NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 21-3092 ________________ LUIS AMAURIS DIAZ ALMANZAR, Petitioner v. ATTORNEY GENERAL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 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. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 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 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 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 …
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