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General Immigration 8th Cir:Reckless Assault is a CIMT, Declines to Address Deference Owed to BIA Unpublished Opinions | 8th Cir:Reckless Assault is a CIMT, Declines to Address Deference Owed to BIA Unpublished Opinions |
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| Friday, 29 August 2008 | |||||
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Godinez-Arroyo v. Mukasey, No. 06-4039 (8th. Cir.) August 28, 2008 MELLOY, Riley, Colloton
In Godinez-Arroyo, the 8th Circuit considered the petitioner’s challenge to a BIA finding that second degree assault pursuant to Missouri Revised Statutes § 565.060 constitutes a crime involving moral turpitude. The BIA had held below that the offense did indeed constitute a crime involving moral turpitude where the offense involved a reckless mens rea coupled with what it found was an aggravating factor: causing “serious physical injury” to another.
The 8th Circuit first considered the petitioner’s argument that, because the BIA’s decision below was unpublished, it should not be accorded the higher deferential standard under Chevron v. USA, Inc. v Natural Res. Def. Council, Inc., 467 US 837 (1984), but rather the lesser standard of deference pursuant to Skidmore v. Swift & Co., 323 US 134 (1944). The court noted that it had previously applied a high standard of deference to unpublished opinions, but it had never addressed whether there might be a “sliding scale” of deference owed to unpublished BIA opinions, acknowledging that at least the 9th and 2nd circuits had questioned whether Chevron deference is appropriate in these cases. Ultimately, the court declined to announce a rule as to the standard of deference owed to unpublished BIA decisions, finding that in this case, even under the lesser Skidmore deference standard, the BIA decision was persuasive.
The court next moved on to agree with the BIA that the Missouri offense of reckless second degree assault constituted a crime involving moral turpitude. It found that a reckless mens rea was sufficient and that physical injury was an aggravating factor such that the offense constituted a crime involving moral turpitude where the record reflected that bodily injury had occurred. The court rejected Godinez-Arroyo’s argument that “aggravating factor” should be given a narrow meaning, limited to the use of a weapon, or when the serious injury is inflicted on children, spouses or peace officers.
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