In Re Hernandez - New BIA precedent in 2015

Written by Alexander J. Segal on

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In its first precedent decision of 2015 — Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015), the Board of Immigration Appeals (BIA) ruled that the offense of deadly conduct as defined under the Texas law, constituted crime of moral turpitude (CIMT). The panel consisted of three judges — ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER, Board Member and HOFFMAN, Temporary Board Member was reviewing Mr. Hernandez's appeal of the Immigration Judge's decision dated April 23, 2013, in which the court found Mr. Hernandez, a Mexican national and undocumented alien in the USA, removable under 8 U.S.C. § 1182(a)(6)(A)(i); INA §212(a)(6)(A)(i) for having committed CIMT. Following this finding of removability, the judge denied respondent's application for cancellation of removal under section 8 U.S.C. § 1229b(b)(1); INA §240A(b)(1) and ordered Mr. Hernandez removed from the United States, accordingly.

On June 11, 2002, Mr. Hernandez was convicted of violating §22.05(a) of the Texas Penal Code and for having committed “deadly conduct”, for which he was sentenced to 90 days in the county jail. Mr. Hernandez disputed neither the conviction nor the finding that his offense was denominated a Class A misdemeanor punishable by confinement for a term not to exceed 1 year.

§22.05(a) of the Texas Penal Code criminalizes deadly conduct. It defines the offense of deadly conduct as one committed by a person when he “recklessly engages in conduct that places another in imminent danger of serious bodily injury.” In making his ruling, the IJ applied the analytical framework outlined in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). In doing so, he concluded that the respondent's conviction was categorically for a crime involving moral turpitude because moral turpitude was intrinsic to all offenses that have a “realistic probability” of being prosecuted under §22.05(a).

Under the framework, 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. BIA previously defined moral turpitude which definition was sustained by the precedents of the U.S. Court of Appeals for the Fifth Circuit, the Appellate court of jurisdiction relevant to Mr. Hernandez's case, to refer to conduct that “shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Nino v. Holder, 690 F.3d 691, 694 (5th Cir. 2012); Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996)); Matter of E. E. Hernandez, 26 I&N Dec. 397, 398 (BIA 2014); Matter of Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013).

In its 2011 precedent decision in Matter of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001), the Board concluded that “[a]lthough crimes involving moral turpitude often involve an evil intent, such a specific intent is not a prerequisite to finding that a crime involves moral turpitude.” Neither the seriousness of the offense nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude, reminded the Board about its holding in the Matter of Serna, 20 I&N Dec. 579, 581 (BIA 1992). The Board reiterated its historical approach that recklessness is a culpable mental state if it entails a conscious disregard of a substantial and unjustifiable risk posed by one's conduct — 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, 613−14 (BIA 1976).

Having acknowledged that in the jurisdiction of the United States Court of Appeals for the Fifth Circuit, Attorney General's decision in Matter of Silva-Trevino. Silva-Trevino v. Holder, 742 F.3d 197, 200−05 (5th Cir. 2014) was reversed in part so that additional evidence outside the record of conviction might not be considered to resolve the question whether a crime involved moral turpitude, BIA concluded that Mr. Hernandez's case came under the categorical approach outlined in the first step of Matter of Silva-Trevino so that neither the Immigration Judge nor the BIA relied on any documents outside of the record of conviction. Using categorical approach and relying on the Texas Penal Code's definition of the recklessness conduct, BIA still concluded that the recklessness as defined by the Texas Penal Code was “scienter” sufficient to meet the standard set forth in the Matter of Silva-Trevino.

Finally, the Board concluded that deadly conduct as defined in §22.05(a) of the Texas Penal Code was “reprehensible conduct” under the Matter of Silva-Trevino standard. In so deciding, the Board relied on its historical approach that “statutes punishing reckless conduct resulting in death involved moral turpitude” — Matter of Franklin, 20 I&N Dec. at 870 (holding that involuntary manslaughter under Missouri law is a crime involving moral turpitude); Matter of Wojtkow, 18 I&N Dec. at 113 (holding that manslaughter in the second degree under New York law is a crime involving moral turpitude); Matter of Medina, 15 I&N Dec. at 614.(reckless conduct involving the use of a deadly weapon to commit aggravated assault under Illinois law involved moral turpitude). The Board concluded that “recklessly placing another in “imminent danger of serious bodily harm” was “reprehensible conduct” enough to categorically constitute a crime involving moral turpitude.

Relying heavily on its decision in the Matter of Leal, 26 I&N Dec. 20 at 25−26 (BIA 2012), the Board explained that “a person who acts recklessly to place another in “imminent danger of serious bodily injury” exhibits the same base contempt for the well-being of others as an individual who places another in “substantial risk of imminent death.”

Finally, the Board agreed with the Judge that Mr. Hernandez was not eligible for cancelation of removal under the INA §240(A)(b)(1). Under this section the immigration judge as designee of the Attorney General has the authority to cancel the removal of an alien if he “has not been convicted of an offense under INA §§ 212(a)(2), 237(a)(2), or 237(a)(3). See, Matter of Cortez, 25 I&N Dec. 301, 308 (BIA 2010) (citing Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652−53 (9th Cir. 2004)). In determining which offenses are “described under” section 237(a)(2) for purposes of INA §240A(b)(1)(C), “only language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed, should be considered.” BIA concluded that even under such limited approach Texas's deadly conduct, a CIMT, for which a sentence of 1 year could have been imposed, was an offense “described under” INA §237(a)(2) for purposes of the INA §240A(b)(1)(C). BIA went even further and found that it was true even if “deadly conduct” could qualify for the petty offense exception under INA § 212(a)(2) and as such therefore rendered the respondent ineligible for cancelation of removal.