Khawar Saleem, a Pakistani citizen and lawful permanent resident, was arrested in New Jersey following an incident on a Greyhound bus where he engaged in sexual contact with a sleeping female passenger. He was convicted of third-degree aggravated criminal sexual contact under New Jersey law, which criminalizes sexual contact with a victim who is physically helpless. After fleeing to Pakistan and later surrendering, Saleem faced removal proceedings. The immigration judge and the Board of Immigration Appeals (BIA) found him removable based on his conviction as a crime involving moral turpitude. Saleem sought asylum, withholding of removal, and relief under the Convention Against Torture, claiming he would be persecuted in Pakistan by the Tehrik-i-Taliban Pakistan (TTP) due to his religious beliefs and his family's property dispute. The BIA denied these claims, and Saleem petitioned the Third Circuit for review.
The court addressed two primary issues. First, regarding the crime involving moral turpitude (CIMT), the court applied the categorical approach, which requires looking only at the statutory elements of the conviction, not the specific facts of the petitioner's conduct. The court identified that Saleem was convicted under a subsection of New Jersey law criminalizing sexual contact with a person known to be physically helpless. The court noted that Saleem's challenge was deficient because he failed to argue the 'reprehensible' conduct element (actus reus) before the agency, forfeiting that claim. Furthermore, his argument regarding the mental state (mens rea) relied on the specific facts of his case, such as his sleep and language barriers, which the court rejected as irrelevant under the categorical approach. Second, regarding his relief claims, the court found that many of Saleem's arguments were unexhausted because he did not present them to the BIA. For the issues that were exhausted, the court found they involved factual determinations barred by the criminal alien bar, or were without merit. Specifically, the court held that the harm Saleem suffered in Pakistan, while condemnable, did not meet the legal threshold for persecution required for asylum or withholding of removal.
Saleem's petition for review is dismissed in part and denied in part, leaving the final order of removal against him in place. The decision reinforces the strict application of the categorical approach in immigration cases, preventing petitioners from arguing based on their specific conduct rather than the statutory elements of their conviction. It also highlights the critical importance of exhausting all legal arguments before the BIA to preserve them for appellate review.
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