Reckless Conduct Due to Intoxication Can Constitute a Crime Involving Moral Turpitude

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Reckless Conduct Due to Intoxication Can Constitute a Crime Involving Moral Turpitude
Wendy Barlow's picture

Criminal convictions can be detrimental to non-citizens; some criminal offenses make a non-citizen ineligible for immigration benefits while others require an alien to file a waiver. A non-citizen who has been convicted of committing a crime involving moral turpitude (also commonly referred to as CIMT) is ineligible to receive a visa and barred from admission to the United States. See INA §212(a)(2)(A)(i)(I). What criminal conduct involves moral turpitude? Neither the Immigration and Nationality Act (INA) nor the Federal Regulations define the term “moral turpitude”. The Attorney General has held “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'. Matter of Leal, 26 I&N Dec. 20, 21 (BIA 2012) citing Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n.1 and 706 n.5 (A.G. 2008).

In the Matter of Leal, 26 I&N Dec. 20 (BIA 2012), the Board of Immigration Appeals (BIA) recently considered “whether recklessly endangering another person with a substantial risk of imminent death’ is a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act (INA) even though recklessness is defined to include unawareness of a risk created by the actor resulting from voluntary intoxication.” Id. at 20. The respondent in the Matter of Leal had been convicted under Arizona criminal law of “recklessly endangering another person with a substantial risk of imminent death.” Id. at 22 citing Ariz. Rev. Stat. Ann. §13-1201(A). To evaluate whether the respondent’s criminal conduct involved moral turpitude, the BIA used the categorical approach “in which the law defining the respondent’s offense of conviction is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a ‘realistic probability’ of being prosecuted thereunder.” Id. citing Matter of Silva-Trevino, 24 I&N at 689-90, 696-98. Under the categorical approach, the adjudicator begins by reviewing the criminal statute to determine if all the prohibited conduct involved moral turpitude.

The BIA first addressed whether the respondent’s conviction for endangerment had the requisite scienter. At the time the respondent was convicted, Arizona law defined “recklessly” to mean:

that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.

Id. citing Ariz. Rev. Stat. Ann. §13-105(9) (2006). The BIA found the first two sentences of Arizona’s definition of “recklessly” conform to “the familiar common law rule that recklessness means a conscious disregard of a substantial and unjustifiable risk, constituting a gross deviation from the standard of conduct a reasonable person would observe under the circumstances.” Id. at 22-23. However, Arizona’s definition of “recklessly” expanded “the concept of recklessness to also encompass a subjective ignorance of risk resulting from voluntary intoxication.” Id. at 23.

The respondent relied upon this deviation from the common law definition of “recklessly” to argue his conviction was not for a crime involving moral turpitude. The respondent argued “the voluntary intoxication component of Arizona’s recklessness standard does not satisfy the corrupt ‘scienter’ requirement in Matter of Silva-Trevino because it does not require a conscious disregard of a known risk.” Id. Effectively, the respondent argued the voluntary intoxication component included punishment for conduct that did not involve moral turpitude, because a person could not have consciously disregarded a substantial and unjustifiable risk if he or she was intoxicated. As such, moral turpitude was not part of all the offenses for which there was a realistic probability the respondent would be prosecuted under Arizona’s endangerment statute. Id. However, the BIA disagreed with the respondent’s assertion. Id.

The BIA relied on prior decisions which held “recklessness is a culpable mental state for moral turpitude purposes where it entails a conscious disregard of a substantial and unjustifiable risk posed by one’s conduct. Id. See Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553-554 (BIA 2011) aff’d 682 F.3d 513 (6th Cir. 2012); Matter of Franklin, 20 I&N Dec. 867, 869-71 (BIA 1994) aff’d 72 F.3d 571 (8th Cir. 1995); Matter of Wojtkow, 18 I&N Dec. 111, 112-13 (BIA 1981); and Matter of Medina, 15 I&N Dec. 611, 613 (BIA 1976) aff’d sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977). In the Matter of Leal, the Board specifically “concluded that an actor who fails to perceive a manifest risk of harm solely because of voluntary intoxication is no less culpable than an actor who consciously disregards a known risk.” Id. The BIA stated “treating voluntary intoxication as morally equivalent to recklessness embodies the sound principle that effectively choosing to become unaware of an obvious and unreasonable risk by deliberately impairing one’s own mind is a culpable act, akin to a conscious disregard of consequences.” Id. at 24. As such “recklessness arising from voluntary intoxication qualifies as a form of ‘scienter’ within the meaning of Silva-Trevino.” Id. at 23.

The BIA next addressed “whether ‘recklessly endangering another person with a substantial risk of imminent death’ satisfies the ‘reprehensible conduct’ requirement.” Id. at 24-25. In the Matter of Ruiz-Lopez, the BIA concluded a crime involved moral turpitude if it was “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Ruiz-Lopez, 25 I&N Dec. at 553. The BIA was “convinced that recklessly exposing another person to a ‘substantial risk of imminent death’ is morally turpitudinous because it is a base act that transgresses the socially accepted rules of morality and breaches the individual’s ethical duty to society.” Matter of Leal, 26 I&N at 25. As the BIA aptly noted, “one of the most fundamental (and least onerous) duties a man owes to his community and his fellow man is that he will take reasonable care to avoid causing the death of others.” Id. A person “who breaches that duty by consciously disregarding a known risk of harm or by deliberately impairing his own capacity for conscious judgment has [ ] exhibited a base contempt for the well-being of the community, which is the essence of moral turpitude.” Id. This is true regardless of whether a person was killed or suffered serious bodily injury as a result of the reckless conduct. Id.

When a non-citizen is arrested, it is important to not only consult an experienced criminal attorney, but also an experienced immigration attorney especially before accepting a plea bargain. A criminal defense attorney’s goal in criminal proceedings is often to minimize the punishment. However, in the immigration context, a criminal conviction can have detrimental results including, but not limited, the denial of future immigration benefits, initiation of removal proceedings, limits relief available in removal proceedings, etc. An experienced immigration attorney will fight on your behalf to minimize the immigration consequences of a criminal conviction.

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