Criminal convictions can be detrimental to non-citizens; some criminal offenses make a non-citizen ineligible for immigration benefits while others require an alien to file a waiver. A non-citizen who has been convicted of committing a crime involving moral turpitude (also comonly referred to as CIMT) is ineligible to receive a visa and barred from admission to the United States. See INA ?212(a)(2)(A)(i)(I). What criminal conduct involves moral turpitude? Neither the Immigration and Nationality Act (INA) nor the Federal Regulations define the term "moral turpitude". The Attorney General has held "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." Matter of Leal, 26 I&N Dec. 20, 21 (BIA 2012) citing Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n.1 and 706 n.5 (A.G. 2008).
Recklessly endangering another person with a substantial risk of imminent death
In the Matter of Leal, 26 I&N Dec. 20 (BIA 2012), the Board of Immigration Appeals (BIA) recently considered "whether 'recklessly endangering another person with a substantial risk of imminent death' [ ] is a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act [ ] even though recklessness is defined to include unawareness of a risk created by the actor resulting from voluntary intoxication." Id. at 20. The respondent in the Matter of Leal had been convicted under Arizona criminal law of "recklessly endangering another person with a substantial risk of imminent death[.]" Id. at 22 citing Ariz. Rev. Stat. Ann. ?13-1201(A).
To evaluate whether the respondent's criminal conduct involved moral turpitude, the BIA used the categorical approach "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. citing Matter of Silva-Trevino, 24 I&N at 689-90, 696-98. Under the categorical approach, the adjudicator begins by reviewing the criminal statute to determine if all the prohibited conduct involved moral turpitude.
The BIA first addressed whether the respondent's conviction for endangerment had the requisite scienter. At the time the respondent was convicted, Arizona law defined "recklessly" to mean:
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.
Id. citing Ariz. Rev. Stat. Ann. ?13-105(9) (2006).
Grounds for the Reasoning
The BIA found the first two sentences of Arizona's definition of "recklessly" conform to "the familiar common law rule that recklessness means a conscious disregard of a substantial and unjustifiable risk, constituting a gross deviation from the standard of conduct a reasonable person would observe under the circumstances." Id. at 22-23. However, Arizona's definition of "recklessly" expanded "the concept of recklessness to also encompass a subjective ignorance of risk resulting from voluntary intoxication." Id. at 23.
The respondent relied upon this deviation from the common law definition of "recklessly" to argue his conviction was not for a crime involving moral turpitude. The respondent argued "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." Id. Effectively, the respondent argued the voluntary intoxication component included punishment for conduct that did not involve moral turpitude, because a person could not have consciously disregarded a substantial and unjustifiable risk if he or she was intoxicated. As such, moral turpitude was not part of all the offenses for which there was a realistic probability the respondent would be prosecuted under Arizona's endangerment statute. Id. However, the BIA disagreed with the respondent's assertion. Id.
The BIA relied on prior decisions which held "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. The BIA stated "[t]reating 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." Id. at 24. As such "recklessness arising from voluntary intoxication qualifies as a form of 'scienter' within the meaning of Silva-Trevino." Id. at 23.