Case Information
Matter of Edgar LEAL, Respondent Decided September 21, 2012 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals The offense of “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude under the definition in Matter of Silva-Trevino , 24 I&N Dec. 687 (A.G. 2008), even though Arizona law defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.
FOR RESPONDENT: Nicomedes E. Suriel, Esquire, Phoenix, Arizona FOR THE DEPARTMENT OF HOMELAND SECURITY: Brent Landis, Senior Attorney BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated June 22, 2010, an Immigration Judge denied the respondent’s application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2006), and ordered him removed from the United States. The respondent has appealed from that decision. The issue in this case is whether “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), even though recklessness is defined to include unawareness of a risk created by the actor resulting from voluntary intoxication. We conclude that it is and will dismiss the respondent’s appeal.
I. FACTUAL AND PROCEDURAL HISTORY The respondent is a native and citizen of Mexico who entered the United States on January 1, 1990, without being admitted or paroled. In 2007 he was convicted of endangerment in violation of section 13-1201(A) of the Arizona Revised Statutes.
The Department of Homeland Security (“DHS”) initiated removal proceedings by filing a notice to appear in Immigration Court charging the respondent with removability as an alien who is present in the United States without having been admitted or paroled under section 212(a)(6)(A)(i) of the Act. The respondent conceded removability as charged and requested an opportunity to apply for cancellation of removal. The Immigration Judge denied the respondent’s application on grounds of statutory ineligibility, finding that his conviction for endangerment under Arizona law precluded him from proving that he “has not been convicted of an offense under section 212(a)(2),” as required by section 240A(b)(1)(C) of the Act. To be precise, the Immigration Judge found that the respondent’s endangerment offense was a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act.
On appeal, the respondent does not dispute the existence of his conviction for endangerment under section 13-1201(A) of the Arizona Revised Statutes. Instead, he argues that the offense is not a crime involving moral turpitude under applicable precedents of this Board and the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction these proceedings arise. The respondent maintains that endangerment under Arizona law is not a crime involving moral turpitude because it carries a mens rea of mere recklessness (as opposed to specific intent, knowledge, or willfulness) and does not require that a victim actually be killed or seriously injured.
II. ANALYSIS
To determine whether the respondent’s endangerment conviction was for a crime involving moral turpitude, we employ the analytical framework set forth in Matter of Silva-Trevino , 24 I&N Dec. 687 (A.G. 2008). Under the first step of that framework, we conduct a “categorical” inquiry 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 . at 689-90, 696-98. According to the Attorney General, 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 at 689 n.1, 706 n.5. [1]
The respondent was convicted of “endangerment” in violation of section 13-1201(A) of the Arizona Revised Statutes, which at all relevant times has provided as follows:
A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury.
B. Endangerment involving a substantial risk of imminent death is a class 6 felony. In all other cases, it is a class 1 misdemeanor.
The respondent does not dispute that his offense of conviction was denominated a class 6 felony. [2] Thus, it follows that he was convicted of “[e]ndangerment involving a substantial risk of imminent death,” rather than endangerment involving a substantial risk of lesser “physical injury.”
A. Scienter
As the foregoing statutory language makes clear, an actor may be convicted of endangerment in Arizona only if the prosecution establishes that he acted “recklessly.” In 2006, when the respondent committed his offense, Arizona defined the term “recklessly” as follows:
“Recklessly” means, with respect to a result or to a circumstance described by a statute defining an offense, 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.
Ariz. Rev. Stat. Ann. § 13-105(9) (2006). The first two sentences of this definition adhere to the familiar common law rule that recklessness means a conscious disregard of a substantial and unjustifiable risk, constituting a gross (...continued)
see also Matter of Guevara Alfaro , 25 I&N Dec. 417, 423 (BIA 2011). In any event, we do not apply here the most controversial facet of , namely, permitting recourse in some circumstances to evidence that is not in the record of conviction, and we would reach the same conclusion irrespective of that decision.
[2] In 2006, when the respondent committed his offense, the maximum sentence for a
class 6 felony in Arizona was imprisonment for 1.5 years. Ariz. Rev. Stat. § 13-702(A)
(2006). Because the “maximum penalty possible” exceeded imprisonment for 1 year, the
“petty offense” exception is inapplicable. Section 212(a)(2)(A)(ii)(II) of the Act;
see also
Matter of Ruiz-Lopez
, 25 I&N Dec. 551, 557 (BIA 2011),
aff’d
,
deviation from the standard of conduct a reasonable person would observe under the circumstances. In the third sentence, however, Arizona has extended the concept of recklessness to also encompass a subjective ignorance of risk resulting from voluntary intoxication. [3]
According to the respondent, 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. Accordingly, the respondent maintains that moral turpitude does not inhere in all offenses that have a realistic probability of being prosecuted under Arizona’s endangerment statute. We do not agree.
In a series of cases, we have held that 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.
See Matter of
Ruiz-Lopez
, 25 I&N Dec. 551, 553-54 (BIA 2011),
aff’d
,
Arizona is not unique in treating unawareness of risk resulting from voluntary intoxication as a form of recklessness. E.g. , Ala. Code § 13A-3-2(b) (2012); Alaska Stat. § 11.81.900(a)(3) (2012); Conn. Gen. Stat. § 53a-7 (2012); Me. Rev. Stat. Ann. tit. 17-A, § 37(2) (West 2012); N.H. Rev. Stat. Ann. § 626:2(II)(c) (2012); N.J. Stat. Ann. § 2C:2-8(b) (West 2012); N.Y. Penal Law § 15.05(3) (McKinney 2012); N.D. Cent. Code § 12.1-04-02(2) (2012); Or. Rev. Stat. Ann. § 161.125(2) (West 2012); Tenn. Code Ann. § 39-11-503(b) (West 2010); Wis. Stat. Ann. § 939.24(3) (West 2011). Further, many jurisdictions that have not specifically defined recklessness to encompass voluntary intoxication have accomplished the same practical result by prohibiting defendants from invoking voluntary intoxication as a defense to a recklessness charge. E.g. , Del. Code Ann. tit. 11, § 421 (West 2012); Fla. Stat. Ann. § 775.051 (West 2012); Ga. Code Ann. § 16-3-4(c) (West 2012); Iowa Code Ann. § 701.5 (West 2012); Mo. Ann. Stat. § 562.076 (West 2012); Ohio Rev. Code Ann. § 2901.21(C) (West 2011); 18 Pa. Const. Stat. Ann. § 308 (West 2012); Tex. Penal Code Ann. § 8.04(a) (West 2011); Utah Code Ann. § 76-2-306 (West 2012). Indeed, as one leading treatise has observed, “the majority of cases in America support the creation of a special rule relating to intoxication, so that, if the only reason why the defendant does not realize the riskiness of his conduct is that he is too intoxicated to realize it, he is guilty of the recklessness which the crime requires.” 2 Wayne R. LaFave, Substantive Criminal Law § 9.5(c) (2d ed. Westlaw 2011). This majority view is also embodied in the Model Penal Code, which states that “[w]hen recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.” Model Penal Code § 2.08(2) (Westlaw through 2011).
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. By defining
recklessness to encompass acts resulting from voluntary intoxication, Arizona
thus “comports with and implements society’s moral perception that one who
has voluntarily impaired his own faculties should be responsible for the
consequences.”
Montana v. Egelhoff
,
B. “Reprehensible Conduct”
Having determined that recklessness under Arizona law satisfies the “scienter” requirement of , we must now decide whether “recklessly endangering another person with a substantial risk of imminent death” satisfies the “reprehensible conduct” requirement in the Attorney General’s decision. We conclude that it does.
In general, a crime involves moral turpitude if it is “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. Upon de novo review, we are 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.
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. One who breaches that duty by consciously
disregarding a known risk of harm or by deliberately impairing his own
capacity for conscious judgment has, in our view, exhibited a base contempt
for the well-being of the community, which is the essence of moral turpitude.
This view finds ample support in the precedents of the Federal courts of
appeals.
See Idy v. Holder
,
In arguing that the “risk of imminent death” clause of section 13-1201(A)
does not define a categorical crime involving moral turpitude, the respondent
correctly observes that the statute does not require that the victim actually be
killed or injured as a result of the offender’s conduct. However, the actual
infliction of such harm is not determinative of the moral turpitude question.
It is
not
our position that an offense with a reckless mental state must be
accompanied by the death or serious bodily injury of a victim in order to
qualify as a crime involving moral turpitude.
See Matter of Ruiz-Lopez
,
25 I&N Dec. at 554-56 (holding that moral turpitude inhered in the
Washington offense 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, even though the statute required no actual harm to
a victim);
see also Matter of Medina
, 15 I&N Dec. at 614 (holding that
reckless assault with a deadly weapon under Illinois law was a crime involving
moral turpitude, without requiring proof that the deadly weapon was actually
used against a victim).
[4]
Certainly, if death or serious bodily injury
had
resulted from the respondent’s conduct, we would have little difficulty in
finding that it involved moral turpitude; but the respondent’s good fortune in
not killing or injuring anyone does not mitigate the moral baseness of his
offense.
See Knapik v. Ashcroft
,
The respondent also argues that section 13-1201(A) encompasses
conduct that is not reprehensible, such as discharging firearms in public,
obstructing public highways, abandoning life-threatening containers attractive
to children, or throwing water balloons at passing cars.
See United States
v. Hernandez-Castellanos
,
For instance, the conduct described in
Matter of Navajo County Juvenile
Delinquency Action No. 89-J-099
,
III. CONCLUSION
In conclusion, we find that “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is a categorical crime involving moral turpitude because it necessarily involves reprehensible conduct committed with a corrupt scienter. There is no realistic probability that an Arizona defendant could be convicted of “recklessly endangering another person with a substantial risk of imminent death” without engaging in conduct that involves moral turpitude. As an alien convicted of a crime involving moral turpitude, the respondent is ineligible for cancellation of removal pursuant to section 240A(b)(1)(C) of the Act. Therefore the Immigration Judge properly denied his application for that relief. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
Notes
[1] The respondent contends that
Matter of Silva-Trevino
was wrongly decided and that it
would have an impermissibly retroactive effect if applied to his conviction, which resulted
from a plea agreement entered into before the Attorney General rendered his decision. We
recognize that courts of appeals are divided as to whether to accept all aspects of the
methodology in that decision.
See Bobadilla v. Holder
,
[3] In a request for supplemental briefing, we asked the parties to address whether “an Arizona offense with a mens rea of ‘recklessness’ satisf[ies] ’s corrupt ‘scienter’ requirement, given that Arizona defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.”
[4] In Matter of Fualaau , 21 I&N Dec. 475, 478 (BIA 1996), we concluded that a simple reckless assault under Hawaii law was not morally turpitudinous, despite the infliction of some “bodily harm” upon a victim, where the statute contained no aggravating dimension that seriously elevated the culpability of the offense. Although we indicated there that the infliction of serious bodily injury upon a victim was necessary to make a reckless simple assault crime a crime involving moral turpitude, see id. , we did not indicate that the infliction of such an injury was a general requirement in all cases involving recklessness. See Matter of Ruiz-Lopez , 25 I&N Dec. at 554 (acknowledging the serious bodily injury requirement applicable to reckless assault offenses, but declining to extend that requirement beyond the simple assault context). Nothing in Fualaau contradicts our present determination that recklessly exposing another person to a substantial risk of imminent death is a morally turpitudinous offense