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”
How later courts described this case
- 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”
- explaining that “the BIA has found moral turpitude to inhere in serious crimes committed recklessly, ie., with a conscious disregard of a substantial and unjustifiable risk that serious injury or death would follow”
- approving of Board decisions concluding that moral turpitude inheres in the commission of certain crimes “even if one acts not with intent, but with recklessness, [where] ‘the definition of recklessness requires an actual awareness of the risk created by the criminal violator’s actions’”
- concluding “that moral turpitude can lie in criminally reckless conduct”
Written by the judges who cited it.
The opinion
ALITO, Circuit Judge,
concurring in the judgment in part and dissenting in part.
I concur in the judgment insofar as it grants the petition for review. I agree with the majority that the Immigration Judge misread the New Jersey assault statute when he said that “all the offenses [covered by that statute] require[] at a minimum an intent to cause bodily injury.” IJ Dec. & Order at 3 n. 2. In fact, under the provision at issue here, N.J.S.A. § 2C: 12 — 1 (b)(5)(a), the minimum mens rea with respect to the infliction of bodily injury without the use of a deadly weapon is recklessness, and the minimum mens rea for the infliction of bodily injury with a deadly weapon is negligence. In light of the IJ’s misinterpretation of the New Jersey statute, we should grant the petition for review and remand to the Board of Immigration Appeals so that the Board can apply its understanding of the concept of a crime of moral turpitude to the New Jersey statute as properly construed.
The majority sees no need for a remand because it is confident that the petitioner’s offense was not a crime of moral turpitude under the BIA’s interpretation of that concept. The majority interprets the BIA’s decisions as generally holding that an assault cannot be a crime of moral turpitude unless the perpetrator has the “specific intent” to inflict bodily injury or at least acts recklessly with respect to the infliction of such injury. Maj. Op. at 413-14.
I do not rule out this interpretation of the BIA’s decisions, but this reading is at least debatable. In Matter of Danesh, 19 I. & N. Dec. at 673 (emphasis added), the Board stated:
In the case before us the respondent was convicted of aggravated assault on a peace officer. Under Texas law that offense requires that the following elements be present: (1) the person assaulted must sustain bodily injury; (2) the accused must know that the person assaulted is a peace officer; and (3) the peace officer must be engaged in the lawful discharge of an official duty.... [W]e conclude that an aggravated assault against a peace officer, which results in bodily harm to the victim and ivhich involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime that involves moral turpitude.
This language suggests that, contrary to the majority’s interpretation, the Board may think that the unintentional infliction of bodily injury upon a person known to be a police officer who is performing an official duty constitutes a crime of moral turpitude. Indeed, that is how the IJ in this case seems to have interpreted Matter of Danesh. The IJ wrote:
An aggravated assault against a police officer, which results in bodily injury, and which involves knowledge by the respondent that his force is directed to the officer who is performing an official duty, constitutes a crime involving moral turpitude. See Matter of Danesh, 19 I & N Dec. 669, 673 , 1988 WL 236462 (BIA 1988)....
App. 42-43. The BIA affirmed the IJ’s decision without opinion. Therefore, I am afraid that the majority may be relying on a mistaken reading of the Board’s decisions. This approach is puzzling because the BIA is the final authority on the meaning of its own decisions.
For these reasons, while I concur in the judgment insofar as it grants the petition for review, I must dissent from the majori *418 ty’s unexplained refusal to remand to the BIA.