United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2355

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Fernando Recio-Prado, *

*

 Petitioner, *

*

v. * Petition for Review of an Order

* of the Board of Immigration Appeals.

Alberto Gonzales, Attorney General *

of the United States, *

*

Respondent. *

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No. 05-3555

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Fernando Recio-Prado, *

*

 Petitioner, *

*

v. *

*

Alberto Gonzales, Attorney General *

of the United States, *

*

Respondent. *

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Submitted: June 16, 2006

Filed: August 2, 2006

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Before SMITH, HEANEY, and GRUENDER, Circuit Judges.
1

8 U.S.C. § 1227(a)(2)(A)(iii).

2

8 U.S.C. § 1227(a)(2)(C).

3

8 U.S.C. § 1227(a)(2)(A)(i).

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HEANEY, Circuit Judge.

Fernando Recio-Prado petitions for review of the order of removal issued by

the Board of Immigration Appeals (BIA), and the BIA’s denial of his motion to

reopen and remand the matter to an immigration judge (IJ). We deny the petitions.

BACKGROUND

Recio-Prado, a twenty-seven-year-old native and citizen of Mexico, was

admitted to the United States as a legal permanent resident on October 29, 1996. On

March 20, 2001, he was convicted of the offense of criminal discharge of a firearm at

an occupied building or vehicle, in violation of Kansas Statute section 21-4219(b), and

received a suspended sentence of eleven months of incarceration. The Department of

Homeland Security (DHS) subsequently began removal proceedings against RecioPrado on January 9, 2002, alleging that he had been convicted of an aggravated

felony1

 and a firearms violation.2 DHS subsequently amended its allegations,

including the charge that Recio-Prado had been convicted of a crime of moral

turpitude.3

 As factual support for each of these charges, the DHS alleged that RecioPrado had been convicted of the Kansas offense of criminal discharge of a firearm at

an occupied building or vehicle.

In proceedings before the IJ, Recio-Prado admitted all factual allegations,

including his prior state court conviction. He further admitted that he was removable

because his offense constituted a firearms violation, but denied that it was either an
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aggravated felony or a crime of moral turpitude. Following a hearing held on

February 23, 2004, the IJ held that Recio-Prado’s offense of conviction qualified as

a crime of moral turpitude, since it involved the malicious firing of a weapon into an

occupied dwelling. Recio-Prado appealed to the BIA, which affirmed the IJ’s

decision on April 21, 2005.

On July 21, 2005, Recio-Prado filed a motion with the BIA seeking to reopen

and remand his case to the IJ. He asserted that the IJ erred in determining that RecioPrado’s offense involved moral turpitude, because Recio-Prado had pled guilty only

to aiding and abetting the shooting, yet the IJ treated him as if he were the principal.

The BIA denied the motion as untimely. Recio-Prado filed petitions for review of the

BIA’s order of removal and denial of his motion to reopen, which we consolidated for

purposes of this appeal.

ANALYSIS

We have jurisdiction to consider the “legal question” of whether Recio-Prado’s

Kansas conviction qualifies as a “crime of moral turpitude.” Loeza-Dominguez v.

Gonzales, 428 F.3d 1156, 1157 (8th Cir. 2005). “Moral turpitude” is left undefined

by statute, subject to the interpretation of DHS. Solano-Chicas v. Gonzales, 440 F.3d

1050, 1055 (8th Cir. 2006). Thus, “[w]hen reviewing the IJ’s statutory mandate to

deport aliens convicted of crimes involving moral turpitude, we must accord deference

to the BIA’s rulings, and will uphold its decision so long as it is reasonable.” ReyesMorales v. Gonzales, 435 F.3d 937, 944 (8th Cir. 2006).

Our initial inquiry is whether the alien’s statute of conviction “defines a crime

in which moral turpitude necessarily inheres.” Chanmouny v. Ashcroft, 376 F.3d 810,

812 (8th Cir. 2004) (quoting In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (per

curiam)). If that is the case, “then the conviction is for a crime involving moral

turpitude for immigration purposes, and our analysis ends.” Id. If the statute
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Recio-Prado asserts that the IJ erred in misstating the facts underlying his

conviction. Even assuming there was any misstatement, it is of no import, because

moral turpitude inheres in the statute of conviction. Thus, we look to the fact of

conviction, not the facts underlying the conviction.

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criminalizes conduct that involves moral turpitude as well as conduct that does not,

we look to the record of conviction to determine what precise provision of the statute

applied to the alien. Id. at 813.

The decision below indicates that the IJ considered the statute to be one in

which moral turpitude inhered. “Moral turpitude refers generally to 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.” In re Ajami, 22 I. & N.

Dec. at 950. It is an act that is intrinsically wrong, “so it is the nature of the act itself

and not the statutory prohibition of it which renders a crime one of moral turpitude.”

Id.

We agree with the IJ that moral turpitude inheres in Recio-Prado’s statute of

conviction. To sustain his conviction under the Kansas statute, the state was required

to prove Recio-Prado engaged in “the malicious, intentional and unauthorized

discharge of a firearm at a dwelling . . . in which there is a human being.” Kan. Stat.

§ 21-4219(b). Maliciously and intentionally firing a weapon into an occupied

dwelling strikes us as undoubtedly malum in se; even without the statute’s prohibition

on such conduct, it is wrong.4

Recio-Prado also complains that the BIA unfairly denied his motion to reopen

the record and remand. He acknowledges that it was not timely filed. See 8 C.F.R.

§ 1003.2(c)(2) (stating that a petitioner has ninety days following the final

administrative decision in which to file a motion to reopen). We agree with RecioPrado, however, that this is not a jurisdictional bar to relief. The regulations

themselves grant the BIA discretion to reopen or reconsider “at any time” a case in
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which it has issued a decision. 8 C.F.R. § 1003.2(a); cf. Etchu-Njang v. Gonzales, 403

F.3d 577, 585 (8th Cir. 2005) (noting that BIA has reopened matters to consider

ineffective assistance of counsel claims despite tardy filing by the alien).

Although the BIA had jurisdiction to reopen Recio-Prado’s case, it did not

abuse its discretion in refusing to do so. Recio-Prado’s motion to reopen was based

on the view that his conviction did not qualify as a crime of moral turpitude. In

support of his motion, he asserted that he was only convicted as an aider and abetter

to the shooting, and sought to introduce the transcript from his plea hearing to

establish that fact. 

 We doubt the plea transcript qualifies as evidence that “was not available and

could not have been discovered or presented at the former hearing,” a condition

necessary before the BIA may grant the motion to reopen. 8 C.F.R. § 1003.2(c)(1).

Moreover, such facts were already before the IJ: the administrative record contains

Recio-Prado’s plea petition, and states that “Mr. Recio-Prado is pleading as an aider

and abetter.” (Admin. Rec. at 144.) The administrative record does not, however,

contain any evidence whatsoever that Recio-Prado argued before the IJ or the BIA that

he ought to be treated differently because he was merely an aider and abetter. Lastly,

we question whether the plea transcript satisfies the materiality requisite of a motion

to reopen. See 8 C.F.R. § 1003.2(c)(1). The BIA has often treated an accessory the

same as the principal for the crime of moral turpitude inquiry. See In re Short, 20 I.

& N. Dec. 136, 138 n.1 (BIA 1989); accord State v. Smolin, 557 P.2d 1241, 1245

(Kan. 1976) (“By statute and case law this jurisdiction [has] long held that any person

who counsels, aids or abets in the commission of any offense may be charged, tried

and convicted in the same manner as if he were a principal.”). Recio-Prado has not

suggested any convincing reason for the BIA to have deviated from that course here.
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CONCLUSION

Recio-Prado contests the order of removal issued by the BIA. As he was

convicted of a crime of moral turpitude, the order was properly issued. He further

argues that he was entitled to have his case reopened so that he could present

additional evidence to the IJ. That decision was left to the discretion of the BIA, and

we find no abuse in its refusal to do so. Accordingly, we deny his petitions.

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