Leal v. Holder

Felony endangerment, under Arizona law, is considered a crime of moral turpitude for the purposes of immigration removal proceedings.

Edgar Leal was born in Mexico in 1978 and entered the United States in 1990 without being legally admitted. Leal has four children who are all U.S. citizens. On March 12, 2007, Leal was arrested and later pled guilty to driving under the influence, a misdemeanor, and felony endangerment under Arizona Revised Statute § 13-1201. Following Leal’s conviction, the Department of Homeland Security ("DHS") initiated removal proceedings against him. Leal sought cancellation of the removal under 8 U.S.C. § 1229b(b)(1). DHS then filed with the Immigration Judge a Motion to Pretermit citing that Leal was not eligible for cancellation because he was convicted of a crime of moral turpitude (“CIMT”). The Immigration Judge ("IJ") granted the Motion to Pretermit and denied Leal’s cancellation. Leal appealed to the Bureau of Immigration Affairs ("BIA"), which affirmed the IJ’s decision. Leal argues on appeal of the BIA decision that the element of recklessness found in the Arizona felony endangerment statutes does not create the necessary mens rea for a CIMT. The panel relies of the definition of CIMTs as “crimes that involve either fraud or base, vile, and depraved conduct that shocks the public conscience,” found in Nunez. The panel found that the felony endangerment creates a “substantial, actual risk of imminent death,” which is sufficiently “base, vile and depraved,” to establish a CIMT. Leal further argued that voluntary intoxication diminishes awareness of the harm created by felony endangerment. The panel was not persuaded that Leal’s intoxication caused him to be unable to appreciate the substantial risk of harm his endangerment created. AFFIRMED.