LEAL
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,
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
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
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.
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, 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); 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). For the following reasons, we conclude 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. Therefore, recklessness arising from voluntary intoxication qualifies as a form of “scienter” within the meaning of Silva-Trevino.
Arizona is not unique in treating unawareness of risk resulting from voluntary intoxication as a form of recklessness. E.g.,
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, 518 U.S. 37, 50 (1996); see also Model Penal Code § 2.08, cmt. at 9 (Tent. Draft No. 9, 1959) (stating that “awareness of the potential consequences of excessive drinking on the capacity of human beings to gauge the risks incident to their conduct is by now so dispersed in our culture that it is not unfair to postulate a general equivalence between the risks created by the conduct of the drunken actor and the risks created by his conduct in becoming drunk“). It is thus evident that recklessness arising from voluntary intoxication denotes a substantially higher degree of culpability than mere criminal negligence. Cf. Matter of M-W-, 25 I&N Dec. 748, 756 (BIA 2012) (finding that voluntary intoxication does not negate the mens rea required to establish the aggravated felony of “murder“). Under the circumstances, we are satisfied that recklessness arising from voluntary intoxication is a culpable mental state that satisfies the corrupt scienter requirement of Silva-Trevino.
B. “Reprehensible Conduct”
Having determined that recklessness under Arizona law satisfies the “scienter” requirement of Silva-Trevino, we must now decide whether “recklessly endangering another person with a substantial risk of imminent
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, 674 F.3d 111, 118-19 (1st Cir. 2012) (holding that recklessly engaging in conduct that places or may place another in danger of serious bodily injury under New Hampshire law is a crime involving moral turpitude); Hernandez-Perez v. Holder, 569 F.3d 345, 348 (8th Cir. 2009) (holding that reckless child endangerment under Iowa law is a crime involving moral turpitude); Keungne v. U.S. Att‘y Gen., 561 F.3d 1281, 1286-87 (11th Cir. 2009) (per curiam) (holding that recklessly endangering the bodily safety of another under Georgia law is a crime involving moral turpitude); Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004) (holding that reckless endangerment under New York law is a crime involving moral turpitude).
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
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, 287 F.3d 876, 880 (9th Cir. 2002); Matter of Navajo County Juvenile Delinquency Action No. 89-J-099, 793 P.2d 146 (Ariz. Ct. App. 1990). But that argument overlooks the crucial fact that such conduct cannot be successfully prosecuted as “endangerment” unless: (1) the accused recklessly disregarded a substantial risk that the conduct would cause the imminent death of a victim; and (2) such conduct did, in fact, create a substantial risk of imminent death to an actual, identifiable person. See State v. Doss, 966 P.2d 1012, 1015 (Ariz. Ct. App. 1998). Section 13-1201(A) does not criminalize the creation of mere hypothetical dangers.
For instance, the conduct described in Matter of Navajo County Juvenile Delinquency Action No. 89-J-099, 793 P.2d at 147—throwing water balloons at passing cars—appears relatively innocuous until one considers the fact that the balloons were thrown at vehicles that were moving at high speeds on a public highway. Id. What is more, the balloons were thrown by a person who admittedly anticipated that his conduct would cause the passing vehicles to swerve as the drivers took “spontaneous evasive action” to avoid being hit. Id. Further, one such vehicle actually did swerve out of its traffic lane, thereby “plac[ing] in grave peril not only the occupants of the vehicle taking evasive
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.