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Rodrigo Vasquez-Lopez, A048 138 084 (BIA Jan. 24, 2014)

Rodrigo Vasquez-Lopez, A048 138 084 (BIA Jan. 24, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) held that recklessly endangering another person under 18 Pa. Cons. Stat. 2705 is a categorical crime involving moral turpitude because defendants must consciously disregard that their actions could result in a substantial and unjustifiable risk of death or serious bodily injury. The decision was written by Member Ellen Liebowitz and joined by Member John Guendelsberger and Member Molly Kendall-Clark.
In this unpublished decision, the Board of Immigration Appeals (BIA) held that recklessly endangering another person under 18 Pa. Cons. Stat. 2705 is a categorical crime involving moral turpitude because defendants must consciously disregard that their actions could result in a substantial and unjustifiable risk of death or serious bodily injury. The decision was written by Member Ellen Liebowitz and joined by Member John Guendelsberger and Member Molly Kendall-Clark.

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10/19/2015

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Griffin, Thomas M., Esq. Surin & Griffin, P.C. 325 Chestnut Street, Suite 1305 Philadelphia, PA 19106

OHS/ICE Office of Chief Counsel - PHI 900 Market Street, Suite 346 Philadelphia, PA 19107

Immigrant & Refugee Appellate Center | www.irac.net

Name: VASQUEZ-LOPEZ, RODRIGO

A 048-138-084

Date of this notice: 1/24/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DOYl.ltL cl1/VL)
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John Kendall-Clark, Molly Liebowitz, Ellen C

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Rodrigo Vasquez-Lopez, A048 138 084 (BIA Jan. 24, 2014)

Executive Office for Immigration Review Falls Chlll'Ch,

U.S. Department of Justice Vuginia 20530

Decision of the Board of Immigration Appeals

File: A048 138 084-Philadelphia, PA
In re: RODRIGO VASOUEZ-LOPEZ IN REMOVAL PROCEEDINGS

Date:

JAN 2 4 2014

APPEAL ON BEHALF OF RESPONDENT: Thomas M. Griffin, Esquire ON BEHALF OF OHS: Jeffiey T. Bubier Senior Attorney

Immigrant & Refugee Appellate Center | www.irac.net

CHARGE: Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude

APPLICATION: Termination

This case is presently before us pursuant to an order of the United States Court of Appeals for the Third Circuit granting the Government's unopposed motion to remand the case to the Board for a decision concerning whether the respondent is removable as an alien convicted of a crime involving moral turpitude. We conclude that the respondent is removable as charged. The procedural history of this case is as follows. On February 7, 2007, the Immigration Judge determined that the respondent's 2006 Pennsylvania conviction for Recklessly Endangering Another Person was not for a crime involving moral turpitude.1 18 Pa. Cons. Stat. § 2705. The Board affirmed without opinion on March 17, 2008. The Department of Homeland Security ("OHS") filed a motion to reconsider on April IS, 2008. On February 20, 2009, the Board granted the DHS's motion, applying the Board's decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) and determining that there was no realistic probability that the statute of conviction would be applied to reach conduct that does not involve moral turpitude. On March I, 2010, the Third Circuit granted the Government's unopposed motion to remand the case to the Board to further consider whether the respondent's conviction was for a crime involving moral turpitude in light of the court's decision in Jean-Louis v. U.S. Att'y Gen., 582 F.3d 462 (3d Cir. 2009). On August 18, 2010, the Board affirmed its February 20, 2009, decision in which we concluded that the respondent is removable as an alien convicted of a crime involving moral turpitude and remanded the record to the Immigration Judge for the entry of an order of removal.
1

The Immigration Judge's decision is erroneously dated February 7, 2006.

Cite as: Rodrigo Vasquez-Lopez, A048 138 084 (BIA Jan. 24, 2014)

A048 138 084

On October 13, 2010, the Immigration Judge ordered the respondent removed. The respondent appealed, and the Board affumed the Immigration Judge's decision without opinion on On September 5, 2012, the Third Circuit granted the Government's January 30, 2012. unopposed motion to remand the case to the Board to address whether the respondent's conviction was for a crime involving moral turpitude despite the absence in the Pennsylvania reckless endangerment statute of the aggravating factors in the New York statute identified by the court in Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004). The parties have submitted supplemental briefs. We again conclude that the respondent's conviction for Recklessly Endangering Another Person in violation of section 2705 of the Pennsylvania criminal code was for a crime involving moral turpitude. 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 society in general. See Matter ofFranklin, 20 I&N Dec. 867, 868 (BIA 1994); see also Totimeh v. U.S. Att'y Gen., 666 F.3d 109, 114 (3d Cir. 2012). To constitute a crime involving moral turpitude, an offense must have two essential elements: a culpable mental state and reprehensible conduct. See Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013); Matter of Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013). For the purposes of crimes involving moral turpitude, recklessness can be a culpable mental state. See Matter of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009) (noting that for the purposes of crimes involving moral turpitude, a culpable mental state may be specific intent, deliberateness, willfulness, or recklessness).

Immigrant & Refugee Appellate Center | www.irac.net

As the Third Circuit noted in Knapik v. Ashcroft, supra, the Board consistently has interpreted moral turpitude to include recklessness crimes if certain statutory aggravating factors are present,
such as where a defendant consciously disregards a substantial risk of serious harm or death to another person. Knapikv. Ashcroft, supra, at 90; see e.g., Matter of Leal, 26 I&N Dec. 20, 25 (BIA 2012) (one who consciously disregards a known risk of harm exhibits a base contempt for the well-being of the community, which is the essence of moral turpitude)� Matter ofMedina, 15 I&N Dec. 611, 613 (BIA 1976) (when criminally reckless conduct requires a conscious disregard of a substantial and unjustifiable risk of serious injury or death to another, the crime involves moral turpitUde) In Knapikv. Ashcroft, the Third Circuit held that the Board did not act unreasonably in concluding that New York's first degree reckless endangerment statute was a crime involving moral turpitude because the Board could reasonably conclude that the elements of depravity, recklessness and grave risk of death, when considered together, implicate accepted rules of morality and the duties owed to society. Knapikv. U.S. Att'y Gen., supra, at 90.
.

To determine whether the offense for which the respondent was convicted constitutes a crime involving moral turpitude, we must look at the specific statute under which ·the respondent was convicted and ascertain the least culpable conduct necessary to sustain a conviction under the statute. See U.S. v. Tucker, 103 F.3d 205, 214 {3d Cir. 2012) (quoting Jean-Louis v. U.S. Att'y Gen., supra, at 466); Partyka v. U.S. Att'y Gen., 411F.3d 408, 411 (3d Cir. 2005). Although the respondent was convicted under a different statute from the one addressed by the Third Circuit in Knapik v. Ashcroft, the court's decision in that case supports a similar result here. The respondent was convicted of Recklessly Endangering Another Person in violation of section 2705 of the Pennsylvania criminal code, which provides that "[a] person commits a

2

Cite as: Rodrigo Vasquez-Lopez, A048 138 084 (BIA Jan. 24, 2014)

A048 138 084

misdemeanor of the second degree if he recklessly engages in conduct which places or may place 2 another person in danger of death or serious bodily injury." Recklessness under this section is defined by section 302(b)(3) of the Pennsylvania criminal code, which provides:

A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

Immigrant & Refugee Appellate Center | www.irac.net

See e.g., Commonwealth.

v.

Wood, 475 A.2d 834, 835-36 (1984) (mens rea for recklessly

endangering another person is recklessness defined by 18 Pa. Cons. Stat.§ 302(b)(3)). In order to sustain a conviction under section 2705 of the Pennsylvania criminal code, therefore, the respondent must have been aware that his actions resulted in a substantial and unjustifiable risk of death or serious bodily injury to another person and consciously disregarded such risk. The risk must have been of such a nature and degree that its disregard involved a gross deviation from the standard of conduct that a reasonable person would have observed in the respondent's situation. We conclude that for the purposes of determining whether an offense is a crime involving moral turpitude, "a substantial and unjustifiable risk of death or serious bodily injury" in this case is sufficient to support a finding of moral turpitude We are not persuaded by the respondent's contention on appeal that the least culpable conduct under his statute of conviction is that which "may place" another in danger and that this conduct falls short of morally turpitudinous conduct. See Knapik v. Ashcroft, supra, at 90 n.5 ("With regard to reckless acts, moral turpitude inheres in the conscious disregard of a substantial and unjustifiable risk of severe harm or death. Knapik's good fortune in not injuring or killing anyone does not change the quality of his actions."); see also Idy v. Holder, 674 F.3d 111 (1st Cir. 2012) (affirming Board's determination that violation of the similarly-worded New Hampshire reckless conduct statute, which provides, "A person is guilty of reckless conduct if he recklessly engages in conduct which places or may place another in danger of serious bodily injury," is a crime involving moral turpitude); Matter ofLeal, supra, at 25-26. We conclude that the gravity of potential harm represented by "a substantial and unjustifiable risk of death or serious bodily injury'' coupled with a "conscious[] disregard" of that risk which involves a "gross deviation from the standard of conduct of a reasonable person" brings an offense in violation of section 2705 of the Pennsylvania criminal code within the ambit of a crime involving moral turpitude. See Totimeh v. U.S. Att'y Gen., supra, at 114 ("Moral turpitude also may inhere in serious crimes committed recklessly, i.e., with a conscious disregard of a substantial and unjustifiable risk that serious injury or death would follow'' (internal quotes
2

The fact that the offense is a misdemeanor is not determinative of whether it involves moral turpitude. See Matter ofGrazley, 14 l&N. Dec. 330, 331 (BIA 1973) ("[a] crime may or may not involve moral turpitude whether it is a felony or a misdemeanor''). 3

Cite as: Rodrigo Vasquez-Lopez, A048 138 084 (BIA Jan. 24, 2014)

A04'8 138 084

omitted)); Mehboob

v.

U.S. Att'y Gen., 549 F.3d 272, 276 (3d Cir. 2008) ( . .. serious crimes
"

committed recklessly-that is, 'with a conscious disregard of a substantial and unjustifiable risk that serious injury or death would follow'-can be found to involve moral turpitude.") We therefore conclude that Recklessly Endangering Another Person in violation of section 2705 of the Pennsylvania criminal code is categorically a crime involving moral turpitude. The respondent is therefore removable as an alien convicted of a crime involving moral turpitude and will be ordered removed from the United States. ORDER: The respondent is ordered removed from the United States to Mexico.

Immigrant & Refugee Appellate Center | www.irac.net

4
Cite as: Rodrigo Vasquez-Lopez, A048 138 084 (BIA Jan. 24, 2014)

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