Fernando Recio-Prado v. Alberto R. Gonzales , 456 F.3d 819 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2355
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Fernando Recio-Prado, *
*
Petitioner, *
*
v. * Petition for Review of an Order
* of the Board of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States, *
*
Respondent. *
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No. 05-3555
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Fernando Recio-Prado, *
*
Petitioner, *
*
v. *
*
Alberto Gonzales, Attorney General *
of the United States, *
*
Respondent. *
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Submitted: June 16, 2006
Filed: August 2, 2006
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Before SMITH, HEANEY, and GRUENDER, Circuit Judges.
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HEANEY, Circuit Judge.
Fernando Recio-Prado petitions for review of the order of removal issued by
the Board of Immigration Appeals (BIA), and the BIA’s denial of his motion to
reopen and remand the matter to an immigration judge (IJ). We deny the petitions.
BACKGROUND
Recio-Prado, a twenty-seven-year-old native and citizen of Mexico, was
admitted to the United States as a legal permanent resident on October 29, 1996. On
March 20, 2001, he was convicted of the offense of criminal discharge of a firearm at
an occupied building or vehicle, in violation of Kansas Statute section 21-4219(b), and
received a suspended sentence of eleven months of incarceration. The Department of
Homeland Security (DHS) subsequently began removal proceedings against Recio-
Prado on January 9, 2002, alleging that he had been convicted of an aggravated
felony1 and a firearms violation.2 DHS subsequently amended its allegations,
including the charge that Recio-Prado had been convicted of a crime of moral
turpitude.3 As factual support for each of these charges, the DHS alleged that Recio-
Prado had been convicted of the Kansas offense of criminal discharge of a firearm at
an occupied building or vehicle.
In proceedings before the IJ, Recio-Prado admitted all factual allegations,
including his prior state court conviction. He further admitted that he was removable
because his offense constituted a firearms violation, but denied that it was either an
1
8 U.S.C. § 1227(a)(2)(A)(iii).
2
8 U.S.C. § 1227(a)(2)(C).
3
8 U.S.C. § 1227(a)(2)(A)(i).
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aggravated felony or a crime of moral turpitude. Following a hearing held on
February 23, 2004, the IJ held that Recio-Prado’s offense of conviction qualified as
a crime of moral turpitude, since it involved the malicious firing of a weapon into an
occupied dwelling. Recio-Prado appealed to the BIA, which affirmed the IJ’s
decision on April 21, 2005.
On July 21, 2005, Recio-Prado filed a motion with the BIA seeking to reopen
and remand his case to the IJ. He asserted that the IJ erred in determining that Recio-
Prado’s offense involved moral turpitude, because Recio-Prado had pled guilty only
to aiding and abetting the shooting, yet the IJ treated him as if he were the principal.
The BIA denied the motion as untimely. Recio-Prado filed petitions for review of the
BIA’s order of removal and denial of his motion to reopen, which we consolidated for
purposes of this appeal.
ANALYSIS
We have jurisdiction to consider the “legal question” of whether Recio-Prado’s
Kansas conviction qualifies as a “crime of moral turpitude.” Loeza-Dominguez v.
Gonzales, 428 F.3d 1156, 1157 (8th Cir. 2005). “Moral turpitude” is left undefined
by statute, subject to the interpretation of DHS. Solano-Chicas v. Gonzales, 440 F.3d
1050, 1055 (8th Cir. 2006). Thus, “[w]hen reviewing the IJ’s statutory mandate to
deport aliens convicted of crimes involving moral turpitude, we must accord deference
to the BIA’s rulings, and will uphold its decision so long as it is reasonable.” Reyes-
Morales v. Gonzales, 435 F.3d 937, 944 (8th Cir. 2006).
Our initial inquiry is whether the alien’s statute of conviction “defines a crime
in which moral turpitude necessarily inheres.” Chanmouny v. Ashcroft, 376 F.3d 810,
812 (8th Cir. 2004) (quoting In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (per
curiam)). If that is the case, “then the conviction is for a crime involving moral
turpitude for immigration purposes, and our analysis ends.” Id. If the statute
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criminalizes conduct that involves moral turpitude as well as conduct that does not,
we look to the record of conviction to determine what precise provision of the statute
applied to the alien. Id. at 813.
The decision below indicates that the IJ considered the statute to be one in
which moral turpitude inhered. “Moral turpitude refers generally to conduct which
is inherently base, vile, or depraved, and contrary to the accepted rules of morality and
the duties owed between persons or to society in general.” In re Ajami, 22 I. & N.
Dec. at 950. It is an act that is intrinsically wrong, “so it is the nature of the act itself
and not the statutory prohibition of it which renders a crime one of moral turpitude.”
Id.
We agree with the IJ that moral turpitude inheres in Recio-Prado’s statute of
conviction. To sustain his conviction under the Kansas statute, the state was required
to prove Recio-Prado engaged in “the malicious, intentional and unauthorized
discharge of a firearm at a dwelling . . . in which there is a human being.” Kan. Stat.
§ 21-4219(b). Maliciously and intentionally firing a weapon into an occupied
dwelling strikes us as undoubtedly malum in se; even without the statute’s prohibition
on such conduct, it is wrong.4
Recio-Prado also complains that the BIA unfairly denied his motion to reopen
the record and remand. He acknowledges that it was not timely filed. See 8 C.F.R.
§ 1003.2(c)(2) (stating that a petitioner has ninety days following the final
administrative decision in which to file a motion to reopen). We agree with Recio-
Prado, however, that this is not a jurisdictional bar to relief. The regulations
themselves grant the BIA discretion to reopen or reconsider “at any time” a case in
4
Recio-Prado asserts that the IJ erred in misstating the facts underlying his
conviction. Even assuming there was any misstatement, it is of no import, because
moral turpitude inheres in the statute of conviction. Thus, we look to the fact of
conviction, not the facts underlying the conviction.
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which it has issued a decision. 8 C.F.R. § 1003.2(a); cf. Etchu-Njang v. Gonzales, 403
F.3d 577, 585 (8th Cir. 2005) (noting that BIA has reopened matters to consider
ineffective assistance of counsel claims despite tardy filing by the alien).
Although the BIA had jurisdiction to reopen Recio-Prado’s case, it did not
abuse its discretion in refusing to do so. Recio-Prado’s motion to reopen was based
on the view that his conviction did not qualify as a crime of moral turpitude. In
support of his motion, he asserted that he was only convicted as an aider and abetter
to the shooting, and sought to introduce the transcript from his plea hearing to
establish that fact.
We doubt the plea transcript qualifies as evidence that “was not available and
could not have been discovered or presented at the former hearing,” a condition
necessary before the BIA may grant the motion to reopen. 8 C.F.R. § 1003.2(c)(1).
Moreover, such facts were already before the IJ: the administrative record contains
Recio-Prado’s plea petition, and states that “Mr. Recio-Prado is pleading as an aider
and abetter.” (Admin. Rec. at 144.) The administrative record does not, however,
contain any evidence whatsoever that Recio-Prado argued before the IJ or the BIA that
he ought to be treated differently because he was merely an aider and abetter. Lastly,
we question whether the plea transcript satisfies the materiality requisite of a motion
to reopen. See 8 C.F.R. § 1003.2(c)(1). The BIA has often treated an accessory the
same as the principal for the crime of moral turpitude inquiry. See In re Short, 20 I.
& N. Dec. 136, 138 n.1 (BIA 1989); accord State v. Smolin, 557 P.2d 1241, 1245
(Kan. 1976) (“By statute and case law this jurisdiction [has] long held that any person
who counsels, aids or abets in the commission of any offense may be charged, tried
and convicted in the same manner as if he were a principal.”). Recio-Prado has not
suggested any convincing reason for the BIA to have deviated from that course here.
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CONCLUSION
Recio-Prado contests the order of removal issued by the BIA. As he was
convicted of a crime of moral turpitude, the order was properly issued. He further
argues that he was entitled to have his case reopened so that he could present
additional evidence to the IJ. That decision was left to the discretion of the BIA, and
we find no abuse in its refusal to do so. Accordingly, we deny his petitions.
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