Introduction: Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017)

On October 16, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017) [PDF version]. In the decision, the Board concluded that criminally negligent homicide in violation of section 125.10 of the New York Penal Law is not categorically a crime involving moral turpitude. The Board reasoned that the statute does not require as an element a sufficiently culpable mental state for it to categorically define a crime involving moral turpitude.

In this article, we will examine the facts and procedural history of Matter of Tavdidishvili, the Board’s analysis and conclusions, and what the decision will mean going forward. Please see the relevant section of our index on articles about BIA decisions to read about other Board precedent on the issue of crimes involving moral turpitude [see section].

Facts and Procedural History: 27 I&N Dec. at 142-43

The respondent, a native and citizen of Israel, was admitted to the United States as a lawful permanent resident in 1987.

On June 30, 1992, the respondent was convicted of criminally negligent homicide in violation of section 125.10 of the New York Penal Law. Then, on February 11, 2017, the respondent was convicted of promoting prostitution under section 230.20 of the New York Penal Law (misdemeanor provision).

The Department of Homeland Security charged the respondent as removable based on his convictions. First, the respondent was charged as removable under section 237(a)(2)(A)(i) of the INA as an alien convicted of a crime involving moral turpitude within five years after the date of his admission. This first charge relied solely upon the respondent’s conviction for criminally negligent homicide in 1992. The DHS also charged the respondent as removable under section 237(a)(2)(A)(ii) as an alien who was convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct at any time subsequent to his admission.

The Immigration Judge determined that the respondent was removable on both charges. The respondent appealed to the BIA, arguing that his 1992 conviction for criminally negligent homicide was not a crime involving moral turpitude, and thus that neither charge of removability should have been sustained.

Board’s Analysis and Conclusions: 27 I&N Dec. at 142-45

The Board explained that the only issue on appeal was whether section 125.10 of the New York Penal Law, covering criminally negligent homicide, is a crime involving moral turpitude. The Board stated that if it was not, as the Board ultimately concluded, then removal proceedings against the respondent would have to be terminated. This is because the first charge of removability relied solely on section 125.10 being a crime involving moral turpitude and the second charge of removability relied on the respondent having been convicted of two or more crimes involving moral turpitude subsequent to his admission, one of which as charged was the criminally negligent homicide conviction. In footnote 2 of the decision, the Board explained that the record was unclear as to when the respondent’s conduct that led to his conviction for promoting prostitution commenced, and therefore this conviction could not sustain a removal charge under section 237(a)(2)(A)(ii) for a crime involving moral turpitude within five years of the respondent’s admission.

The respondent argued that the statute of his conviction for criminally negligent homicide, section 125.10 of the New York Penal Law, did not categorically define a crime of moral turpitude because it punishes criminally negligent conduct, which he argued has been found to not involve moral turpitude. Both the respondent and the Government submitted briefs on whether an offense that requires only criminal negligence can be a crime involving moral turpitude.

The Board cited to its recent published decision in Matter of J-G-D-F-, 27 I&N Dec. 82, 83 (BIA 2017) [see article], when discussing its principles for analyzing whether a statute involves moral turpitude. First, the Board explained in Matter of J-G-D-F- that it employs the categorical approach, thereby comparing the elements of the state statute in question with the generic definition of a crime involving moral turpitude. In most circuits, including the Second from which the instant case arose, the Board considers whether the minimum conduct likely to be prosecuted under the statute would involve moral turpitude. Matter of J-G-D-F– in turn cited to the Board’s decision in Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016) [see article], which explained that a crime involving moral turpitude is generally a crime that “(1) is vile, base, or depraved and (2) violates accepted moral standards.” Furthermore, the Board explained that, in order for a crime to involve moral turpitude, it must involve “reprehensible conduct and a culpable mental state.”

The Board explained that in past published decisions it has held that a crime that requires a minimum mens rea (mental state) of “recklessness” can involve moral turpitude. The Board reached this conclusion in both Matter of Franklin, 20 I&N Dec. 867, 870 (BIA 1994) [PDF version], and Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976) [PDF version]. In Matter of Medina, the Board reasoned that a person acting with a mental state of recklessness could be convicted of a crime involving moral turpitude because recklessness inherently requires the awareness of risk created by the violator’s action.

Conversely, the Board has held in the past that crimes committed with “criminal negligence” generally do not involve moral turpitude. In Matter of Perez-Contreras, 20 I&N Dec. 615, 619 (BIA 1992) [PDF version], the Board reasoned that such crimes require neither the intent nor the “conscious disregard” of risk that is inherent in crimes involving moral turpitude. The Board noted that multiple circuits, including the Third, Fourth, and Fifth, have reached this same conclusion.

Section 125.10 of the New York Penal Law states that a “person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” The Board explained that under section 15.05(4) of the New York Penal Law, “[a] person acts with criminal negligence … when he fails to perceive a substantial and unjustifiable risk.”

The Board determined that “criminal negligence” under the New York Penal Law “is indistinguishable from the concept of ‘criminal negligence’ we discussed in Matter of Perez-Contreras, and it is materially distinct from the concept of ‘recklessness’ outlined in Matter of Franklin and Matter of Medina.”

The Board singled out the term “fails to perceive” from the definition of “criminal negligence” found in section 15.05(4) of the New York Penal Law. Compare this to the “conscious disregard” of a risk discussed by the Board in the line of cases where it determined that crimes committed with “recklessness” can involve moral turpitude.

Accordingly, the Board concluded that, since section 125.10 of the New York Penal Law reaches offenses committed with criminal negligence, the elements of the statute do not categorically fall within the definition of a crime involving moral turpitude. Furthermore, the DHS did not argue that section 125.10 of the New York Penal Law is divisible, meaning that the Board could not make a further inquiry into the respondent’s specific conduct to determine if it fell under a part of the statute that would categorically define moral turpitude.

For these reasons, the Board found that the Immigration Judge erred in finding that the respondent was removable under section 237(a)(2)(A)(i) and section 237(a)(2)(A)(ii) of the INA and, accordingly, terminated removal proceedings against the respondent.

Distinguishing from Matter of Jimenez-Cedillo: 27 I&N Dec. at 145 & n.3

The Board took the position that its ruling in the instant case does not conflict with its recent decision in Matter of Jimenez-Cedillo, 27 I&N Dec. 1, 5 (BIA 2017) [see article]. In the Matter of Jimenez-Cedillo, the Board had held that a sexual offense involving a minor victim who is under the age of 16 and requiring a significant age differential between the perpetrator and the victim categorically involves moral turpitude regardless of whether the perpetrator had a culpable mental state. First, the Board in the instant case noted that the statute in question in Matter of Jimenez-Cedillo required that the perpetrator “intentionally” engage in a sexual act with the minor victim. Secondly, the Board found that violations of that statute were inherently reprehensible because they “contravene society’s interest in protecting children from sexual exploitation.”

Conclusion

The Board’s decision in Matter of Tavdidishvili follows its line of decisions holding that an offense requiring only criminal negligence is generally not a crime involving moral turpitude. While the decision does not break new ground, it provides a parameter for how for the Board will read and apply the moral turpitude provisions in the INA. Furthermore, the case is noteworthy in that it involves a criminal statute in New York, the home state of our law office and a state that is host to many foreign nationals.

We have discussed several recent decisions on the issue of crimes involving moral turpitude on site. You can find a directory of these articles in our index of BIA/Attorney General precedent decisions [see section].