                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-4039
                                   ___________

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.                *
                                   ___________

                             Submitted: October 19, 2007
                                Filed: August 28, 2008
                                 ___________

Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
                            ___________

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


      1
      Michael B. Mukasey is substituted as the Attorney General of the United States
pursuant to Fed. R. App. P. 43(c)(2).
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

      2
       The Missouri law provides that one may be convicted of second-
degree 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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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); Garcia-
Quintero, 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)

                                         -5-
(leaving open the question whether it would grant Chevron deference to a non-
precedential 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

                                           -6-
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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