Luis Amauris Diaz Almanzar v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of a Decision of…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 21-3092
________________
LUIS AMAURIS DIAZ ALMANZAR,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
________________
On Petition for Review of a Decision of
the Board of Immigration Appeals
(Agency No. A058-293-120)
Immigration Judge: Jason L. Pope
________________
Argued November 17, 2022
Before: AMBRO, KRAUSE, and BIBAS Circuit Judges
(Opinion Filed: July 28, 2023)
Michael Antzoulis [ARGUED]
Seton Hall University School of Law
One Newark Center
1109 Raymond Boulevard
Newark, NJ 07102
Stephanie E. Norton, [ARGUED]
Benjamin N. Cardozo School of Law
55 5th Avenue
11th Floor
New York, NY 10003
Counsel for Petitioner

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Sunah Lee [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_____________
OPINION*
______________
KRAUSE, Circuit Judge
Here we are called on to decide whether New Jersey’s
second-degree robbery statute, N.J. Stat. Ann. § 2C:15-1(a),
qualifies as a crime involving moral turpitude (CIMT) under
the then-applicable standard the Board of Immigration
Appeals (BIA) used for morally turpitudinous theft offenses.
Because the BIA failed to apply the categorical approach
properly when it concluded second-degree robbery under
New Jersey law was necessarily a CIMT, and under the
categorical approach none of the elements of New Jersey’s
second-degree robbery statute necessarily involve moral
turpitude, we will grant Almanzar’s petition, vacate the BIA’s
decision, and remand for further proceedings consistent with
this opinion.
I. BACKGROUND
Petitioner Luis Amauris Diaz Almanzar (Almanzar) is
a 31-year-old native and citizen of the Dominican Republic
who was admitted to the United States as a lawful permanent
resident in 2008. In 2014, Almanzar pleaded guilty to
conspiracy to commit second-degree robbery under N.J. Stat.
Ann. §§ 2C:5-2, 2C:15-1, and unlawful possession of a
weapon under N.J. Stat. Ann. § 2C:39-4(a) in connection with
* This disposition is not an opinion of the full Court
and pursuant to I.O.P. 5.7 does not constitute binding
precedent.

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Almanzar’s involvement in the attempted robbery of
Giovanni Raffo. While he was serving his sentence, the
Government initiated removal proceedings against Almanzar,
charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(i)
based on the belief that Almanzar’s second-degree robbery
offense qualified as a CIMT.1
Although the Immigration Judge (IJ) initially sustained
Almanzar’s CIMT charge, it exercised its sua sponte authority
to reopen Almanzar’s proceedings under 8
C.F.R. § 1003.23(b)(1) after our Court decided Francisco-
Lopez v. Att’y Gen., 970 F.3d 431 (3d Cir. 2020). There, we
held that the BIA could not retroactively apply the new,
broader standard it adopted in Matter of Diaz-Lizarraga, 26 I.
& N. Dec. 847 (BIA 2016), for determining whether a theft
offense constitutes a CIMT, and that where, as here, a
petitioner’s conviction predates Matter of Diaz-Lizarraga, the
BIA must apply its previous standard under which a theft
offense constitutes a CIMT only when it involves an “intent
to permanently deprive.” Francisco-Lopez, 970 F.3d at 434
(quotation omitted). Applying this standard and concluding
intent to permanently deprive was not a requirement of a
conviction under § 2C:15-1, the IJ dismissed Almanzar’s
CIMT charge.
The BIA reversed. In an unpublished one-member
decision, the BIA held that § 2C:15-1 satisfied the culpable
mental state requirement of a CIMT because it required
knowledge and that it satisfied the actus reus requirement
because, purporting to apply the categorical approach,
robbery “is now, and always has been a categorical CIMT.”
AR at 124. The IJ, bound by the BIA’s decision, sustained
1 The Government also charged Almanzar as
removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and
1227(a)(2)(C), though these additional charges are not
relevant to this case. The Government dropped the
§ 1227(a)(2)(A)(iii) aggravated felony charge prior to
Almanzar’s first hearing, and the IJ exercised its sua sponte
authority to dismiss Almanzar’s § 1227(a)(2)(C) charge after
it found New Jersey’s unlawful possession statute, N.J. Stat.
Ann. § 2C:39-4, to be overbroad. The IJ also dismissed
Almanzar’s conspiracy-based aggravated felony charge after
concluding that N.J. Stat. Ann. § 2C:5-2 did not require the
commission of an overt act in furtherance of the conspiracy.

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the CIMT charge on remand, and Almanzar appealed. This
appeal was dismissed by the same BIA judge in another
unpublished one-member decision in which the BIA
summarily concluded it had correctly applied the categorical
approach and that its prior decision was now the law of the
case. This petition for review followed.
II. DISCUSSION2
At its core, the merits of Almanzar’s petition reduce to
whether, under the categorical approach, the elements of §
2C:15-1 necessarily involve moral turpitude.3 Under this
approach, we “consider whether the least culpable conduct
hypothetically necessary to sustain a conviction under the
statute would also be covered by the federal statute.” Larios
v. Att’y Gen., 978 F.3d 62, 67 (3d Cir. 2020) (internal
quotation marks and citation omitted). “A categorical match
occurs if a state statute’s elements define a crime identical to
or narrower than the generic crime . . . [b]ut if the state
offense covers more conduct, then it is overbroad and does
not match the generic offense.” Id.
Here, New Jersey’s second-degree robbery statute
provides that:
A person is guilty of robbery if, in the
2 The BIA had jurisdiction over Almanzar’s appeal
pursuant to 8 C.F.R. § 1003.1(b)(3). We have jurisdiction to
review a final order of removal under 8 U.S.C. § 1252(a)(1).
Because the BIA issued a written decision on the merits, we
review that decision and not the IJ’s. See Moreno v. Att’y Gen.,
887 F.3d 160, 163 (3d Cir. 2018). We exercise de novo review
over the Board’s legal conclusions, including its
“determination that a conviction . . . qualifies as a CIMT.” Id.
3 Almanzar also argues that the phrase “crime
involving moral turpitude” used in 8 U.S.C. § 1227(a)(2)(a)(i)
is unconstitutionally vague as applied to him. Pet’r Br. at 24–
30. Because we agree with Almanzar that conspiracy to
commit second-degree robbery under New Jersey law is not a
CIMT, we do not reach the merits of his vagueness challenge.
See Leroy v. Great W. United Corp., 443 U.S. 173, 181
(1979) (“[I]t is our practice to avoid the unnecessary decision
of novel constitutional questions.”).

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course of committing a theft, he:
(1) Inflicts bodily injury or uses force
upon another; or
(2) Threatens another with or
purposely puts him in fear of
immediate bodily injury; or
(3) Commits or threatens
immediately to commit any crime
of the first or second degree.
N.J. Stat. Ann. § 2C:15-1(a) (emphasis added). Formulated
this way, “[c]omitting or attempting to commit a theft is a
necessary element of the crime of robbery” under New Jersey
law. State v. Whitaker, 983 A.2d 181, 190 (N.J. 2009). Thus,
to determine whether New Jersey second-degree robbery
qualifies as a CIMT, we must examine the statute’s four
elements: theft and the three alternative aggravating
circumstance elements.4
We start with the theft element. Under New Jersey
law “[a] person is guilty of theft ‘if he unlawfully takes, or
exercises unlawful control over, movable property of another
with purpose to deprive him thereof.’” Id. at 459–60 (quoting
N.J. Stat. Ann. § 2C:20-3(a)). New Jersey’s Code of Criminal
Justice defines the term “deprive” to mean:
(1) [T]o withhold or cause to be withheld
property of another permanently or for so
extended a period as to appropriate a
substantial portion of its economic value, or
4 In its supplemental brief, the Government urges our
Court to remand so that it may submit additional evidence
demonstrating the subsection under which Almanzar was
convicted and have the BIA then then apply the modified
categorical approach in the first instance. For the reasons
explained below, however, the modified categorical approach
is inapplicable here because none of the elements listed in
§ 2C:15-1 match the generic definition of a CIMT. See
Hillocks v. Att’y Gen., 934 F.3d 332, 339 (3d Cir. 2019)
(explaining that modified categorical approach “only applies
when (1) the statute . . . has alternative elements, and (2) at
least one of the alternative divisible categories would . . . be a
match.”).

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with purpose to restore only upon payment
of reward or other compensation; or
(2) [T]o dispose or cause disposal of the
property so as to make it unlikely that the
owner will recover it.
N.J. Stat. Ann. § 2C:20-1(a). Based on these definitions, a
conviction for theft under New Jersey law does not require
that a defendant act with the purpose to permanently deprive
others of their property, as is necessary for a theft offense to
be morally turpitudinous under the BIA’s precedent prior to
Matter of Diaz-Lizarraga. See Matter of Diaz-Lizarraga, 26
I. & N. Dec. at 852–54. Indeed, New Jersey case law
confirms theft can be committed if a person withholds
property with the purpose to “appropriate a substantial
portion of its economic value.” See State v. Kommendant,
No. A-2101-05T1, 2006 WL 3025601, at *3 (N.J. Super. Ct.
App. Div. Oct. 26, 2006). So the theft element does not
necessarily involve moral turpitude.
The same is true of the first aggravating circumstance
element listed in § 2C:15-1(a)(1)—the “inflict[ion] [of]
bodily injury or use[] [of] force upon another.” Although the
mens rea required for this element matches with that required
of a CIMT, compare State v. Sewell, 603 A.2d 21, 23–24
(N.J. 1992), with Matter of Acosta, 27 I. & N. Dec. 420, 422
(BIA 2018), we cannot say the same for the actus reus.
Under BIA precedent, for an offense involving force to
qualify as morally turpitudinous some form of harm is
necessary. See In re Brissett, No. AXXX-XX0-889, 2019
WL 5086723, at *1 (BIA Sept. 20, 2019); In re Solon, 24 I. &
N. Dec. 239, 241 (BIA 2007). Under § 2C:15-1(a)(1),
however, the amount of force needed to obtain a conviction
“need not entail pain or bodily harm and need not leave any
mark.” N.J. Model Crim. Jury Charge: Robbery in the
Second Degree (N.J.S.A. 2C:15-1) at 2. All that is required is
“some degree of force to wrest the object from the victim,”
State v. Sein, 590 A.2d 665, 670 (N.J. 1991), which is more
than a “mere ‘bump,’” though a “push” may be sufficient.
State v. Pena, No. A-2233-17T1, 2020 WL 468317, at *2
(N.J. Super. Ct. App. Div. Jan. 29, 2020).
Our analysis of the second aggravating circumstance
element of N.J. Stat. Ann. § 2C:15-1(a)(2) is largely the same.
Though the mens rea required for this element matches that

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required of a CIMT, see State v. Easley, No. A-0104-07T4,
2009 WL 4250769, at *6 (N.J. Super. Ct. App. Div. Nov. 30,
2009), New Jersey’s case law informs that the actus reus
required by § 2C:15-1(a)(2) is not a categorical match.
Whereas the BIA has held that, for an assault offense to
constitute a CIMT, the harm threatened must rise to the level
of severe bodily injury, see, e.g., Matter of J-G-P-, 27 I. & N.
Dec. 642, 645 (BIA 2019), the New Jersey Supreme Court
has explained that “a thief commits second-degree robbery
but not simple assault if he or she only threatens another with
bodily injury regardless of its seriousness.” Sewell, 603 A.2d
at 27–28 (emphasis added).
We turn last to the third and final aggravating
circumstance element of New Jersey’s second degree robbery
statute—“[c]omit[ting]or threaten[ing] immediately to
commit any crime of the first or second degree.” N.J. Stat.
Ann. § 2C:15-1(a)(3). Under this section, so long as a person
commits, or threatens to commit, any crime of the first or
second degree in the course of committing a theft, he may be
convicted for second-degree robbery. The use of “any” here
undoubtedly sweeps in myriad first and second-degree
offenses that, by themselves, would not qualify as CIMTs.
Consider § 2C:15-1(a)(3)’s application to second degree
offenses like official misconduct, N.J. Stat. Ann. § 2C:30-2,
speculating or wagering on official action or information,
§ 2C:30-3, or manufacturing or facilitating the manufacture of
a firearm using a three-dimensional printer, § 2C:39-9(l).
Each of these offenses lacks “an actus reus of a reprehensible
act . . . that is inherently base, vile, or depraved contrary to
the accepted rules of morality and the duties owed to other
persons, either individually or to society in general,” as is
required for CIMTs. See Larios, 978 F.3d at 69–70 (internal
quotation marks and citation omitted).
Perhaps recognizing that the broad language of
§ 2C:15-1(a)(3) sweeps in many non-turpitudinous offenses,
the Government argues that what makes this element morally
turpitudinous is the fact that “[c]ommission of or threatening
to commit another crime inherently intensifies the situation,”
Suppl. Br. at 7–8, so it is the synergy between the theft
offense and the other crime that makes their combination
morally turpitudinous. The Government’s sole support for
this “synergy theory” stems from the BIA’s decision in In re
Lopez-Meza, 22 I. & N. Dec. 1188, 1196 (BIA 1999), but the

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BIA has since limited In re Lopez-Meza and clarified that
“moral turpitude cannot be viewed as arising from some
‘undefined synergism’ by which two offenses, which do not
involve moral turpitude, somehow combine to create one
crime involving moral turpitude.” In re Torres-Varela, 23 I.
& N. Dec. 78, 90–91 (BIA 2001) (citation omitted).
In sum, none of the elements of New Jersey’s second-
degree robbery statute necessarily involve moral turpitude
based on BIA precedent predating Matter of Diaz-Lizarraga.
It was thus error for the BIA to hold that, under the
categorical approach, Almanzar’s second-degree robbery
offense was a CIMT, so we will grant Almanzar’s petition.
III. Conclusion
For the foregoing reasons, we will grant Almanzar’s
petition, vacate the Board’s order, and remand to the agency
for further proceedings consistent with this opinion.

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