Ndungu v. Attorney General United States, No. 20-2562 (3d Cir. 2025)
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A Kenyan national, lawfully admitted to the United States, was convicted in 2014 and 2019 of felony vehicular fleeing or attempting to elude a pursuing police officer under Pennsylvania law. The Department of Homeland Security (DHS) charged him with removability based on these convictions, arguing they constituted crimes involving moral turpitude (CIMTs). The Immigration Court and the Board of Immigration Appeals (BIA) upheld the removal orders.
In 2017, DHS charged the petitioner with removability based on his 2014 fleeing-or-eluding conviction and 2016 simple assault convictions. The Immigration Judge found that simple assault did not constitute a CIMT and terminated the proceedings. However, the judge noted that the fleeing-or-eluding conviction could be a CIMT if combined with another CIMT. In 2019, after the petitioner’s second fleeing-or-eluding conviction, DHS again charged him with removability. The Immigration Judge rejected the petitioner’s res judicata defense and concluded that both fleeing-or-eluding convictions were CIMTs, sustaining the charge of removability. The BIA affirmed this decision.
The United States Court of Appeals for the Third Circuit reviewed the case. The court found that the BIA misapplied the categorical approach by relying on a realistic-probability analysis to determine that the fleeing-or-eluding convictions were CIMTs. The court held that the Pennsylvania statute under which the petitioner was convicted is divisible and that one of the felony subsections does not necessarily involve moral turpitude. Consequently, the court granted the petition for review, concluding that the petitioner’s convictions did not qualify as CIMTs under the categorical approach, and thus, he was not removable under 8 U.S.C. § 1227(a)(2)(A)(ii).
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