26 I. & N. Dec. 464
BIA2015Background
- Respondent, a Mexican national, was convicted in Texas (June 11, 2002) of deadly conduct under Tex. Penal Code § 22.05(a) (Class A misdemeanor) and sentenced to 90 days’ jail.
- § 22.05(a) criminalizes recklessly engaging in conduct that places another in imminent danger of serious bodily injury; Texas defines recklessness as conscious disregard of a substantial and unjustifiable risk.
- Immigration Judge found the conviction a crime involving moral turpitude (CIMT) and denied respondent’s application for cancellation of removal under INA § 240A(b)(1).
- Respondent appealed, arguing that reckless conduct under § 22.05(a) is not a CIMT because recklessness requires more severe harm to qualify.
- The Board applied a categorical analysis (Silva‑Trevino step one approach limited to the statute) and examined whether the mental state (recklessness) and the nature of the harm (imminent danger of serious bodily injury) render the offense morally reprehensible.
- Board concluded the offense is categorically a CIMT, and because a one‑year sentence could have been imposed, the conviction is an offense “described under” INA § 237(a)(2) and bars cancellation of removal; appeal dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas deadly conduct (§22.05(a)) is a crime involving moral turpitude (CIMT) | Respondent: Reckless mental state with lesser culpability requires more serious harm; §22.05(a) does not necessarily involve sufficiently reprehensible conduct | Government/Board: Recklessness (conscious disregard) is adequate scienter; exposing another to imminent danger of serious bodily injury is morally reprehensible | Held: Yes — the statute is categorically a CIMT |
| Whether recklessness under Texas law meets the scienter requirement for CIMT analysis | Respondent: Recklessness is too low a mental state to constitute moral turpitude in many cases | Board: Texas definition (aware but consciously disregards substantial/unjustifiable risk) qualifies as culpable scienter for CIMT | Held: Recklessness as defined by Texas law satisfies scienter for CIMT |
| Whether actual serious injury/death is required to find moral turpitude | Respondent: Actual harm must be significant to support CIMT for reckless offenses | Board: Actual infliction is not determinative; risk of imminent serious bodily injury suffices | Held: No — placing another at imminent risk of serious bodily injury is sufficient |
| Whether the conviction bars cancellation of removal under INA §240A(b)(1) | Respondent: May qualify for petty-offense exception or not be “described under” §237(a)(2) | Board: Because a one‑year sentence could have been imposed and the offense is a CIMT, it is “described under” §237(a)(2) | Held: Conviction bars cancellation of removal; appeal dismissed |
Key Cases Cited
- Nino v. Holder, 690 F.3d 691 (5th Cir. 2012) (definition of moral turpitude and its contours)
- Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) (moral turpitude concept discussed)
- Silva‑Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014) (limits on using evidence outside the record of conviction in CIMT analysis)
- Idy v. Holder, 674 F.3d 111 (1st Cir. 2012) (reckless conduct placing another at risk of serious bodily injury is a CIMT)
- Keungne v. U.S. Att’y Gen., 561 F.3d 1281 (11th Cir. 2009) (recklessly endangering another’s bodily safety constitutes a CIMT)
- Gonzalez‑Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004) (interpretation of “described under” language in INA cancellation provisions)