BIA Broadens Mental State Analysis for Crimes Involving Moral Turpitude

By Alex Sheppard

In January, the Board of Immigration Appeals found the offense of “deadly conduct” in violation of section 22.05(a) of the Texas Penal Code to be categorically a crime involving moral turpitude. Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015). Under § 22.05(a), the BIA in Matter of Hernandez found a mens rea requirement of recklessness coupled with an actus reus of no actual physical harm to categorically constitute a CIMT. Id. at 467.

Hernandez is a native and citizen of Mexico who entered the United States at an unknown date and place. On June 11, 2002, he was convicted in Texas of deadly conduct and sentenced to 90 days in the county jail. Texas Penal Code § 22.05(a), the state’s deadly conduct offense, reads as follows:

(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

As a result of this conviction, DHS initiated removal proceedings. On April 23, 2013, an Immigration Judge found the conviction was for a CIMT under INA § 237(a)(2), concluded that that Hernandez was removable under INA § 212(a)(6)(A)(i), and denied Hernandez’s application for cancellation of removal for non-lawful permanent residents under INA § 240A(b)(1). On appeal, the BIA agreed with the Immigration Judge and accordingly affirmed.

To reach this conclusion, the BIA applied the first step of the Silva-Trevino analytical framework to determine that a conviction under the Texas deadly conduct offense statute is categorically a CIMT. Id. at 465. Under this first step, the BIA must determine if moral turpitude necessarily inheres in all offenses which have a “realistic probability” of being prosecuted under the statute of conviction. Matter of Silva-Trevino, 24 I&N Dec. 687, 696-97 (A.G. 2008) (for more on Matter of Silva-Trevino, see here and here). Put another way, the realistic probability analysis asks whether every version of the crime that a prosecutor would realistically prosecute necessarily involves moral turpitude. Though the “realistic probability” inquiry originally comes from a Supreme Court decision involving a possible aggravated felony, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), the Attorney General applied this requirement to CIMTs in Silva-Trevino and the BIA built on that decision here. In Matter of Hernandez, the BIA acknowledged that under Silva-Trevino, moral turpitude is inherent “to an offense that necessarily involves ‘reprehensible conduct’ committed with some form of ‘scienter,’ such as specific intent, knowledge, willfulness, or recklessness.” Matter of Hernandez, 26 I&N Dec. at 465 (quoting Matter of Silva-Trevino, 24 I&N Dec. at 689 n.1, 706 & n.5).

First, the BIA had to determine whether recklessness under the Texas statute of deadly conduct constitutes the requisite form of “scienter” as required by Silva-Trevino. The BIA has previously found recklessness to be “a culpable mental state if it entails a conscious disregard of a substantial and unjustifiable risk.”Matter of Hernandez, 26 I&N Dec. at 465, 466 (citing Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553-54 (BIA 2011); Matter of Franklin, 20 I&N Dec. 867, 869-71 (BIA 1994); Matter of Wojtkow, 18 I&N Dec. 111, 112-13 (BIA 1981); Matter of Medina, 15 I&N Dec. 611, 613−14 (BIA 1976)). For its part, the Texas Penal Code defines “reckless conduct” as being “aware of but consciously disregard[ing] a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Tex. Penal Code Ann. § 6.03(c). As such, the BIA found that “recklessness” under Texas law can, in certain circumstances, constitute the requisite mental culpability of a CIMT under Silva-Trevino.

Next, the BIA had to determine whether “conduct that places another in imminent danger of serious bodily injury” is sufficient to constitute “reprehensible conduct.” Framed this way, the moral turpitude inquiry focuses on the possibility of physical harm rather than actual infliction of physical harm. The BIA referenced previous cases in which it found statutes punishing reckless conduct to constitute “reprehensible conduct,” specifically: Matter of Franklin, 20 I&N Dec. at 870 (involuntary manslaughter); Matter of Wojtkow, 18 I&N Dec. at 113 (manslaughter in the second degree); and Matter of Medina, 15 I&N Dec. 611, 614 (use of a deadly weapon to commit aggravated assault). However, each of these cases resulted in actual physical harm, not threatened harm.

The BIA then compared the requirement of conduct under the statute at hand particularly to its decision in Matter of Leal, 26 I&N Dec. 20 (BIA 2012), aff’d, 771 F.3d 1140 (9th Cir. 2014). In Matter of Leal, the BIA applied the categorical approach under Silva-Trevino to section 13-1201(A) of the Arizona Revised Statutes, which punishes “recklessly endangering another person with a substantial risk of imminent death” (emphasis added). Determining that the Arizona statute constituted a CIMT under Silva-Trevino’s “reasonable probability” analysis, Matter of Leal reasoned that “actual infliction of…harm is not determinative of the moral turpitude question,” and that a “reckless mental state [need not] be accompanied by the death or serious bodily injury of a victim in order to qualify as a [CIMT].” 26 I&N Dec. at 25. Using the same reasoning in Matter of Hernandez, the BIA found the required conduct of “imminent danger of serious bodily injury” under the Texas statute of deadly conduct to constitute “reprehensible conduct” as required by Silva-Trevino. Matter of Hernandez, 26 I&N Dec. at 467.

Hernandez argued that as the level of mental culpability lowers from intentionality to recklessness, the resulting harm must accordingly increase in seriousness for the crime to involve moral turpitude, and thus his statute of conviction should not constitute a CIMT. In making this claim, Hernandez could rely on the BIA’s conclusion in earlier cases. In Matter of Solon, 24 I&N Dec. 239, 242 (BIA 2007), the BIA ruled that “as the level of conscious behavior decreases, i.e., from intentional to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude” (emphasis added). However, the BIA disagreed with this argument by emphasizing the seriousness of the possible harm prohibited by the Texas statute. Section 1.07(a)(46) of the Texas Penal Code defines “serious bodily injury” as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” As such, the BIA reasoned that while the statute is not limited to creating a risk of imminent death, as required by the Arizona statute in Leal, the potential harm at risk by the Texas statute is “sufficiently grave” to constitute “reprehensible conduct.” Matter of Hernandez, 26 I&N Dec. at 467.

The Hernandez decision alters the concept of Matter of Solon’s balancing test, in which it was previously believed that a mental state of recklessness must be coupled with – at the very minimum – a serious threat of imminent death to constitute a CIMT. Moreover, this decision comes directly in the face of the BIA’s decision of In re Fualaau. 21 I. & N. Dec. 475 (BIA 1996), in which the Board held that “[i]n order for an assault of the nature at issue in this case to be deemed a crime involving moral turpitude, the element of a reckless state of mind must be coupled with an offense involving the infliction of serious bodily injury.” Id. at 478. Matter of Hernandez signals a sharp turn in the BIA’s CIMT decisions. Following Matter of Hernandez, the BIA will find a crime coupling a reckless mental state with potential for serious bodily harm to be a CIMT.

Alex Sheppard is a second-year law student at the University of Denver Sturm College of Law and current intern for the Meyer Law Office, P.C., in Denver.