Interim Decision #2879
MATTER OF WOJTKOW
In Deportation Proceedings
A-13934122
Decided by Board September 10,4981
:1) Pursuant to section 125.15(1) of the Penal Law of New York, a person is guilty of
manslaughter in the second degree when "he recklessly causes the death of another
person."
(2) A person acts "recklessly" when he is aware of and consciously disregards a substantial and unjustifiable risk, which constitutes a gross deviation from the standard of
conduct a reasonable personl.vOuld observe in the situation. New York Penal Law, section 15 05(5)
(3) A conviction for second degree manslaughter under section 125.15(1) of the Penal
Law of New York is a crime involving moral turpitude. Matter of Medina, 15 I&N Dec.
611 (BIA 1976), followed; Matter of Gantus-Bo9aditla,
13 I&N Dec. 7 (BIA 1971),
modified.
CHARGE:
Order: Act of 1952—Sec. 241(a)(4) [8 U.S.C. 1251(a)(4)1—Returning resident—convicted
of a crime involving moral turpitude
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Isabel Gillebaard, Representative James W. Grable
International Institute Chief Legal Officer
864 Delaware Avenue
Buffalo, New York 14209
BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members
This case is before us on certification by the immigration judge for
review of his decision dated June 19, 1981, wherein he found the respondent ineligible for the privilege of voluntary departure; denied his applications for a waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), as amended, asylum, and withholding of
deportation, pursuant to section 243(h) of the Act, 8 U.S.C. 1253(h); but
ordered termination of these proceedings. The decision of the immigration judge insofar as it ordered the proceedings terminated will be
reversed.
The respondent is a native and citizen of Poland, age 29, who was
admitted to the United States in August 1973 as a returning resident.
He had initially entered this country in 1905. The respondent was indicted
for the murder of his aunt, Mary TabachewSky,' on January 5, 1974, but
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later pleaded guilty before trial to the lesser crime of manslaugher,
second degree.' Thereafter, he served 4V2 years of a 7-year prison
sentence. 2 On August 14, 1978, the Service issued an Order to Show
Cause charging the respondent with being deportable under section
241(a)(4) of the Act, 8 U.S.C. 1251(a)(4).
The immigration judge found, inter alia, that he was "reluctantly
bound" to conclude that the respondent's conviction under section
125.15(1) of the New York Penal Law did not involve moral turpitude in
view of this Board's decision in Matter of Gantus-Bobadilla, 13 I&N
Dec. 7 (BIA 1971). In Matter of Gantus-Bobadilla, the Board held that
a conviction under section 125.15(1) did not involve moral turpitude.
The immigration judge's finding was inconsistent with that of the District Director who earlier, in denying the respondent's application for
asylum on July 23, 1979, had concluded that a conviction under section
125. 15(1) "constitutes conviction of a crime involving moral turpitude,"
citing Matter of Medina, 15 I&N Dec_ 611 (BIA 1976). In view of the
immigration judge's above finding, he ordered these proceedings
"terminated for lack of proof of deportahility" and certified this matter
to the Board for final decision.
Upon review of the record, including briefs submitted by both parties,
we find that the decision of the immigration judge should be reversed.
In Matter of Medietu, seepru, the Board reconsidered its position taken
in Matter of Gantus-Bobadilia, supra, and concluded that "moral turpitude can lie in criminally reckless conduct." We further noted that under
Illinois law "recklessness" arises only where a person "consciously disregards a substantial and unjustifiable risk" and such disregard "constitutes
a gross deviation from the standard of care which a reasonable person
would exercise in the situation." We held that such criminal reckless
conduct did involve moral turpitude.
The definitions of "recklessness" at issue in Matter of Medina, supra,
involving Illinois law and in Matter of Gantus-Bobadilla, supra, involving New York law are essentially identical. Section 15.05(3) of the New
Yorli Penal Law defines under "Culpability":
"Recklessly." A person acts recklessly with respect to a result or to a circumstance
described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjuStifiable risk that such result will occur or that such
' Pursuant to section 125.15(1) of the Penal Law of New York, a person is guilty of
manslaughter in the second degree when "he recklessly causes the death of another
person."
Tlhe respondent was later found guilty of issuing a bad check in Johnson City, New
York. while unemployed (Exs. 8 and 9), and was in the process of making restitution in the
amount of $374.46 at the time of the hearing in June I9s1 (Tr. pp. 29, 30). The crime of
issuing wnrthleas checks involves moral turpitude if a conviction can only be obtained
where intent to defraud is proven. See Matter of Zangurill, 18 I&N Dec. 22 (BIA 1981).
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circumstance exists. The risk must be of such nature and degree that disregard thereof
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 thereof
solely by reason of voluntary intoxication also acts recklessly with respect thereto.
(Emphasis added.)
Accordingly, we recede from Matter of Gantus-Bobadilla insofar as
that case held that a conviction under section 125.15(1) of the New York
Penal Law does not involve moral turpitude. We find that a conviction
under section 125.15(1) does involye moral turpitude. 3
We note that Mongiovi v.. Icarazak, 30 F.2d 825 (D.C. W.D.N.Y
1929), which was relied upon in Gaiztus Robadilla, supra, involved a
-
1923 New York conviction for second degree manslaughter. The law
then in effect in New York in relevant part defined second degree
manslaughter as a crime committed -without design to effect death:
3. By any act, procurement or culpable negligence of any person, which, according to
the provisions of this article, does not constitute the crime of murder in the first or
second degree, nor manslaughter in the first degree. (Emphasis added.)'
The differences between the prior law and section 125.15(1) were neither acknowledged nor discussed in Gantus-Bobaditta, supra.
We conclude that the respondent's New York conviction for second
degree manslaughter did involve moral turpitude and that his deportability has been established by clear, convincing, and unequivocal
evidence. The respondent has failed to establish his eligibility for any
form of discretionary relief. Accordingly, the decision of the immigration judge will be reversed and the respondent will be ordered deported
to Poland.
ORDER: The decision of the immigration judge is reversed and
the respondent shall be deported to Poland.
3 Compare section 125.10 of the New York Penal Law regarding the crime of "criminally
negligent homicide," a Class E felony punishable by a term of imprisonment not to exceed
4 years. A conviction under section 125.15(1) is a Class C felony punishable by a term of
imprisonment not to exceed 15 years.
Section 1052 of the 1909 Penal Law of New York.
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