By Sarah Bronstein
On January 8, 2015, the Board of Immigration Appeals issued a decision in Matter of O.A. Hernandez, 26 I&N Dec. 464 (BIA 2015), finding that the offense of “deadly conduct” under the Texas Penal Code is a crime involving moral turpitude (CIMT). The analysis of CIMTs is an area of the law that has evolved significantly in the last few years. This decision gives us one more indication of how the Board of Immigration Appeals is viewing CIMTs.
The Respondent in this case had been convicted of the offense of deadly conduct under Texas Penal Code section 22.05(a). He was placed in removal proceedings and charged with a ground of inadmissibility under INA § 212(a)(6)(A)(i) for being present without permission or parole. He was not charged with a crime-based ground of inadmissibility but he sought cancellation of removal for non-lawful permanent residents under INA § 240A(b)(1). The Respondent’s application for relief from removal raised the question of whether he was barred from eligibility due to a conviction for a crime involving moral turpitude.
Section 22.05(a) of the Texas penal code punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury.” In analyzing this offense, the Immigration Judge followed the decision by the Attorney General in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). Matter of O.A. Hernandez, 26 I&N Dec. 464 (BIA 2015). In doing so, however, the Immigration Judge did not get past step one in Silva-Trevino analysis which is to apply the categorical approach to determine whether moral turpitude is intrinsic to all offenses that have a realistic probability of being prosecuted under that statute. Id. at 465 citing Silva-Trevino at 689-90, 696-98. The Immigration Judge concluded that the offense of deadly conduct was categorically a CIMT.
The BIA noted that after the Immigration Judge’s decision in this case, the United States Court of Appeals for the Fifth Circuit reversed, in part, the Attorney General’s decision in Silva-Trevino. Id. at 465 FN2. The Fifth Circuit ruled that evidence outside the record of conviction cannot be used to determine whether an offense is a CIMT. Id. citing Silva-Trevino v. Holder, 742 F.3d 197, 200-05 (5th Cir. 2014). The BIA stated that neither it nor the Immigration Judge relied on evidence outside the record of conviction to reach its conclusion, however, and did not proceed beyond the categorical approach in analyzing the offense at issue in this case.
In analyzing this offense, the BIA stated that “moral turpitude is intrinsic to an offense that necessarily involves ‘reprehensible conduct’ committed with some form of ‘scienter,’ such as specific intent, knowledge, willfulness or recklessness.” Id. citing Silva-Trevino at 689 n. 1, 706 &n. 5. In order for an offense that requires only recklessness to be a CIMT, the required state of mind must entail a conscious disregard of a substantial and unjustifiable risk posed by one’s conduct. Id. at 466 citing Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553-54 (BIA 2011). In order to make this determination, the BIA looked to the definition of recklessness under the Texas Penal Code which provides that a person engages in reckless conduct if he or she is “aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Id. citing section 6.03(c) of the Texas Penal Code. The BIA concluded that the definition of recklessness under the Texas Penal Code matches the state of mind required for an offense of recklessness to be a CIMT under its case law.
The BIA next looked at whether the conduct punished in this statute constitutes “reprehensible conduct” as is required under Silva-Trevino. The respondent argued that because the mental state required under the Texas statute is mere recklessness, the resulting harm must be more serious in order to find this offense to be a CIMT. Id. In Matter of Leal, 26 I&N Dec. 20 (BIA 2012), aff’d, 771 F.3d 1140 (9th Cir. 2014), the BIA reviewed an Arizona statute which involves “recklessly endangering another person with a substantial risk of imminent death” and determined that this offense is a CIMT. Turning to the Texas statute, which is not limited to conduct which creates a risk of imminent death, the BIA found that “a person who acts recklessly to place another in ‘imminent danger of serious bodily injury’ exhibits the same base contempt for the well-being of others as an individual who places another in ‘substantial risk of imminent death.’” Id. at 467 citing Matter of Leal, 26 I&N Dec. at 25 – 26.
After reviewing both the mental state and the type of harm required under the Texas statute, the BIA concluded that the offense of deadly conduct under the Texas Penal Code is categorically a CIMT.