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New Published Board of Immigration Appeals Decision Regarding Crimes Involving Moral Turpitude

The Board of Immigration Appeals recently published a decision wherein they addressed the level of harm required for a conviction to constitute a crime involving moral turpitude (CIMT). In Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015) the Board held that in order for a crime to be considered a CIMT, a criminal recklessness mens rea coupled with no actual physical harm was sufficient to meet the definition of a CIMT. The Board noted that in the CIMT context, no actual infliction of physical harm is necessary to rise to the level of “reprehensible conduct” required in the CIMT analysis. It is sufficient that the potential risk of harm the statute penalizes is sufficiently serious. In the case at issue, the Texas statute penalized recklessly placing another person in “imminent danger of serious bodily harm.” The Board found that even the low level of intent required–recklessness, combined with the seriousness of the potential harm was sufficient to categorize the crime as a CIMT.

This case creates a very low threshold for a crime to be considered a CIMT. Traditionally, in order for a crime to be a CIMT, two essential elements must be present, reprehensible conduct attached to some level of scienter (intent). In criminal law, specific intent is the highest level of intent, with criminal recklessness resting towards the bottom of continuum, just above criminal negligence and strict liability (no intent).

The Board had previously held that the lower the level of criminal intent is for a crime, the higher the level of harm caused must be in order for the crime to be a CIMT. See Matter of Solon, 24 I&N Dec. 239 (BIA 2007) (“. . . as the level of conscious behavior decreases, i.e., from intential to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude.”).

After Matter of Hernandez, it is clear that any crime requiring intent at the criminal recklessness level or above coupled with serious harm or the possibility of serious harm is sufficient to make a crime a CIMT.