Jackson Njai Ndungu 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. 20-2562
____________
JACKSON NJAI NDUNGU,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(A059-942-954)
Immigration Judge: Kuyomars Q. Golparvar
____________
Argued Before a Merits Panel on January 10, 2023
Reargued En Banc on October 9, 20241
____________
Before: JORDAN, PHIPPS, and ROTH, Circuit Judges
(Filed: January 13, 2025)
__________
1 After voting sua sponte for en banc rehearing and oral
argument, a majority of active judges voted to remand this case
to the panel for disposition.

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2
Andrew J. Mahon [ARGUED MERITS]
BARLEY SNYDER
100 E Market Street
York, PA 17401
Christopher R. Healy [ARGUED EN BANC]
Kaitlin L. O’Donnell
Sierra Stockley
TROUTMAN PEPPER LOCKE
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Counsel for Petitioner Jackson Njai Ndungu
Ryan M. Chabot
Olivia Greene
Cassandra Mitchell
Alan E. Schoenfeld
WILMERHALE
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Counsel for Amicus American Immigration
Lawyers Association in Support of Petitioner
Michael B. Kimberly [ARGUED EN BANC]
Charles H. Seidell
MCDERMOTT WILL & EMERY
500 N Capitol Street NW
Washington, DC 20001
Counsel for Amicus National Association of
Criminal Defense Lawyers in Support of
Petitioner

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Andrew B. Wachtenheim
IMMIGRANT DEFENSE PROJECT
P.O. Box 1765
New York, NY 10027
Counsel for Amicus Heartland Alliance’s
National Immigrant Justice Center, Immigrant
Defense Project, and National Immigration
Project of the National Lawyers Guild in
Support of Petitioner
Margaret A. Kopel
NATIONALITIES SERVICE CENTER
1216 Arch Street
4th Floor
Philadelphia, PA 19107
Counsel for Amicus Nationalities Service
Center in Support of Petitioner
James P. Davy
ALL RISE TRIAL & APPELLATE
P.O. Box 15216
Philadelphia, PA 19125
Counsel for Amicus Former Executive Office of
Immigration Review Judges in Support of
Petitioner

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Jonathan A. Robbins [ARGUED MERITS]
Erik R. Quick
UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent Attorney General
United States of America
_______________________
OPINION OF THE COURT
_______________________
PHIPPS, Circuit Judge.
By statute, lawfully admitted noncitizens are subject to
deportation for committing two or more crimes involving
moral turpitude on separate occasions. See 8 U.S.C.
§ 1227(a)(2)(A)(ii). A lawfully admitted Kenyan national
residing in Lancaster, Pennsylvania, was convicted in 2014 and
again in 2019 of felony vehicular fleeing or attempting to elude
a pursuing police officer in violation of § 3733(a.2) of Title 75
of the Pennsylvania Consolidated Statutes. On the premise that
the offense constituted a crime involving moral turpitude, the
Department of Homeland Security charged the Kenyan
national with removability based on those two convictions and
secured orders of removal from the Immigration Court and
from the Board of Immigration Appeals. The Kenyan national
petitioned this Court for relief, and on de novo review of the
BIA’s final order, we hold that under the categorical approach,
one of the felony subsections of the Pennsylvania fleeing-or-
eluding statute does not necessarily involve moral turpitude,
and therefore, we will grant the petition.

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5
I. BACKGROUND
A. Jackson Ndungu Lawfully Enters the United
States in 2009
Because Kenya does not participate in the Visa Waiver
Program2 and is ineligible for another form of country-specific
visa waiver, citizens of Kenya must obtain a visa to lawfully
enter the United States. Based on Kenya’s historically low
rates of immigration to the United States, however, persons
chargeable to Kenya by birth or otherwise may qualify for the
Diversity Immigrant Visa Program.3 That Program, which is
also referred to as the ‘Diversity Program’ or the ‘Green Card
Lottery,’ randomly selects among the applicants in a region
those who may apply for a fixed number of immigrant visas,4
which allow noncitizens to stay in the United States
indefinitely.5
2 See 8 U.S.C. § 1187(a) (authorizing the Visa Waiver
Program); 8 C.F.R. § 217.2(a) (designating countries eligible
for the Visa Waiver Program).
3 See Immigration Act of 1990, Pub. L. No. 101-649, § 131,
104 Stat. 4978, 4997–99 (1990) (codified at 8 U.S.C. § 1153(c)
(amended 2002)) (authorizing the Diversity Program);
22 C.F.R. § 42.33(a) (setting eligibility criteria for the
Diversity Program); see also id. § 42.12(a) (providing the rules
of chargeability).
4 See 8 U.S.C. § 1153(e)(2). See generally Coraggioso v.
Ashcroft, 355 F.3d 730, 732 (3d Cir. 2004) (explaining the
Diversity Program’s administration).
5 See Almaqrami v. Pompeo, 933 F.3d 774, 776 (D.C. Cir.
2019) (explaining that diversity immigrant visas “allow
recipients who are granted admission to enter the country as
lawful permanent residents who may live and work here
indefinitely”).

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6
Jackson Ndungu, a native and citizen of Kenya, submitted
a petition under the Diversity Program and was selected to
apply for one of the 55,000 immigrant visas authorized for the
2008 fiscal year. See Immigration Act of 1990, Pub. L.
No. 101-649, § 131, 104 Stat. 4978, 4997–99 (1990) (codified
at 8 U.S.C. § 1153(e)(2)); see also 8 U.S.C. § 1151(e) (2006)
(setting the worldwide diversity level at 55,000 per fiscal year).
He received an immigrant visa, and on July 9, 2008, at age 21,
he was admitted to the United States in Philadelphia,
Pennsylvania. Ndungu settled in Lancaster County,
Pennsylvania.
While in the United States, Ndungu was convicted of
several crimes under Pennsylvania law. He pleaded nolo
contendere in 2014 and 2019 to separate charges of felony
fleeing or attempting to elude law enforcement, and those each
resulted in convictions under 75 Pa. Cons. Stat. § 3733(a.2)(2).
Also, in between those two convictions, in December 2016,
Ndungu was convicted of two related counts of simple assault
in violation of 18 Pa. Cons. Stat. § 2701(a)(1).6
B. The Deportation Consequences for
Convictions for Multiple Crimes Involving
Moral Turpitude
Convictions for certain classes of crimes subject lawful
permanent residents to deportation. See 8 U.S.C. § 1227(a)(2).
Beginning with the Immigration Act of 1891, Congress
excluded from admission to the United States “persons who
have been convicted of a felony or other infamous crime or
misdemeanor involving moral turpitude.”7 The Immigration
6 Ndungu’s criminal history also includes convictions on
separate occasions for criminal mischief (damage to property),
disorderly conduct, and resisting arrest.
7 Immigration Act of 1891, ch. 551, § 1, 26 Stat. 1084, 1084
(1891); Jordan v. De George, 341 U.S. 223, 229 n.14 (1951)

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7
Act of 1917 supplemented that exclusion provision with
deportation consequences for noncitizens who, while in the
United States, were convicted of a crime involving moral
turpitude – commonly abbreviated as a ‘CIMT.’ One of those
grounds for deportation added by that legislation was the
commission of multiple CIMTs that each resulted in the
noncitizen’s imprisonment for over a year.8 The Immigration
and Nationality Act of 1952 amended that provision by adding
as a ground for deportation the commission of “two crimes
involving moral turpitude, not arising out of a single scheme”
regardless of the length of the term of imprisonment associated
with those crimes. Immigration and Nationality Act of 1952,
Pub. L. No. 82-414, § 241(a)(4), 66 Stat. 163, 204 (1952).
Since 1996, the multiple-CIMT removal provision has had the
following text:
Any alien who at any time after admission is
convicted of two or more crimes involving moral
turpitude, not arising out of a single scheme of
criminal misconduct, regardless of whether
confined therefor and regardless of whether the
convictions were in a single trial, is deportable.
8 U.S.C. § 1227(a)(2)(A)(ii); see also Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, §§ 305(a)(2), 308(f)(1)(N), 110 Stat. 3009–546,
3009–598, 3009–621 (1996) (redesignating the code section
for the provision and striking the prior term ‘entry’ and
replacing it with ‘admission’).
(“The term ‘moral turpitude’ first appeared in the Act of
March 3, 1891, 26 Stat. 1084 . . . .”).
8 Immigration Act of 1917, Pub. L. No. 64-301, ch. 29, § 19,
39 Stat. 874, 889 (1917).

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1. Definitional Ambiguity and Resolution
Although Congress has long used ‘moral turpitude’ in the
immigration statutes, it has never defined that term. See Larios
v. Att’y Gen., 978 F.3d 62, 69 (3d Cir. 2020) (“There is no
statutory definition of a crime involving moral
turpitude . . . .”); Silva-Trevino, 24 I. & N. Dec. 687, 689 n.1
(A.G. 2008) (“The absence of a statutory definition dates back
to 1891, when the term first appeared in the immigration
context . . . .”), vacated on other grounds, 26 I. & N. Dec. 550
(A.G. 2015). Without a statutory definition, the Supreme
Court, in Jordan v. De George, 341 U.S. 223 (1951), after
surveying federal and state caselaw, including one of its own
decisions, gave the term some meaning by ruling that the term
CIMT is broad enough to encompass “crimes in which fraud
was an ingredient.” Id. at 232; see also United States ex rel.
Volpe v. Smith, 289 U.S. 422, 423–24 (1933) (concluding the
possession and passing of counterfeit war saving stamps was
“plainly a crime involving moral turpitude”).9
Over time, this Court has resolved much of that ambiguity.
It has done so not by looking to the common-law meaning of
CIMT, and for good reason: it is not clear that the term had an
established meaning prior to its inclusion in the immigration
statute. See Note, Crimes Involving Moral Turpitude, 43 Harv.
L. Rev. 117, 118 n.7 (1929) (reporting that no case in English
9 Cf. Jordan, 341 U.S. at 232, 235 (Jackson, J., dissenting)
(arguing that “the phrase ‘crime involving moral turpitude[]’
. . . has no sufficiently definite meaning to be a constitutional
standard for deportation” and that it is an “undefined and
undefinable standard”); De Leon-Reynoso v. Ashcroft,
293 F.3d 633, 635 (3d Cir. 2002) (“The term ‘moral turpitude’
defies a precise definition.”); Julia Ann Simon-Kerr, Moral
Turpitude, 2012 Utah L. Rev. 1001, 1039 (opining that the
moral-turpitude standard “was part of a character metric used
to gauge the fitness of individuals to enter or remain in the
country”).

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law used that term); cf. Taylor v. United States, 495 U.S. 575,
598–99 (1990) (rejecting a common-law meaning of burglary
in the context of a federal statute’s use of that term for purposes
of a sentencing enhancement). Nor has this Court surveyed the
law from every state that uses the term ‘moral turpitude’ in its
laws to find a consensus generic meaning of the term CIMT at
the time of the statute’s enactment. Cf. Taylor, 495 U.S. at
598–99 (relying on the consensus generic meaning of
‘burglary’); cf. also Mathis v. United States, 579 U.S. 500, 503
(2016) (describing the “generic” version of the crime as the
elements of “the offense as commonly understood”); Esquivel-
Quintana v. Sessions, 581 U.S. 385, 394 (2017) (explaining
that the relevant date for the commonly understood meaning is
the date of the statute’s enactment). So while reliance on such
a federal generic standard is common in other contexts, see,
e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190 (2007);
Mathis, 579 U.S. at 503–04; Esquivel-Quintana, 581 U.S. at
394, it does not appear that there is any binding precedent
attempting such a consensus-of-meaning approach for
understanding CIMTs. Instead, through a series of decisions,
this Court has considered various interpretations of ‘moral
turpitude’ offered by federal agencies for the past 80 years.10
Those decisions initially relied on Chevron deference,11 but
10 See, e.g., Javier v. Att’y Gen., 826 F.3d 127, 131, 132 n.6
(3d Cir. 2016) (referencing agency decisions discussing the
CIMT standard from 1968 to 1994); Jean-Louis v. Att’y Gen.,
582 F.3d 462, 468–70, 473 n.14 (3d Cir. 2009) (referencing
agency decisions discussing the CIMT standard from 1941 to
2007); Partyka v. Att’y Gen., 417 F.3d 408, 411–15 (3d Cir.
2005) (referencing agency decisions discussing the CIMT
standard from 1944 to 2001); Knapik v. Ashcroft, 384 F.3d 84,
89–90 (3d Cir. 2004) (referencing agency decisions discussing
the CIMT standard from 1968 to 1997).
11 See Knapik, 384 F.3d at 87–88; see also Mehboob v. Att’y
Gen., 549 F.3d 272, 275–76 (3d Cir. 2008). But compare
Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S.
837, 843 n.9 (1984), with Loper Bright Enters. v. Raimondo,

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over time they relied instead on the persuasive power of the
agency’s definitions,12 and they have resulted in a two-element
standard for a CIMT consisting of an actus reus and a mens
rea.13 For the actus reus, the crime must involve reprehensible
conduct, meaning an 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.” Larios, 978 F.3d at 69 (quoting Javier v. Att’y
Gen., 826 F.3d 127, 130–31 (3d Cir. 2016)); Ortega-Lopez,
27 I. & N. Dec. 382, 385 (B.I.A. 2018). And for the mens rea,
the crime must be committed with a culpable mental state.
Specific intent, deliberateness, or willfulness satisfies that
requirement – as does recklessness, defined as “a conscious
disregard of a substantial and unjustifiable risk that serious
603 U.S. 369, 402–03 (2024) (“For those reasons, delegating
ultimate interpretive authority to agencies is simply not
necessary to ensure that the resolution of statutory ambiguities
is well informed by subject matter expertise. The better
presumption is therefore that Congress expects courts to do
their ordinary job of interpreting statutes, with due respect for
the views of the Executive Branch.”).
12 See Partyka, 417 F.3d at 413 (finding the BIA’s test
“persuasive”); see also Javier, 826 F.3d at 131 (recognizing
that the BIA and this Court use the same definitions to define
“morally turpitudinous conduct” (quoting Mahn v. Att’y Gen.,
767 F.3d 170, 174 (3d Cir. 2014))). See generally Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944) (recognizing that an
agency’s interpretation of a statute may be given weight by a
court to the extent that the interpretation has the “power to
persuade”).
13 See Ortega-Lopez, 27 I. & N. Dec. 382, 385 (B.I.A. 2018)
(“To constitute a crime involving moral turpitude, an offense
must have two essential elements: a culpable mental state and
reprehensible conduct.”); Acosta, 27 I. & N. Dec. 420, 422
(B.I.A. 2018) (setting forth the two elements of moral turpitude
and their definitions).

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injury or death would follow.” Partyka v. Att’y Gen., 417 F.3d
408, 414 (3d Cir. 2005); id. at 414–16 (explaining that
recklessness in the presence of aggravating factors qualifies as
a culpable mental state); cf. Mehboob v. Att’y Gen., 549 F.3d
272, 276 (3d Cir. 2008) (“This Court, however, has drawn a
line at recklessness, and has held that moral turpitude does not
inhere in a crime merely requiring a mental state of
negligence.”).
2. Methodological Direction14
The Supreme Court has provided methodological guidance
for determining whether a predicate offense constitutes a
CIMT under the immigration statute. In Jordan v. De George,
341 U.S. 223 (1951), the Supreme Court concluded that the
offense of conspiracy to defraud the United States of taxes on
distilled spirits had an element of fraud and was therefore a
CIMT for purposes of the immigration statute. Id. at 223–24,
232. Thus, as inferior courts had previously done, the Supreme
Court opted for an elemental analysis rather than looking to the
facts underlying the conviction to determine whether they were
morally turpitudinous. Id. at 226–29. See generally Simon-
Kerr, Moral Turpitude, 2012 Utah L. Rev. at 1007 (“Beginning
in the 1920s, the federal courts developed what is now called
the categorical approach, a formalistic approach that prevents
them from probing below the surface of a conviction to any of
the facts that might inform a moral judgment about the act.”).
Starting with its decision in Taylor v. United States,
495 U.S. 575 (1990), the Supreme Court gave greater
dimension to that elemental matching method, referred to as
the ‘categorical approach.’ See id. at 588–602; see also
14 While Judge Jordan joins this opinion, he notes again that
the categorical approach applied here is deeply problematic, as
described elsewhere, see United States v. Harris, 88 F.4th 458,
459 (3d Cir. 2023) (Jordan, J., concurring in denial of rehearing
en banc).

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12
Moncrieffe v. Holder, 569 U.S. 184, 190–95 (2013); Nijhawan
v. Holder, 557 U.S. 29, 34–39 (2009); Duenas-Alvarez,
549 U.S. at 190–94. In the immigration context, that approach
is tethered to one term in the Immigration and Nationality Act
as amended – the word ‘convicted,’ see 8 U.S.C.
§ 1227(a)(2)(A); Pereida v. Wilkinson, 592 U.S. 224, 233
(2021) – and it examines whether all possible convictions for
an identified offense, even those under the least culpable
circumstances, would satisfy the relevant federal standard,
which, here, is status as a CIMT. See Borden v. United States,
593 U.S. 420, 424 (2021) (explaining that the categorical
approach asks whether of the acts criminalized, “even the least
culpable” satisfies the federal standard); Partyka, 417 F.3d at
411 (“[W]e read the applicable statute to ascertain the least
culpable conduct necessary to sustain a conviction under the
statute.”); Esquivel-Quintana, 581 U.S. at 390 (explaining that
“[r]egardless of the actual facts of petitioner’s crime” if the
least culpable acts to sustain a statutory conviction do not
constitute a removable offense under the INA, the petitioner is
not removable); see also Pereida, 592 U.S. at 233 (applying
the categorical approach to determine whether an offense was
a CIMT); Sasay v. Att’y Gen., 13 F.4th 291, 296 (3d Cir. 2021)
(same); Larios, 978 F.3d at 69 (same); Francisco-Lopez v.
Att’y Gen., 970 F.3d 431, 435 (3d Cir. 2020) (same); Jean-
Louis v. Att’y Gen., 582 F.3d 462, 470 (3d Cir. 2009) (same);
Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (same).15
Thus, while means and elements are distinct legal concepts,16
15 In other contexts, the textual basis for the categorical
approach depends on the cognate term ‘conviction.’ See, e.g.,
18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.1. See generally
Mathis, 579 U.S. at 512 (“ACCA’s use of the term
‘convictions’ still supports an elements-based inquiry; indeed,
that language directly refutes an approach that would treat as
consequential a statute’s reference to factual circumstances not
essential to any conviction.”).
16 See Mathis, 579 U.S. at 504 (‘“Elements’ are the ‘constituent
parts’ of a crime’s legal definition – the things the ‘prosecution

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for a prior conviction to qualify as a CIMT under the
categorical approach, every means of committing that offense
must satisfy the two CIMT elements – reprehensible conduct
and a culpable mental state. See Jean-Louis, 582 F.3d at 471
(“As a general rule, a criminal statute defines a crime involving
‘moral turpitude only if all of the conduct it prohibits is
turpitudinous.’” (quoting Partyka, 417 F.3d at 411)); see also
Larios, 978 F.3d at 67. So, rather than using a “circumstance-
specific thrust,”17 the categorical approach does not depend on
the actual factual basis for the predicate convictions. See
United States v. Taylor, 596 U.S. 845, 850 (2022)
(emphasizing that courts, when applying the categorical
approach, are precluded from inquiring “how any particular
defendant may commit the crime”); see also Pugin v. Garland,
599 U.S. 600, 603–04 (2023); Rosa v. Att’y Gen., 950 F.3d 67,
73 (3d Cir. 2020).
C. The Removal Proceedings Against Ndungu
Premised on 8 U.S.C. § 1227(a)(2)(A)(ii)
Based on his criminal history, DHS charged Ndungu with
removability under 8 U.S.C. § 1227(a)(2)(A)(ii) on multiple
occasions. Relevant here are the charges of removability
brought in 2017 and 2019.18
must prove to sustain a conviction.”’ (quoting Elements of
Crime, Black’s Law Dictionary (10th ed. 2014))); see also
Descamps v. United States, 570 U.S. 254, 257 (2013);
Moncrieffe, 569 U.S. at 198.
17 Mellouli v. Lynch, 575 U.S. 798, 804 n.3 (2015); see, e.g.,
Nijhawan, 557 U.S. at 36 (holding that the fraud-and-deceit
provision in 8 U.S.C. § 1101(a)(43)(M)(i) calls for a
“circumstance-specific” approach, not a categorical approach).
18 Before initiating those proceedings, DHS, in May 2015,
charged Ndungu with removability based on the combination
of his 2014 conviction for fleeing or eluding law enforcement
and his prior conviction in 2010 for criminal mischief (damage

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In 2017, DHS identified two putative CIMTs that Ndungu
had committed – his 2016 simple assault convictions and his
2014 conviction for fleeing-or-eluding – as bases for removal
under § 1227(a)(2)(A)(ii).19 But the Immigration Judge
determined that simple assault under Pennsylvania law did not
constitute a CIMT. And after concluding that those
convictions were not CIMTs, the Immigration Judge
recognized that by charging Ndungu with only one other
potential CIMT (the 2014 felony fleeing-or-eluding
conviction), DHS could not show that Ndungu committed two
or more CIMTs – as required for removal under
§ 1227(a)(2)(A)(ii). Before terminating those proceedings,
however, the Immigration Judge articulated his understanding
that the Pennsylvania felony of fleeing or attempting to elude
law enforcement was a CIMT and cautioned that “if [Ndungu]
has another CIMT, obviously, he’ll be back” because the
fleeing-or-eluding conviction is “not forgiven[;] [i]t just isn’t
enough yet.” Tr. 7:4–5, 9 (Mar. 22, 2017) (Supp. AR at 8).
After Ndungu’s April 2019 conviction for felony fleeing-
or-eluding-law-enforcement, DHS again charged Ndungu with
removability under 8 U.S.C. § 1227(a)(2)(A)(ii). That charge
was based on his felony fleeing-or-eluding convictions from
to property). In response, Ndungu moved to terminate the
removal proceedings, arguing that neither crime constituted a
CIMT. DHS did not oppose that motion, and the Immigration
Judge terminated the proceedings without prejudice. Ndungu
does not now argue that those 2015 proceedings have res
judicata effect (although he did before the Immigration Court,
which rejected the contention).
19 DHS also argued that Ndungu’s simple assault convictions –
because they involved his then-girlfriend – provided an
independent basis for removability as convictions for domestic
abuse are removable offenses. See 8 U.S.C.
§ 1227(a)(2)(E)(i). The Immigration Court rejected that
argument.

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2014 and 2019. In response, Ndungu argued that res judicata
principles precluded DHS from relying on his 2014 fleeing-or-
eluding conviction as a predicate CIMT because DHS had
previously tried to remove him based on that conviction.
Ndungu also contended that the felony fleeing-or-eluding
offense under Pennsylvania law did not constitute a CIMT.20
After a multi-day hearing, the Immigration Judge issued an
interlocutory order that rejected both of those defenses. With
respect to res judicata, the Immigration Judge determined that
although final orders of removal may preclude later claims, the
order in the 2017 removal proceedings did not satisfy the
elements of that defense. And, in reviewing Ndungu’s felony
fleeing-or-eluding convictions from 2014 and 2019, the
Immigration Judge concluded that they both qualified as
CIMTs under the categorical approach. Accordingly, the
Immigration Judge sustained the charge of removability.21
Ndungu administratively appealed that decision to the
Board of Immigration Appeals. He disputed the Immigration
Court’s non-application of res judicata and its conclusion that
his felony convictions for fleeing-or-eluding each constituted
a CIMT. The BIA affirmed the Immigration Court’s ruling and
issued a final order of removal. But in so doing, the BIA did
not cite 8 U.S.C. § 1227(a)(2)(A)(ii) as the basis for
removability; instead, it repeatedly identified the charged basis
for Ndungu’s removal as § 1227(a)(2)(A)(i). That subsection,
subject to an exception not relevant here, authorizes the
deportation of a non-citizen who, within five years of
20 In addition to those defenses, Ndungu sought relief from
removal. He applied for cancellation of removal for lawful
permanent residents, as well as for asylum, statutory
withholding of removal, and protection under the Convention
Against Torture.
21 Through a separate order, the Immigration Judge denied
Ndungu’s requests for relief from removal.

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admission, commits a CIMT punishable by at least one year in
prison. Id. Nonetheless, the BIA conducted an analysis
consistent with § 1227(a)(2)(A)(ii): it evaluated Ndungu’s two
convictions as potential predicate offenses under the
categorical approach, and it did not focus on the timing or the
potential punishments for the offenses – as would be necessary
to sustain a removal charge under § 1227(a)(2)(A)(i).
Without success on administrative appeal, Ndungu filed a
timely petition in this Court to review the BIA’s final order of
removal. See 8 U.S.C. § 1252(b)(1).
After the panel initially heard oral argument on the petition,
the Court voted for en banc rehearing and requested
supplemental briefing. After an en banc oral argument, the
majority of active judges voted to remand the case to the panel
for disposition.
II. DISCUSSION
Congress, through a statutory provision referred to as the
‘criminal-alien bar,’22 has limited judicial review of final
orders of removal for non-citizens convicted of certain types of
crimes. That rule mandates that “no court shall have
jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed”
identified offenses, including multiple CIMTs. 8 U.S.C.
§ 1252(a)(2)(C) (stripping courts of jurisdiction over, among
other things, review of removal orders under 8 U.S.C.
§ 1227(a)(2)(A)(ii)); see also id. § 1227(a)(2)(A)(ii)
(subjecting aliens who commit multiple separate CIMTs after
admission to removal). But under an exception, the criminal-
alien bar does not foreclose judicial review of constitutional
claims or questions of law. See id. § 1252(a)(2)(D); Patel v.
Garland, 596 U.S. 328, 339 (2022) (explaining that Section
22 See 8 U.S.C. § 1252(a)(2)(C); Nasrallah v. Barr, 590 U.S.
573, 589 (2020) (Thomas, J., dissenting).

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17
1252(a)(2)(D) “preserves review of constitutional claims and
questions of law”); Nasrallah v. Barr, 590 U.S. 573, 581
(2020) (“[A] court of appeals may review constitutional or
legal challenges to a final order of removal, but the court of
appeals may not review factual challenges to a final order of
removal.” (emphasis omitted)); Wilkinson v. Garland,
601 U.S. 209, 221 (2024) (explaining that courts lack
jurisdiction to review “factual findings”).
In his petition, Ndungu argues that the agency erred as a
matter of law in two respects: by rejecting the application of
res judicata and by concluding that felony fleeing-or-eluding
under Pennsylvania law is categorically a CIMT. As legal
questions, those two issues are outside the criminal-alien bar
and are within this Court’s jurisdiction. See Sasay, 13 F.4th at
295–96; Grijalva Martinez v. Att’y Gen., 978 F.3d 860, 864 n.2
(3d Cir. 2020).
A. Administrative Claim Preclusion: An
Agency’s Application of Res Judicata to Its
Own Prior Final Orders
Courts have developed the doctrines of res judicata (for
claims) and collateral estoppel (for issues) that define the
preclusive effects of their own final judgments on civil cases
in subsequent civil suits. In creating federal agencies and
empowering them with adjudicative functions, Congress is
presumed to have “legislated with an expectation” not merely
that agencies could determine the preclusive effect that they
would afford to their own orders in future administrative
proceedings but even more: that final agency orders would be
presumed to have res judicata and collateral estoppel effects
on later agency adjudications. Astoria Fed. Sav. & Loan Ass’n
v. Solimino, 501 U.S. 104, 108 (1991); see Duvall v. Att’y Gen.,
436 F.3d 382, 387 (3d Cir. 2006) (“Congress may be
presumed, when enacting a statute granting to an agency

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adjudicatory authority, to mandate adherence to the doctrine of
collateral estoppel.”).23
But that expectation imputed to Congress is not absolute.
There cannot be administrative preclusion “when a statutory
purpose to the contrary is evident.” Astoria, 501 U.S. at 108
(quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783
(1952)). And administrative preclusion should not be applied
under unsuitable circumstances, which depend on “the specific
context of the rights at stake, the power of the agency, and the
relative adequacy of agency procedures.” Id. at 109–10.
Consistent with those principles, this Court has
acknowledged the general applicability of administrative claim
preclusion to final orders of removal. See Duhaney v. Att’y
Gen., 621 F.3d 340, 348 (3d Cir. 2010) (recognizing “the
general proposition that res judicata may be applied to
adjudicative proceedings under the INA”); see also Johnson v.
Ashcroft, 378 F.3d 164, 172 n.10 (2d Cir. 2004) (“That res
judicata does sometimes apply in immigration proceedings is
unquestionable.”). Still, this Court has refused to bar
subsequent removal charges against a noncitizen who commits
later crimes. See Duvall, 436 F.3d at 391 (“Legislative policy
dictates that the bar against relitigation must drop when the
alien continues to commit criminal acts after initial
immigration proceedings.”); see also Astoria, 501 U.S. at 109–
10 (explaining that overcoming the presumption in favor of
administrative preclusion requires only a contrary statutory
purpose, not a clear statement).
23 But cf. B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S.
138, 164–67 (2015) (Thomas, J., dissenting) (arguing against
the presumption of administrative preclusion); Johnson v.
Whitehead, 647 F.3d 120, 129 (4th Cir. 2011) (refusing, before
the Supreme Court’s B & B Hardware decision, to impose
judicial rules of preclusion on an agency and applying, instead,
the agency’s own preclusion rules).

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1. The Agency’s Rationale for Rejecting
Res Judicata
The Immigration Court analyzed Ndungu’s res judicata
argument using this Court’s three-element formulation of that
affirmative defense. One articulation of those elements is the
following:
1. A final judgment on the merits in a prior suit;
2. A subsequent suit based on the same cause of
action; and
3. Involvement of the same parties or their
privies in both suits.
See In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008). The
Immigration Court also acknowledged that this Court takes a
transactional approach to the same-cause-of-action
requirement so that for removal proceedings, the relevant
transaction is the “factual occurrence or conviction upon which
a charge of removability is based.” Decision of the
Immigration Judge at 3 (JA22) (quoting Duhaney, 621 F.3d at
348–49).
The Immigration Court then evaluated whether the final
order in Ndungu’s 2017 removal proceedings had a preclusive
effect. The Immigration Judge reasoned that the order lacked
claim preclusive force because, despite being a ruling on the
merits, the order terminated the proceedings “without
considering whether the Fleeing or Attempting to Elude
Officer conviction constituted a CIMT.” Id.
On administrative appeal, the BIA adopted the entirety of
the Immigration Judge’s analysis of res judicata as its own, so
the rationale in the Immigration Judge’s decision is the object
of judicial review. See Garland v. Ming Dai, 593 U.S. 357,
371 (2021) (“By adopting that analysis as its own, the BIA’s
decisional path . . . includes that analysis.”); Garcia v. Att’y
Gen., 665 F.3d 496, 502 (3d Cir. 2011), as amended (Jan. 13,
2012) (“When the BIA adopts or defers to the underlying

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decision of the IJ, we review the IJ’s opinion as the decision of
the agency.”).
2. De Novo Review of the Agency’s Legal
Conclusion
In his present petition, Ndungu challenges that decision.
He contends that because the Immigration Judge in the 2017
proceedings did not order his removal based on his 2014
fleeing-or-eluding conviction, DHS is barred from again
relying on that conviction as grounds for removal. In making
that argument, Ndungu asserts that in the 2019 proceedings,
the Immigration Judge found only one elemental shortcoming
in his res judicata defense – the final-judgment-on-the-merits
requirement. According to Ndungu, that element was met
because the order in the 2017 removal proceedings was a final
judgment on the merits.
Even if it was of “less than ideal clarity,”24 the agency’s
rationale was not so confined. The Immigration Judge also
considered the same-cause-of-action requirement and
explained that the relevant cause of action is the ‘factual
occurrence or conviction’ underlying the charge of
removability. And as a matter of law, because 8 U.S.C.
§ 1227(a)(2)(A)(ii) requires multiple CIMTs for removal, the
relevant transaction for purposes of claim preclusion consists
of the combination of the charged CIMTs in the removal
proceedings. See Duhaney, 621 F.3d at 348 (describing the
transactional approach). So, for Ndungu’s 2017 removal
proceedings, the relevant transaction for claim-preclusion
purposes is the combination of Ndungu’s 2014 fleeing-or-
eluding conviction and his 2017 simple assault convictions.
And absent an exception to administrative preclusion, the
Immigration Court in a future proceeding cannot order
24 Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974).

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21
Ndungu’s removal on the ground that the combination of those
two convictions satisfies § 1227(a)(2)(A)(ii).
But in charging Ndungu with removal in 2019, DHS did not
rely on those same two convictions. Instead, it identified the
predicate offenses as his 2014 and 2019 fleeing-or-eluding
convictions. Thus, the cause of action in the 2019 removal
proceedings is different from the cause of action in the 2017
proceedings.
Nonetheless, Ndungu insists that res judicata should apply.
He focuses on the fact that the charges in both the 2017 and the
2019 proceedings relied on his 2014 fleeing-or-eluding
conviction as a basis for removal. But a conviction for one
CIMT does not by itself define the transaction for removal
under § 1227(a)(2)(A)(ii), which requires multiple CIMTs for
removal. Even more, DHS could not have charged Ndungu
with removal based on the combination of his 2014 and his
2019 fleeing-or-eluding convictions at the time of his 2017
removal proceedings. See Lucky Brand Dungarees, Inc. v.
Marcel Fashions Grp., Inc., 590 U.S. 405, 414 (2020) (“Claim
preclusion generally does not bar claims that are predicated on
events that postdate the filing of the initial complaint.”
(internal quotation omitted)); In re Mullarkey, 536 F.3d at 225
(“The doctrine of res judicata bars not only claims that were
brought in a previous action, but also claims that could have
been brought.”). Thus, it is of no moment, at least for purposes
of claim preclusion, that DHS had previously relied on
Ndungu’s 2014 fleeing-or-eluding conviction as one of the
predicate offenses for removal. Instead, under a transactional
view, the 2019 proceedings involved a different cause of action
than the 2017 proceedings, so res judicata does not bar DHS
from relying on Ndungu’s 2014 fleeing-or-eluding conviction
as a basis for removal in the 2019 proceedings.

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22
B. The Challenge under the Categorical
Approach to the Predicate Fleeing-or-
Eluding Offenses as Crimes Involving Moral
Turpitude
Ndungu also challenges the agency’s legal conclusion that
his two convictions for felony fleeing-or-eluding qualify as
CIMTs. In upholding the ruling of the Immigration Court, the
BIA relied on a realistic-probability exception to the categorial
approach by reasoning with respect to Ndungu’s two felony
fleeing-or-eluding convictions that “the minimum conduct [for
which Ndungu] has a realistic probability of being prosecuted
under the statute entails ‘reprehensible conduct’ to warrant
treatment as a CIMT.” BIA Decision at 2 (JA6) (quoting
Acosta, 27 I. & N. Dec. 420, 422 (B.I.A. 2018)). As explained
below, that conclusion is incorrect: it misapprehends this
Court’s formulation of the realistic-probability exception.
1. The BIA Misconstrued Circuit Precedent
for the Realistic-Probability Exception to
the Categorical Approach.
The Supreme Court has articulated two strands of realistic-
probability considerations that bear on the categorical
approach.
First, in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007),
the Supreme Court explained that realistic-probability
considerations could negate an elemental match under the
categorical approach. Id. at 193. Even when the elements of a
state offense categorically match those of a federal offense, a
categorical mismatch is possible if there is “a realistic
probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic
definition of a crime.” Id. So, under Duenas-Alvarez, a match
between the elements of a state offense and those in the federal
standard does not satisfy the categorical approach if there is a
realistic probability that the state would construe its offense to
reach conduct outside of the federal standard. Although it was

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23
not necessary in Duenas-Alvarez or in either of the Supreme
Court’s two subsequent decisions referencing realistic-
probability considerations, Moncrieffe v. Holder, 569 U.S. 184
(2013), and United States v. Taylor, 596 U.S. 845 (2022), to
apply those considerations, they are permitted under the
categorical approach.
Second, the Moncrieffe decision, in addition to reaffirming
the legitimacy of the Duenas-Alvarez realistic-probability
considerations, identified a distinct use of those considerations,
as a means of preserving a categorical match. Moncrieffe,
569 U.S. at 191. For context, as part of an in terrorem
argument, the Government contended that state offenses that
would otherwise categorically match a federal standard may no
longer do so when there are exceptions to the federal standard.
Id. at 205–06. In particular, the Government identified the
antique-firearms exception to federal gun prohibitions, see
18 U.S.C. § 921(a)(3), and argued that for a state firearms
offense to categorically match the federal aggravated felony
standard, which allows for removal based on firearms offenses,
see 8 U.S.C. § 1101(a)(43)(C); id. § 1227(a)(2)(A)(iii), the
state firearms offense must also have an exception for antique
firearms. Moncrieffe, 569 U.S. at 205–06. From a purely
formalistic perspective, the Government’s argument had real
traction. But in rejecting the government’s position, the
Supreme Court invoked realistic-probability considerations, so
that only when there was a realistic probability that a state
would interpret its laws to criminalize conduct within the
antique-firearms exception would that exception negate
categorical matching. Id. at 206 (“To defeat the categorical
comparison in this manner, a noncitizen would have to
demonstrate that the State actually prosecutes the relevant
offense in cases involving antique firearms.”).
To obtain a categorical match between Ndungu’s state
offenses and a CIMT, the BIA relied on a distinct variation of
realistic-probability considerations. It examined whether “the
minimum conduct [for which Ndungu had] a realistic

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24
probability of being prosecuted under the statute entails
‘reprehensible conduct’ to warrant treatment as a CIMT.” BIA
Decision at 2 (JA6) (quoting Acosta, 27 I. & N. Dec. at 422).
But this Court has not applied realistic-probability
considerations that way. In Singh v. Attorney General,
839 F.3d 273 (3d Cir. 2016), this Court recognized that in both
Duenas-Alvarez and Moncrieffe, the elements of the state
crime and its counterpart federal offense were identical. Id. at
286 n.10. And on that ground, Singh limited the realistic-
probability analysis to instances in which the elements of the
state crime and the federal offense were identical. Id.
Subsequent cases have followed that narrow application of
realistic-probability principles. See Salmoran v. Att’y Gen.,
909 F.3d 73, 81 (3d Cir. 2018) (recognizing that this Court’s
precedent “takes [an] alternative approach” in which the
realistic probability analysis in Moncrieffe does not apply
unless the elements of the state and federal offenses were
identical); Zhi Fei Liao v. Att’y Gen., 910 F.3d 714, 724
(3d Cir. 2018) (declining to apply a realistic probability
analysis when the elements of the offense “leave nothing to the
legal imagination” (internal quotation omitted)); see also
United States v. Jenkins, 68 F.4th 148, 154 (3d Cir. 2023);
Cabeda v. Att’y Gen., 971 F.3d 165, 176 (3d Cir. 2020).
Rather than abide by that limitation, the BIA applied
realistic-probability considerations as a means of arriving at a
categorical match – not to negate or preserve a preexisting
match. Accordingly, it was not permissible for the BIA to rely
on realistic-probability considerations as it did. See Salmoran,
909 F.3d at 81; see also Jean-Louis, 582 F.3d at 481 (seriously
doubting, pre-Moncrieffe, that “the logic of the Supreme Court
in Duenas-Alvarez . . . is transferable to the CIMT context”).
For that reason, under this Court’s precedent, the BIA erred in
its application of the categorical approach.

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25
2. Ndungu’s Fleeing-or-Eluding
Convictions Do Not Qualify as CIMTs.
Ordinarily, an agency’s error in formulating the correct
legal standard for one of its orders is a basis for vacating and
remanding. See Fed. Power Comm’n v. Idaho Power Co.,
344 U.S. 17, 20 (1952) (recognizing the general
appropriateness of a remand to an agency once “an error of law
is laid bare” by a reviewing court). But when a remand would
be futile, it is unnecessary. See Vurimindi v. Att’y Gen.,
46 F.4th 134, 140 (3d Cir. 2022). To be futile, the issue for
potential remand must involve a “purely legal question” that
“does not implicate the agency’s expertise,” does not require
factfinding, and receives de novo review. Id.
The question presented here asks whether Ndungu’s
fleeing-or-eluding convictions constitute CIMTs under the
categorical approach. The scope of that issue, which is already
circumscribed by the criminal-alien bar, 8 U.S.C.
§ 1252(a)(2)(C), satisfies the criteria for futility, so that it may
be examined now without the need for an antecedent remand.
a. The Scope of Fact-Finding Under
the Categorical Approach Is
Limited to Determining the
Elements of the Offense of
Conviction.
Although the categorial approach does not involve any
consideration of the factual basis for a prior conviction,
identifying the offense of conviction is essential to the
categorical matching process. And it is permissible for a
tribunal to ascertain factually the offense of conviction. See
Pereida, 592 U.S. at 238 (“When applying the categorical
approach, this Court has long acknowledged that to ask what
crime the defendant was convicted of committing is to ask a
question of fact.”).

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26
When a statute is ‘indivisible,’ meaning that it criminalizes
only a single set of elements, that factual inquiry involves
nothing more than the identification of the statute of
conviction. Id. at 234–35 (“Some statutes state only a single
crime, often making it a simple thing for a judge to conclude
from a defendant’s criminal records that he was convicted of
violating statute x and thus necessarily convicted of crime x.”).
But when a statute is ‘divisible,’ meaning that it provides
separate, alternative elements for a criminal offense, the
statutory basis of the conviction does not conclusively identify
the elements of the conviction. See Descamps v. United States,
570 U.S. 254, 262 (2013) (explaining that a statute is divisible
when it provides “multiple, alternative versions of the crime”);
see also Mathis, 579 U.S. at 505–06. In that situation, it is
permissible for a tribunal to make a factual inquiry into the
precise elemental formulation of the offense of conviction. See
Descamps, 570 U.S. at 263.
b. The Pennsylvania Felony of
Vehicular Fleeing or Attempting
to Elude Law Enforcement Is
Divisible in Two Respects.
i. The Structural Components
of 75 Pa. Cons. Stat.
§ 3733
Section 3733, the statute under which Ndungu was twice
convicted for felony fleeing-or-eluding, has two relevant
components: the definition of the offense and its grading
factors (also referred to as ‘aggravating factors’).
The offense is defined at the beginning of subsection (a) of
the statute. 75 Pa. Cons. Stat. § 3733(a). Grammatically, that
definition consists of a subject followed by two disjunctive
adjectival clauses and one adverbial phrase:

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27
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 . . . .
Id. The subject is “[a]ny driver,” and it is modified by the
prepositional phrase “of a motor vehicle.” Id. The two
adjectival clauses that follow each begin with the relative
pronoun ‘who’: “who willfully fails or refuses to bring his
vehicle to a stop” and “who otherwise flees or attempts to elude
a pursuing police officer.” Id.25 The next phrase is adverbial
– “when given a visual and audible signal to bring the vehicle
to a stop” – and it modifies the verbs in each of the adjectival
clauses. Id.26
In terms of punishment, § 3733 allows the offense to be
either a misdemeanor or a felony. See United States v. Jones,
740 F.3d 127, 131 (3d Cir. 2014). In the absence of any
aggravating factors, the offense is a second-degree
25 In construing the second adjectival clause, the Superior
Court of Pennsylvania has held that the phrase “a pursuing
police officer” modifies only “attempts to elude” and not
“otherwise flees” (or any of the content in the first adjectival
clause). Commonwealth v. Wise, 171 A.3d 784, 789–90 (Pa.
Super. Ct. 2017). That interpretation relied on the rule of the
last antecedent, and it carries the consequence of construing the
verb ‘flees’ intransitively, such that the object ‘a pursuing
police officer’ is not needed to complete its meaning. Flee,
Webster’s Third New International Dictionary (1961)
(defining flee as both a transitive and an intransitive verb);
Flee, American Heritage Dictionary of the English Language
(1st ed. 1969) (same).
26 Subsection (b) of the statute makes clear that the referenced
“visual and audible signal to bring the vehicle to a stop” must
be “given by [a] police officer.” 75 Pa. Cons. Stat. § 3733(b).

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28
misdemeanor. 75 Pa. Cons. Stat. § 3733(a.2)(1); see also
18 Pa. Cons. Stat. § 1104(2) (defining penalties for a second-
degree misdemeanor). But if the offense is committed while
the driver is under the influence, crosses state lines, or
endangers law enforcement or a member of the public, then it
is a third-degree felony:
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
(iii) endangers a law enforcement officer or
member of the general public due to the
driver engaging in a high-speed chase.
75 Pa. Cons. Stat. § 3733(a.2); see also 18 Pa. Cons.
Stat. § 1103(3) (defining penalties for a third-degree felony).27
Each of the three aggravating factors is subject to a
condition – they must occur while the driver is “fleeing or
27 Section 3733 also provides two defenses. The first
exonerates fleeing or attempting to elude a pursuing unmarked
police vehicle. See 75 Pa. Cons. Stat. § 3733(c)(1). The
second exempts conduct otherwise criminalized by the statute
if the driver establishes that the reason for not immediately
stopping was “a good faith concern for personal safety.” Id.
§ 3733(c)(2) (identifying a non-exhaustive list of factors that
may be considered to evaluate the applicability of the defense).

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29
attempting to elude a police officer.”28 75 Pa. Cons. Stat.
§ 3733(a.2)(2). In context, the term ‘fleeing’ is best
understood to encompass all forms of fleeing, including failing
or refusing to stop a vehicle. That is so because in defining the
underlying offense, subsection (a) relies on two adjectival
clauses, and the second one, “who otherwise flees,” operates in
relation to the first clause through the term ‘otherwise.’ Id.
§ 3733(a). And by using that word, which means “in a
different way or manner” or “in different circumstances,”29 the
second adjectival clause indicates that the conduct described in
the first clause also constitutes ‘fleeing.’30 Accordingly, the
condition for the felony offense is satisfied by any form of
fleeing – including willfully failing or refusing to stop a vehicle
in response to a signal to stop – as well as by an attempt to
elude a pursuing police officer.
28 Unlike the first adjectival clause defining the underlying
offense, see 75 Pa. Cons. Stat. § 3733(a), the grading condition
does not require a pursuing police officer, see id.
§ 3733(a.2)(2).
29 Otherwise, Webster’s Third New International Dictionary
(1961); see also Otherwise, American Heritage Dictionary of
the English Language (1st ed. 1969); cf. Holland v. Rosen,
895 F.3d 272, 290 (3d Cir. 2018); Alcoa, Inc. v. United States,
509 F.3d 173, 181 (3d Cir. 2007).
30 Under the consistent-meaning canon, the term ‘fleeing’ as
used in the grading condition would receive the same meaning
– either as a transitive verb or as an intransitive verb – as it has
when used in defining the underlying offense. See Nat’l Credit
Union Admin. v. First Nat. Bank & Tr. Co., 522 U.S. 479, 501
(1998) (“[T]he established canon of construction [provides]
that similar language contained within the same section of a
statute must be accorded a consistent meaning.”).

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ii. The Dual Divisibility of
§ 3733
From its structure, § 3733 is divisible along two axes:
between the misdemeanor and the felony subsections and then
within the felony subsection between the three aggravating
factors.
The divisibility between the misdemeanor and felony
subsections results from the different punishments imposed by
those subsections. As a matter of law, if proof of one fact
increases the statutory maximum sentence (or the mandatory
minimum sentence), it is an element of an offense. See Mathis,
579 U.S. at 518 (“If statutory alternatives carry different
punishments, then under Apprendi they must be elements.”);
see also Apprendi v. New Jersey, 530 U.S. 466, 483 n.10
(2000) (“[F]acts that expose a defendant to a punishment
greater than that otherwise legally prescribed were by
definition ‘elements’ of a separate legal offense.”); Alleyne v.
United States, 570 U.S. 99, 108 (2013) (“Apprendi’s definition
of ‘elements’ necessarily includes not only facts that increase
the ceiling, but also those that increase the floor.”). And under
subsection (a.2) of § 3733, proof of any of the fleeing-or-
eluding grading factors subjects an offender to a felony
conviction instead of a misdemeanor. So those factors, as a set,
are elementally separate from the misdemeanor offense,
making the statute divisible in that respect.
Section 3733 is also divisible between the different
aggravating factors. Even though each grading factor carries
the same potential penalty, that alone does not render
divisibility impossible. Rather, in assessing the divisibility of
state criminal statutes, federal courts defer to constructions of
the statute provided by an “authoritative source[] of state law.”
Mathis, 579 U.S. at 518; see also Singh, 839 F.3d at 283
(“When a ruling from an ‘authoritative source[] of state law’
resolving this means-or-elements question ‘exists, a . . . judge
need only follow what it says.’” (alterations in original)
(quoting Mathis, 579 U.S. at 518)). A ruling from the highest

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31
court in a state carries that weight, as does a ruling from an
intermediate state appellate court in the absence of “persuasive
data that the highest court of the state would decide otherwise.”
Singh, 839 F.3d at 283 n.5; see also Pesikan v. Att’y Gen.,
83 F.4th 222, 228 (3d Cir. 2023). Under that standard, a ruling
by the Superior Court of Pennsylvania is ordinarily an
authoritative source of Pennsylvania state law. See Singh,
839 F.3d at 283 n.5. And in Commonwealth v. Bowen, 55 A.3d
1254 (Pa. Super. Ct. 2012), the Superior Court explained that
in amending the statute in 2006, the Pennsylvania General
Assembly “created a new, aggravated version of the offense
. . . [that] introduced additional elements which must be proven
beyond a reasonable doubt and graded the offense as a felony.”
Id. at 1268 (emphasis added); see also Commonwealth v.
Moffitt, 305 A.3d 1095, 1101–02 (Pa. Super. Ct. 2023)
(treating the grading factors in § 3733(a.2) as separate
elements). Treating that holding as authoritative, § 3733 is
divisible between the grading factors.
Ndungu contests the second axis of § 3733’s divisibility.
He argues that under Pennsylvania law, the felony grading
factors are not elements. But he cannot overcome the Superior
Court’s resolution of that issue: the grading factors in § 3733
are separate elements. See Bowen, 55 A.3d at 1268. Nor does
he provide persuasive data that the Supreme Court of
Pennsylvania would reach a different outcome on this issue.
To the contrary, the model jury instructions for
Pennsylvania align with the Superior Court’s holding. Those
instructions, although not binding on Pennsylvania courts, may
be considered as persuasive authority in the divisibility
analysis. See Vurimindi, 46 F.4th at 147 & n.10; see also
Pesikan, 83 F.4th at 229–30 & n.11. For § 3733, the model
instructions require that a jury identify the specific grading
factors that served as the basis for the felony conviction.
Pennsylvania Suggested Standard Criminal Jury Instructions,
Pa. SSJI (Crim), § 17.3733. Yet identifying the applicable
grading factor with specificity would be unnecessary if the

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factors were merely means of committing a felony offense,
because a jury does not have to agree on the means by which
an offense was committed, only its elements. See Mathis,
579 U.S. at 506 (“Because that kind of list merely specifies
diverse means of satisfying a single element of a single crime
– or otherwise said, spells out various factual ways of
committing some component of the offense – a jury need not
find (or a defendant admit) any particular item . . . .”);
Descamps, 570 U.S. at 286 (Alito, J., dissenting) (“The feature
that distinguishes elements and means is the need for juror
agreement . . . .”). So, if the grading factors in subsection (a.2)
were merely means, then it would suffice if four jurors found
guilt under only grading factor (i), four under only grading
factor (ii), and four under only grading factor (iii). See Taylor,
596 U.S. at 859 n.3 (“[A] jury need unanimously conclude only
that the defendant used one of the listed means; it need not
agree on which one.”). However, by instructing the jury to
indicate the precise grading factor on which the verdict
depends, the model jury instructions suggest that each grading
factor is a separate element. See Apprendi, 530 U.S. at 477;
United States v. Ramos, 892 F.3d 599, 608 (3d Cir. 2018)
(“Each alternative offense listed in a divisible statute must be
proven beyond a reasonable doubt to sustain a conviction.”).
With the model jury instructions cutting against his position,
Ndungu fails to provide a persuasive basis for disregarding the
Superior Court’s determination that the grading factors
constitute distinct elements of the felony fleeing-or-eluding
offense.
c. The Elements of Grading
Factor (iii) Do Not Categorically
Match the Elements of a Crime
Involving Moral Turpitude.
Although the categorical approach permits courts to
determine the precise offense of conviction, courts do not have
free rein to consider any and all information in that fact-finding
endeavor. See Taylor, 495 U.S. at 601 (inferring from
legislative silence that Congress did not intend “an elaborate

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factfinding process regarding the defendant’s prior offenses”
as part of the categorical approach); Shepard v. United States,
544 U.S. 13, 16 (2005) (holding that courts may not consider
police reports and criminal complaint applications in
determining the offense of conviction under the categorical
approach); Ramos, 892 F.3d at 607 (explaining that although
courts may “look beyond the text of a divisible statute” to
determine the specific statutory section that “provided the basis
for the prior conviction,” they may not “scour the record to
ascertain the factual conduct giving rise to the prior
conviction”). Instead, courts may consider a limited set of
judicial records, often referred to as ‘Shepard documents,’ to
determine the offense of conviction. See Shepard, 544 U.S. at
16, 26 (listing documents that may be considered in the context
of a guilty plea and permitting consideration of any
“comparable judicial record of this information”). Those
include the charging documents, jury instructions, a written
plea agreement, transcripts of any plea colloquy, any explicit
factual findings made by the court to which the defendant
assented, and verdict slips. See Nijhawan, 557 U.S. at 41–42
(recognizing as Shepard documents the charging documents,
plea agreements, transcripts of plea colloquies, findings of fact
and conclusions of law from a bench trial, jury instructions,
and verdict forms); see also Vurimindi, 46 F.4th at 142 n.4. In
addition, in the immigration context, it is statutorily
permissible to consider other categories of documents to
determine the precise offense of conviction. See 8 U.S.C.
§ 1229a(c)(3)(B); see also Pereida, 592 U.S. at 231–32; Ali v.
Mukasey, 521 F.3d 737, 742 (7th Cir. 2008). Those documents
include the official minutes of court proceedings, 8 U.S.C.
§ 1229a(c)(3)(B)(iv), and “[a]ny document or record attesting
to the conviction that is maintained by an official of a State or
Federal penal institution, which is the basis for that
institution’s authority to assume custody of the individual
named in the record[,]” id. § 1229a(c)(3)(B)(vii).
When a court engages in this fact-finding to identify the
precise elements of a conviction pursuant to a divisible statute,

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it is said to engage in the modified categorical approach. In
that situation, the conclusiveness of the Shepard and other
statutorily permitted documents determines the scope of the
categorical matching analysis. If those documents indicate
which of the alternative elemental formulations of the offense
was the legal basis for the conviction, then only that identified
alternative needs to be evaluated categorically. See Descamps,
570 U.S. at 263 (“Applied in that way – which is the only way
we have ever allowed – the modified approach merely helps
implement the categorical approach when a defendant was
convicted of violating a divisible statute.”). But if the Shepard
and other statutorily permitted documents cannot identify
which of the alternative elemental formulations of the offense
was the basis for the conviction, then each of the alternatives
cannot be ruled out as the grounds for the conviction, and the
conviction must be examined categorically. See Pereida,
592 U.S. at 240 (explaining where the Shepard documents are
unclear the government must “show that all of the statute’s
offenses [meet] the federal definition” (emphasis in original));
cf. United States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018)
(explaining that “[w]ithout Shepard documents, the categorical
and modified categorical approaches are the same,” so that the
categorical approach must be applied to each subsection of a
divisible statute).
In this case, the agency’s fact-finding under the modified
categorical approach was able to identify the precise
subsection for Ndungu’s 2014 conviction but not for his 2019
conviction. In reviewing the criminal information, which is a
Shepard document (but not one of the additional statutorily
identified sources),31 the Immigration Court found that
Ndungu’s 2014 conviction for felony fleeing-or-eluding was
31 See Evanson v. Att’y Gen., 550 F.3d 284, 292–93 (3d Cir.
2008) (explaining that under Pennsylvania law, a criminal
information replaces a criminal complaint as charging
document); see also Nijhawan, 557 U.S. at 41 (recognizing
charging documents are Shepard documents).

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for endangering others due to a high-speed chase pursuant to
grading factor (iii) of § 3733(a.2)(2). See 75 Pa. Cons. Stat.
§ 3733(a.2)(2)(iii). The Immigration Court, however, could
not divine the same clarity from the documents related to
Ndungu’s 2019 fleeing-or-eluding conviction, and therefore it
could not determine the precise grading factor of the felony
conviction.32 On administrative appeal, the BIA did not disturb
either of those findings.
With this Court’s jurisdiction circumscribed by the
criminal-alien bar, the agency’s factual findings control the
scope of the categorical matching analysis. The finding that
the 2014 conviction was pursuant to grading factor (iii) of
§ 3733(a.2)(2) means that for that conviction to qualify as a
CIMT, that crime must satisfy the two CIMT elements. But a
lack of precise records for Ndungu’s 2019 conviction means
that for felony offenses under § 3733, each of the three grading
factors must categorically match the two CIMT elements. And
because that 2019 conviction must qualify as a CIMT to sustain
removal under 8 U.S.C. § 1227(a)(2)(A)(ii),33 the agency’s
32 Although the criminal information for the 2019 conviction
identified the intersection at which the offense occurred, which
was approximately thirty miles from the nearest state line, the
Immigration Court did not consider that and did not exclude
subsection (a.2), which relates to fleeing or eluding across state
lines, as the offense of conviction. But this Court cannot revisit
the agency’s factual findings regarding the precise offense of
conviction because the criminal-alien bar imposes a
jurisdictional limitation that prevents a reviewing court from
reevaluating pure questions of fact decided by an agency, see
8 U.S.C. § 1252(a)(2)(C); Patel, 596 U.S. at 339; Nasrallah,
590 U.S. at 579.
33 Ndungu also argues that the BIA erred by citing the wrong
subsection – § 1227(a)(2)(A)(i), not § 1227(a)(2)(A)(ii) – as
the basis for removal. That was a scrivener’s error that in this
context was harmless because the BIA conducted a legal
analysis as if the basis for removal were § 1227(a)(2)(A)(ii).

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final order of removal can be upheld only if each of the three
grading factors categorically match the two CIMT elements. It
is unnecessary, however, to conduct the full categorical
analysis for each grading factor if any of them fails to qualify
as a CIMT. And here, grading factor (iii) is a potentially
efficient starting point for the analysis in part because both of
Ndungu’s § 3733 convictions require categorical matching
between that grading factor and the CIMT elements.
Much of the culpable conduct under grading factor (iii) of
§ 3733(a.2)(2) satisfies the first CIMT element, a reprehensible
act. As this Court has previously recognized, “all” of the
conduct criminalized under § 3733(a) involves “intentional
disobedience of a command from law enforcement while in a
vehicle.” Jones, 740 F.3d at 134; cf. Sykes v. United States,
564 U.S. 1, 9 (2011), overruled on other grounds by Johnson
v. United States, 576 U.S. 591 (2015) (“The attempt to elude
capture is a direct challenge to an officer’s authority. It is a
provocative and dangerous act . . . .”). And endangering a law
enforcement officer or a member of the public will typically
breach “the duties owed to other persons, either individually or
to society in general.” Larios, 978 F.3d at 69 (quotation
omitted); cf. Sykes, 564 U.S. at 10 (explaining that vehicle
flight “presents more certain risk [of violence] as a categorical
matter than burglary”).
But under the categorical approach, it does not matter that
most occasions of criminal conduct under a statute would
qualify as a CIMT – every instance must do so. See Taylor,
596 U.S. at 857–58; United States v. Brasby, 61 F.4th 127, 135
(3d Cir. 2023). And the conduct criminalized under grading
factor (iii) of § 3733 – “endanger[ing] a law enforcement
officer or member of the general public due to the driver
engaging in a high-speed chase,” 75 Pa. Cons. Stat.
See generally 5 U.S.C. § 706 (providing that for review of
agency action “due account shall be taken of the rule of
prejudicial error”).

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§ 3733(a.2)(2)(iii) – includes recklessly fleeing or attempting
to elude a law enforcement officer based on a good-faith belief
in the need for emergency medical care.34 Thus, a driver who
recklessly flees or attempts to elude law enforcement in an
attempt to transport himself or another person to a hospital
would still violate the statute. But it is not reprehensible to
prioritize a good-faith desire to obtain emergency medical
treatment over the duty to reduce the risk to others by not
refraining from a high-speed chase – even if such a chase
involves dangers beyond those ordinarily associated with high-
speed driving. See In re R.C.Y., 27 A.3d 227, 230 (Pa. Super.
Ct. 2011) (explaining that based on its legislative history, the
grading factor (iii) aggravating factor applies “only in cases
where the defendant’s actions created an extraordinary danger
to the public at large or to police officers”). And reprehensible
conduct is needed for an offense to be a CIMT. So, even
though there may be no realistic probability of prosecution for
fleeing or eluding under those circumstances, that act, although
still criminal but not reprehensible, prevents a conviction under
grading factor (iii) of § 3733(a.2)(2) from qualifying as a
CIMT under the categorical approach.
In sum, without revisiting any of the agency’s factual
findings, de novo review of the pure legal question of
34 A mental state of recklessness may apply to grading
factor (iii) by virtue of a Pennsylvania statute, referred to as a
‘gap-filling provision,’ which allows a material element to be
satisfied by an intentional, knowing, or reckless mental state
when a mental state is not otherwise specifically associated
with the actus reus. See 18 Pa. Cons. Stat. § 302(c); see
generally id. § 302(c) (“When the culpability sufficient to
establish a material element of an offense is not prescribed by
law, such element is established if a person acts intentionally,
knowingly or recklessly with respect thereto.”); Cabeda,
971 F.3d at 174 n.9 (explaining that Pennsylvania’s gap-filling
provision provides alternative means, not elements, for an
offense).

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categorical matching reveals that the agency erred as a matter
of law in ordering Ndungu’s removal. Because the fleeing-or-
eluding offense under grading factor (iii) is not a CIMT under
the categorical approach, neither of Ndungu’s felony fleeing-
or-eluding convictions qualifies as a predicate offense for
removal under 8 U.S.C § 1227(a)(2)(A)(ii).
III. CONCLUSION
For the foregoing reasons, we will grant the petition.

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