MEDINA

                                                           Interim Decision #2481




                               MATTER OF MEDINA

                           In Deportation Proceedings

                                      A 11907736
                                       -




                       Decided by Board March 19, 1976
A conviction for aggravated assault under section 12-2(a)(1) of Chapter 38 of the Illinois
  Revised Statutes is conviction of a crime involving moral turpitude.
CHARGES:

  Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)}—Arrested and deported,
                        no consent to reapply
  Lodged: Act of 1952—Section 241(a)(4) [8 U.S.U. 1251(C4A—Convicted of two
                           crimes involving moral turpitude not arising out of a single
                           scheme of criminal misconduct, to wit: attempted burglary
                           and aggravated assault.
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
 Joseph Iffinsky, Esquire                              Jesse M. Sellers
 Minsky, Lichtenstein & Feiertag, P.C.                 Appellate Trial Attorney
 39 South La Salle St., Suite 705
 Chicago, Illinois 60603


   In a decision dated January 6, 1975, the immigration judge denied the
respondent's applications for suspension of deportation and voluntary
departure, and ordered the respondent deported from the United
States. The respondent has appealed from the denials of discretionary
relief and from the finding of deportability under section 241(a)(4) of the
Immigration and Nationality Act. The appeal will be dismissed.
   The respondent is a native and citizen of Mexico. The respondent has
entered the United States on several occasions. All of his entries,
however, have been illegal. The respondent evidently first entered the
United States in 1948 in search of work. He was deported in April of
1954, but returned approximately two years later. In 1960, he voluntar-
ily agreed to go back to Mexico, but he again entered the United States
in March 1962. He has remained here ever since.
   The respondent concedes that he is deportable under section 241(a)(1)
as an alien who was excludable at the time of his 1962 entry for failure to
obtain the required permission to reapply for admission after deporta-
tion. The respondent, however, challenges the immigration judge's fin-
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ding that he is deportable under section 241(0(4) as an alien who at any
time after entry has been convicted of two crimes involving moral
turpitude. It is this latter finding which, if correct, makes the respon-
dent statutorily ineligible for either suspension of deportation under
section 244:a) or voluntary departure under section 244(e) of the Act.
  The respondent concedes that he has been twice convicted. In Feb-
ruary of 1953, he was convicted of attempted burglary in Texas. The
respondent acknowledges that this crime involves moral turpitude. The
respondent's second conviction was in October of 1971 for aggravated
assault in Illinois.
  The respondent raises several challenges to the finding that he is
deportable under section 241(a)(4). He initially argues that aggravated
assault in Illinois is not a crime involving moral turpitude.
  The respondent was -convicted under Chapter 38, section 12-2(a)(1) of
the Illinois Revised Statutes, which provides:
   12-2. Aggravated Assault
   (a) A person commits an aggravated assault, when, in committing an assadlt, he:
   (1) Uses at deadly weapon . . . .
   There are numerous cases indicating that assault, or assault and
battery, with a deadly weapon is a crime involving moral turpitude. See
e.g. Gonzales v. Barber, 

 (C.A. 9, 1953) afrd, 

(1954); U.S. ex rel. Morlacci v. Smith, 

 (W.D.N.Y. 1925);
Matter of Ptasi, 

 (BIA 1968); Matter of Goodalle, 

 (BIA 1967); Matter of G—R—, 

 (BIA
1946; A.G. 1947). See also Matter of Baker, 

 (BIA
1974).
   Counsel, however, argues that the presence of a criminal mental state
during the commission of the crime is not required for conviction under
the Illinois 'aggravated assault statute. Counsel basically contends that
aggravated assault is an absolute liability offense in Illinois. Counsel is
in error in this respect.
  Various mental states which maybe the basis for criminal convictions
are specifically defined in Chapter 38 of the Illinois Revised Statutes:
section 4-4 defines Intent; section 4-6 defines Knowledge; seetion'4 - 6
defines Recklessness; and section 4-7 defines Negligence.
  Absolute liability Crimes are governed by section 4-9, which provides:
   4-9. Absolute Liability
   A person may be guilty of an offense without having, as to each element thereof, one
 of the mental states described in Sections 4-4 through 4-7 if the offense is a mis-
 deameanor which is not punishable by incarceration or by a fine exceeding $500, or the
 statute &firing the offense clearly indicates a legislative purpose to impose absolute
 liability for the conduct described. Thus, absolute liability crimes in Illinois encompass
 only those misdemeanors for which the punishment cannot exceed $500, unless the
 statute itself indicates a legislative purpose to impose absolute liability.

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    At the time of the respondent's conviction, simple assault was an absolute liability
 crime, because the possible punishment did not include imprisonment and any fine could
 not exceed $500. However, the possible punishment for aggravated assault in 1971
 included a $1,000 fine, and imprisonment up to five years. Furthermore, the aggravated
 assault statute does not indicate a legislative purpose to impose absolute liability. See
 Daley v. Thaxton, 92 11i. App. 2d 277, 

 (1968). Illinois thus required the
 presence of a criminal mental element for conviction of aggravated assault under section
 12-2(aX1).
    Section 4-3 of Chapter 38 is the general statute governing the mental state require-
 ment for Illinois criminal statutes which prescribe no particular mental state. Section
 4-3 provides in part:
 § 4-3. Mental State
    (a)A person is not guilty of an offense, other than an offense which involves absolute
 liability, unless, with respect to each element described by the statute defining the
 offense, he acts while having one of the mental states described in Sections 4-4 through
 4-7.
    (b) . . If the statute does not prescribe a particular mental state applicable to an
 element of an offense (other than an offense which involves absolute liability), any
 mental state defined in Sections 4-4, 4-5 or 4-6 is applicable. (Emphasis added.)
The Illinois aggravated assault statute does not prescribe a particular
mental state applicable to an element of that offense. Accordingly, any
mental state defined in section 4-4 (Intent), section 4-5 (Knowledge), or
section 4-6 (Recklessness) is applicable. The record of conviction relat-
ing to the respondent's 1971 aggravated assault conviction does not
specify any one of these three mental elements. It is therefore possible
that the respondent could have been convicted had he acted recklessly
within the meaning of section 4-6.
   Intent or knowledge can serve as the basis for a finding of moral
turpitude in criminal conduct. However, in dealing with statutes from
jurisdictions other than Illinois, we have indicated that moral turpitude
for immigration purposes does not necessarily inhere in criminally reck-
less conduct. Matter of Szegedi, 10 L & N. Dec. 28 (BIA 1962); see
Matter of Gantus Bobadilla, 13 L & N. Dee. 777 at 778 (BIA 1971). We
                    -


have reconsidered the general position taken in these cases, and we
have concluded that moral turpitude can lie in criminally reckless con-
duct.
  Illinois defines the term recklessness in Chapter 28, section 4 6,                   -


which provides:
   4-6. Recklessness
    A person is reckless or acts recklessly, when he consciously disregards a substantial
 and unjustifiable risk that circumstances exist or that a result will follow, described by
 the statute defining the offense; and such disregard constitutes a gross deviation from
 the standard of care which a reasonable person would exercise in the situation. An act
 performed recklessly Is performed wantonly, within the meaning of a statute using the
 latter term, unless the statute clearly requires another meaning.
The person acting recklessly must consciously disregard a substantial
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and unjustOable risk, and such disregard must constitute a gross devia-
tion from the standard of care which a reasonable person would exercise
in the situation. This definition of recklessness requires an actual
awareness of the risk created by the criminal violator's action. While the
Illinois recklessness statute may not require a specific intent to cause a
particular harm, the violator must show a willingness to commit the act
in disregard of the perceived risk. The presence or absence of a corrupt
or vicious mind is not controlling_ Guerrero de Nodahl v. INS, 

 (C.A. 9, 1969). We hold that the criminally reckless conduct defined
 by section 4-3 be the basis for a finding of moral turpitude.
    We have indicated that assault with a deadly weapon is generally
 deemed to be a crime involving moral turpitude. Under Illinois law, the
respondent had to have committed his aggravated assault with one of
the three specified mental elements. Each of these mental states will
 support a finding of moral turpitude. Thus, a conviction for aggravated
 assault under section 12-2(a)(1) inherently involves moral turpitude.
The respondent's 1971 aggravated assault conviction is a conviction for a
crime involving moral turpitude.
    Counsel argues that Illinois would not consider aggravated assault to
involve "moral turpitude," because this crime is not considered an
"infamous crime" under certain Illinois statutes relating to divorce and
the impeachment of witnesses at trials. The concept of an "infamous
 crime" is not necessarily totally synonymous with the concept of a crime
involving moral turpitude. However, of more importance is the simple
fact that a particular state's determination as to what crimes it deems
 morally turpitudinous is not conclusive for federal immigration purposes.
See Gonzales v. Barber, 

 (C.A. 9, 1953), aff'd, 

 (1954).
    Counsel also seeks to have us look into the facts surrounding the
respondent's conviction. In this regard, counsel claims that the respon-
dent was not represented- at the time of the 1971 Illinois conviction. We,
however, may not go behind the record of conviction. Matter of Gutier-
rez, 14 I. & N. Dee. 457 (BIA 1973); see also Rassano v. INS, 

 (C.A. 7, 1966), vacated and remanded on other grounds, 

.
   Counsel finally challenges the respondent's deportability under sec-
tion 241(a)(4), arguing that the respondent has not been convicted of two
crimes involving moral turpitude after entry. The respondent has been
convicted only once since he last entered the United States in 1962.
Counsel argues that it is this last entry which governs, and therefore
that the respondent's 1953 attempted burglary conviction in Texas
cannot now be used in any respect as a basis for a finding of deportabil-
ity.
   We have rejected this contention in the past. As a general rule, the
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Service may base a section 241(a)(4) charge on any entry made by an
alien. The alien's last entry is not controlling for this purpose. See
Matter of M—S—, 

 (BIA 1962); Matter of A—, 6 I. & N.
Dee. 684 (BIA 1955). See also Matter of S—, 

 (BIA
1957). The respondent was not admissible to the United States in 1962,
the year of his last entry, because of the existence of his attempted
burglary conviction. See section 212(a)(9), Immigration and Nationality
Act. It would be anomalous if that illegal entry now precluded con-
sideration of the attempted burglary conviction. The respondent is not
in the position of an alien who was clearly admissible at the time of his
last entry and who entered with a valid immigrant visa. Bonetti v.
Rogers, 

 (1958), which dealt with a different statute and
involved a peculiar fact setting relating to a past member of the Com-
munist Party, is not applicable.
   The respondent's deportability under section 241(a)(4) has been estab-
lished by clear, convincing and unequivocal evidence. The respondent
assumed the status constituting a ground for deportation on the date of
his second conviction in Inn Ten years have not elapsed since that
date. The respondent is not eligible for suspension of deportation under
section 244(e).
   The decision of the immigration judge was correct.
   ORDER: The appeal is dismissed.




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