The Hernandez decision alters the concept of Matter of Solon’s balancing test, in which it was previously believed that a mental state of recklessness must be coupled with – at the very minimum – a serious threat of imminent death to constitute a CIMT. Moreover, this decision comes directly in the face of the BIA’s decision of In re Fualaau. 21 I. & N. Dec. 475 (BIA 1996), in which the Board held that “[i]n order for an assault of the nature at issue in this case to be deemed a crime involving moral turpitude, the element of a reckless state of mind must be coupled with an offense involving the infliction of serious bodily injury.” Id. at 478.

Accordingly, we affirm the decision of the Immigration Judge that assault in the first degree under the New York Penal Law is a crime involving moral turpitude.” Matter of Darlin Antonio Beato-Gomez, A 45-868-562, 2004 WL 848512 (BIA 2004).(There are several unpublished BIA decisions finding that a violation of § 120.10 was an aggravated felony.)Analysis of Other SectionsThese cases set out the framework to argue that a conviction is not a CIMT.From /files/0/6/4/7/5/167292-157460/3285.pdf”>Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996) (where non-citizen pled to “recklessly” inflicting bodily injury on another person): “However, assault with a deadly weapon has been held to be a crime involving moral turpitude. . . . The offense at issue here is fundamentally different from those that have been determined to involve moral turpitude. The instant assault conviction does not arise under a statute which has as an element “the death of another person,” Matter of Franklin, supra; the use of a deadly weapon, Matter of Medina, supra; or any other aggravating circumstance, Matter of Danesh, supra.