Interim Decision #3228
MATTER OF FRANKLIN
In Deportation Proceedings
A-40191863
Decided by Board September 13, 1994
A conviction for involuntary manslaughter pursuant to sections 562.016(4) and
565.024(1) of the Missouri Revised. Statutes constitutes a crime involving moral
turpitude within the meaning of section 241(a)(2)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(i) (Stipp. V 1993), where Missouri law
requires that the convicted person must have consciously disregarded a substantial and
unjustifiable risk, and that such disregard constituted a gross deviation from the
standard of care that a reasonable person would cAcrciss in the situation. Matter of
Ghunaim, 15 1&N Dec. 269 (BIA 1975) Matter of Lopez, 13 1&N Dec. 725 (BIA 1971);
Matter of Sanchez-Marin,
11 I&N Dec. 264 (BIA 1965); and Matter of B-,
4 I&N Dec.
493 (B1A 1951), modified. Matter of Szegedi,
10 I&N Dec. 28 (BIA 1962), overruled.
CHARGE:
Order: Act of 1952—Sec. 241(a)(1)(D)(i) [
8 U.S.C. § 1251(a)(1)(D)(01—Conditional
resident status terminated
Lodged: Act of 1952—Sec. 241(aX2)(A)(i) [8 U.S.C. § 1251(a)(2)(A)(81—Crime involving moral turpitude
ON BEHALF OF RESPONDENT; ON BEHALF OF SERVICE:
Henri J. Watson, Esquire Joseph R. Dierkes
Watson & Darneron General Attorney
2500 Holmes
Kansas City, Missouri 64108-2743
BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,
Alternate Board Member
The respondent has appealed from a decision of an immigration
judge dated March 8, 1994, which found the respondent to be
deportable as charged and ordered her deported to the Philippines.
The appeal will be dismissed.
The respondent is a 28 year old native and citizen of the Philip-
- -
pines. She was admitted to the United States as a lawful permanent
resident on a conditional basis on December 15, 1987. On August 3,
1992, the respondent was found guilty in the Circuit Court of Jackson
Interim Decision #3228
County, Missouri, of involuntary manslaughter, a class C felony, in
violation of section 565.024 of the Missouri Revised Statutes. The
respondent was sentenced to a 3-year term of imprisonment for this
conviction.
On May 21, 1993, the Immigration and Naturalization Service
issued an Order to Show Cause and Notice of Hearing (Form I-221),
charging the respondent with deportability pursuant to section
241(a)(1)(D)(i) of the Immigration and Nationality Act, 8 U.B.C.
1251(a)(1)(D)(i) (Supp. V 1993), as an alien whose conditional
permanent resident status has been terminated. On February 14, 1994,
the Service lodged the additional charge that the respondent is
deportable under section 241(a)(2)(A)(i) of the Act because she has
been convicted of a crime involving moral turpitude committed within
5 years of entry.
The immigration judge found the respondent to be deportable
under both charges and ordered her deportation to the Philippines.
While the respondent's appeal was pending, the Service advised the
Board that it was withdrawing the charge of deportability under
section 241(a)(1)(D)(i) of the Act.
The sole issue on appeal is whether the respondent was properly
found to be subject to deportation as an alien who has been convicted
of a crime involving moral turpitude. The Service argues that the
immigration judge's decision should be upheld, because he correctly
concluded that the respondent is deportable from the United States as
an alien who has been convicted of a crime involving moral turpitude.
The respondent maintains in her brief on appeal that convictions for
involuntary manslaughter traditionally have not been considered to
involve moral turpithde, and that the deportation proceedings against
her should accordingly be terminated.
Moral turpitude refers generally to conduct which is inherently base,
vile, or depraved, and contrary to the accepted rules of morality and
the duties owed between persons or to society in general. See Matter of
Danesh, 19 I&N Dec. 669 (BIA 1988); Matter of Flores, 17 MN Dec.
225, 227 (BIA 1980). Moral turpitude has been defined as an act which
is per se morally reprehensible and intrinsically wrong, or malum in se,
so it is the nature of the act itself and not the statutory prohibition of it
which renders a crime one of moral turpitude. Matter of P-,
6 I&N
Dec. 795 (BIA 1955). Among the tests to determine if a crime involves
moral turpitude is whether the act is accompanied by a vicious motive
or a corrupt mind. See Matter of Perez-Contreras,
20 I&N Dec. 615
(BIA 1992); Matter of S'erna,
20 I&N Dec. 579 (BIA 1992); Matter of
Short,
20 I&N Dec. 136 (BIA 1989); Matter of Flores, supra, at 227.
We stated the following in Matter of Short, supra: "In determining
whether a crime involves moral turpitude, ... [t]he statute under
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which the conviction occurred controls. If it defuses a crime in which
turpitude necessarily inheres, then the conviction is for a crime
involving moral turpitude for the purposes of the deportation statute."
Id at 3.
The record reflects that the respondent was convicted under section
565.024(1) of the Missouri Revised Statutes, which provides as
follows: "A person commits the crime of involuntary manslaughter if
he ... [r]ecklessly causes the death of another person." Section
562.016(4) of the Missouri Revised Statutes provides, in turn, that "[a]
person 'acts recklessly' or is reckless when he consciously disregards a
substantial and unjustifiable risk that circumstances exist or that a
result will follow, and such disregard constitutes a gross deviation from
the standard of care which a reasonable person would exercise in the
situation."
In Matter of Szegedi, 10 I&N Dec. 28 (BIA 1962), the Board held
that a conviction for "homicide by reckless conduct" under Wisconsin
law was not a crime involving moral turpitude. The Board observed
that the statute under which the alien was convicted did not require "a
specific intent to kill" and further stated that "voluntariness or intent
to commit the act or some act must exist before we can find that the
crime involves moral turpitude." Id at 34; see also Matter of Gantus-Bobadilla,
13 I&N Dec. 777 (BIA 1971), modified, Matter of Wojtkow,
18 I&N Dec. 111 (BIA 1981).
In Matter of Medina,
15 I&N Dec. 611 (BIA 1976), affd sub nom.
Medina-Luna v. INS,
547 F.2d 1171 (7th Cir. 1977), the Board
revisited the issue of whether criminally reckless conduct constituted a
crime involving moral turpitude. In Medina, the alien had been
convicted of aggravated assault in violation of Illinois law_ Holding
that the criminally reckless conduct defined by. the Illinois "recklessness" statute provided the basis for a finding of moral turpitude,
the Board construed the statute as follows:
The person acting recklessly must consciously disregard a substantial and unjustifiable risk, and such disregard must constitute a gross deviation from the standard of
care which a reasonable person would exercise in the situation. This definition of
recklessness requires an actual awareness of the risk created by the criminal violators
action. While the Illinois recklessness statute may not require a specific intent to
cause a particular harm, the violator must show a willingness to commit the act in
disregard of the perceived risk. The presence or absence of a corrupt or vicious mind
is not controlling.
Id. at 613-14.
Later, in Matter of Wojtkow, supra, the Board relied upon the
holding in Medina to conclude that an alien's conviction for second
degree manslaughter under the New York Penal Law constituted a
crime involving moral turpitude. Quoting the New York statute, the
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Interim Decision #3228
Board noted that a person is guilty of second degree manslaughter in
New York if 'he recklessly causes the death of another person.'
Matter of Wojtkow, supra, at 112 n. I. The Board further observed that
the definition of "recklessness" under New York law was the same as
the definition under Illinois law that had been analyzed in Medina. Id.
at 112-13.
We most recently addressed the issue of criminal recklessness as it
relates to moral turpitude in Matter of Perez - Contreras, supra. We
concluded there that a conviction for third degree assault under
Washington law, where the alien had caused injury to the victim "with
criminal negligence," was not a crime involving moral turpitude. Id. at
7. We emphasized that unlike Wojtkow and Medina, the alien's
conviction in Perez-Contreras did not involve "the conscious disregard
of a substantial and unjustifiable risk." Id. We thus concluded: "Since
there was no intent required for conviction, nor any conscious
disregard of a substantial and unjustifiable risk, we find no moral
turpitude inherent in the statute." Id.
Returning to the facts before us, we find that the respondent's case
is controlled by our decisions in Wojtkow and Medina. The respondent
was convicted of involuntary manslaughter, which, under MisSouri
law, is defined as "Necklessly caus[ing] the death of another person.."
See Matter of Wojtkow, supra, at 112 n. 1 . Moreover, Missouri's
statutory definition of "recklessness" is essentially identical to the
definitions which we construed in Wojtkow and Medina, i.e., a
conscious disregard for a substantial and unjustifiable risk, where the
disregard constitutes a gross deviation from the standard of care which
a reasonable person would employ. Accordingly, because the statute
under which the respondent was convicted requires that she acted with
a "conscious disregard of a substantial and unjustifiable risk," the
conclusion necessarily follows that she has been convicted of a crime
involving moral turpitude. Matter of Perez-Contreras, supra, at 7; see
also Matter of Wojtkow, supra; Mauer of Medina, supra.
Finally, we note that the respondent relies heavily upon cases 'in
which the Board stated generally that "voluntary manslaughter
involves moral turpitude, although involuntary manslaughter does
not." Matter of Lopez, 13 I&N Dec. 725, 726 (BIA 1971) (citation
omitted); see also Matter of Ghunaim,
15 I&N Dec. 269, 270 (BIA
1975); Matter of Sanchez-Marin,
11 I&N Dec. 264, 266 (BIA 1965);
Matter of B-,
4 I&N Dec. 493, 496 (BIA 1951). These decisions all
preceded our holdings in Wojtkow and Medina, where we reexamined
the question of whether criminally reckless behavior involved moral
turpitude. Upon reviewing the statute under consideration in the
present- case, we find that a "black-letter" holding that convictions for
involuntary manslaughter do not constitute crimes involving moral
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Interim Decision #3228
turpitude is not workable. In view of the myriad state classifications
for manslaughter convictions, one must analyze the specific statute
under which the alien was convicted on a case-by-case basis in order to
determine whether the conviction is for a crime involving moral
turpitude. Accordingly, the precedent decisions cited above which
contain the categorical statement that involuntary manslaughter is not
a crime involving moral turpitude are hereby modified. The Board's
decision in Matter of Szegedi, supra, at 34, holding that a conviction
for "homicide by reckless conduct" was not a crime involving moral
turpitude because the conviction did not require "a specific intent to
kill," is hereby overruled.
The respondent's deportability as an alien convicted of a crime
involving moral turpitude which was committed within 5 years of
entry has been established by clear, unequivocal, and convincing
evidence. Woodby v. INS, 385 U.S. 276 (1966). The respondent's
appeal from the decision of the immigration judge ordering her
deportation to the Philippines will accordingly be dismissed.
ORDER: The appeal is dismissed.
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