The BIA recently held that a Washington conviction for attempting to elude a pursuing police vehicle involves moral turpitude. Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011) (Filppu, Pauley, and Wendtland, Board Members). Board Member Wendtland wrote the panel’s decision.

Matter of Hernandez, 26 I&N Dec. at 465 (quoting Matter of Silva-Trevino, 24 I&N Dec. at 689 n.1, 706 & n.5).First, the BIA had to determine whether recklessness under the Texas statute of deadly conduct constitutes the requisite form of “scienter” as required by Silva-Trevino. The BIA has previously found recklessness to be “a culpable mental state if it entails a conscious disregard of a substantial and unjustifiable risk.”Matter of Hernandez, 26 I&N Dec. at 465, 466 (citing Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553-54 (BIA 2011); Matter of Franklin, 20 I&N Dec. 867, 869-71 (BIA 1994); Matter of Wojtkow, 18 I&N Dec. 111, 112-13 (BIA 1981); Matter of Medina, 15 I&N Dec. 611, 613−14 (BIA 1976)). For its part, the Texas Penal Code defines “reckless conduct” as being “aware of but consciously disregard[ing] a substantial and unjustifiable risk that the circumstances exist or the result will occur.”

If the issue cannot be resolved under the categorical approach, the second stage involves a modified categorical inquiry, which requires inspection of specific documents comprising the alien’s record of conviction to discern the nature of the underlying conviction. Finally, if the record of conviction is inconclusive, the Attorney General has held that because moral turpitude is not an element of an offense, evidence beyond the record of conviction may be considered when evaluating whether an alien’s crime involved moral turpitude.”Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553 (BIA 2011).The AG explained that he had the power to identify the proper framework for determining whether a crime involves moral turpitude because the CIMT statutory provision is ambiguous.