Criminal Defense of Immigrants

(A)  In General.  The BIA defines recklessness as acting with awareness and conscious disregard of a substantial and unjustifiable risk.  Because a reckless act is committed with conscious disregard of a risk, the BIA has found such reckless intent sufficient to sustain a finding that a noncitizen has been convicted of a crime of moral turpitude.[86]

An offense that is not a crime of moral turpitude when done intentionally, will not be a crime involving moral turpitude when done recklessly. 

                Eighth Circuit.  The Eighth Circuit, in holding that recklessly making harassing telephone calls (i.e., with reason to know that the calls could be taken as threats), involved an insufficient mens rea to be considered a crime of moral turpitude, suggested that a reckless intent is only sufficient when the offense involves some sort of “aggravating factor.”[87] 

                Ninth Circuit.  The Ninth Circuit has recently made clear that it considers a mens rea of recklessness insufficient to demonstrate “evil intent” necessary for an crime to involve moral turpitude.  In Fernandez-Ruiz v. Gonzales,[88] the court found that reckless assault, even upon a spouse, could never be considered a crime of moral turpitude.  The court reviewed all precedent decisions to find that the court has always required proof of willful intent before finding an offense involved moral turpitude.[89]  The court also noted decisions from other circuits that seemed in agreement.[90]  Looking to the BIA precedent decisions, the court disapproved of those decisions that found recklessness sufficient.[91]

[86] Matter of Franklin, 20 I. & N. Dec. 867, 871 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995), cert. den., 519 U.S. 834, 117 S.Ct. 105 (1996) (involuntary manslaughter conviction under Missouri Rev. Stat. § §  562.016(4) and 565.024(1) constitutes a crime involving moral turpitude, where Missouri law requires that the convicted person must have consciously disregarded a substantial and unjustifiable risk, and that such disregard constituted a gross deviation from the standard of care that a reasonable person would exercise in the situation), modifying Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975), Matter of Lopez, 13 I. & N. Dec. 725 (BIA 1971), Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965), and Matter of B, 4 I. & N. Dec. 493 (BIA 1951), and overruling Matter of Szegedi, 10 I. & N. Dec. 28 (BIA 1962)); accord, Matter of Medina, 15 I. & N. Dec. 611 (BIA 1976), aff’d sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977) (Illinois conviction of aggravated assault under Chapter 38, § 12-2(a)(1) of the Illinois Revised Statutes, held to be a CMT, concluding that moral turpitude can lie in criminally reckless conduct, where the actor must consciously disregard a substantial and unjustifiable risk, and such disregard must constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation); Matter of Wojtkow, 18 I. & N. Dec. 111 (BIA 1981) (conviction for second degree manslaughter under the New York Penal Law for recklessly causing the death of another, constituted a crime involving moral turpitude, since recklessness was defined as in Medina).

[87] Reyes-Morales v. Gonzales, 435 F.3d 937, 945 n.7 (8th Cir. Jan.31, 2006), citing Matter of Fualaau, 21 I. & N. Dec. 475, 478.

[88] Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) (Arizona conviction of class 2 misdemeanor domestic violence/assault, in violation of A.R.S. § § 13-1203(A), 13-3601, does not constitute a crime of moral turpitude, because offense can be committed by mere recklessness, i.e., conscious disregard of a substantial and unjustifiable risk, as defined by A.R.S. § 13-105(c)).

[89] Id. at 1166, citing Grageda v. INS, 12 F.3d 919 (9th Cir. 1993); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1993); Guerrero de Hodahl v. INS, 407 F.2d 1405, 1406 n.1 (9th Cir. 1969); Hirsch v. INS, 308 F.3d 562, 567 (9th Cir. 1962).

[90] Id., citing Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000); Chanmouny v. Ashcroft, 376 F.3d 810, 814-15 (8th Cir. 2004).

[91] Id. at 1165 n.6., citing Matter of Fualaau, 21 I. & N. Dec. 475, 478 (BIA 1996) (finding recklessness sufficient).