Matter of Medina
| Decision Date | 19 March 1976 |
| Docket Number | A-11907736,Interim Decision Number 2481 |
| Citation | 15 I&N Dec. 611 |
| Parties | MATTER OF MEDINA In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated January 6, 1975, the immigration judge denied the respondent's applications for suspension of deportation and voluntary departure, and ordered the respondent deported from the United States. The respondent has appealed from the denials of discretionary relief and from the finding of deportability under section 241(a)(4) of the Immigration and Nationality Act. The appeal will be dismissed.
The respondent is a native and citizen of Mexico. The respondent has entered the United States on several occasions. All of his entries, however, have been illegal. The respondent evidently first entered the United States in 1948 in search of work. He was deported in April of 1954, but returned approximately two years later. In 1960, he voluntarily agreed to go back to Mexico, but he again entered the United States in March 1962. He has remained here ever since.
The respondent concedes that he is deportable under section 241(a)(1) as an alien who was excludable at the time of his 1962 entry for failure to obtain the required permission to reapply for admission after deportation. The respondent, however, challenges the immigration judge's finding that he is deportable under section 241(a)(4) as an alien who at any time after entry has been convicted of two crimes involving moral turpitude. It is this latter finding which, if correct, makes the respondent statutorily ineligible for either suspension of deportation under section 244(a) or voluntary departure under section 244(e) of the Act.
The respondent concedes that he has been twice convicted. In February of 1953, he was convicted of attempted burglary in Texas. The respondent acknowledges that this crime involves moral turpitude. The respondent's second conviction was in October of 1971 for aggravated assault in Illinois.
The respondent raises several challenges to the finding that he is deportable under section 241(a)(4). He initially argues that aggravated assault in Illinois is not a crime involving moral turpitude.
The respondent was convicted under Chapter 38, section 12-2(a)(1) of the Illinois Revised Statutes, which provides:
§ 12-2. Aggravated Assault
(a) A person commits an aggravated assault, when, in committing an assault, he:
(1) Uses a deadly weapon. . . .
There are numerous cases indicating that assault, or assault and battery, with a deadly weapon is a crime involving moral turpitude. See e.g. Gonzales v. Barber, 207 F.2d 398 (C.A. 9, 1953) aff'd, 347 U.S. 637 (1954); U.S. ex rel. Morlacci v. Smith, 8 F.2d 663 (W.D.N.Y.1925); Matter of Ptasi, 12 I. & N. Dec. 790 (BIA 1968); Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967); Matter of G____ R____, 2 I. & N. Dec. 733 (BIA 1946; A.G.1947). See also Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974).
Counsel, however, argues that the presence of a criminal mental state during the commission of the crime is not required for conviction under the Illinois aggravated assault statute. Counsel basically contends that aggravated assault is an absolute liability offense in Illinois. Counsel is in error in this respect.
Various mental states which may be the basis for criminal convictions are specifically defined in Chapter 38 of the Illinois Revised Statutes: section 4-4 defines Intent; section 4-5 defines Knowledge; section 4-6 defines Recklessness; and section 4-7 defines Negligence.
Absolute liability crimes are governed by section 4-9, which provides:
§ 4-9. Absolute Liability
A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4-4 through 4-7 if the offense is a misdeameanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. Thus, absolute liability crimes in Illinois encompass only those misdemeanors for which the punishment cannot exceed $500, unless the statute itself indicates a legislative purpose to impose absolute liability.
At the time of the respondent's conviction, simple assault was an absolute liability crime, because the possible punishment did not include imprisonment and any fine could not exceed $500. However, the possible punishment for aggravated assault in 1971 included a $1,000 fine, and imprisonment up to five years. Furthermore, the aggravated assault statute does not indicate a legislative purpose to impose absolute liability. See Daley v. Thaxton, 92 Ill.App.2d 277, 236 N.E.2d 433 (1968). Illinois thus required the presence of a criminal mental element for conviction of aggravated assault under section 12-2(a)(1).
Section 4-3 of Chapter 38 is the general statute governing the mental state requirement for Illinois criminal statutes which prescribe no particular mental state. Section 4-3 provides in part:
§ 4-3. Mental State
(a) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections 4-4 through 4-7.
(b) . . . If the statute does not prescribe a particular mental state applicable to an element of an offense (other than an offense which involves absolute liability), any mental state defined in Sections 4-4, 4-5 or 4-6 is applicable. (Emphasis added.)
The Illinois aggravated assault statute does not prescribe a particular mental state applicable to an element of that offense. Accordingly, any mental state defined in section 4-4 (Intent), section 4-5 (Knowledge), or section 4-6 (Recklessness) is applicable. The record of conviction relating to the respondent's 1971 aggravated assault conviction does not specify any one of these three mental elements. It is therefore possible that the respondent could have been convicted had he acted recklessly within the meaning of section 4-6.
Intent or knowledge can serve as the basis for a finding of moral turpitude in criminal conduct. However, in dealing with statutes from jurisdictions other than Illinois, we have indicated that moral turpitude for immigration purposes does not necessarily inhere in criminally reckless conduct. Matter of Szegedi, 10 I. & N. Dec. 28 (BIA 1962); see Matter of Gantus-Bobadilla, 13 I. & N. Dec. 777 at 778 (BIA 1971). We have reconsidered the general position taken in these cases, and we have concluded that moral turpitude can lie in criminally reckless conduct.
Illinois defines the term recklessness in Chapter 38, section 4-6, which provides:
§ 4-6. Recklessness
A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. An act performed recklessly is performed wantonly, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.
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 violator's action. While the Illinois recklessness statute may not require a...
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