Matter of Wojtkow
| Decision Date | 10 September 1981 |
| Docket Number | A-13934122,Interim Decision Number 2879 |
| Citation | 18 I&N Dec. 111 |
| Parties | MATTER OF WOJTKOW In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This case is before us on certification by the immigration judge for review of his decision dated June 19, 1981, wherein he found the respondent ineligible for the privilege of voluntary departure; denied his applications for a waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), as amended, asylum, and withholding of deportation, pursuant to section 243(h) of the Act, 8 U.S.C. 1253(h); but ordered termination of these proceedings. The decision of the immigration judge insofar as it ordered the proceedings terminated will be reversed.
The respondent is a native and citizen of Poland, age 29, who was admitted to the United States in August 1973 as a returning resident. He had initially entered this country in 1965. The respondent was indicted for the murder of his aunt, Mary Tabachewsky, on January 5, 1974, but later pleaded guilty before trial to the lesser crime of manslaugher, second degree.1 Thereafter, he served 4½ years of a 7-year prison sentence.2 On August 14, 1978, the Service issued an Order to Show Cause charging the respondent with being deportable under section 241(a)(4) of the Act, 8 U.S.C. 1251(a)(4).
The immigration judge found, inter alia, that he was "reluctantly bound" to conclude that the respondent's conviction under section 125.15(1) of the New York Penal Law did not involve moral turpitude in view of this Board's decision in Matter of Gantus-Bobadilla, 13 I&N Dec. 7 (BIA 1971). In Matter of Gantus-Bobadilla, the Board held that a conviction under section 125.15(1) did not involve moral turpitude. The immigration judge's finding was inconsistent with that of the District Director who earlier, in denying the respondent's application for asylum on July 23, 1979, had concluded that a conviction under section 125.15(1) "constitutes conviction of a crime involving moral turpitude," citing Matter of Medina, 15 I&N Dec. 611 (BIA 1976). In view of the immigration judge's above finding, he ordered these proceedings "terminated for lack of proof of deportability" and certified this matter to the Board for final decision.
Upon review of the record, including briefs submitted by both parties, we find that the decision of the immigration judge should be reversed. In Matter of Medina, supra, the Board reconsidered its position taken in Matter of Gantus-Bobadilla, supra, and concluded that "moral turpitude can lie in criminally reckless conduct." We further noted that under Illinois law "recklessness" arises only where a person "consciously disregards a substantial and unjustifiable risk" and such disregard "constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." We held that such criminal reckless conduct did involve moral turpitude.
The definitions of "recklessness" at issue in Matter of Medina, supra, involving Illinois law and in Matter of Gantus-Bobadilla, supra, involving New York law are essentially identical. Section 15.05(3) of the New York Penal Law defines under "Culpability":
"Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by...
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