BIA: Texas “Deadly Conduct” Offense is Crime Involving Moral Turpitude

9 Jan

Case: Matter of O.A. Hernandez, 26 I&N Dec. 464, BIA, January 8, 2015

Holding: The offense of “deadly conduct” in violation of section 22.05(a) of the Texas Penal Code, which punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury,” is categorically a crime involving moral turpitude.

Analysis: Defining a “crime of moral turpitude” has always been a seemingly subjective and open-ended task because which crimes are morally reprehensible as opposed to just illegal is often in the eye of the beholder. The BIA confronts that question yet again in this case, in which it ruled that the offense of “deadly conduct” under section 22.05(a) of the Texas Penal Code, which punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury,” is categorically a crime involving moral turpitude.

Mr. Hernandez was convicted of deadly conduct, a Class A misdemeanor, and sentenced to 90 days in county jail. In removal proceedings, his application for cancellation of removal was denied on the grounds that he had been convicted of a crime involving moral turpitude in which a sentence of one year or more could be imposed. He was ordered removed and filed this appeal.

The BIA divides the analysis into two parts: the mens rea (recklessness) and the act (conduct that places another in imminent danger of serious bodily injury). The BIA starts with the proposition that an offense  must have some level of scienter to constitute a “crime of moral turpitude”, but it need not be intentional. Recklessness is sufficient if it is defined as “a conscious disregard of a substantial and unjustifiable risk posed by one’s conduct.”

The remaining question then is whether the act is sufficiently “vile or depraved” to be a CIMT. On the one hand, the statute does not require any harm to have actually occurred. On the other hand, the crime involving placing another in danger of imminent serious harm. The BIA concludes that this behavior is sufficiently “reprehensible” to be a crime involving moral turpitude.

This opinion seems to mark the creeping expansion of moral turpitude crimes in terms of both the level of culpability and the harmfulness of the conduct.

 

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