1

Michael B. Mukasey is substituted as the Attorney General of the United States

pursuant to Fed. R. App. P. 43(c)(2).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-4039

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Edi Javier Godinez-Arroyo, *

*

Petitioner, *

*

* Petition for Review of an Order of

v. * the Board of Immigration Appeals.

*

Michael B. Mukasey,1

 Attorney *

General of the United States, *

*

Respondent. *

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Submitted: October 19, 2007

Filed: August 28, 2008

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Before RILEY, MELLOY, and COLLOTON, Circuit Judges.

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MELLOY, Circuit Judge.

Edi Javier Godinez-Arroyo petitions for review of a Board of Immigration

Appeals decision ordering him removed from the United States because of his

conviction for a crime “involving moral turpitude.” See 8 U.S.C. § 1227(a)(2)(A)(i)

(providing that aliens convicted of “a crime involving moral turpitude” are subject to

removal). The BIA determined that Godinez-Arroyo’s second-degree assault
2

The Missouri law provides that one may be convicted of seconddegree assault if he or she:

(1) Attempts to kill or knowingly causes or attempts to cause serious

physical injury to another person under the influence of sudden passion

arising out of adequate cause; or 

(2) Attempts to cause or knowingly causes physical injury to another

person by means of a deadly weapon or dangerous instrument; or 

(3) Recklessly causes serious physical injury to another person; or 

(4) While in an intoxicated condition or under the influence of controlled

substances or drugs, operates a motor vehicle in this state and, when so

operating, acts with criminal negligence to cause physical injury to any

other person than himself; or 

(5) Recklessly causes physical injury to another person by means of

discharge of a firearm; or 

(6) Operates a motor vehicle . . . and when so operating, acts with

criminal negligence to cause physical injury to any person authorized to

operate an emergency vehicle. . . .

Mo. Rev. Stat. § 565.060.

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conviction for “recklessly caus[ing] serious physical injury to another person” is a

conviction of a crime involving moral turpitude. Godinez-Arroyo asserts the BIA

erred in this determination. We deny his petition for review.

I. 

Godinez-Arroyo was convicted of assault in the second degree under a Missouri

law encompassing numerous offenses.2

 The BIA determined that the statute contained

some offenses that constitute crimes of moral turpitude, and, as a result, treated the

statute as “divisible” and “look[ed] to the record of the conviction, meaning the
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indictment, plea, verdict, and sentence” to determine which particular offense applied.

See Solano-Chicas v. Gonzales, 440 F.3d 1050, 1056 (8th Cir. 2006). Because the

record of conviction stated that Godinez-Arroyo “caused serious physical injury” to

another “by hitting him,” the BIA determined that Godinez-Arroyo was “[c]learly

 . . . charged and convicted of assault . . . for having recklessly caused serious physical

injury to another person,” under Missouri Revised Statute

§ 565.060(3). Missouri law defines “act[ing] recklessly” as “consciously

disregard[ing] a substantial and unjustifiable risk” when disregarding the risk

“constitutes a gross deviation from the standard of care which a reasonable person

would exercise in the situation.” Mo. Rev. Stat. § 562.016. 

An immigration judge ordered Godinez-Arroyo’s removal from the United

States based on this conviction. Godinez-Arroyo appealed to the BIA. The BIA

dismissed his appeal, citing this court’s decision in Reyes-Morales v. Gonzales, 435

F.3d 937 (8th Cir. 2006), which left open the possibility that a crime involving mere

recklessness could constitute a crime involving moral turpitude if an aggravating

factor was present. The BIA noted this “aggravating dimension” must “significantly

increase[] the culpability of the offense.” The BIA determined that causing serious

physical injury to another constituted an aggravating factor that significantly increased

the culpability of the offense. Godinez-Arroyo appeals his removal, challenging only

that his crime is one involving moral turpitude. 

II.

A.

“Congress has not defined the phrase ‘crime involving moral turpitude,’ and the

meaning of that phrase was left ‘to future administrative and judicial interpretation.’

In reviewing an administrative decision, therefore, we give deference to the agency’s

interpretation of the ambiguous statutory phrase, and we uphold its construction as
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long as it is reasonable.” Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir. 2004)

(quoting Franklin v. INS, 72 F.3d 571, 572 (8th Cir. 1995)) (internal and additional

citations omitted). 

An issue came up at oral argument in this case as to the level of deference owed

to an unpublished BIA opinion. We generally defer to reasonable BIA interpretations

of gaps in statutes and regulations it administers because “[i]f Congress has explicitly

left a gap for the agency to fill, there is an express delegation of authority to the

agency to elucidate a specific provision of the statute by regulation.” Chevron U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). Gaps indicate

Congress delegated policymaking to administrative agencies, who have “great

expertise” and who are “charged with responsibility for administering” the laws. Id.

at 865. We thus defer to agency action that “carr[ies] the force of law.” United States

v. Mead Corp., 533 U.S. 218, 221 (2001); see also INS v. Aguirre-Aguirre, 526 U.S.

415, 425 (1999) (“[T]he BIA should be accorded Chevron deference as it gives

ambiguous statutory terms concrete meaning through a process of case-by-case

adjudication.” (internal quotation omitted)). 

However, because the underlying BIA decision in this case was unpublished,

it may lack the force of law and Chevron deference may be inappropriate. See Mead

Corp., 533 U.S. at 221 (finding Chevron deference inappropriate because there is “no

indication that Congress intended such a ruling [a tariff classification] to carry the

force of law”); see also Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1013 (9th Cir.

2006) (noting that “[t]he unpublished designation of the decision . . . makes it clear

that it was not issued pursuant to the BIA’s authority to make rules that carry the force

of law” and that the court would not accord Chevron deference to an unpublished

opinion not compelled by a prior published opinion).
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Even if Chevron deference is inappropriate, however, the BIA opinion would

nevertheless be eligible for a lesser form of deference under Skidmore v. Swift & Co.,

323 U.S. 134 (1944). See Mead Corp., 533 U.S. at 234 (noting that “Chevron did

nothing to eliminate Skidmore’s holding that an agency’s interpretation may merit

some deference whatever its form, given the specialized experience and broader

investigations and information available to the agency . . . and given the value of

uniformity in its administrative and judicial understandings of what a national law

requires” (internal citations and quotation omitted)). Under Skidmore deference, “the

ruling is eligible to claim respect according to its persuasiveness,” Mead Corp., 533

U.S. at 221, but is “worth no more than its inherent persuasive value,” Kai v. Ross,

336 F.3d 650, 655 (8th Cir. 2003). The opinion is afforded weight “depend[ing] upon

the thoroughness evident in its consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements, and all those factors which give

it power to persuade.” Skidmore, 323 U.S. at 140; Kai, 336 F.3d at 655. 

We note that our court and the Supreme Court have previously applied a high

level of deference to unpublished opinions. See Chanmouny, 376 F.3d at 811

(applying deferential review to a BIA opinion that affirmed an immigration judge’s

decision without an opinion under 8 C.F.R. § 1003.1(e)(4)); see also Aguirre-Aguirre,

526 U.S. at 424 (applying deference to an unpublished BIA opinion); GarciaQuintero, 455 F.3d at 1014 (noting that the underlying BIA order in Aguirre-Aguirre

was unpublished). These cases, however, did not explicitly address whether there

should be some sliding scale of deference based on whether the BIA opinions are

published or unpublished. We acknowledge that at least two of our sister circuits have

questioned whether to apply a high level of deference to non-precedential BIA

opinions. See Garcia-Quintero, 455 F.3d at 1013 (noting that “[t]he unpublished

designation of the decision . . . makes it clear that it was not issued pursuant to the

BIA’s authority to make rules that carry the force of law” and that the court would not

accord Chevron deference to an unpublished opinion not compelled by a prior

published opinion); Ucelo-Gomez v. Gonzales, 464 F.3d 163, 170 (2d Cir. 2006)
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(leaving open the question whether it would grant Chevron deference to a nonprecedential BIA opinion). This is an issue we leave for another day. We need not

address it here, as we hold that even applying the lesser Skidmore deference, we

affirm the persuasive BIA decision. 

B.

We have defined a crime of moral turpitude as involving “an act of baseness,

vileness, or depravity in the private and social duties” that people owe each other or

“society in general, and is contrary to the accepted rule of right and duty.” Franklin,

72 F.3d at 573 (internal quotations and brackets omitted). Even though a petitioner’s

“intent is critical to a finding of moral turpitude,” Reyes-Morales, 435 F.3d at 945,

and “[a] reckless mental state, without more, typically does not give rise to a finding

of moral turpitude,” id. at 945 n.7, we have indicated that reckless conduct could be

sufficient if an aggravating factor is present, id. at 945 (citing In re Fualaau, 21 I. &

N. Dec. 475, 478 (BIA 1996)). We find persuasive the BIA’s decision that causing

serious physical injury constitutes an aggravating factor.

In Franklin, we determined that causing the death of another person while

exercising the same mens rea Godinez-Arroyo exercised in this case constituted an

aggravating factor. Franklin, 72 F.3d at 572. The BIA’s determination that causing

serious physical injury to another constituted an aggravating factor is also consistent

with our definition that a crime is one involving moral turpitude if it is malum in se.

See Recio-Prado v. Gonzales, 456 F.3d 819, 821 (8th Cir. 2006). The BIA’s

determination is also consistent with decisions from our sister circuits, see Pichardo

v. INS, 104 F.3d 756, 759–60 (5th Cir. 1997) (deciding a crime involving “bodily

injury together with a minimum mens rea of recklessness” can constitute a crime of

moral turpitude); Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004) (finding the

violation of a New York reckless-endangerment statute to be a crime of moral

turpitude, noting that it “contains aggravating factors, requiring that a defendant create
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a grave risk of death to another person under circumstances evincing a depraved

indifference to human life” (internal quotations omitted)), and with previous BIA

decisions, In re Fualaau, 21 I. & N. Dec. at 477 (noting that a crime was not one

involving moral turpitude because, in part, “[t]he statute governing the conviction

identified misconduct which simply caused bodily injury, rather than serious bodily

injury” (emphasis added)); Matter of Medina, 15 I. & N. Dec. 611, 613–14 (BIA

1976) (holding that a crime requiring criminal recklessness with a deadly weapon can

constitute a crime involving moral turpitude).

Godinez-Arroyo argues that we should define the aggravating dimension

narrowly and include only crimes where a deadly weapon was used or where serious

injury was inflicted on children, domestic partners, or peace officers. The BIA’s

opinion in this case did list these crimes as examples of aggravating factors.

However, the opinion went on to find that causing serious bodily injury constituted

an aggravating factor, indicating that the BIA did not intend for this list of aggravating

factors to be exhaustive. We find the BIA’s conclusion in this case persuasive. 

III.

We deny Godinez-Arroyo’s petition for review.

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