U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5/07 leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - PHI

900 Market Street, Suite 346
Philadelphia, PA 19107

Name: BOWMAN, KEMOL DECOSTA

A 093-336-729
Date of this notice: 7/30/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

bOruU-

aftA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Creppy, Michael J.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Kemol Decosta Bowman, A093 336 729 (BIA July 30, 2015)

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Montejo, Ruben T.
Ruben T. Montejo
225 Broadway, Ste. 900
New York, NY 10007

....

U.S. Department of Justice

Executive Office for Immigration Review

Decision ofthe Board of Immigration Appeals

Falls Church, Virginia 20530

File: A093 336 729-Philadelphia, PA

Date:

In re: KEMOL DECOSTA BOWMAN

JUL 3 0 2015

APPEAL
ON BEHALF OF RESPONDENT: Ruben T. Montejo, Esquire
ON BEHALF OF DHS: Andrew Lipkind
Assistant Chief Counsel

The Department of Homeland Security ("DHS") has advised this Board that it no longer
desires to pursue the appeal on the merits. Accordingly, the appeal is dismissed and proceedings
are terminated.

Cite as: Kemol Decosta Bowman, A093 336 729 (BIA July 30, 2015)

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IN REMOVAL PROCEEDINGS

:.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
PHILADELPHIA, PENNSYLVANIA
)

BOWMAN, Kemol Decosta

RESPONDENT

- >

IN REMOVAL PROCEEDINGS
File No.: A093-336-729
Date: January 6, 2014

CHARGE:

Section 237(a)(2)(A)(i) of the Immigration and Nationality Act

("Act" or "INA"), as amended, in that Respondent is an alien who
has been convicted of a crime involving moral turpitude committed
within five years after admission for which a sentence of one year or
longer may be imposed.

APPLICATION:

Respondent's Motion to Terminate Proceedings

APPEARANCES
ON BEHALF OF RESPONDENT:
Ruben Montejo, Esq.
225 Broadway
Suite 900
New York, NY 10007-3900

ON BEHALF OF THE GOVERNMENT:

Andrew Lipkind, Esq.
Assistant Chief Counsel
DHS/ICE
900 Market Street, Suite 346
Philadelphia, PA 19107

DECISION AND ORDERS OF THE IMMIGRATION JUDGE

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IN THE MATTER OF:

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I.

Procedural History

Accordingly, on March 22, 2012, DHS personally served Respondent with form I-862,
Notice to Appear. Id. Respondent's NTA alleges that (1) he is not a citizen or national ofthe
United States; (2) that he is a native and citizen of Jamaica; (3) he was admitted to the United
States at New York, NY on or about September 3, 2009 as a CR6 Conditional Resident; (4) he was
convicted in the Court of Common Pleas of Lehigh County, Criminal Division, Commonwealth of
Pennsylvania, Docket Number CP-39-CR-0004995-2011 for the offense of REAP, in violation of
Title 18, section 2705 of the Pennsylvania Crimes Codes, respectively; (5) that offense has a
sentence of one year or longer that may be imposed. Id. As such, the NTA charges Respondent as
removable under section 237(a)(2)(A)(i) ofthe INA because he has been convicted ofa crime
involving moral turpitude ("CIMT") within five years after admission for which a sentence of one
year or longer may be imposed. Id.
On November 14, 2012, Respondent admitted factual allegations (1) through (5) and
conceded the charge ofremovability. On May 22, 2013, Citizenship and Immigration Services
approved the respondent's I-751 Petition to Remove Conditions on Residence. On July 25, 2013
Respondent challenged his removability pursuant to INA 237(a)(2)(A)(i), asserting that his
conviction under 18 Pa. C.S. 2705 does not categorically qualify as a CIMT.
For the following reasons, the Court grants Respondent's motion to terminate proceedings.
II.

Legal Analysis
A.

Definition of a CIMT

Morally turpitudinous conduct is conduct that is "inherently base, vile or depraved" and
contrary to the accepted rules of morality. Partyka v. Att'y Gen., 417 F.3d 408, 413 (3d Cir.
2005). It is a reprehensible act with an appreciable level ofconsciousness or deliberation.
Mehboob v. Att'y Gen., 549 F.3d 272, 276 (3d Cir. 2008). Generally, "evil intent" is a requisite
element for a crime involving moral turpitude. Partyka, 417 F.3d at 413. Whether an alien's
crime involves moral turpitude is determined by the criminal statute, not the alien's specific
conduct. Therefore, whether an offense constitutes a CIMT is determined by an analysis of the
statutory definition of the crime. See Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004); De
Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002). Where there is a unitary statute,
that is, a statute that can only be violated in one manner, the court adopts the formal categorical
approach, and does not look beyond the language of the statute in determining whether the offense

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Respondent is a 23-year-old male, native and citizen ofJamaica. Respondent's Notice to

Appear, 1-862, filed November 7, 2012. He was lawfully inspected and admitted as a visitor on
May 24, 2008; his status was then adjusted to a conditional permanent resident on September 3,
2009. Id. On March 16, 2012, Respondent pied guilty to Homicide by Vehicle in violation of 18
Pa. C.S. 3732(a) and Recklessly Endangering Another Person (''REAP") in violation of18 Pa.
c.s. 2705.

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B.

Recklessly Endangering Another Person ("REAP'') And Scienter

REAP under 18 Pa. Cons. Stat. 2705 provides: "A person commits a misdemeanor of the
second degree if he recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury."
This provision is a unitary statute - there are no alternative states of mind, subsections,
or portions. It can only be violated in one manner. Therefore, the determination of whether a
conviction under this statute constitutes a CIMT is a pure categorical analysis, without resort to the
record of conviction. See Jean-Louis, 582 F.3d at 466. Further, since it is a unitary statute there
is no need to engage in a modified categorical analysis. See Garcia v. Attorney General, 462 F.3d
287 (3d Cir. 2006).
As REAP falls under the assault chapter of the Pennsylvania Crimes and Offenses
Statutes, the Board oflmmigration Appeals' ("the Board" or "BIA") decisions of assault offenses
as constituting CIMT's provide the proper analytic tool for this question.
An assault offense may or may not involve moral turpitude. Matter of Solon, 24 I&N
Dec. 239, 240 (BIA 2007). In Solon, the Board sought to harmonize the seemingly scattered
decisions as to whether assault-type offenses constitute a CIMT by balancing the statutory mens
rea and the harm provided in the statute. Id. Most simple assaults are not CIMTs because they
are committed with only a general intent, and not with the evil intent, depraved or vicious motive
or corrupt mind required to constitute a CIMT. Id. However, even where there is intentional
1 The Attorney General enunciated a different test for determining whether a crime is morally turpitudinous in Matter
of Silva-Trevino, 21 I&N Dec. 687 (2008). However, the Third Circuit has declined to follow the Attorney General's
method and has continued to apply the traditional categorical approach. See Jean-Louis v. Att'y Gen., 582 F.3d 462
(3d Cir. 2009).

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is a CIMT. Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004). Where the language of the
statute contains disjunctive elements, some of which cover turpitudinous conduct and others of
which do not, the statute is divisible and the court uses a modified categorical approach.
Jean-Louis v. Att'y Gen., 582 FJd 462, 466 (3d Cir. 2009); Partyka, 417 F.3d at 411. The
modified categorical approach allows a limited factual inquiry into the record of conviction to
determine whether the alien was convicted under the part of the statute that covers turpitudinous
conduct. I Garcia v. Att'y Gen., 462 F.3d 287, 293 n.9 (3d Cir. 2006). The record of conviction
includes the indictment or charging document, plea or plea agreement, verdict, sentence, or a
comparable judicial record of information. Partyk 417 F. 3d at 416 (quoting Chanmouny v.
Ashcroft, 376 F.3d 810, 812 (8th Cir. 2004)); Jean-Louis, 582 F.3d at 466 n.5 (citing Shepard v.
United States, 544 U.S. 13, 26 (2005)). The purpose of reviewing the record of conviction is to
determine the offense for which the alien was convicted, not to assess the conduct which gave rise
to the conviction. If the modified categorical analysis of the record of conviction does not clarify
the offense of conviction, then the determination of whether the offense is a CIMT is made by
analyzing the least culpable mens rea required under the statute. Knapik, 384 F.3d at 88. If that
element does not involve moral turpitude, then the alien's conviction is not a CIMT.

1,I
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In Solon, the Board analyzed its assault precedents, and concluded that determining
whether an assault-type crime is a CIMT requires balancing the mens rea with the level of harm
statutorily required by the offense. See 24 I& N Dec. at 242. "[A]s the level of conscious
behavior decreases, i.e., from intentional to reckless conduct, more serious resulting harm is
required in order to find that the crime involves moral turpitude." Id. An examination of the
Board's prior decisions in this area supports the decision in Solon. In Matter of Fualaau, the
reckless infliction of bodily harm was not sufficient to constitute a CIMT because the statute of
conviction required mere recklessness. 21 I& N Dec. 475, 478 (BIA 1996). However, in Matter
of Franklin, although the statute required a mens rea of recklessness, the resulting harm, death, was
so serious that the offense constituted a CIMT. 20 l& N Dec. at 870. In Matter ofWojtkow,
second degree manslaughter was also found to constitute a CIMT, but in Matter of
Perez-Contreras, negligent conduct, even when accompanied by "substantial pain," did not
constitute a CIMT. Compare Perez-Contreras, 20 I& N Dec. 615, 619 (BIA 1992) with Wojtkow,
18 I& N Dec. 111, 113 (BIA 1989). In Matter of Danesh, the Board found that assault committed
with knowledge that the victim was a law enforcement official constituted a CIMT. 19 I& N Dec.
669, 673 (BIA 1998). However, the Third Circuit found that negligent assault on a law
enforcement officer did not involve moral turpitude. Partyka, 417 F.3d at 415-16. In Matter of
Ajami, the Board determined that the offense of "aggravated stalking" was a CIMT, because
although the offense did not require physical contact with the complainant, the "violator of the
statute must act willfully, must embark on a course of conduct as opposed to a single act, and must
cause another to feel great fear." 22 I& N Dec. 949, 952 (BIA 1999). Therefore, even where no
harm is inflicted, a mens rea that involves intentional actions directed to instill ''great fear" is
turpitudinous. Id.
In Knapik v. Ashcroft, the Third Circuit foreshadowed the approach espoused in Solon and
adopted the Board's analysis that in order for a mens rea of recklessness to constitute a CIMT, it
must be accompanied by aggravating factors (i.e. heightened harm, protected victim). 384 F.3d at
90. In that decision, the Third Circuit deferred to the Board's conclusion that a violation ofN.Y.
Penal Code 120.25, New York's statute for reckless endangerment in the first degree, constituted
a CIMT, finding that the Board reasonably concluded that "the elements of depravity, recklessness
and grave risk of death, when considered together, implicate accepted rules of morality and the
duties owed to society." Id.
Although the statute of conviction in Knapik and Pennsylvania REAP have similar titles,
the element-by-element statutory analysis required under the categorical approach properly yields
two different CIMT results. The elements ofNew York's reckless endangerment statute require
4

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offensive touching, such as in Matter of Sanudo, 23 I&N Dec. 968, 969 (BIA 2006), the level of
harm involved is so slight as to not be considered "inherently vile, depraved, or morally
. reprehensible." Id. at 969. However, the Board has found that involuntary manslaughter is a
CIMT because even though the mens rea is less (reckless), the resulting harm, death, is substantial.
See Matter of Franklin, 20 I& N Dec. 867, 870 (BIA 1994). In Solon, the Board found that a New
York assault statute, which required physical harm as a result of an "intent to cause physical
injury," constituted a CIMT because the statute required a "conscious objective" to cause such
harm, as opposed to a mere "general" intent. Solon, 24 I& N Dec. at 243.

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However, the aggravating factors in N.Y. Penal Code 120.25 are similar to those found in
a different Pennsylvania statute-aggravated assault statute pursuant to 18 Pa. Cons. Stat.
2702(a)(l ). That subsection of aggravated assault is defined as causing or attempting to cause
serious bodily injury to another "intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life . . . . " 18 Pa. Cons. Stat. 2702(a)(l)
(emphasis added). Compare 18 Pa. Cons. Stat. 2702(a)(l) with N.Y. Penal Code 120.25.
This additional mens rea requirement-"under circumstances manifesting extreme indifference to
the value of human life" - is strikingly similar to N.Y. Penal Code 120.25 (reckless
endangerment) but different from Pennsylvania REAP with its pure recklessness mens rea. 18
Pa. Cons. Stat. 2702(a)(l).
Pennsylvania has consistently recognized a significant difference between pure
recklessness, such as is found in the REAP statute, and the heightened level of mens rea required
under recklessness in the aggravated assault statute. See Commonwealth v. O'Hanlon, 653 A.2d
616, 617-18 (Pa. 1995) ("mere recklessness is insufficient to support a conviction for aggravated
assault, which means a higher degree of culpability, i.e., which considers and then disregards the
threat necessarily posed to human life by the offending conduct."); Commonwealth v. McHale,
858 A.2d 1209, 1212-14 (Pa. Super. Ct. 2004) (noting that the recklessness required for an
aggravated assault conviction "must far surpass the definition of recklessness as applied in the
civil context or conceived in the common vernacular. "); Commonwealth v. Kling, 731 A.2d 145,
147-50 (Pa. Super. Ct. 1999). The mens rea required to sustain a conviction for reckless
aggravated assault is malic.e, defined as "wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of social duty . . . ." McHale, 858 A.2d at
1212-13 (quoting Commonwealth v. Pigg, 571 A.2d 438, 441 (Pa. Super. Ct. 1990)); see also
O'Hanlon, 653 A.2d at 617-18. In order for reckless conduct to rise to this level, the conduct in
question must "pose[] a very high likelihood that death or injury will result." Id. at 1214. In
Commonwealth v. O'Hanlon, the Pennsylvania Supreme Court found that the level of recklessness
present in a drunk-driving accident resulting in physical injuries is sufficient to sustain a
conviction for REAP, but is not sufficient to sustain a conviction for aggravated assault, with its
heightened recklessness mens rea. 653 A.2d at 483. In contrast, in Commonwealth v. Allen, the
Pennsylvania Superior Court found that, where the driver in a drunk-driving accident continued to
drive with the victim's body impaled on the windshield for two-and-one-half miles until the body
finally rolled off, the conduct rose to the heightened level of recklessness required under
aggravated assault. 833 A.2d 800, 804-05 (Pa. Super. Ct. 2003).
5

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two aggravating circumstances that are absent from the Pennsylvania REAP statute: (1) "under
circumstances evincing a depraved indifference to human life," and (2) "a grave risk of death" to
another person ( emphasis added). Pennsylvania REAP does not require the element of "depraved
indifference" as part of the mens rea, and only has a risk or potential (not a grave risk) of serious
bodily injury or death. 18 Pa. Cons. Stat. 2705. Inherent in the concept of a "grave risk . . . to
another person . . . ." is the existence of an actual victim. Pennsylvania's REAP statute does not
require the same. Rather, it criminalizes a hypothetical risk of harm in the provision ".. ..
conduct which places or may place another person in danger .. . ." REAP punishes, therefore,
hypothetical harm measured by criminally poor risk assessment of certain behavior. There need
not be an identified person at risk of harm.

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Indeed, Pennsylvania REAP is more properly compared to a different New York reckless
endangerment offense, N.Y. Penal Code 120.20, which provides that "[a] person is guilty of
reek.less endangerment in the second degree when he recklessly engages in conduct which creates
a substantial risk of serious physical injury to another person" ( emphasis added). This offense is
devoid of the aggravating factors found in N.Y. Penal Code 120.25, and required by the Board in
affirming Knapik, that first degree New York reckless endangerment is a CIMT. Knapik, 384
F.3d at 90; compare N.Y. Penal Code 120.20 with 18 Pa. Cons. Stat 2705 and N.Y. Penal Code
120.25. State legislatures create different statutes to address different conduct. Pennsylvania
criminalizes the kind of conduct embodied in New York reckless endangerment in the first degree
in its aggravated assault statute. Compare 18 Pa. Cons. Stat. 2702(a)(2) with N.Y. Penal Code
120.25. Both states have lesser offenses involving purely reckless behavior, neither of which
have the aggravating circumstances required to constitute a per se CIMT. Compare 18 Pa. Cons.
Stat. 2705 with N.Y. Penal Code 120.25. See also Fualaau, 21 I&N Dec. at 478.
Thus, having determined that Pennsylvania's REAP statute and N.Y. Penal Code 120.25
are substantially dissimilar, the Court finds that the decision in Knapik does not compel a finding
that Pennsylvania REAP is a CIMT. As previously noted, for an assault crime with a mens rea of
recklessness to be a CIMT, the element of recklessness must be accompanied by aggravating
factors such as the use of a deadly weapon, death of another person, "the infliction of serious
bodily injury," or a heightened level of reckless mens rea. Fualaau, 21 l&N Dec. at 478
(emphasis added); see Knapik, 384 F.3d at 90; Solon, 24 I&N Dec. at 245. Pennsylvania's REAP
statute requires only reckless conduct, nothing more, which places or may place another person in
danger of death or serious bodily injury. See 18 Pa. Cons. Stat. 2705. As such, absent
aggravating factors, a conviction under this statute is not a CIMT. Knapik does not require a
different result. Indeed, Knapik compels this Court to find that Pennsylvania's REAP statute is
not a CIMT.
However, the Board recently decided Matter of Leal, 26 I&N Dec. 20 (BIA 2012), which
held that a similar reckless endangerment statute, under Arizona law, is a CIMT. That Arizona
statute provides: "A person commits endangerment by recklessly endangering another person with
a substantial risk of imminent death or physical injury." Ariz. Rev. Stat. Ann. 13-1201(A).
The record in Leal was clear that the respondent was convicted of creating the substantial
risk of imminent death, not physical injury. The Arizona Statutes defined recklessness as:
...that a person is aware of and consciously disregards a substantial and
6

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It is clear that Pennsylvania law draws a sharp line between the level of mens rea necessary
. for a conviction under REAP and that which is required for a conviction under section 2702(a)( l ).
REAP requires mere recklessness, devoid of the malice or aggravating factors which aggravated
assault requires, as evidenced by the element ". . . under circumstances manifesting extreme
indifference to the value of human life." 18 Pa. Cons. Stat. 2702(a)(l). That element, as noted
before, is strikingly similar to the New York statute at issue in Knapik. 384 F.3d at 89; compare
N.Y. Penal Code 120.25 with 18 Pa. Cons. Stat. 2702(a)(l).

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unjustifiable risk that the result will occur or that the circumstance exists.
The risk must be of such nature and degree that disregard of such risk
constitutes a gross deviation from the standard of conduct that a reasonable
person would observe in the situation.

C.

REAP and "Reprehensible Conduct"

Leal also held that the Arizona statute that creates a "substantial risk of imminent death"
(emphasis added) constituted "reprehensible conduct" which, when combined with recklessness,
constitutes a CIMT. The Board concluded that people who engage in behavior that exposes a
fellow member of society to a "' substantial risk of imminent death' is morally turpitudinous
because it is a base act that transgresses the socially accepted rules of morality and breaches the
individuals' ethical duty to society. One of the most fundamental (and least onerous) duties a
man owes to his community and fellow man is that he will take reasonable care to avoid causing
the death of others. One who breaches that duty by consciously disregarding a known risk of
harm . . . has, in our view, exhibited a base contempt for the well-being of the community, which is
the essence of moral turpitude." Leal, 26 I&N Dec. at 25.
The Pennsylvania statute differs in three marked ways from the Arizona statute, leading the
Court to conclude that "reprehensible conduct" does not necessarily inhere in the statute such that,
when combined with recklessness, a CIMT finding must result. First, the Pennsylvania law does
not require that there be a "substantial risk" of harm (emphasis added). A substantial risk is a
high level of risk of harm, requiring more than just poor risk assessment. A substantial risk
requires that the actor create a significant risk of the designated harm. Markedly different is the
risk of harm in 18 Pa. Cons. Stat. 2705, which merely criminalizes ". . . conduct which places or
may place another in danger . . . . " This risk describes a failure to adequately assess the risks of
certain conduct without any level of certainty or likelihood as to the actual danger that might result
from the conduct. There is no statutory requirement that the risk be "substantial."

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Ariz. Rev. Stat. Ann. 13-105(9). The statute also expressly does not excuse voluntary
intoxication as forming the basis for lack of this mens rea. Leal held that the voluntary
intoxication provision of the Arizona definition of reckless mens rea is consistent with the level of
recklessness necessary for concluding that an offense may constitute a CIMT when other factors
are present. The Pennsylvania definition of reckless mens rea is similar to the Arizona statute,
albeit without the express inclusion of voluntary intoxication. See 18 Pa. Cons. Stat. 302(b)(3).
This is the same definition of reckless mens rea that Pennsylvania courts have consistently held to
be lacking in malice, the kind of scienter insufficient to find CIMT in the absence of aggravating
factors. Therefore, the discussion in Leal with regard to mens rea of recklessness does not alter
the conclusion of this Court, consistent with the Board, that recklessness leads to a CIMT only
where there is some other aggravating factor. See Matter of Franklin, 20 I&N Dec. at 870; see
also Matter ofWojtkow, 18 I&N Dec. at 1 1 3.

Second, there is an immediacy requirement in the Arizona statute at issue in Leal that is
lacking in the Pennsylvania statute. The statutory requirement is that the risk be "imminent."
Inherent in such a requirement is that the risk be to a real person. The Board acknowledged as
7

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This can be illustrated by a simple-and "realistically possible"-hypothetical. A person

goes to a public park in a suburban area to do some target practice. He sets up some bottles on a
low branch, which is at the edge of a field. Behind the bottles is a densely wooded area. He
looks around and sees no people tromping through the thicket behind his targets. He fires at the
bottles from the field into the wooded area. The target shooter has engaged in reckless conduct.
It is the kind of conduct that "may place" another in danger of death or serious bodily injury. He
consciously disregarded a risk that a reasonable person would have properly assessed. His
incredibly poor risk assessment of the situation warrants a conviction for Pennsylvania
misdemeanor REAP.
If one alters the hypothetical to include a person walking close to the targets, but the
shooter believes he is capable of getting a shot off before the person is too close -and is thereby
relying on his amateur level marksmanship -he has placed someone in "substantial risk of
imminent death." The actuality of a potential victim makes this case different and places it within
the realm of a CIMT. Further, the level of risk assessment here is qualitatively different. When
confronted with the reality of a victim, the shooter plunged ahead, risking death by a lethal
instrument.
Finally, the difference between the statutes is death. The Board relied upon this statutory
element in concluding that the Arizona statute is a CIMT. The Board did not even consider in
dicta that their conclusion might also apply to the reckless infliction of physical harm, provided in
the disjunctive statutory provision. Yet that is the harm at issue in the Pennsylvania REAP
statute, which criminalizes conduct where the result is a risk of death or serious bodily injury.
Under a least culpable conduct analysis, an individual can be convicted for creating a risk of
serious bodily injury, not death. See Jean-Louis, 582 F.3d at 466. Death is qualitatively
different than injury, even serious bodily injury. To create a "substantial risk of imminent death"
is to create a risk of permanently removing a person from society. It carries with it a risk of
finality that is not part of even the most serious injuries. Moreover, it was the imminent risk of
death, specifically, on which the Board relied in Leal in finding that the breach of man's duty to
avoid causing the death of others is morally rpitudinous. 26 I&N Dec. at 25.
The hallmark language for determining a CIMT has been oft-repeated but remains difficult
to apply. It is 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." Leal, 26 I&N
Dec. at 25 (citing Matter of Ruiz-Lopez 25 l&N Dec. at 553) (emphasis added). It is crucial to
8

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much when it noted that the Arizona statute requires such a risk ". . . to an actual identifiable
person." Leal, 26 I&N Dec. at 26. In contrast, the Pennsylvania statute allows for a hypothetical
.victim in the language ". . . places or may place another person in danger . . . ." (emphasis added).
As the Pennsylvania Superior Court has explained, to obtain a REAP conviction, the
Commonwealth is only required to establish that the defendant's conduct may have created "the
possibility of risk or harm, regardless of the likelihood of the manifestation of that harm."
Commonwealth v. Cordoba, 902 A.2d 1280, 1289 (Pa. Super. Ct. 2006). As such, the harm
contemplated and necessary for conviction under the Pennsylvania REAP statute is far less
imminent or likely to occur than that required for conviction under the Arizona statute in Leal.

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A CIMT must be more than poor risk assessment; and that is, at its heart, what
Pennsylvania REAP is. Therefore, under either the Knapik analysis that requires recklessness
plus aggravating factors, or Leal with its analysis regarding ''reprehensible conduct," Pennsylvania
REAP is not a CIMT.
Because REAP is not a CIMT, Respondent has not been convicted of any crimes within
five years of his admission that qualify as a CIMT under INA 237(a)(2)(A)(i). Therefore, the
charge in the NTA cannot be sustained.
Therefore, the Court enters the following order:
ORDERS
ORDER:

IT IS HEREBY ORDERED that the charge of removability pursuant to INA

237(a)(2)(A)(i) as to Respondent be DISMISSED.

ORDER:

IT IS HEREBY ORDERED that proceedings against Respondent Kemol Decosta

Bowman be TERMINATED.

alind K. Malloy
igration Judge
Philadelphia, Pennsy

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give due credit to both prongs of the CIMT definition, including that the offense is "vile, base or
depraved." To focus on the "duties owed to society" aspect of the CIMT definition to the
. minimization or exclusion of the first prong of the definition ("inherently, base, vile or depraved .
. . . "), strips the CIMT analysis of its meaning and allows it to be applied to trivial offenses. Both
prongs of the definition should be present before concluding an offense is a CIMT. It is clear that
a person who is voluntarily intoxicated and drives a two ton piece of metal on a crowded road is
violating the duties a person owes society. Yet this Board has rightfully found that such crimesdrunk driving - are not CIMTs. Matter of Torres-Varel 23 I&N Dec. 78 (BIA 2001). By
failing to properly adhere to the first part of the CIMT definition, offenses which are "base, vile, or
depraved," courts can find that almost any criminal offense violates the "duties owed between
persons or to society in general," and thereby the exception-crimes involving moral turpitude
risks swallowing the whole, crimes.