[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-14501 ELEVENTH CIRCUIT
________________________ MARCH 10, 2009
THOMAS K. KAHN
CLERK
Agency No. A98-947-656
CHRETIEN KEUNGNE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 10, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Chretien Keungne, a native and citizen of Cameroon, petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) order finding him removable because his conviction under Georgia’s
criminal reckless conduct statute, Ga. Code Ann. § 16-5-60(b), constitutes a crime
involving moral turpitude. After review and oral argument, we dismiss the
petition.
I. BACKGROUND
In November 2003, Keungne was admitted to the United States as a
non-immigrant visitor. In April 2004, he was arrested in Georgia and charged with
aggravated assault, false imprisonment, and possession of a knife in the
commission of a felony. In August 2006, he pled nolo contendere to two counts of
criminal reckless conduct under Ga. Code Ann. § 16-5-60(b), a lesser included
offense of the aggravated assault charge. Keungne was convicted and sentenced to
12 months’ imprisonment on each count, to be served concurrently.
In September 2006, the Department of Homeland Security (“DHS”)
administratively ordered Keungne removed from the United States on the grounds
that he had been convicted of an aggravated felony. However, the DHS cancelled
the September 2006 removal order after Keungne asserted a fear of persecution or
torture. Keungne subsequently was served with a Notice to Appear that charged
that he was removable based on, inter alia, his conviction of a crime involving
moral turpitude within five years of admission for which a sentence of one year or
longer may be imposed, pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).
On April 23, 2007, a removal hearing was held before an IJ. At the removal
2
hearing, Keungne, proceeding pro se, filed an application for asylum, withholding
of removal, and relief under the United Nations Convention Against Torture
(“CAT”). Keungne admitted that he was convicted of criminal reckless conduct in
2006 and sentenced to 12 months’ imprisonment.
The IJ concluded, inter alia, that Keungne was removable because his
reckless conduct conviction was a crime involving moral turpitude.1 The BIA
affirmed the IJ’s finding that Keungne was removable under 8 U.S.C. §
1227(a)(2)(A)(i). The BIA stated that “[u]pon consideration of the statutory
definition of the respondent’s crime, we are persuaded that it is one in which moral
turpitude inheres” and cited Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004); In re
Solon, 24 I. & N. Dec. 239 (BIA 2007); In re Franklin, 20 I. & N. Dec. 867 (BIA
1994); In re Wojtkow, 18 I. & N. Dec. 111 (BIA 1981); and In re Medina, 15 I. &
N. Dec. 611 (BIA 1976).
II. DISCUSSION
A. Jurisdiction
1
The IJ also: (1) found that Keungne was not removable for remaining in the United
States longer than permitted because he was detained as part of his state criminal offense and
unable to depart; (2) determined that Keungne’s reckless conduct conviction was an aggravated
felony because it was a crime of violence; (3) denied Keungne’s asylum application as untimely
and barred by his aggravated felony conviction; and (4) denied his claims for withholding of
removal and CAT relief. The BIA reversed the IJ’s finding that Keungne’s reckless conduct
conviction was an aggravated felony, but affirmed the IJ’s order on all other grounds. Because
we agree with the BIA’s and IJ’s determination that Keungne’s reckless conduct conviction was
a crime involving moral turpitude, we need not reach the BIA’s other conclusions.
3
As an initial matter, we must determine whether we have jurisdiction to
entertain Keungne’s petition for review. Vuksanovic v. U.S. Att’y Gen., 439 F.3d
1308, 1310 (11th Cir. 2006); Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338,
1340 (11th Cir. 2005). This Court lacks jurisdiction to review a final order of
removal if the alien is removable under 8 U.S.C. § 1227(a)(2)(A)(i) for being
convicted of a crime involving moral turpitude within five years of admission for
which a sentence of one year or longer may be imposed. See 8 U.S.C. §
1252(a)(2)(C); Vuksanovic, 439 F.3d at 1310. However, we retain jurisdiction to
determine whether the statutory conditions for limiting judicial review exist, i.e.,
whether Keungne is “‘(1) an alien; (2) who is removable; (3) based on having
committed a disqualifying offense.’” Vuksanovic, 439 F.3d at 1310–11 (quoting
Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir. 2001)). Keungne does not contest
the fact that he is an alien. Thus, our review is limited to determining whether
Keungne is removable because his reckless conduct conviction is a crime involving
moral turpitude.2 If so, we lack jurisdiction to review Keungne’s final order of
removal. Id. at 1311; Sosa-Martinez, 420 F.3d at 1341.
B. Precedent Defining “Crime Involving Moral Turpitude”
The term “moral turpitude” is not defined by statute. This Court has stated
2
“We review questions of statutory interpretation de novo, but defer to the BIA’s
interpretation if it is reasonable.” Vuksanovic, 439 F.3d at 1311 n.3.
4
that it involves “‘an act of baseness, vileness, or depravity in the private and social
duties which a man owes to his fellow men, or to society in general, contrary to the
accepted and customary rule of right and duty between man and man.’”
Vuksanovic, 439 F.3d at 1311 (quoting Itani v. Ashcroft, 298 F.3d 1213, 1215
(11th Cir. 2002)) (brackets omitted). “‘Whether a crime involves the depravity or
fraud necessary to be one of moral turpitude depends upon the inherent nature of
the offense, as defined in the relevant statute, rather than the circumstances
surrounding a defendant’s particular conduct.’” Id. (quoting Itani, 298 F.3d at
1215–16). In other words, the determination that a crime involves moral turpitude
is made categorically based on the statutory definition or nature of the crime, not
the specific conduct predicating a particular conviction.3 This Court has concluded
that crimes involving moral turpitude include second-degree arson, Vuksanovic,
439 F.3d at 1311; aggravated battery, Sosa-Martinez, 420 F.3d at 1342; aggravated
child abuse, Garcia v. Att’y Gen., 329 F.3d 1217, 1222 (11th Cir. 2003); and
misprision of a felony, Itani, 298 F.3d at 1216.
The BIA has concluded that moral turpitude may inhere in criminally
reckless conduct. Solon, 24 I. & N. Dec. at 240; Franklin, 20 I. & N. Dec. at
3
In the categorical approach, we analyze whether the least culpable conduct necessary to
sustain a conviction under the statute meets the standard of a crime involving moral turpitude.
See Rodriguez-Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir. 2005); Partyka v. Att’y Gen., 417
F.3d 408, 411 (3d Cir. 2005); Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000).
5
869–70; Wojtkow, 18 I. & N. Dec. at 112–13; Medina, 15 I. & N. Dec. at 613.4 In
Medina, the BIA analyzed whether a conviction under Illinois’s aggravated assault
statute, which permitted conviction with only a reckless mental state, was a crime
involving moral turpitude. 15 I. & N. Dec. at 612–13. The BIA observed that the
Illinois statutory definition of recklessness stated that “[t]he 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” and that “[t]his definition of
recklessness requires an actual awareness of the risk created by the criminal
violator’s action.” Id. at 613–14. The BIA found it persuasive that “the violator
must show a willingness to commit the act in disregard of the perceived risk” and
emphasized that “[t]he presence or absence of a corrupt or vicious mind is not
controlling.” Id. at 614. Based on its analysis of Illinois’s recklessness definition,
the BIA concluded that the aggravated assault conviction was a crime involving
moral turpitude. Id.
Several years later in In re Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999)
(en banc), the en banc BIA revisited the question of which crimes with a reckless
4
The BIA has concluded that crimes involving moral turpitude include, inter alia, third-
degree assault under New York law, Solon, 24 I. & N. Dec. at 245; involuntary manslaughter
under Missouri law, Franklin, 20 I. & N. Dec. at 869–70; aggravated assault on a peace officer
under Texas law, In re Danesh, 19 I. & N. Dec. 669, 673 (BIA 1988); and second-degree
manslaughter under New York law, Wojtkow, 18 I. & N. Dec. at 113.
6
mental state involve moral turpitude in addressing a prior conviction for
aggravated driving under the influence (“DUI”) under Arizona law. As an initial
matter, the BIA stated that simple DUI “is ordinarily a regulatory offense that
involves no culpable mental state requirement, such as intent or knowledge,” and
agreed with the IJ that it “does not, without more, reflect conduct that is necessarily
morally reprehensible or that indicates such a level of depravity or baseness that it
involves moral turpitude.” Lopez-Meza, 22 I. & N. Dec. at 1194.
However, the BIA noted that the petitioner was convicted of aggravated
DUI, defined as “committing a DUI offense while knowingly driving on a
suspended, canceled, or revoked license or by committing a DUI offense while
already on a restricted license owing to a prior DUI.” Id. at 1194–95. The BIA
concluded that aggravated DUI was a crime involving moral turpitude, despite the
absence of a particular intent requirement, “because the aggravated circumstances
necessary for a conviction . . . establish a culpable mental state adequate to support
a finding of moral turpitude.” Id. at 1195 (emphasis added). The BIA noted that a
conviction for aggravated DUI required a showing that the defendant knew or
should have known that his license was suspended and thus that he should not be
driving under any circumstances. Id. at 1195–96. Accordingly, the BIA concluded
that “a person who drives while under the influence, knowing that he or she is
absolutely prohibited from driving, commits a crime so base and so contrary to the
7
currently accepted duties that persons owe to one another and to society in general
that it involves moral turpitude.” Id. at 1196.
Here, the BIA relied, in part, on the Third Circuit’s decision in Knapik,
which concluded that reckless endangerment under New York law was a crime
involving moral turpitude. The New York statute at issue provided, “‘A person is
guilty of reckless endangerment in the first degree when, under circumstances
evincing a depraved indifference to human life, he recklessly engages in conduct
which creates a grave risk of death to another person.’” Knapik, 384 F.3d at 86 n.1
(quoting N.Y. Penal Law § 120.25). The Third Circuit reviewed the BIA’s
precedent assessing whether criminally reckless conduct could be a crime
involving moral turpitude and summarized that “since Medina, the BIA
consistently has interpreted moral turpitude to include recklessness crimes if
certain statutory aggravating factors are present. For example, the BIA limits
moral turpitude to crimes in which a defendant consciously disregards a substantial
risk of serious harm or death to another.” Id. at 89–90.
The Knapik Court stated that reckless endangerment was a “much more
severe offense than drunk driving, which almost certainly does not involve moral
turpitude.” Id. at 90. The Third Circuit further noted that New York’s reckless
endangerment statute contained the aggravating factor of requiring that a defendant
create a “grave risk of death to another person under circumstances evincing a
8
depraved indifference to human life.” Id. (quotation marks omitted). The Knapik
Court rejected Knapik’s argument that his conviction was distinguishable from
manslaughter or assault with a deadly weapon (which the BIA had concluded were
crimes involving moral turpitude) because the reckless endangerment statute did
not require injury to an individual, stating, “With regard to reckless acts, moral
turpitude inheres in the conscious disregard of a substantial and unjustifiable risk
of severe harm or death. Knapik’s good fortune in not injuring or killing anyone
does not change the quality of his actions.” Id. at 90 n.5. Thus, applying deference
to the BIA’s determination that the reckless endangerment conviction was a crime
involving moral turpitude, the Third Circuit concluded, “[i]n this context, the BIA
could reasonably conclude that the elements of depravity, recklessness and grave
risk of death, when considered together, implicate accepted rules of morality and
the duties owed to society.”5 Id. at 90.
With this precedent in mind, we address whether Georgia’s criminal reckless
conduct statute is a crime involving moral turpitude.
C. Georgia’s Criminal Reckless Conduct Statute
5
However, the Third Circuit concluded that Knapik’s conviction for attempted reckless
endangerment was not a crime involving moral turpitude. Knapik, 384 F.3d at 91–92
(“Attempted reckless endangerment is not a crime involving moral turpitude because,
categorically speaking, the concept makes no sense. Attempt (necessarily requiring intent to
commit a crime) is inconsistent with recklessness (which, by definition, implies acting without
intent).”).
9
Whether criminal reckless conduct under Georgia law involves moral
turpitude is an issue of first impression in this circuit. The Georgia statute
provides, in relevant part:
A person who causes bodily harm to or endangers the bodily safety of
another person by consciously disregarding a substantial and
unjustifiable risk that his act or omission will cause harm or endanger
the safety of the other person and the disregard constitutes a gross
deviation from the standard of care which a reasonable person would
exercise in the situation is guilty of a misdemeanor.
Ga. Code Ann. § 16-5-60(b).
Under a categorical analysis of the statutory definition and nature of the
crime of reckless conduct under Georgia law, we are convinced that it requires a
sufficiently culpable mental state and is inherently a crime involving moral
turpitude. First, the Georgia reckless conduct statute, like the statute analyzed in
Medina, penalizes an individual for “consciously disregarding a substantial and
unjustifiable risk that his act or omission will cause harm or endanger the safety of
the other person.” Ga. Code Ann. § 16-5-60(b). Thus, the Georgia criminal
reckless conduct statute requires a person (1) to have an actual awareness of a
“substantial and unjustifiable risk” that his action or omission will cause harm or
endanger the safety of others, and (2) to act while “consciously disregarding” this
“substantial and unjustifiable risk.” See Knapik, 384 F.3d at 90 (“[T]he BIA limits
moral turpitude to crimes in which a defendant consciously disregards a substantial
10
risk of serious harm or death to another.”).
Second, the Georgia criminal reckless conduct statute, like the statute at
issue in Medina, requires that “the disregard constitutes a gross deviation from the
standard of care which a reasonable person would exercise in the situation.” Ga.
Code Ann. § 16-5-60(b). In other words, a person’s conduct must go far beyond
mere negligence so as to constitute a “gross deviation” from the standard of care
expected from a reasonable person. Cf. In re Perez-Contreras, 20 I. & N. Dec. 615,
619 (BIA 1992) (concluding that conviction for third-degree assault under
Washington law, defined as criminal negligence that causes bodily harm, was not a
crime involving moral turpitude because “there was no intent required for
conviction, nor any conscious disregard of a substantial and unjustifiable risk”).
Third, the Georgia criminal reckless conduct statute requires that a person’s
“gross deviation” from the standard of care either “causes bodily harm to or
endangers the bodily safety of another person.” Ga. Code Ann. § 16-5-60(b).
Thus, the Georgia reckless conduct statute does not punish an individual for merely
disregarding the risk that his act or omission will cause harm or endanger the safety
of others. Rather, it requires that an individual’s conscious disregard of such a risk
actually results in bodily harm to or endangerment of the bodily safety of another
person. Furthermore, the fact that a person can be convicted of criminal reckless
conduct under Georgia law without actually causing physical injury to another
11
person does not alter the baseness or depravity of the person’s actions. Keungne’s
good fortune in not injuring or killing someone does not the change the quality of
his actions or the culpability of his mental state. See Knapik, 384 F.3d at 90 n.5
(rejecting the argument that a conviction for reckless endangerment was not a
crime involving moral turpitude because it did not require injury to an individual);
see also Vuksanovic, 439 F.3d at 1311 (concluding that second-degree arson under
Florida law, which required only that a person “‘damages or causes to be damaged
any structure,’” was a crime involving moral turpitude (quoting Fla. Stat. §
806.01(2))).6
Considering the totality of these required elements, we conclude that
criminal reckless conduct under Georgia law inherently involves “‘an act of
baseness . . . in the private and social duties which a man owes to his fellow men,
or to society in general, contrary to the accepted and customary rule of right and
duty between man and man.’” Vuksanovic, 439 F.3d at 1311 (quoting Itani, 298
F.3d at 1215) (brackets omitted). Part of the duties that a man owes to his fellow
men and society is that he will exercise reasonable care to avoid the risk of causing
harm or endangering others. When a person grossly deviates from the standard of
care by consciously disregarding a “substantial and unjustifiable risk” that his
6
The Florida statute also required that the offense be committed “‘willfully and
unlawfully, or while in the commission of any felony.’” Vuksanovic, 439 F.3d at 1311 (quoting
Fla. Stat. § 806.01(2)).
12
actions or omissions will cause harm or endanger the safety of others and his
actions or omissions actually cause bodily harm to or endanger the bodily safety of
others, he has exhibited the “baseness” in the duties owed to society that
constitutes moral turpitude. See Knapik, 384 F.3d at 90 (concluding that
conviction under New York’s first-degree reckless endangerment statute was a
crime involving moral turpitude).7
Therefore, because we conclude that a conviction for criminal reckless
conduct under Georgia law is a crime involving moral turpitude and Keungne
raises no constitutional claims or questions of law, we are deprived of jurisdiction
to review Keungne’s petition for review under 8 U.S.C. § 1252(a)(2)(C).
PETITION DISMISSED.
7
Based on In re Fualaau, 21 I. & N. Dec. 475 (BIA 1996), Keungne contends that an
assault of this nature cannot amount to a crime of moral turpitude absent the infliction of serious
bodily injury. We disagree. In Knapik, which was decided after Fualaau, the BIA concluded
(and the Third Circuit agreed) that New York’s reckless endangerment statute was a crime
involving moral turpitude, even though it did not require actual bodily injury. Knapik, 384 F.3d
at 86 n.1. Moreover, after Fualaau, the en banc BIA has not required actual bodily injury for a
crime to be one involving moral turpitude. See Lopez-Meza, 22 I. & N. Dec. at 1194–96 (1999)
(concluding that simple DUI was a strict liability crime and was not a crime involving moral
turpitude but also concluding that aggravated DUI was a crime involving moral turpitude
because it required a showing that the defendant knew or should have known that his licensed
was suspended and a person who drives under the influence of alcohol or drugs while knowing
he is absolutely prohibited from driving has a culpable mental state); see also Medina, 15 I. & N.
Dec. at 612–14 (concluding that aggravated assault, which did not require any bodily injury but
only required that an assault was committed recklessly while using a deadly weapon, was a
crime involving moral turpitude). We cannot say that the BIA’s decision in Keungne’s case was
an unreasonable interpretation of its precedent.
13