accord with long-
established BIA principles, see, e.g.,
Matter of Franklin, 20 I. & N. Dec. 867,
868 (BIA 1994); Matter of Danesh, 19 I. &
N. Dec. 669, 670 (BIA 1988), and
decisions of our Court, see, e.g., De Leon-
Reynoso, 293 F.3d at 636 (quoting with
approval the following definitions of
moral turpitude: (1) “[c]onduct that is
contrary to justice, honesty, or morality”;
and (2) “anything done contrary to justice,
honesty, principle, or good morals”
(citations omitted)). As such, the BIA’s
definition of moral turpitude was
reasonable.
Applying the BIA’s definition, the
New York statute under which Knapik was
convicted does not contain an intent
requirement. To repeat, N.Y. Penal Law
§ 120.25 provides that a “person is guilty
of reckless endangerment in the first
degree when, under circumstances
evincing a depraved indifference to human
life, he recklessly engages in conduct
which creates a grave risk of death to
another person.”
Knapik correctly notes that a strain
of BIA decisions equates moral turpitude
with evil intent. Matter of Khourn, 21 I. &
N. Dec. 1041, 1046 (BIA 1997) (stating
the BIA “has held that ‘evil intent’ is a
requisite element for a crime involving
moral turpitude” (citing Matter of Serna,
20 I. & N. Dec. 579, 582 (BIA 1992)).
Matter of Flores, 17 I. & N. Dec. 225, 227
(BIA 1980) (stating “evil or malicious
intent is said to be the essence of moral
turpitude”); Matter of Abreu-Semino, 12 I.
& N. Dec. 775, 777 (BIA 1968)
(concluding “crimes in which evil intent is
not an element, no matter how serious the
act or how harmful the consequences, do
4 Wilson is not a moral turpitude
case. The language quoted related to
determining whether Wilson’s state drug
conviction constituted an “aggravated
felony” under 8 U.S.C. § 1101(a)(43). See
Wilson, 350 F.3d at 380-82. While
aggravated felony cases may be irrelevant
to the moral turpitude inquiry, we
nonetheless have endorsed a categorical
approach for both types of cases. In this
context, we believe the discussion in
Wilson and similar cases is instructive.

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

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

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case, there is no violation of defendant’s
right to due process.” Id. at 153.
O u r c a s e , h o w e v e r , i s
distinguishable from Foster. The concern
driving Foster was manipulation of the
state criminal process — i.e., a defendant
may not induce a plea agreement, receive
a reduced sentence and then challenge his
or her conviction. See id. at 153-54 (“The
defendant declined to risk his chances with
a jury. He induced the proceeding of
which he now complains. . . . While there
may be question whether a plea to
attempted manslaughter is technically and
logically consistent, such a plea should be
sustained on the ground that it was sought
by [the] defendant and freely taken as part
of a bargain which was struck for the
defendant’s benefit.” (emphasis added)).
In contrast, Knapik’s plea did not decrease
the level of the charged offense or subject
him to a less severe sentence. He was
charged with first degree reckless
endangerment and he pled guilty to
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
endangerment. More importantly, we are
not reviewing a due process challenge to a
state court conviction; we are assessing the
immigration implic ations of that
conviction.
As noted previously, the moral
turpitude inquiry is categorical. De Leon-
R e y n o s o , 2 9 3 F . 3 d a t 6 3 5 ;
Rodriguez-Herrera, 52 F.3d at 239-40.
Under the categorical approach, we have
cautioned against going “beyond the
offense as charged and scrutiniz[ing] the
underlying facts” of a case to determine
whether a crime involves moral turpitude.
Valansi v. Ashcroft, 278 F.3d 203, 214 (3d
Cir. 2002) (quoting Drakes v. Zimski, 240
F.3d 246, 248 (3d Cir. 2001)).7 This
means, in the context of our case, that the
elements of the underlying offense must
necessarily establish that all convictions
involve moral turpitude. Wilson, 350 F.3d
at 381-82. See also Michel, 206 F.3d at
263; Okoroha v. INS, 715 F.2d 380, 382
(8th Cir. 1983).8 Attempted reckless
7 Valansi, like Wilson (see note 4
and accompanying text), is an aggravated
felony, not moral turpitude, case.
8 In an opinion issued the same day
as the opinion in this case, we engaged in
an extensive analysis of the categorical
approach as applied in aggravated felony
cases. See Singh v. Ashcroft, No. 03-
1532, __ F.3d __ (3d Cir. Sept. __, 2004).
Singh noted that while most prior Third
Circuit cases had employed the “formal
categorical approach” from Taylor v.
United States, 495 U.S. 575, 600 (1990) —
which focuses exclusively on the statutory
elements of the underlying offense —
others deemed it permissible to look
beyond the statutory elements of the
underlying offense.
In reconciling these cases, Singh
delineated two situations in which the
formal categorical approach properly may
be abandoned. The first is when the terms
of the statute on which removal is based
invites inquiry into the facts of the
underlying conviction. For example,
Nugent v. Ashcroft, 367 F.3d 162 (3d Cir.
2004), and Munroe v. Ashcroft, 353 F.3d
225 (3d Cir. 2003), concerned 8 U.S.C.

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

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* * * * *
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
within a p articular INA-defined
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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