AG/BIA Decision – Matter of TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017)


Matter of TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017)

Criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have a sufficiently culpable mental state.

Cite as 27 I&N Dec. 142 (BIA 2017) Interim Decision #3906

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Matter of David TAVDIDISHVILI, Respondent

Decided October 16, 2017

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

Criminally negligent homicide in violation of section 125.10 of the New York Penal Law
is categorically not a crime involving moral turpitude, because it does not require that a
perpetrator have a sufficiently culpable mental state.

FOR RESPONDENT: Jon E. Garde, Esquire, Las Vegas, Nevada

FOR THE DEPARTMENT OF HOMELAND SECURITY: Kathleen M. Zapata,
Associate Legal Advisor

BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.

PAULEY, Board Member:

In a decision dated April 1, 2016, an Immigration Judge found the
respondent removable under sections 237(a)(2)(A)(i) and (ii) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(i) and (ii)
(2012), as an alien convicted of crimes involving moral turpitude, and
ordered him removed from the United States. The respondent has appealed
from that decision. The appeal will be sustained and the proceedings will be
terminated.
The respondent is a native and citizen of Israel who was admitted to the
United States as a lawful permanent resident on November 13, 1987. On
June 30, 1992, he was convicted of criminally negligent homicide in
violation of section 125.10 of the New York Penal Law. On February 11,
1998, he was convicted of promoting prostitution, which is a misdemeanor
under section 230.20 of the New York Penal Law.1
Based on these convictions, the Department of Homeland Security
(“DHS”) initiated removal proceedings against the respondent and charged
him with removability under section 237(a)(2)(A)(i) of the Act, as an alien
convicted of a crime involving moral turpitude committed within 5 years

1 Although the Immigration Judge found that the respondent was convicted of violating
section 230.25 of the New York Penal Law, we take administrative notice of the contents
of his record of conviction, which indicate that he was charged under that provision but
was ultimately convicted of violating section 230.20. See 8 C.F.R. § 1003.1(d)(3)(iv)
(2017) (permitting us to take administrative notice of “the contents of official documents”).

 

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after the date of admission, and section 237(a)(2)(A)(ii), as an alien who at
any time after admission is convicted of two or more crimes involving moral
turpitude not arising out of a single scheme of criminal misconduct. The
Immigration Judge sustained both charges.
The only issue in this case is whether criminally negligent homicide under
New York law is a crime involving moral turpitude. If it is not, the
proceedings must be terminated, because neither charge of removability can
be sustained.2 See Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA
2012).
The respondent argues that his conviction does not render him removable
because section 125.10 of the New York Penal Law punishes criminally
negligent conduct, which is not morally turpitudinous. The parties submitted
supplemental briefing on the question whether an offense that only requires
criminal negligence for conviction is a crime involving moral turpitude.
As we stated in Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017),

To determine whether the respondent’s . . . offense is a crime involving moral
turpitude under . . . the Act, we employ the “categorical approach” by “comparing
the elements of the state offense to those of the generic [definition of a crime
involving moral turpitude] to determine if there is a categorical match.” Escobar
v. Lynch, 846 F.3d 1019, 1024 (9th Cir. 2017) (citations omitted). “This [approach]
requires us to focus on the minimum conduct that has a realistic probability of being
prosecuted under the statute of conviction, rather than on the facts underlying the
respondent’s particular violation of that statute.” Matter of Silva-Trevino, 26 I&N
Dec. 826, 831 (BIA 2016); see also Escobar, 846 F.3d at 1024.
“Although the immigration statutes do not specifically define offenses constituting
crimes involving moral turpitude, a crime involving moral turpitude is generally a
crime that ‘(1) is vile, base, or depraved and (2) violates accepted moral standards.’”
Escobar, 846 F.3d at 1023 (citations omitted); see also Matter of Silva-Trevino,
26 I&N Dec. at 834. (“To involve moral turpitude, a crime requires two essential
elements: reprehensible conduct and a culpable mental state.”).

Id. at 83 (alterations in original).
We have held that moral turpitude inheres in crimes involving serious
misconduct committed with at least a culpable mental state of recklessness—

2 We agree with the respondent that the DHS has not established his removability under
section 237(a)(2)(A)(i) of the Act on the basis of his misdemeanor conviction in 1998 for
promoting prostitution, because it is unclear that this offense was committed within 5 years
of his admission. See 8 C.F.R. § 1240.8(a) (2017) (providing that the DHS must prove that
a respondent is removable “by clear and convincing evidence”). Although the respondent’s
record of conviction does not establish the date he committed this offense, it does indicate
that he was convicted approximately 11 years after his admission as a lawful permanent
resident in 1987. Under section 30.10(2)(c) of the New York Criminal Procedure Law,
prosecution for a misdemeanor must generally be commenced within 2 years after the
commission of the offense.

 

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that is, “a conscious disregard of a substantial and unjustifiable risk.” Matter
of Franklin, 20 I&N Dec. 867, 870 (BIA 1994) (emphasis added) (holding
that recklessly causing the death of another person was a crime involving
moral turpitude), aff’d Franklin v. INS, 72 F.3d 571 (8th Cir. 1995). In
Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976), aff’d sub nom.
Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977), we concluded that a
person acting with this mental state could be convicted of a crime involving
moral turpitude because “recklessness requires an actual awareness of the
risk created by the criminal violator’s action”—in other words, a “violator
must show a willingness to commit the act in disregard of the perceived risk.”
Id. (emphases added).
By contrast, crimes committed with “criminal negligence” are generally
not morally turpitudinous, because neither “intent” nor a “conscious
disregard of a substantial and unjustifiable risk” is required for conviction—
that is, no sufficiently culpable mental state is necessary to commit such an
offense. Matter of Perez-Contreras, 20 I&N Dec. 615, 619 (BIA 1992)
(emphasis added); see also Sotnikau v. Lynch, 846 F.3d 731, 737 (4th Cir.
2017) (“Crimes involving criminal negligence . . . are generally excluded
from the category of crimes that involve moral turpitude.”);
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 323 (5th Cir. 2005)
(recognizing that “negligence-based crimes usually do not amount to” crimes
involving moral turpitude); Partyka v. Att’y Gen. of U.S., 417 F.3d 408, 414
(3d Cir. 2005) (stating that since “the hallmark of moral turpitude is a
reprehensible act committed with an appreciable level of consciousness or
deliberation,” the offense of negligent assault on a law enforcement officer
was not a crime involving moral turpitude because it lacked the “essential
culpability requirement”). For this reason, we held that an assault committed
with “criminal negligence” under Washington law, which occurs “when the
perpetrator ‘fails to be aware of a substantial risk that a wrongful act may
occur,’” does not involve moral turpitude. Matter of Perez-Contreras,
20 I&N Dec. at 618 (emphasis added) (quoting section 9A.08.010(1)(d) of
the Revised Code of Washington).
Section 125.10 of the New York Penal Law provides that a “person is
guilty of criminally negligent homicide when, with criminal negligence, he
causes the death of another person.” According to section 15.05(4) of the
New York Penal Law, “A person acts with criminal negligence . . . when he
fails to perceive a substantial and unjustifiable risk.” (Emphasis added.)
Thus, “criminal negligence” under New York law is indistinguishable
from the concept of “criminal negligence” we discussed in Matter of
Perez-Contreras, and it is materially distinct from the concept of
“recklessness” outlined in Matter of Franklin and Matter of Medina. For
criminal negligence, a perpetrator need only fail to perceive a substantial and

 

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unjustifiable risk, while recklessness requires that the perpetrator consciously
disregard such a risk. Because section 125.10 of the New York Penal Law
reaches offenses committed with criminal negligence—that is, offenses that
do not require a sufficiently culpable mental state—the elements of this
statute do not categorically fall within the definition of a crime involving
moral turpitude.3 The DHS does not contend that section 125.10 is divisible
in any pertinent respect. Thus, notwithstanding the unfortunate fact that a
death resulted from the respondent’s negligent conduct, his conviction for
criminally negligent homicide under section 125.10 is not for a crime
involving moral turpitude.4
We therefore conclude that the Immigration Judge erred in finding that
the respondent is removable under sections 237(a)(2)(A)(i) and (ii) of the
Act, and we will terminate these proceedings. In light of this conclusion,
we need not address the parties’ remaining arguments. Accordingly, the
respondent’s appeal will be sustained and the proceedings will be terminated.
ORDER: The appeal is sustained and the removal proceedings are
terminated.

3 We have determined that a sexual offense involving a minor under the age of 16, where
the age differential between the perpetrator and the victim is significant, categorically
involves moral turpitude, even if the State statute defining the offense does not require the
perpetrator to have any culpable mental state with regard to the age of the child. Matter of
Jimenez-Cedillo, 27 I&N Dec. 1, 5 (BIA 2017). However, that decision does not conflict
with our holding because the statute at issue there required a sufficiently culpable mental
state—that is, the perpetrator had to “engage in an intentional sexual act or other contact
with a minor victim.” Id. at 4 (emphasis added). Moreover, we concluded that all
violations of the statute are inherently reprehensible because they “contravene society’s
interest in protecting children from sexual exploitation.” Id. at 5.
4 We are unpersuaded by the DHS’s reliance on our holding in Matter of Wu, 27 I&N
Dec. 8 (BIA 2017). In that case, we determined that assault with a deadly weapon or force
likely to produce great bodily injury under section 245(a)(1) of the California Penal Code
is categorically a crime involving moral turpitude because a violator of that statute must
(1) “willfully engage in dangerous conduct, by means of either an object employed in a
manner likely to cause great bodily injury or force that is, in and of itself, likely to cause
such an injury”; and (2) “have knowledge, while not of the risk of causing such injury, of
the facts that make such an injury likely.” Id. at 14 (emphases added). We concluded that
there is no moral distinction between “a person who willfully commits . . . dangerous
conduct with knowledge of all the facts that make it dangerous [and] one who commits the
conduct with the knowledge that it is dangerous.” Id. However, as noted, “criminal
negligence” under New York law does not require a perpetrator to have any awareness of
the facts that make his or her conduct dangerous. Thus, it is materially distinct from “the
unique mental state embodied in section 245(a)(1)” of the California Penal Code. Id. at 15.

 

 

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