## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-2355

___________ 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. *

___________ No. 05-3555

___________ Fernando Recio-Prado, * * Petitioner, * * v. * * Alberto Gonzales, Attorney General * of the United States, * * Respondent. *

___________ Submitted: June 16, 2006 Filed: August 2, 2006

___________ 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). -2- ___________ 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 immigr ation 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 offe nse of criminal disc harge 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, alle ging that he had been convicted of an aggravated felony 1 and a firearms violation. 2DHS 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 thes e charges, the DHS alleged that RecioPrado had been convicted of the Kansas offe nse of criminal discharge of a firearm at an occupied building or vehicle. In proceedings before the IJ, Recio -Prado admitted all f actual allegations, including his prior state court conviction. He further admitted that he was removable because his offense constituted a firearms vi olation, but denied that it was either an-3- aggravated felony or a crime of moral turpitude. Following a hearing held on February 23, 2004, the IJ held that Reci o-Prado’s offense of conviction qualified as a crime of moral turpitude, since it involve d the malicious firing of a weapon into an occupied dwelling. Recio-Prado appealedto the BIA, which affirmed the IJ’s decision on April 21, 2005. On July 21, 2005, Recio-Prado filed a mo tion with the BIA seeking to reopen and remand his case to the IJ. He asserted that the IJ e rred in determining that RecioPrado’s offense involved moral turpitude, because Recio-Prado had pled guilty only to aiding and abetting the shooting, yet the IJtreated 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 mo tion 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). “M oral turpitude” is left undefined by statute, subject to the interpretati on of DHS. Solano-Chicas v. Gonzales , 440 F.3d 1050, 1055 (8th Cir. 2006). Thus, “[w]hen re viewing 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 deci sion 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 statute4 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. -4- criminalizes conduct that involves moral turpitude as well as conduct that does not, we look to the record of conviction to dete rmine 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 tu rpitude 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 whic h renders a crime one of moral turpitude.” Id. We agree with the IJ that moral turp itude 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 dw elling . . . 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 acknowledge s that it was not timely filed. See8 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 jurisd ictional bar to relief. The regulations themselves grant the BIA discretion to re open or reconsider “at any time” a case in-5- 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 thatBIA has reopened matters to consider ineffective assistance of counsel clai ms 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 asse rted that he was only convict ed 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 presen ted 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.) Th e 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 satis fies the materiality requisite of a motion to reopen. See8 C.F.R. § 1003.2(c)(1). The BIA has often treated an accessory the same as the principal for the crim e of moral turpitude inquiry. See In re Short , 20 I. & N. Dec. 136, 138 n.1 (BIA 1989); accordState v. Smolin , 557 P.2d 1241, 1245 (Kan. 1976) (“By statute and case law this ju risdiction [has] long held that any person who counsels, aids or abets in the commiss ion 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.-6- CONCLUSION Recio-Prado contests the order of removal issued by the BIA. As he was convicted of a crime of moral turpitude, th e 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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