NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 21-1810 _____________ LOUIS ROSARIO-OVANDO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ________________ On Petition for Review of an Order of the Board of Immigration Appeals Agency No. BIA-1:A063-874-567 Immigration Judge: Lisa de Cardona ________________ Argued: March 31, 2022 ________________ Before: CHAGARES, Chief Judge, SHWARTZ, Circuit Judge, and PRATTER, District Judge. * (Filed: June 21, 2022) * Honorable Gene E.K. Pratter, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Christopher R. Healy [ARGUED] Troutman Pepper Hamilton Sanders Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Rosina C. Stambaugh 2930 Carol Road Suite A York, PA 17402 Counsel for Petitioner Merrick B. Garland Taryn L. Arbeiter Rebekah Nahas [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent ____________ OPINION ** ____________ PRATTER, District Judge. Petitioner Louis Rosario-Ovando faces removal from the United States because of his conviction under Pennsylvania’s felony fleeing or eluding statute within five years of his arrival in this country. Both the Immigration Judge and Board of Immigration Appeals ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 determined this conviction was for a “crime involving moral turpitude.” We disagree for the reasons outlined below. Therefore, we will grant the petition. I. BACKGROUND Mr. Rosario-Ovando is a native and citizen of the Dominican Republic. He was admitted to the United States as a lawful permanent resident on October 14, 2014. Mr. Rosario-Ovando was charged by information on January 14, 2019, with several offenses allegedly committed on November 25, 2018. After the District Attorney dismissed certain of the charges, Mr. Rosario-Ovando pled guilty to two of those offenses on May 23, 2019, five months shy of the fifth anniversary of his admittance. As relevant here, he pled guilty to the commission of the felony of fleeing or attempting to elude a police officer in violation of 75 Pa. Cons. Stat. § 3733(a.2)(2). In addition, in wholly unrelated matters, on September 24, 2019, Mr. Rosario-Ovando was convicted of two counts of retail theft in violation of 18 Pa. Cons. Stat. § 3929(a)(1). The Department of Homeland Security (DHS) initiated removal proceedings against Mr. Rosario-Ovando in October 2019 by serving a notice to appear in immigration court. At that time, DHS charged Mr. Rosario-Ovando with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct at any time after admission, i.e., the fleeing or eluding conviction and the retail theft convictions. The Immigration Judge initially sustained the charge of removability on this basis. Mr. Rosario-Ovando moved to terminate the removal proceedings on the ground that the two retail theft convictions were then on direct appeal and, thus, were not final for 3 immigration status purposes. DHS opposed …
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