(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).

BIA

CRIME OF MORAL TURPITUDE " RECKLESS ENDANGERMENT
Matter of Leal, 26 I. & N. Dec. 20 (BIA 2012) (Arizona conviction for violation of ARS 13-1201(a), recklessly endangering another person with a substantial risk of imminent death, is a CMT for immigration purposes, even though Arizonas definition of recklessness includes ignorance of risk resulting from voluntary intoxication).

CRIMES OF MORAL TURPITUDE " ESCAPE " HIGH SPEED FLIGHT FROM POLICE
Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011) (Washington conviction of driving a vehicle in a manner indicating a wanton or willful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, in violation of RCW 46.61.024, is a crime involving moral turpitude, because reckless disregard is a sufficiently evil mental state).

First Circuit

CRIMES OF MORAL TURPITUDE"MENTAL STATE"RECKLESSNESS
Idy v. Holder, 674 F.3d 111 (1st Cir. Mar. 23, 2012) (New Hampshire conviction of reckless conduct, in violation of N.H.Rev.Stat. Ann. 631:3 [recklessly engages in conduct which places or may place another in danger of serious bodily injury where the defendant is aware of and consciously disregards a substantial and unjustifiable risk] is a CMT).

CRIMES OF MORAL TURPITUDE"MENTAL STATE"RECKLESSNESS
Idy v. Holder, 674 F.3d 111 (1st Cir. Mar. 23, 2012) (New Hampshire conviction of reckless conduct, in violation of N.H.Rev.Stat. Ann. 631:3 [recklessly engages in conduct which places or may place another in danger of serious bodily injury where the defendant is aware of and consciously disregards a substantial and unjustifiable risk] is a CMT).

Second Circuit

CRIME OF MORAL TURPITUDE - ASSAULT - SECOND DEGREE Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb. 29, 2008) (New York conviction of second degree assault, under New York Penal Law 120.05, is a divisible statute; a conviction of violating NYPL 120.05(4) is not a crime of moral turpitude), following Gill v. INS, 420 F.3d 82, 90-91 (2d Cir. 2005) (holding that N.Y.P.L. 120.05(4) is not a crime of moral turpitude because it requires only that the defendant acted with attempted recklessness instead of specific intent).

Sixth Circuit

CRIMES OF MORAL TURPITUDE " FELONY FLIGHT FROM OFFICER
Ruiz-Lopez v. Holder, 682 F.3d 513, *520 (6th Cir. Jun. 19, 2012) (Washington conviction of felony flight from an officer, in violation of Washington Revised Code 46.61.024, categorically rose to the level of a crime of moral turpitude, since willful or wanton disregard for the lives or property of others is an essential element of the offense: The element of wanton or willful disregard clearly fulfills the requisite scienter component, and cases such as Mei and Pulido-Alatorre show that intentionally fleeing from a police vehicle qualifies as the type of socially condemned, reprehensible conduct that is reasonably encompassed by the BIA's general definition of a CIMT.).

CRIMES OF MORAL TURPITUDE " RECKLESSNESS
Ruiz-Lopez v. Holder, 682 F.3d 513, *518 (6th Cir. Jun. 19, 2012) (Washington conviction of felony flight from an officer, in violation of Washington Revised Code 46.61.024, may or may not categorically rise to the level of a crime of moral turpitude: We express no opinion regarding whether flight accompanied by only a reckless mens rea also categorically meets the BIA's definition of a CIMT [applicable to convictions after the most recent amendment in 2003 lowered the mens rea to recklessness for the third element of this offense].).

Eighth Circuit

CRIMES OF MORAL TUPRITUDE " RECKLESS DISREGARD
Avendano v. Holder, 770 F.3d 731 (8th Cir. Oct. 27, 2014) (Minnesota conviction of making terroristic threats, in violation of Minn.Stat. 609.713(1) [threatening to commit a crime of violence in reckless disregard of the risk of causing terror in his girlfriend], is categorically a crime of moral turpitude, where, as here, Recklessness requires deliberate action in disregard of a known, substantial risk.); citing Matter of Louissaint, 24 I. & N. Dec. 754, 756-757 (BIA 2009) (According to the Attorney General, a crime involving moral turpitude involves reprehensible conduct committed with some degree of scienter, either specific intent, deliberateness, willfulness, or recklessness. citing Matter of Silva"Trevino, 24 I. & N. Dec. at 706 & n. 5).

CRIME OF MORAL TURPITUDE - ASSAULT - RECKLESS
Godinez-Arroyo v. Mukasey, 540 F.3d 848, 2008 WL 3927229 (8th Cir. Aug. 28, 2008) (Missouri conviction for second degree assault, recklessly causing serious physical injury, in violation of V.A.M.S. 565.060(3), is a crime of moral turpitude; Missouri law defines recklessness as a "conscious disregard of a substantial and unjustifiable risk").

Ninth Circuit

CRIMES OF MORAL TURPITUDE " RECKLESS ENDANGERMENT
Leal v. Holder, 771 F.3d 1140 (9th Cir. Nov. 6, 2014) (Arizona conviction of felony endangerment under Arizona Revised Statute 13"1201 [recklessly endangering another person with a substantial risk of imminent death or physical injury where reckless means consciously disregard a substantial and unjustifiable risk] constituted a crime of moral turpitude: We agree with the BIA's determination that the creation of a substantial, actual risk of imminent death is sufficiently reprehensible, or in terms of our case law base, vile, and depraved, to establish a CIMT, even though no actual harm need occur.).

Eleventh Circuit

CRIMES OF MORAL TURPITUDE - ENDANGERMENT - RECKLESS CONDUCT
Keungne v. United States Atty Gen., 561 F.3d 128 (11th Cir. Mar. 11, 2009) (Georgia conviction for "reckless conduct," in violation of Ga. Code Ann. 16-5-60(b) ["endanger bodily safety of another by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm"] is categorically a crime of moral turpitude), relying upon Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004).

Note: the court did not address the issue that the offense can be committed through an omission.

CRIMES OF MORAL TURPITUDE - CRIMINAL RECKLESS CONDUCT
Keungne v. U.S. Attorney General, ___ F.3d ___ (11th Cir. Mar. 10, 2009) (Georgia conviction of criminal reckless conduct, under Ga. Code Ann. 16-5-60(b) ["causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation"], constitutes a crime of moral turpitude for purposes of establishing deportability, pursuant to INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), for one conviction of a CMT within five years of admission, because the minimum conduct for which conviction can be had requires conscious disregard of a substantial risk of serious harm or death to another).
NOTE: This is a bad decision, since it did not consider that not all reckless conduct necessarily involves moral turpitude.

Other

AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESSNESS " ATTEMPTED RECKLESSNESS
New York permits defendants to plead guilty to legally impossible crimes, including attempted reckless first-degree assault. See People v. Guishard, 15 A.D.3d 731, 789 N.Y.S.2d 332, 333 (2005) (affirming plea conviction to attempted assault in the first degree although the crime was a legal impossibility); Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010). Compare, United States v. Gomez"Hernandez, 680 F.3d 1171, 1175"78 & n. 4 (9th Cir. 2012) (defendant's conviction for attempted aggravated assault qualified as a crime of violence because, under Arizona law, it is not possible to be convicted of attempt without specific intent).