Carlos Lopez-Mendez v. INS ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3345
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Carlos Lopez-Mendez, *
*
Petitioner, *
*
v. * Petition for Review of an
* Order of the Immigration
Immigration and Naturalization * and Naturalization Service
Service, *
* [UNPUBLISHED]
Respondent, *
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Submitted: May 24, 1999
Filed: June 30, 1999
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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Carlos Lopez-Mendez filed this petition for review of a Board of Immigration
Appeals (BIA) deportation order. For the reasons discussed below, we deny the
petition.
Lopez-Mendez, a native of Mexico, was admitted to the United States in March
1994. In March 1996, the Immigration and Naturalization Service (INS) issued him an
order to show cause why he should not be deported pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(i) (concerning crimes of moral turpitude), on the basis of his 1995
Nebraska conviction for attempted second degree assault. An immigration judge
ordered Lopez-Mendez deported, and the BIA rejected Lopez-Mendez’s appeal from
the deportation order.
In reviewing the BIA’s interpretation of its statutory mandate to deport aliens
convicted of crimes involving moral turpitude, we accord deference to the BIA’s
determination that a crime involves moral turpitude and will uphold such a
determination if it is reasonable. See Franklin v. INS, 72 F.3d 571, 572 (8th Cir.
1995), cert. denied, 519 U.S. 834 (1996). We conclude the BIA’s determination is
reasonable, because the Nebraska assault statute contains an aggravating factor--
namely, causing bodily injury with a dangerous instrument. See Neb. Rev. Stat. Ann.
§ 28-309 (Michie 1995) (offender commits second degree assault if he or she
intentionally or knowingly causes bodily injury to another person with dangerous
instrument, or recklessly causes serious bodily injury to another person with dangerous
instrument); see also Pichardo v. INS, 104 F.3d 756, 759-60 (5th Cir. 1997) (examining
Pennsylvania assault statute and concluding elements typically involved--i.e., bodily
injury together with minimum mens rea of recklessness--result in findings of moral
turpitude); Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953) (assault with deadly
weapon is crime involving moral turpitude), aff’d, 347 U.S. 637 (1954); In re Medina,
15 I. & N. Dec. 611, 614 (B.I.A. 1976) (aggravated assault by use of deadly weapon,
constituting criminally reckless conduct under Illinois statutes, is crime involving moral
turpitude).
Accordingly, Lopez-Mendez’s petition for review is denied.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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