                                     ___________

                                     No. 94-3609
                                     ___________

Myrisia Franklin,                              *
                                               *
                    Petitioner,            *
                                               *    Petition for Review of an Order
     v.                                        *    of the Board of Immigration
                                               *    Appeals.
Immigration and Naturalization         *
Service,                                  *
                                          *
                    Respondent.           *
                                     ___________

                              Submitted:       April 12, 1995

                               Filed: December 11, 1995
                                     ___________

Before FAGG and BOWMAN, Circuit Judges, and BENNETT,* District
      Judge.
                               ___________


FAGG, Circuit Judge.


     Myrisia Franklin, a Philippine citizen, was convicted of recklessly
causing   the    death   of   her   child,      a   crime   classified   as   involuntary
manslaughter under Mo. Rev. Stat. § 565.024.1(1) (Supp. 1994).                      Under
Missouri law, persons act recklessly when they "consciously disregard[] a
substantial and unjustifiable risk that circumstances exist or that a
result will follow, and [the] disregard constitutes a gross deviation from
the standard of care [that] a reasonable person would exercise in the
situation."     Mo. Rev. Stat. § 562.016.4 (Supp. 1994).           Following Franklin's
conviction, the Immigration and Naturalization Service brought deportation
proceedings against Franklin under 8 U.S.C. §




     *The HONORABLE MARK W. BENNETT, United States
     District Judge for the Northern District of Iowa,
     sitting by designation.
1251(a)(2)(A)(i) (1994), which permits the deportation of an alien who is
convicted of a "crime involving moral turpitude."         After a hearing, an
immigration judge (IJ) decided Franklin's crime involves moral turpitude
and ordered Franklin deported.     The Board of Immigration Appeals (BIA)
affirmed the IJ's decision.     Contending she was not convicted of a crime
involving moral turpitude, Franklin petitions for review.


     Whether a statute defines a crime that involves moral turpitude for
deportation under § 1251(a)(2)(A)(i) is a question of federal law.      Cabral
v. INS, 15 F.3d 193, 196 n.5 (1st Cir. 1994).        Like the BIA, we look to
state law to determine the elements of the crime.         Id.   Otherwise, the
consequences a state chooses to place on the conviction in its own courts
under its own laws cannot control the consequences given to the conviction
in a federal deportation proceeding.         Yazdchi v. INS, 878 F.2d 166, 167
(5th Cir.) (per curiam), cert. denied, 493 U.S. 978 (1989).        Contrary to
Franklin's view, we do not examine the factual circumstances surrounding
her crime.     Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (per
curiam).     Thus, on de novo review we must decide whether the BIA has
reasonably interpreted its statutory mandate to deport aliens convicted of
crimes involving moral turpitude.        See Chevron U.S.A. Inc. v. Natural
Resources Defense Counsel, Inc., 467 U.S. 837, 842-44 (1984); Arkansas AFL-
CIO v. FCC, 11 F.3d 1430, 1440-41 (8th Cir. 1993) (en banc).      If the BIA's
interpretation is reasonable, "[we] cannot replace the agency's judgment
with [our] own."   Arkansas AFL-CIO, 11 F.3d at 1441.


     The Immigration and Nationality Act, 8 U.S.C. §§ 1101-1524 (1994),
does not define the phrase "crime involving moral turpitude" and the Act's
legislative history does not shed any light on Congress's intent.      Cabral,
15 F.3d at 195.    So "Congress left the [phrase] to future administrative
and judicial interpretation."    Id.    In filling this gap, the BIA decided
years ago that when criminally reckless conduct requires a conscious




                                       -2-
disregard of a substantial and unjustifiable risk to the life or safety of
others, although no harm was intended, the crime involves moral turpitude
for immigration purposes.          In re Medina, 15 I. & N. Dec. 611, 613-14 (BIA
1976), aff'd sub nom. Medina-Luna v. INS, No. 76-1498, slip op. at 2 (7th
Cir. Jan. 13, 1977) (unpublished opinion); In re Wojtkow, 18 I. & N. Dec.
111, 112-13 (BIA 1981).            Having consistently adhered to its view about
crimes    of   reckless     endangerment      for   nearly     twenty   years,    the    BIA's
interpretation is entitled to deference.            See Arkansas AFL-CIO, 11 F.3d at
1441; Okoroha v. INS, 715 F.2d 380, 382 (8th Cir. 1983).                         Because the
Missouri definition of recklessness is nearly identical to the definitions
in    Medina   and   Wojtkow,     the   BIA   applied    the    same    interpretation      in
Franklin's case.


       Although Franklin argued for a bright-line rule that involuntary
manslaughter convictions do not involve moral turpitude, the BIA rejected
her    approach      as    unworkable   in     light    of   "the      myriad    [of]    state
classifications" for the crime.           In re Franklin, No. A-40191863, 1994 WL
520990 (BIA Sept. 13, 1994).            The BIA decided that it "must analyze the
specific statute under which the alien [is] convicted on a case-by-case
basis . . . to determine whether the conviction is for a crime involving
moral turpitude."         Id.   After considering the Missouri statute under which
Franklin was convicted as well as the relevant definition of recklessness,
the BIA concluded that because Franklin's crime "requires that she acted
with a `conscious disregard of a substantial and unjustifiable risk,' . .
. she has been convicted of a crime involving moral turpitude."                            Id.
(quoting Mo. Rev. Stat. § 562.016.4 (Supp. 1994)).


       Mindful that moral turpitude is a nebulous concept and there is ample
room for differing definitions of the term, 3 Charles Gordon & Stanley
Mailman, Immigration Law and Procedure § 71.05[1][d], at 71-146 to 71-149
(1994), we cannot say the BIA's interpretation is unreasonable.                         Indeed,
two other federal circuits




                                              -3-
have accepted the BIA's finding of moral turpitude in criminally reckless
conduct that is defined as the conscious disregard of a substantial and
unjustifiable risk.   Gutierrez-Chavez v. INS, No. 92-70104, 1993 WL 394916,
at *2-5 (9th Cir. Oct. 6, 1993) (unpublished opinion); Medina-Luna v. INS,
No. 76-1498, slip op. at 2 (7th Cir. Jan. 13, 1977) (unpublished opinion).
We believe deference to the BIA's view is particularly appropriate because
applying the moral turpitude term in the context of the immigration laws
entails "policy determinations [about deportation] that fall within the
ambit of [the BIA's] expertise."   Akindemowo v. INS, 61 F.3d 282, 285 (4th
Cir. 1995).


     In the framework of our deferential review, we cannot say the BIA has
gone beyond the bounds of reasonableness in finding that an alien who
recklessly causes the death of her child by consciously disregarding a
substantial and unjustifiable risk to life has committed a crime that
involves moral turpitude.   Under the BIA's longstanding definition of moral
turpitude, Franklin's crime can be fairly characterized     as "`"an act of
baseness, vileness, or depravity in the private and social duties which
[persons] owe to [their] fellow [persons] or to society in general, [and
is] contrary to the accepted and customary rule of right and duty between
[persons]."'"   Marciano v. INS, 450 F.2d 1022, 1025 (8th Cir. 1971) (quoted
cases omitted), cert. denied, 405 U.S. 997 (1972).


     We deny Franklin's petition for review.


BENNETT, District Judge, dissenting.


     The deportation of Myrisia Franklin to the Philippines would be a
miscarriage of justice.     Before explaining why, I offer two observations
based on extensive examination of deportation cases.   First, such cases all
too often receive from the BIA consideration that is both cursory and
superficial.    Second, the BIA often




                                     -4-
receives from the courts more deferential review than it is due.   There are
admittedly deportation cases that may be decided by the BIA with relative
ease and dispatched with brevity.   This is not such a case.   The BIA must
resist the temptation to dismiss deportation cases as treading all-too-
familiar ground.   Hiding in the apparently familiar landscape may be an
issue that should send triers of fact and law up roads less travelled.
This is such a case and compels such a journey.     Because I conclude that
neither the majority here nor the BIA below has applied the proper
standards to determining whether Myrisia Franklin has been convicted of a
crime involving moral turpitude, and hence is deportable, I dissent.


     I have three principal disagreements with the decisions in this case.
First, I dissent from according the BIA deferential review of each of its
determinations in this case.   Second, I dissent from the view that criminal
recklessness can be a sufficient mental state to make a crime one in which
moral turpitude necessarily inheres.   Third, even if criminal recklessness
could be deemed sufficient as that state of mind is sometimes defined, I
find that neither the majority nor the BIA properly considered Missouri's
definition of the crime of which Myrisia Franklin was convicted in deciding
that such a crime was one in which moral turpitude necessarily inheres.
At bottom, I must conclude that involuntary manslaughter as defined under
Missouri law simply is not a "crime involving moral turpitude," subjecting
an alien to deportation under § 241(a)(2)(A) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1251(a)(2)(A).   Involuntary manslaughter
has not been so viewed in more than two centuries of this country's common
law; the BIA's decision below offers no reasoned basis for disregarding the
exclusion of involuntary manslaughter from the realm of crimes involving
moral turpitude in the common law and the BIA's own prior decisions;
involuntary manslaughter does not, as typically defined, involve the
characteristic elements of a "crime involving moral turpitude";




                                    -5-
and   involuntary   manslaughter   certainly   does    not   involve   those
characteristic elements as the crime is defined under Missouri law.


                     I.   THE GRAVITY OF DEPORTATION
      However, before I turn to these specific disagreements with the
majority, I must first stress the gravity of the issue before the court.
As the Supreme Court has emphasized on more than one occasion,
           "deportation is a drastic measure and at times
           the equivalent of banishment or exile,
           Delgadillo v. Carmichael, 332 U.S. 388
           [(1947)]. It is the forfeiture for misconduct
           of a residence in this country.        Such a
           forfeiture is a penalty.     To construe this
           statutory provision [former § 241(a)(4), now
           § 241(a)(2)(A)] less generously to the alien
           might find support in logic. But since the
           stakes are considerable for the individual, we
           will not assume that Congress meant to trench
           on [the alien's] freedom beyond that which is
           required by the narrowest of several possible
           meanings of the words used."

Costello v. INS, 376 U.S. 120, 128 (1964) (quoting Fong Haw Tan v. Phelan,
333 U.S. 6, 10 (1948)); Rosenberg v. Fleuti, 374 U.S. 449, 458 (1963) ("the
'interests at stake' for the resident alien are 'momentous,'" citing
Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947), and DiPasquale v.
Karnuth, 158 F.2d 878, 879 (2d Cir. 1947)); Jordan v. DeGeorge, 341 U.S.
223, 231 (1951) (also quoting Fong Haw Tan); Fong Haw Tan v. Phelan, 333
U.S. 6, 10 (1948); Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947)
("[t]he stakes are indeed high and momentous for the alien who has acquired
his residence here."); Okoroha v. INS, 715 F.2d 380, 382 (8th Cir. 1983)
("We are mindful that deportation is a harsh remedy," citing Costello).1


      1
      By focusing on the gravity of deportation decisions, I do not
mean to suggest that Congress does not have the power to control
immigration and deportation:
              Judge Learned Hand, speaking for the
           United States Court of Appeals for the
           Second
Circuit, in United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d
489, 490 [(2d Cir. 1950)], said:
                   "The interest which an alien has
                in continued residence in this
                country is protected only so far as

                                   -6-
The stakes in the present case are undeniably high.




                Congress may choose to protect it;
                Congress may direct that all shall
                go back, or that some shall go back
                and some may stay; and it may
                distinguish between the two by such
                tests as it thinks appropriate."
             Aliens, so long as they are permitted
          to remain in the United States, are
          entitled to the protection of its
          Constitution and laws with respect to
          their rights of person and of property
          and    to   their  civil   and   criminal
          responsibility. "But they continue to be
          aliens, * * * and therefore remain
          subject to the power of Congress to expel
          them, or to order them to be removed and
          deported from the country, whenever, in
          its judgment, their removal is necessary
          or expedient for the public interest."
          Fong Yue Ting v. United States, 149 U.S.
          698, 724, 13 S. Ct. 1016, 1026, 37 L. Ed.
          905.
United States ex rel. De Luca v. O'Rourke, 213 F.2d 759, 763 (8th
Cir. 1954). This recognition of congressional power to control
immigration and deportation, however, does not undermine the
gravity of the individual deportation decision nor entitle the BIA
or the INS to make unreasonable deportation decisions.

                                  -7-
Furthermore, the BIA has held, and the courts have agreed, that for a crime
to fit within the meaning of the statute that provides for deportation of
aliens convicted of "crimes involving moral turpitude," the alien must have
been convicted of a crime that necessarily and inherently involves moral
turpitude.    Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993); United
States v. Chu Kong Yin, 935 F.2d 990, 1003 (9th Cir. 1991); Wadman v. INS,
329 F.2d 812, 814 (9th Cir. 1964); Tseung Chu v. Cornell, 247 F.2d 929, 935
(9th Cir.), cert. denied, 355 U.S. 892 (1957); Ablett v. Brownell, 240 F.2d
625 (D.C. Cir. 1957); United States ex rel. Giglio v. Neelly, 208 F.2d 337
(7th Cir. 1953); United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d
Cir. 1929).   This case therefore involves both serious consequences for the
alien and stringent requirements




                                    -8-
for the kind of criminal conduct on the part of the alien that can incur
those consequences.


                               II.    STANDARD OF REVIEW
     Because     I    take   issue    with   both     the    INS's   and   the    majority's
disposition of this case, it is of critical importance that I first
establish the proper standard of review by this court of the agency's
determination.       On this question, I find that the majority has failed to
appreciate what I believe to be a split in the circuits over what standard
of review is applicable, or has extended deferential review of the INS's
interpretation of "moral turpitude" in this case beyond its proper bounds.
This may be attributable to a more general failure among the circuit courts
of appeals to appreciate fully that the BIA's determinations in deportation
cases such as this involve interpretations of both federal and state law.
When the BIA considers whether an alien should be deported pursuant to
§ 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A), following the alien's conviction
of a state crime, the definition of "crime involving moral turpitude" under
this section of the INA is a matter of federal law.                  See, e.g., Cabral v.
INS, 15 F.3d 193, 196 n.5 (1st Cir. 1994).                    However, the elements and
nature of the crime of which the alien has been convicted are matters of
state law.   See, e.g., Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 n.2 (9th
Cir. 1994); Cabral, 15 F.3d at 196 n.5 (citing In re H, 7 I. & N. Dec. 359,
360 (BIA 1956)).


                     A.   "Reasonableness" Or "De Novo" Review?
     Following a road well travelled, but rarely scrutinized, the majority
has applied the standard of review for agency interpretations of statutes
the agency is charged with implementing, citing Chevron, U.S.A., Inc. v.
Natural   Resources       Defense    Council,      Inc.,    467   U.S.   837,    843   (1984).
Pursuant to this standard of review, when a court is confronted with an
instance in which neither Congress nor the statute in question provides
guidance to the court for resolution of the correct interpretation




                                             -9-
of terms of the statute, the court may not automatically impose its own
interpretation   of    the   statute;   instead,      the   court     must    apply   the
interpretation of the agency charged with implementing the statute,
provided   the   agency's    interpretation     "is     based    on    a     permissible
construction of the statute."      Chevron, 467 U.S. at 843; see also Pauley
v. BethEnergy Mines, Inc., 501 U.S. 680, 696-97 (1991); Train v. Natural
Resources Defense Council, Inc., 421 U.S. 60, 87 (1975); Udall v. Tallman,
380 U.S. 1, 16-18 (1965); Akindemowo v. INS, ___ F.3d ___, ___, 1995 WL
470544, *2 (4th Cir. 1995); and compare Mendoza v. INS, 16 F.3d 335, 337
(9th Cir. 1994) (applying deferential review required by Chevron even
though language of statute was plain and intent of Congress was therefore
clear).    Under Chevron, courts must accord the agency's interpretation
considerable deference, and "'should not disturb [that interpretation]
unless it appears from the statute or the legislative history that the
accommodation is not one that Congress would have sanctioned.'"                Chevron,
467 U.S. at 845 (quoting United States v. Shimer, 367 U.S. 374, 383
(1961)); Akindemowo, ___ F.3d at ___, 1995 WL 470544, at *2.                  Thus, the
court will defer to the agency's interpretation if it is "rational and
consistent with the statute."      NLRB v. United Food & Commercial Workers
Union, Local 23, AFL-CIO, 484 U.S. 112, 123 (1987); Chevron, 467 U.S. at
442-44 (describing the review as a determination of whether the agency's
interpretation is "reasonable"); Akindemowo, ___ F.3d at ___, 1995 WL
470544, at *2 (recognizing split in circuits over reasonableness of INS's
interpretation    of    "single    scheme      of     criminal        misconduct"      in
§ 241(a)(2)(A)(ii), 8 U.S.C. § 1251(a)(2)(A)(ii)); Arkansas AFL-CIO v. FCC,
11 F.3d 1430, 1440-41 (8th Cir. 1993)(en banc) ("reasonableness" is
standard of review, and if the agency's interpretation is "reasonable," the
court "cannot replace the agency's judgment with [its] own.").


     The INS argued for this standard of review in this case, citing
Cabral v. INS, 15 F.3d 193, 194-95 (1st Cir. 1994).          In explaining what is
required to overturn the INS's interpretation of




                                        -10-
a deportation statute under Chevron's "reasonableness" standard, the First
Circuit Court of Appeals in Cabral held that "the interpretation given by
the   BIA   is   entitled   to   deference     unless    arbitrary,   capricious,    or
manifestly contrary to the statute."           Cabral v. INS, 15 F.3d at 194; see
also Mosquera-Perez v. INS, 3 F.3d 553, 555 (1st Cir. 1993); Alvares-Flores
v. INS, 909 F.2d 1, 3 (1st Cir. 1990) (rejecting a pure de novo review
because Congress left gaps in the statute to agency interpretation).                 The
Cabral court observed that although this standard is high, the court
remains the final authority in matters of statutory interpretation and
"'must reject administrative constructions which are contrary to clear
congressional intent.'"      Cabral, 15 F.3d at 194 (quoting Mosquera-Perez,
3 F.3d at 555, in turn quoting Chevron, 467 U.S. at 843 n.9).


      The   reasonableness       of   the   agency's    interpretation,    under   this
standard of review, may be evidenced by the "reasoning process the [INS or
BIA] followed in deciding where along the spectrum of possibilities" the
proper definition of a statutory standard lies.              See Jaramillo v. INS, 1
F.3d 1149, 1154 (11th Cir. 1993) (en banc).             The INS or the BIA has acted
arbitrarily or capriciously if it "made a decision without a rational
explanation,     departed   inexplicably       from     an   established   policy,   or
discriminated invidiously against a particular race or group."                Varela-
Blanco v. INS, 18 F.3d 584, 587 (8th Cir. 1994) (citing Rodriguez-Rivera
v. INS, 993 F.2d 169, 170 (8th Cir. 1993) (per curiam), for this standard
in reviewing INS decision for abuse of discretion); Rodriguez-Rivera, 993
F.2d at 170 (also review of asserted abuse of discretion); see also Mahini
v. INS, 779 F.2d 1419, 1420 (9th Cir. 1986) (where review of agency action
was for reasonableness, court looked to agency's adherence to its own prior
rulings).


      This standard of review was described in Cabral as "review de novo,
according due deference to the BIA's interpretation of the deportation
statute," see Cabral, 15 F.3d at 194; Mosquera-Perez,




                                            -11-
3 F.3d at 554; Perlera-Escobar v. INS, 894 F.2d 1292, 1296 (11th Cir.
1990), but it is plain to me that where this court cannot come to its own,
independent interpretation of state law, review is not de novo in any real
sense.   See Salve Regina College v. Russell, 499 U.S. 225, 237-38 (1991)
(finding that difference between deferential review and independent de novo
review is that on independent review, the appellate court may reverse where
it "would resolve an unsettled question of state law differently from the
district court's resolution, but cannot conclude that the district court's
determination constitutes clear error," and holding that "[w]hen de novo
review is compelled, no form of appellate deference is acceptable.").


     Furthermore, the "de novo with deference" review in Cabral was based
in part on the Supreme Court's stated standard for review of an INS
interpretation of a statutory standard stated in INS v. Jong Ha Wang, 450
U.S. 139 (1981) (per curiam), a pre-Chevron case.    Cabral, 15 F.3d at 194.
However, Jong Ha Wang did not involve judicial review of the INS's
interpretation of a purely statutory standard, but review of the INS's
interpretation of a matter specifically consigned by statute to the INS's
discretion.    Jong Ha Wang, 450 U.S. at 145 (INS makes discretionary
determination under § 244, 8 U.S.C. § 1254(a)(1), of whether "extreme
hardship" should prevent deportation).     Deference is obviously appropriate
when the matter is consigned to the INS's discretion in the first place;
but that is not so here.   The INS may well be charged with implementing the
provisions for deportation for conviction of a "crime involving moral
turpitude," but the INS is not granted any discretion under § 241(a)(2)(A),
8 U.S.C. § 1251(a)(2)(A), in deciding whether a particular crime is one
involving moral turpitude.


     Finally, the Cabral court's principal authority for this standard of
review, Mosquera-Perez, also did not involve review of a comparable issue.
Although Mosquera-Perez did not involve review of a matter in the INS's
discretion originally, nonetheless it




                                    -12-
involved review of a statutory construction of another provision of the
immigration acts, § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B), concerning the
question of whether an aggravated felony conviction constitutes an absolute
bar to withholding deportation under that section.    Mosquera-Perez, 3 F.3d
at 554.   Thus, the statute in question in Mosquera-Perez involved a purely
federal question, i.e., construction of a federal statute by the federal
agency charged with implementing that statute.      No part of the meaning of
the federal statutory standard nor its application in Mosquera-Perez
concerned the definition of a crime under state law.


     I agree that a deferential review is appropriate in INS cases that
properly fall within the parameters of a Chevron review.      See Jaramillo,
1 F.3d at 1153 ("The Chevron rule of deference is fully applicable to the
immigration area," citing Jong Ha Wang as applying a similar standard of
review in a pre-Chevron case).    Deference is appropriate when the INS is
granted discretion to decide a particular matter.    For example, the INS is
entitled to deferential review of its discretionary determination of
whether or not an alien's circumstances entitle the alien to relief from
deportation under a statutory standard.   See Jong Ha Wang, 450 U.S. at 145
(deferential review of INS's discretionary determination under then § 244,
8 U.S.C. § 1254(a)(1), of whether "extreme hardship" should prevent
deportation); Jaramillo, 1 F.3d at 1152-53 (another case cited for this
deferential standard by the court in Cabral, but again involving the review
of the INS's discretionary denial of relief from deportation, this time
under current § 212(c), 8 U.S.C. § 1182(c), which involved the question of
when the period of lawful unrelinquished domicile by the alien ended).2
Second, the INS is entitled to deference when it considers the




      2
       In Jaramillo, the Eleventh Circuit Court of Appeals noted
that where the INS had been delegated discretionary authority to
construe the meaning of a statute, they could do so narrowly should
they deem it wise to do so for policy reasons. Jaramillo, 1 F.3d
at 1153 (citing Jong Ha Wang, 450 U.S. at 144).

                                   -13-
meaning of terms in the statute it is charged with interpreting.                        Mosquera-
Perez, 3 F.3d at 554 (deferential review of whether conviction of an
aggravated felony is an absolute bar to withholding of deportation under
§ 1253(h)(2)(B)).         This is also a Chevron matter, and the meaning of the
terms depends upon legislative history and federal agency and judicial
interpretation.         Similarly, I would find the deferential standard of review
was appropriate as applied in Mendoza v. INS, 16 F.3d 335, 336 (9th Cir.
1994), which considered the deportability of an alien depending on the
meaning       of   "entry"      in   8    U.S.C.       §     1101(a)(13)        and    8   U.S.C.
§   1251(a)(2)(A)(i),          because   the       meaning   of    the   term    at    issue   was
exclusively a matter of federal law.


      In the present case, I agree that this deferential standard of review
is applicable to the INS's, or BIA's, resolution of one of the key
questions with which it was presented, the proper definition of "crime
involving moral turpitude" under § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A).
The   meaning      of    the   phrase    is    a    matter    of   federal      law,   based    on
Congressional intent so far as such intent can be perceived from the
language of the statute or its legislative history, and, in the absence of
such guidance, the meaning of the phrase is a matter for federal agency and
federal judicial construction.            See Chevron, 467 U.S. at 843; Cabral, 15
F.3d at 196 n.5 (citing Babouris v. Esperdy, 269 F.2d 621, 623 (2d Cir.
1959), cert. denied, 362 U.S. 913 (1960); Burr v. INS, 350 F.2d 87, 90 (9th
Cir. 1965), cert. denied, 383 U.S. 915 (1966)).3


      By contrast, the Ninth Circuit Court of Appeals has held that whether
or not a state statute defines a crime that necessarily




          3
       Even applying this deferential standard of review to the
INS's definition of "crime involving moral turpitude," however, I
find the INS's construction of the standard, which encompasses
crimes that may involve only criminally reckless conduct, to be
unreasonable.

                                               -14-
involves moral turpitude for the purposes of the deportation provisions of
§ 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A), is a question of law reviewed de
novo, in the pure sense of that phrase—that is, without any deference to
the decision below.           See, e.g., Rodriguez-Herrera v. INS, 52 F.3d 238, 240
n.4 (9th Cir. 1995); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.
1994); Goldeshtein v. INS, 8 F.3d 645, 647 n.4 (9th Cir. 1993); De La Cruz
v. INS, 951 F.2d 226, 228 (1991) (per curiam); United States v. Chu Kong
Yin, 935 F.2d 990, 1003-04 (9th Cir. 1991); McNaughton v. INS, 612 F.2d
457, 459 (9th Cir. 1980) (per curiam); Winestock v. INS, 576 F.2d 234, 235
(9th Cir. 1978); Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406-07 (9th
Cir. 1969).          Indeed, these decisions do not make any mention in these
circumstances of any deference to be accorded the agency's determination.
Thus, I perceive a split of authority, or, at least, a fundamental
difference in approach to or perception of the issue, in appellate reviews
of    INS    cases.      Compare      Cabral,     15   F.3d   at   194    (review     of   BIA's
determination that alien has been convicted of a crime involving moral
turpitude is reviewed under Chevron standards); with Rodriguez-Herrera, 52
F.3d at 240 n.4 (review of BIA's determination of whether or not a crime
defined by state law is one involving moral turpitude is de novo).                             I
explain that split as the result of the appellate courts either making or
failing to make a distinction between construction of a federal statute by
the    agency       charged    with    its    implementation,      on    the    one   hand,   and
application of the federal statute so construed to a particular crime
defined by state law, which involves construction of the state law as well,
on the other hand.        The Ninth Circuit Court of Appeals regards this latter
situation as involving a question of law reviewed without any deference to
the agency's conclusions.             Indeed, in the Ninth Circuit Court of Appeals
cases       cited    above,    the    reviewing    court   did     not   even    consider     the
"reasonableness"         of    the    INS's   definition      of   "crime      involving   moral
turpitude."         The court instead considered only whether the INS erred as a
matter of law in concluding that the crime defined by state law was one
that involved the essential




                                               -15-
elements of a crime involving moral turpitude as the INS, the BIA, and the
federal courts had defined "crime involving moral turpitude."


       Thus, when we turn to the question of the application of the INS's
definition of "crime involving moral turpitude" to a crime as defined by
state law, I do not believe that the INS is entitled to any deference at
all.   I can see no difference, for purposes of the appropriate standard of
appellate review, between the INS's interpretation of state law defining
a criminal offense, when the INS tries to determine whether a crime of the
nature defined by that state law necessarily involves moral turpitude, and
interpretation of state law by a federal district court.              Although the
former was reviewed deferentially until 1991, in this and a majority of
other circuits, see, e.g., Parmenter v. FDIC, 925 F.2d 1088, 1092 (8th Cir.
1991) ("[W]e defer to the district court's interpretation of applicable
state law," citing Economy Fire & Cas. Co. v. Tri-State Ins. Co. of
Minnesota, 827 F.2d 373, 375 (8th Cir. 1987)); Ackley State Bank v.
Thielke, 920 F.2d 521, 524 (8th Cir. 1990) ("We give substantial weight to
district judges and bankruptcy judges in interpreting state law," citing
Grenz Super Valu v. Fix, 566 F.2d 614, 615 (8th Cir. 1977)); Norton v. St.
Paul Fire & Marine Ins. Co., 902 F.2d 1355, 1357 (8th Cir. 1990) ("In
general,   we    accord   substantial    deference    to    a    district   court's
interpretation of the law of the state in which it sits."), that is no
longer the case.      See, e.g., Michalski v. Bank of Am. Arizona, ___ F.3d.
___, ___, 1995 WL 581346, *2 (8th Cir. Oct. 5, 1995) ("[T]he district
court's interpretation of Minnesota law is . . . subject to de novo
review."); Damron v. Herzog, ___ F.3d ___, ___, 1995 WL 571865, *2 (8th
Cir.   Sept.    26,   1995)   ("We   review   de   novo    the   district   court's
interpretation of state law.");       Ventura v. Titan Sports, Inc., 65 F.3d
725, 729 (8th Cir. 1995) ("[w]e review the district court's interpretation
of Minnesota law de novo."); Kostelec v. State Farm Fire & Cas. Co., 64
F.3d 1220, 1225 (8th Cir. 1995) ("Of course, we review the district court's




                                       -16-
interpretation of state law de novo.").


     The reason for the change in the standard of appellate review of
district court interpretations of state law is that, in 1991, the United
States Supreme Court decided Salve Regina College v. Russell, 499 U.S. 225
(1991).   In Salve Regina College, the Court rejected the rule of deference
embraced by the majority of the circuit courts of appeals.     Salve Regina
College, 499 U.S. at 231.   The Court concluded first that "[t]he obligation
of responsible appellate jurisdiction implies the requisite authority to
review independently a lower court's determinations.   Independent appellate
review of legal issues best serves the dual goals of doctrinal coherence
and economy of judicial administration."    Id.   The court recognized that
the function of the district courts is different from that of the appellate
courts:
            District judges preside over fast-paced
            trials:    Of necessity they devote much of
            their   energy and resources to hearing
            witnesses and reviewing evidence. Similarly,
            the logistical burdens of trial advocacy limit
            the extent to which trial counsel is able to
            supplement the district judge's legal research
            with memoranda and briefs. Thus, trial judges
            often must resolve complicated legal questions
            without benefit of "extended reflection [or]
            extensive information." [(Citation omitted)].
                  Courts of appeals, on the other hand,
            are structurally suited to the collaborative
            judicial process that promotes decisional
            accuracy.     With the record having been
            constructed below and settled for purposes of
            the appeal, appellate judges are able to
            devote their primary attention to legal
            issues. As questions of law become the focus
            of appellate review, it can be expected that
            the parties' briefs will be refined to bring
            to bear on the legal issues more information
            and more comprehensive analysis than was
            provided for the district judge. . . .
                  Independent appellate review necessarily
            entails a careful consideration of the
            district court's legal analysis, and an
            efficient and sensitive appellate court at
            least will naturally consider this analysis in




                                    -17-
                undertaking its review.

Id. at 232.       I find nothing about this description of the roles of the
tribunals that is inapposite to the relationship between the BIA and the
courts of appeals.       Both the BIA and, of course, the INS more generally,
have very significant case loads of "moral turpitude" cases in which
factual    issues     and   time   pressures   may   significantly   outweigh   any
immigration judge's or BIA member's ability to address complicated legal
questions, such as the correct interpretation of state law.               The BIA
certainly has no more expertise or understanding of state law than does the
district court, see Norton, 902 F.2d at 1357 (suggesting that district
court's "expertise" in interpreting the law of the state in which it sits
is a basis for deferential appellate review), although it may well have
fewer facilities to make a proper examination and interpretation of state
law based upon interpretations by the state's courts than does a district
court.    This factor would certainly suggest that the BIA should be accorded
less deference in its interpretations of state law than is the district
court.    However, if the appellate court encounters a decision of either the
BIA or a district court in which the tribunal's "analytical sophistication
and research have exhausted the state-law inquiry," then "little more need
be said in the appellate opinion."         Id. at 224-25.    I see absolutely no
reason why a federal agency or agency tribunal should be accorded more
deference than a federal court in interpreting state law upon which its
decisions may depend.       Indeed, it strikes me as odd that one would suggest
            4
otherwise.       In deciding whether a crime defined by state law is a crime
in which moral turpitude necessarily inheres, the BIA is performing
precisely the same sort of interpretation of the requirements and meaning
of state law as is a federal court interpreting and




     4
      Although it is possible that my perception of the oddity of
according a federal agency greater deference than is given a
federal district court may be somewhat colored by the fact that I
am a federal district court judge, I nonetheless believe the
proposition survives on its own merits.

                                        -18-
applying state law.


     In my opinion, therefore, when the question is whether a particular
crime defined by state law fits within the federal standard for a "crime
involving moral turpitude," the state-law definition of the crime and
whether that definition necessarily involves moral turpitude under the
federal standard are questions of law that should be subject to pure de
novo review without any deference to the INS's conclusions.     See, e.g.,
Rodriguez-Herrera, 52 F.3d at 240 n.4; Gonzalez-Alvarado, 39 F.3d at 246;
Goldeshtein, 8 F.3d at 647 n.4; and compare Cabral, 15 F.3d at 196 (state
law determines the elements of the offense of conviction, citing In re H,
71 I. & N. Dec. 359, 360 (BIA 1956), but applying deferential review to
INS's application of standard to crime as defined by state law).5        I
recognize that in Okoroha, the Eighth Circuit Court of Appeals also applied
the deferential standard of review to the question of whether or not a
particular crime was a "crime involving moral turpitude" for deportation
purposes.   Okoroha, 715




      5
       I note a further point of distinction in the decisions of
courts applying "reasonableness" versus true "de novo" reviews of
INS action. When courts apply a two-prong test to the question of
whether the agency's action was appropriate, involving the
questions, first, whether the agency has applied the proper legal
standard and, second, whether there is substantial evidence that
the case falls withing that standard, courts again diverge.
Compare Animashaun v. INS, 990 F.2d 234, 237 (5th Cir. 1993)
(applying reasonableness review to both prongs, including (1)
whether the agency's interpretation of "crime involving moral
turpitude" is reasonable, and (2) whether the BIA's conclusion that
the legal standard has been met was reasonably based on substantial
evidence; however, the case involved the question of whether an
alien had been convicted of two crimes of moral turpitude that were
not a "single scheme" under § 241(a)(2)(A)(ii), not whether the
crimes involved were "crimes involving moral turpitude"); with
Abedini v. U.S. INS, 971 F.2d 188, 190-91 (9th Cir. 1992) (review
is de novo as to whether the BIA has properly determined the purely
legal question of the requirements of the Immigration and
Nationality Act, but review of "substantial evidence" that the
legal standard has been met is on the basis of what a reasonable
fact finder could conclude). The case presently before this court,
however, raises no "substantial evidence" question.

                                   -19-
F.2d at 382 (citing Jong Ha Wang, 450 U.S. at 139).       However, for the
reasons stated here I would overrule Okoroha on this point.    Nonetheless,
I agree that, under the proper standard of review, the crime in question
in Okoroha, possession of stolen mail, is indeed a "crime involving moral
turpitude."   See Okoroha, 715 F.2d at 382 (knowledge that mail was stolen
was an element of the offense, which therefore was a crime involving moral
turpitude).


     To summarize in the light of issues before this court, in my view,
whether the INS has properly defined "crime involving moral turpitude" is
a matter in which the INS is entitled to deference as the agency charged
with implementing the immigration statute.       However, how the crime in
question is defined under state law, and whether the nature of the crime
under state law defines a crime that necessarily involves moral turpitude,
are questions of law for the appellate court to review de novo with no
deference to the INS's conclusions whatsoever.


                     B.   The Basis For Determinations
     Although I disagree with giving any deference to the BIA's or the
INS's conclusions about whether a particular crime is one necessarily
involving moral turpitude, I agree with the majority that in determining
whether the crime of which the alien has been convicted falls within one
of the grounds for deportation under § 241(a)(2)(A), both the court and the
BIA look only at the definition of the crime under state law, and not at
the underlying facts and circumstances of the alien's particular offense.
Ramsey v. INS, 55 F.3d 580, 583 (11th Cir. 1995) (interpretation of
"aggravated     felony"    under    §     241(a)(2)(A)(iii),    8   U.S.C.
§ 1251(a)(2)(A)(iii)); Rodriguez-Herrera, 52 F.3d at 239-40 (interpretation
of "moral turpitude" under § 241(a)(2)(A)(i) & (ii)); Gonzalez-Alvarado,
39 F.3d at 246 ("moral turpitude"); United States v. Reyes-Castro, 13 F.3d
377, 379 (10th Cir. 1993) ("aggravated felony"); Goldeshtein, 8 F.3d at 647
("moral turpitude"); McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)




                                   -20-
("moral turpitude"); United States ex rel. Robinson v. Day, 51 F.2d 1022,
1022-23 (2d Cir. 1931) ("moral turpitude").6   Thus, in addition to the
state-law definition of the crime charged, both the BIA and the reviewing
court look only at the record of conviction, which includes the crime as
described in the indictment or information, the plea, the verdict or
judgment, and the sentence, but not any evidence offered in the case or
other facts or circumstances involved.   Cabral, 15 F.3d at 196 & n.6;7


     6
      This legal principle explains why neither the majority nor I
have thus far recited the facts of the case.      However, because
appellant urges us to consider those facts, despite this
blackletter rule, I will indulge her so far as to recite, albeit
very briefly, what the facts and circumstances of her conviction
were. Myrisia Franklin is a native and citizen of the Philippines.
She entered the United States at Los Angeles, California, on
December 15, 1987. She is 28 years old and the mother of three
children. However, on June 4, 1991, while she was expecting her
fourth child, her husband severely beat their three-year old son,
who later died of peritonitis. Franklin's husband is now serving
a twenty-year sentence for the child's murder.      On October 15,
1992, Franklin was found guilty in a bench trial of involuntary
manslaughter in the death of her son on a charge that she had
failed to seek medical treatment for him although she knew he was
in distress. She was sentenced to three years confinement in a
correctional facility. Her sentence was affirmed by the Missouri
Court of Appeals on September 7, 1993.          The INS initiated
deportation proceedings on May 21, 1993, but on the ground that
Franklin had failed to petition for removal of the conditional
basis of her admission and her conditional status had terminated on
May 5, 1990. On February 14, 1994, the INS added as a further
ground for Franklin's deportation her conviction of a crime
involving moral turpitude. On March 8, 1994, an immigration judge
ordered Franklin deported on both grounds.       During Franklin's
administrative appeal, the INS withdrew the "conditional status"
charge, but, on September 13, 1994, the BIA found Franklin
deportable on the "moral turpitude" charge.
     7
      The Cabral court described the purpose behind limiting what
the tribunals review in the deportation proceedings to the record
of conviction as "administrative workability." Cabral, 15 F.3d at
196 n.6. This rule relieves the BIA and the courts of the onerous
burden of taking and considering evidence and retrying mitigating
or extenuating factors that might relieve the alien of the "the
stigma of moral obliquity," and thereby prevents a "satellite
proceeding" far from the original crime scene. Id. (citing cases
so holding); see also Chiaramonte v. INS, 626 F.2d 1093, 1099 (2d

                                  -21-
United




Cir. 1980) (same concern with looking beyond general classification
of crime).

                               -22-
States v. Chu Kong Yin, 935 F.2d 990, 1003 (9th Cir. 1991) (BIA and
reviewing court are limited to the record of conviction and may not look
behind the record to the facts of the individual case); Alleyne v. U.S.
INS, 879 F.2d 1177, 1185 (3d Cir. 1989) (same); but see Kabongo v. INS, 837
F.2d 753, 758 (6th Cir.) (court looked at "facts of the present case, where
petitioner has acknowledged his false statements and the statements made
to defraud the United States Government," to find that "the convictions may
be   considered   as   involving   moral   turpitude   for   purposes   of   denying
voluntary departure."), cert. denied, 488 U.S. 982 (1988); Wadman v. INS,
329 F.2d 812, 814 (9th Cir. 1964) ("record of conviction" includes "the
indictment or information, plea, verdict or judgment and sentence"); Matter
of Ghunaim, 15 I. & N. Dec. 269, 270 (BIA 1975) (record of conviction
includes "charge or indictment, the plea, the judgment or verdict, and the
sentence," citing United States ex rel. Teper v. Miller, 87 F. Supp. 285,
287 (S.D.N.Y. 1949)).       Refusal to consider anything but a categorical
definition of the crime involved appears to be almost universal in majority
decisions.8   Thus, appellant's arguments based on the facts in her




       8
       However, occasional dissents from this view can be found.
For example, in his dissent from the majority opinion in Marciano
v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. denied, 405 U.S. 997
(1972), district judge Garnett Thomas Eisele took the view that "a
proper reading of the phrase 'crime involving moral turpitude,'
contained in 8 U.S.C.A. § 1251(a)(4), would require that the case
be returned to the Board of Immigration Appeals to determine if the
petitioner's criminal conduct here did or did not, factually,
'involve moral turpitude.'" Marciano, 450 F.2d at 1026 (Eisele,
J., dissenting).    Judge Eisele believed such an approach was
required, instead of review of only the "general nature" of the
crime and its classification, because categorical review did not
fit with congressional intent. Id. It was Judge Eisele's view
that "Congress did not decree deportation where there was a
conviction of a crime which 'generally' or 'commonly' involves
moral turpitude, [but] it meant [to authorize deportation] when
moral turpitude was in fact involved." Id. at 1028. In support of
this position, Judge Eisele pointed out that "[t]he statute says
deportation shall follow when the crime committed involves moral
turpitude, not when that type of crime 'commonly' or 'usually'
does." Id.

                                       -23-
specific case do not persuade me any more than they did the majority.9


     Although I find universal agreement that the state law defining the
criminal offense of which the alien has been




         9
          Both in her brief and at oral arguments, appellant
strenuously urged that we consider the facts of the particular case
leading to her conviction. Although both the majority and I reject
her arguments here, and, indeed, I do not find the facts of this
case particularly sympathetic, any hardship that deportation may
impose upon the alien may be relevant to whether an alien is
ultimately deported.    An alien who has been a lawful permanent
resident of the United States for at least seven years and who has
been found deportable on certain grounds may seek a waiver of
inadmissibility or relief from deportation under § 212(c), 8 U.S.C.
§ 1182(c). See, e.g., Hajiani-Niroumand v. INS, 26 F.3d 832, 834-
35 (8th Cir. 1994); Varela-Blanco v. INS, 18 F.3d 584, 586 (8th
Cir. 1994); see also Dashto v. INS, 59 F.3d 697, 702 (7th Cir.
1995). Such relief is discretionary, not an entitlement, but the
INS "'must balance "the social and humane considerations in the
alien's favor against any adverse factors that demonstrate his or
her undesirability as a permanent resident of the United States.'"
Dashto, 59 F.3d at 702 (quoting Henry v. INS, 8 F.3d 426, 432 (7th
Cir. 1993)); Yepes-Prado v. INS, 10 F.3d 1363, 1365-66 (9th Cir.
1993). The Eight Circuit Court of Appeals has recognized a number
of factors, including hardship to the alien and the alien's family,
and other factors appellant suggests are present in this case, as
weighing in the alien's favor, as well as negative factors weighing
in favor of deportation, in this "balance of equities" under
212(c). Hajiani-Niroumand, 26 F.3d at 835; Varela-Blanco, 18 F.3d
at 586.    However, because we have been presented with no issue
involving relief from deportation pursuant to § 212(c), I take no
position on whether Myrisia Franklin's circumstances and the facts
involved in her conviction might warrant relief under § 212(c), nor
do I even hazard a casual opinion as to whether she might meet the
initial qualifications for requesting such relief.
     Similarly, in considering whether an applicant for asylum or
withholding of deportation is ineligible for relief pursuant to 8
U.S.C. § 1253(h)(2)(B), because the applicant has been convicted of
"a particularly serious crime," courts have authorized the BIA to
consider the nature of the conviction, the type of sentence
imposed, and the circumstances and facts underlying the conviction
in determining whether or not the crime was "particularly serious."
See Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir. 1986).

                                  -24-
convicted, and not the facts or circumstances involved in the individual
alien's case, is the basis for determining whether or not the crime of
which the alien has been convicted is one involving moral turpitude, I do
not find universal agreement on what, precisely, is meant by "state law"
defining the offense.      The state law element is often stated in limited
terms as the state statute defining the offense.               See, e.g., Rodriguez-
Herrera, 52 F.3d at 239 ("[W]e must focus on the crime categorically as
defined by the [Washington] statute . . . ."); Gonzalez-Alvarado, 39 F.3d
at 246 n.2 ("[W]e consider the elements or nature of a crime as defined by
the relevant statute, not the actual conduct that led to the conviction.");
Goldeshtein, 8 F.3d at 647.


     However,    the   state    law   definition   of    the   crime   has   also   been
described as consisting of both the statute and decisions of the state's
highest court construing the statute.          See, e.g., Grageda v. U.S. INS, 12
F.3d 919, 921 (9th Cir. 1993) ("Whether a particular crime involves moral
turpitude 'is determined by the statutory definition or by the nature of
the crime not by the specific conduct that resulted in the conviction,'"
quoting McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)); Gutierrez-
Chavez v. INS, 8 F.3d 26 (Table), 1993 WL 394916, **2-**3 (9th Cir. 1993)
(court looked to decisions of state's highest court to determine proper
interpretation   of    intent   element   of    Alaska   statute   for   purposes     of
determining whether crime of second degree theft was a "crime involving
moral turpitude"); Holzapfel v. Wyrsch, 259 F.2d 890, 892 (3d Cir. 1958)
(looking to state case law to interpret a "relatively new and novel piece
of legislation" defining a sex offense by statute).            Our own circuit court
of appeals has looked to the interpretation of statutorily-defined crimes
by the state's highest court in determining whether or not the crime so
defined necessarily involves moral turpitude.            Marciano v. INS, 450 F.2d
1022, 1024 (8th Cir. 1971), cert. denied, 405 U.S. 997 (1972).               Nor has the
BIA been reluctant to look to the decisions of the state's highest court
when interpreting the




                                        -25-
elements of the offense of which the alien is convicted to determine
whether those elements include the necessary elements for the crime to be
one that inherently involves moral turpitude.              See, e.g., Matter of
Ghunaim, 15 I. & N. Dec. 269, 270 (BIA 1975) (looking at decisions of Ohio
courts to determine whether the manslaughter statute in question included
both    voluntary   and     involuntary    manslaughter,     because     involuntary
manslaughter did not involve moral turpitude); Matter of Szegedi, 10 I. &
N. Dec. 28, (BIA 1962) (looking at decisions of Wisconsin Supreme Court to
determine elements distinguishing degrees of murder and manslaughter in
order to determine which crimes involved the necessary intent element to
be crimes involving moral turpitude).       I believe that a focus solely on the
statutory   language   is    improper,    because   it   permits   a   "categorical"
definition of the crime that may, in fact, be out of step with the case law
of the state interpreting the statutory elements.10         This case, as I shall
show, vividly demonstrates this problem.


       Looking at how a state's highest court has construed the elements of
a crime defined by a state statute comports with common sense and is the
best way to insure that the constitutional requirement of a "uniform rule
of naturalization," U.S. Const. art. I, § 8, cl. 4, is met.            Cf. Nemetz v.
INS, 647 F.2d 432, 435 (4th Cir. 1981) (reference to state statutes to
determine whether a crime of moral turpitude had been committed by an alien
seeking to prove his good moral character for purposes of naturalization
undermined constitutional requirement of a "uniform rule of




       10
      Anyone who has ever prepared jury instructions in a criminal
case in which the crime is defined by statute will appreciate my
observation that judicial interpretations of statutes, as much or
more than the language of the statute, define the "nature of the
crime" of which a person is convicted. To close one's eyes to that
case law could well result in reversible error in a criminal case;
to close one's eyes to judicial interpretations of state criminal
law in making a deportation decision is, to my mind, to commit an
error of similar proportions.

                                         -26-
naturalization").11   It is readily apparent that the highest courts of
different states may construe nearly identical statutory language in
different ways, and thus mere identity of statutory language does not
necessarily indicate identical elements of the offenses, or identical
meaning of those elements, as they are defined by comparable statutes.
However, where the BIA and the reviewing courts look to the judicial
interpretation of a criminal statute by the state's highest court, the BIA
and the reviewing court can determine whether the crime necessarily
involves moral turpitude, not just whether it appears to define a crime in
which moral turpitude necessarily inheres.     Goldeshtein, 8 F.3d at 647
(crime must be one in which moral turpitude necessarily inheres); Chu Kong
Yin, 935 F.2d 990, 1003 (9th Cir. 1991) (same); Wadman v. INS, 329 F.2d
812, 814 (9th Cir. 1964) (same); Tseung Chu v. Cornell, 247 F.2d 929, 935
(9th Cir.) (same), cert. denied, 355 U.S. 892 (1957).12   "Uniformity" would
thereby be served, not




      11
       In Nemetz, the Fourth Circuit Court of Appeals feared that
looking to laws which vary from state to state to determine whether
a crime involving moral turpitude had been committed could only
lead to differing and often inconsistent results based on
"accident[s] of geography," because one state might criminalize
conduct permitted in another state.      Id.    Although the court
concluded that federal courts "can appropriately look to state law
in the initial stage of determination," when use of state law
defeats uniformity, the court should devise a federal standard by
other means. Id.
           12
         This approach would, I believe, protect the alien from
deportation based on conviction of a crime in which the BIA
mistakenly finds moral turpitude necessarily inheres, without
creating the dangers of a "satellite proceeding" over guilt of the
offense feared by the First Circuit Court of Appeals in Cabral.
Cabral, 15 F.3d at 196 n.6. It would not, however, go nearly far
enough to suit Judge Eisele, dissenting in Marciano, 450 F.2d at
1026-28.    Both Judge Eisele and the majority in that decision
assumed that the court should look to state judicial decisions
interpreting the state statute in question. Id. However, Judge
Eisele still believed that courts making such a review did not meet
the standards of determining whether the alien had actually been
convicted of a crime in which moral turpitude inhered. Id.

                                   -27-
undermined.13   The standard would be uniformly applied to the same category
of criminal conduct, not just to crimes described in the same or similar
language.


      Nor does looking to state judicial explications of the elements of
an offense make the effect of the federal statute "depend upon the niceties
and nuances of a state procedure."   Burr v. INS, 350 F.2d 87, 90 (9th Cir.
1965); see also Babouris v. Esperdy, 269 F.2d 621, 623 (2d Cir. 1959) ("It
is not to be supposed that Congress intended an alien's deportability to
be determined by the various classifications of misconduct evolved by the
states for jurisdictional or other internal application.").     The federal
standard remains intact; state case law is only relevant to deciding
whether the crime does indeed involve the elements of moral turpitude
required under the federal standard, as the crime is defined by the courts
properly charged with interpreting the criminal statute in question and
deciding cases under it.


      Having examined why I disagree with the majority on the question of
what standard of review is applicable to which issues presented in this
appeal, and the basis upon which the BIA's and the appellate court's
decisions should be made, I will next turn to




     13
      I am not suggesting that the information to be extracted from
state cases construing a statute and thereby controlling on the
meaning of a statutorily-defined crime is the state court's
determination of whether or not the crime defined by statute is one
involving moral turpitude. See, e.g., Gonzales v. Barber, 207 F.2d
398, 400 (9th Cir. 1953) (state court's determination that crime of
assault with a deadly weapon under a California statute did not
involve moral turpitude for purposes of determining an attorney's
fitness to practice law was not controlling on the question of
whether the crime so defined involved moral turpitude for the
purposes of deportation), aff'd, 347 U.S. 637 (1954). What I am
suggesting is that how the elements of the offense are defined by
a statute and case law constructions of that statute provides the
essential information whereby the INS, the BIA, or the courts can
determine whether the crime defined necessarily involves moral
turpitude.

                                     -28-
the opinion of the BIA that is under review here, then to the questions
involved in deciding whether or not the BIA's decision in this case should
stand.


                          III.     THE DECISION BELOW
       In the decision below, the BIA considered solely the issue of whether
Franklin's conviction for involuntary manslaughter under Missouri law had
been for a crime involving moral turpitude as required by the applicable
statute.     The BIA defined moral turpitude as referring generally to
"conduct which is inherently base, vile, or depraved, and contrary to the
accepted rules of morality and duties owed between persons or to society
in general," citing two prior BIA decisions, Matter of Danesh, 19 I. & N.
Dec. 669 (BIA 1988), and Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA
1980).     The BIA also recognized that moral turpitude has been defined as
"an act which is per se morally reprehensible and intrinsically wrong, or
malum in se, so it is the nature of the act itself and not the statutory
prohibition of it which renders a crime one of moral turpitude," citing
Matter of P., 6 I. & N. Dec. 795 (BIA 1955).


       The BIA found that the crime of which Franklin was convicted,
involuntary    manslaughter     under   Mo.    Rev.   Stat.   §    565.024,    involved
"recklessly caus[ing] the death of another person."               The BIA next found
that   Missouri's   statutory    definition     of    "reckless"    as   "a   conscious
disregard of a substantial and unjustifiable risk that circumstances exist
or that a result will follow, and such disregard constitutes a gross
deviation from the standard of care which a reasonable person would
exercise in the situation," Mo. Rev. Stat. § 562.016(4), necessarily
involved moral turpitude as an element of the offense of which Myrisia
Franklin had been convicted.        The BIA's decision was based on similar
definitions of criminally reckless conduct found by the BIA to involve
moral turpitude in two prior decisions, Matter of Medina, 15 I. & N. Dec.
611 (BIA 1976), aff'd sub nom. Medina-Luna v. INS, 547 F.2d 1171




                                        -29-
(7th Cir. 1977), and Matter of Wojtkow, 18 I. & N. Dec. 111 (BIA 1981).


      The       BIA    rejected    the   argument     that   its   own   prior    cases    had
historically distinguished between voluntary and involuntary manslaughter,
finding the former were crimes involving moral turpitude while the latter
were not, on the ground that such decisions ante-dated the decisions
holding that criminally reckless conduct could involve moral turpitude.
The   BIA       also    rejected    a    black-letter     conclusion     that    involuntary
manslaughter never involves moral turpitude, finding that the specific
statute under which the alien was convicted must be examined on a case-by-
case basis.            Finally, the BIA specifically overruled its prior cases
holding that involuntary manslaughter is not a crime involving moral
turpitude.14


                                         IV.   ANALYSIS
      I turn now to whether or not I would let stand the BIA's decision in
this case.        I look first at the question of the propriety of the INS's
construction of the phrase "crime involving moral turpitude."                             As I
concluded above, this question is properly a matter reviewed under the
Chevron        standard    to     determine    the    "reasonableness"     of    the   INS's
construction.


      An analysis of the reasonableness of the INS's interpretation of the
statute should be conducted in light of the legislative history and purpose
of the statute.          See, e.g., Chevron, 467 U.S.




          14
        In the opinion below, the BIA identified the following
decisions of the BIA as holding that involuntary manslaughter is
not a crime involving moral turpitude, but stated that these
decisions were now overruled on that issue by the decision in this
case:   Matter of Ghunaim, 15 I. & N. Dec. 269, 270 (BIA 1975);
Matter of Lopez, 13 I. & N. Dec. 725, 726 (BIA 1971); Matter of
Sanchez-Marin, 11 I. & N. Dec. 264, 266 (BIA 1965); Matter of
Szegedi, 10 I. & N. Dec. 28, 34 (BIA 1962); Matter of B, 4 I. & N.
Dec. 493, 496 (BIA 1951).

                                               -30-
at 845; Ramsey, 55 F.3d at 582 (discussion of INS's interpretation of
"aggravated felony" in § 241(a)(2)(A)(iii) "begins with the text and
relevant history" of the provision).            However, all of the decisions I have
examined that consider the meaning of moral turpitude have relied heavily
on prior precedent to decide the reasonableness of including any category
of crimes within that definition.          I have no doubt that the reasonableness
of the BIA's interpretation should therefore also be tested in light of
precedent, both BIA and judicial, or our system of judicial decision making
and judicial review means nothing.                See, e.g., Mahini v. INS, 779 F.2d
1419,    1420    (9th   Cir.    1986)    (where    review   of   agency   action   is   for
reasonableness, court looked to agency's adherence to its own prior
rulings).        Furthermore, unlike the terms used in the Clean Air Act
Amendments of 1977, which were the statutory provisions the meaning of
which was at issue in Chevron, see Chevron, 499 U.S. at 840, the phrase
"crime involving moral turpitude" has a long history of meaning under the
common law and the statutory law of the United States and the various
states.     It seems to me that it would be inappropriate to consider the
reasonableness of the INS's interpretation, even of this phrase in a
statute    the    INS   is     charged   with     implementing,    without   giving     due
consideration to the meanings and elements of the phrase as found by the
courts.


                                A.   Purpose And History
        The Supreme Court has observed that the "general legislative purpose"
of the predecessor to the present § 241(a)(2)(A), former § 241(a)(4) of the
Immigration and Nationality Act of 1952, was to "broaden the provisions
governing deportation, 'particularly those referring to criminal and
subversive aliens.'"         Costello, 376 U.S. at 120 (citing Commentary on the
Immigration and Nationality Act, Walter M. Besterman, Legislative Assistant
to the House Committee




                                            -31-
on the Judiciary, 8 U.S.C.A., pt. I, p. 61).15                  However, the "moral
turpitude" ground for deportation has a much longer history.                   The term
"moral turpitude" first appeared in the Immigration Act of March 3, 1891,
26 Stat. 1084, which directed the exclusion of "persons who have been
convicted of a felony or other infamous crime or misdemeanor involving
moral turpitude."           Jordan, 341 U.S. at 229.          The "moral turpitude"
provision was reenacted in similar form in the Immigration Act of 1903,
§ 2, Act of March 3, 1903, 32 Stat. 1213, and again in the Immigration Act
of 1907, § 2, Act of February 20, 1907, 34 Stat. 898.              Id.   Prior to the
Act of 1952, the "moral turpitude" provision was found in § 19 of the
Immigration Act of 1917, 8 U.S.C. § 155(a).            See, e.g., Jordan, 341 U.S.
at 224.   The "crime involving moral turpitude" provision of the immigration
acts was § 241(a)(4) of the Act of 1952, 8 U.S.C. § 1251(a)(4).                Costello,
476 U.S. at 125.            There the provision remained until passage of the
Immigration      Act   of   1990,   which   revised   and   recodified   the    relevant
provision to § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A).            Rodriguez-Herrera,
52 F.3d at 239 n.1; Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 n.2 (9th
Cir. 1994).


     As the Supreme Court noted in Jordan, a decision considering whether
the phrase "crime involving moral turpitude" lacked sufficiently definite
standards to justify deportation proceedings, "moral turpitude" is an issue
that arises in circumstances other than deportation proceedings:
                The term "moral turpitude" has deep roots in




           15
          In Costello, the Court identified other sources of
legislative history for this provision as the following: H.R. Rep.
No. 1365, 82d Cong., 2d Sess., 60 (1952); S. Rep. No. 1515, 81st
Cong., 2d Sess., 390-92 (1950); S. Rep. No. 1137, 82d Cong., 2d
Sess., 21 (1952); H.R. Rep. No. 2096 (Conference Report), 82d
Cong., 2d Sess., 127 (1952); Immigration and Naturalization
Service, Analysis of S. 3455, 81st Cong., 2d Sess. (195), Vol. 5,
pp. 241-3 through 241-6; Analysis of S. 716, 82d Cong., 1st Sess.
(1951), Vol. 4, pp. 241-2 through 241-4. Costello, 376 U.S. at 126
n.9. Unfortunately, few of these sources shed any light on the
specific questions now before the court.

                                            -32-
              the law. The presence of moral turpitude has
              been used as a test in a variety of
              situations, including legislation governing
              the disbarment of attorneys and the revocation
              of medical licenses. Moral turpitude also has
              found judicial employment as a criterion in
              disqualifying and impeaching witnesses, in
              determining the measure of contribution
              between joint tort-feasors, and in deciding
              whether certain language is slanderous.

Jordan,   341      U.S.     at    227   (footnotes     omitted).       The    Supreme    Court
subsequently added to this list of uses of the "moral turpitude" standard
when it considered a provision of the Alabama Constitution of 1901 which
disqualified       voters    convicted     of   "any    .   .   .   crime    involving   moral
turpitude."     Hunter v. Underwood, 471 U.S. 222, 226 (1985).


       More generally, one of the classic dichotomies of criminal law is the
distinction between crimes that involve moral turpitude and those that do
not.   See generally New Jersey v. T.L.O., 469 U.S. 325, 379 n.21 (1985)
(Stevens, concurring in part and dissenting in part) (noting dichotomy in
classification of crimes as "misdemeanors or felonies, malum prohibitum or
malum in se, crimes that do not involve moral turpitude or those that do,
and major and petty offenses," citing generally W. LaFave, Handbook on
Criminal Law § 6 (1972)); Kempe v. United States, 151 F.2d 680, 688 (8th
Cir. 1945) (noting that crimes have been divided according to their nature
into crimes mala in se and crimes mala prohibita, and noting further that
"[g]enerally, but not always, crimes mala in se involve moral turpitude,
while crimes mala prohibita do not."); and compare Matter of P., 6 I. & N.
Dec. 795 (BIA 1955) (cited by the BIA below for its definition of moral
turpitude     as    "an     act    which   is   per    se   morally     reprehensible      and
intrinsically wrong, or malum in se, so it is the nature of the act itself
and not the statutory prohibition of it which renders a crime one of moral
turpitude," thus equating crimes mala in se with crimes involving moral
turpitude).




                                             -33-
     Nonetheless, despite its use in a number of circumstances and
presence as a standard for deportation in the immigration laws of the
United States for just over a century, the meaning of the phrase "crime
involving moral turpitude" has defied absolute definition.                Jordan, 341
U.S. at 233 (Jackson, J., dissenting).            Although there is general agreement
that in order to be grounds for deportation, the crime of which the alien
is convicted must be one that necessarily involves moral turpitude, see,
e.g., Goldeshtein, 8 F.3d at 647 (crime must be one in which moral
turpitude necessarily inheres); Chu Kong Yin, 935 F.2d at 1003 (same);
Wadman, 329 F.2d at 814 (same); Tseung Chu, 247 F.2d at 935 (same); Ablett
v. Brownell, 240 F.2d 625 (D.C. Cir. 1957); United States ex rel. Giglio
v. Neelly, 208 F.2d 337 (7th Cir. 1953); United States ex rel. Guarino v.
Uhl, 107 F.2d 399 (2d Cir. 1929), courts have often had extreme difficulty
determining whether specific crimes are crimes that meet this requirement.
See, e.g., Dunn v. INS, 419 U.S. 919, 919 (1974) (Stewart, J., dissenting
from denial of certiorari) ("It is far from clear that refusing induction
is a 'crime involving moral turpitude.'").


                        B. Lack Of Congressional Guidance
     The difficulties faced by the courts and admittedly confronted by the
INS are not entirely of their own making.               As the dissenters in Jordan
observed,    and   no   court,   to   my   knowledge,    has   ever   disagreed,   "The
uncertainties of this statute do not originate in contrariety of judicial
opinion.    Congress knowingly conceived it in confusion."            Jordan, 341 U.S.
at 233 (Jackson, J., dissenting).           Only a very few courts have looked to
legislative history for some guidance on the meaning of the "moral
turpitude" provision in the deportation acts, and all of these, like the
dissenters in Jordan, have pointed to the comments of Rep. Sabath in the
hearings of the House Committee on Immigration on what eventually became
the Act of 1917:
             [Y]ou know that a crime involving moral
             turpitude has not been defined. No one can




                                           -34-
             really say what is meant by saying a crime
             involving moral turpitude.        Under some
             circumstances, larceny is considered a crime
             involving moral turpitude—that is, stealing.
             We have laws in some States under which
             picking out a chunk of coal on a railroad
             track is considered larceny or stealing. In
             some States it is considered a felony. Some
             States hold that every felony is a crime
             involving moral turpitude. In some places the
             stealing of a watermelon or a chicken is
             larceny.   In some States the amount is not
             stated. Of course, if the larceny is of an
             article, or a thing which is less than $20 in
             value, it is a misdemeanor in some States, but
             in other States there is no distinction.

Hearings before House Committee on Immigration and Naturalization on H.R.
10384, 64th Cong., 1st Sess. 8 (comments of Rep. Sabath); see also Jordan,
341 U.S. at 233-34 (Jackson, J., dissenting) (quoting this passage);
Cabral, 15 F.3d at 195 (quoting these comments and recognizing Justice
Jackson's quotation of them in support of the First Circuit Court of
Appeals' conclusion that "[t]he legislative history leaves no doubt . . .
that Congress left the term 'crime involving moral turpitude' to further
administrative and judicial interpretation.").             Justice Jackson observed
that "[d]espite this notice, Congress did not see fit to state what meaning
it attributes to the phrase 'crime involving moral turpitude.'"                 Id. at
234.

                   C.     The Anecdotal Approach To Defining
                        "Crimes Involving Moral Turpitude"

       In the face of the difficulty of determining what crimes involve
moral turpitude and the lack of congressional guidance as to the meaning
of the phrase, courts have approached the problem of defining the phrase
"crime involving moral turpitude" in anecdotal fashion.            Courts have found
consistently that certain categories of crimes involve "moral turpitude,"
but whether or not "moral turpitude" inheres in other categories of crimes
has left courts if not lost, at least bewildered.              I shall wander first
through   the   safe    ground   in   the    "moral   turpitude"   landscape,   before
venturing,




                                            -35-
with no small trepidation, into the terra incognita which I believe is the
place where this case can be found.


     Some cases, as I said at the outset of this dissent, in which an
alien is found deportable for commission of a crime assertedly involving
moral turpitude, can be decided with relative ease and dispatched with
brevity.   Such "easy" cases are those in which the alien has been convicted
of a crime with an element of fraud.       Over four decades ago, the Supreme
Court found that "[w]ithout exception, federal and state courts have held
that a crime in which fraud is an ingredient involves moral turpitude."
Jordan, 341 U.S. at 227.    Furthermore,
            [i]n every deportation case where fraud has
            been proved, federal courts have held that the
            crime in issue involved moral turpitude. This
            has been true in a variety of situations
            involving fraudulent conduct: obtaining goods
            under fraudulent pretenses; conspiracy to
            defraud by deceit and falsehood; forgery with
            intent to defraud; using the mails to defraud;
            execution of chattel mortgage with intent to
            defraud; concealing assets in bankruptcy;
            issuing checks with intent to defraud. In the
            state courts, crimes involving fraud have
            universally been held to involve moral
            turpitude.
                  Moreover, there have been two other
            decisions by courts of appeals prior to the
            decision now under review on the question of
            whether the particular offense before us in
            this case [conspiracy to violate the internal
            revenue laws by possessing and concealing
            distilled spirits with intent to defraud the
            United States of taxes] involves moral
            turpitude within the meaning of § 19(a) of the
            Immigration Act. . . .
                  In view of these decisions, it can be
            concluded that fraud has consistently been
            regarded as such a contaminating component in
            any crime that American courts have, without
            exception, included such crimes within the
            scope of moral turpitude.     It is therefore
            clear, under an unbroken course of judicial
            decisions, that the crime of conspiring to
            defraud the United States is a "crime
            involving moral turpitude."




                                    -36-
Id. at 227-29; see also Izedonmwen v. INS, 37 F.3d 416, 417 (8th Cir. 1994)
("'crimes in which fraud was an ingredient have always been regarded as
involving moral turpitude,'" quoting Jordan, 341 U.S. at 232); Mendoza v.
INS, 16 F.3d 335, 336 (9th Cir. 1994) (no issue on appeal of whether
welfare fraud constituted "crime involving moral turpitude"; issue was
whether alien's return after three-day departure constituted "entry" within
meaning of 8 U.S.C. § 1101(a)(13) and 8 U.S.C. § 1251(a)(2)(A)(i)); Kabongo
v. INS, 837 F.2d 753, 758 n.8 (9th Cir.), cert. denied, 488 U.S. 982 (1988)
(fraud crimes are always crimes involving moral turpitude);             Winestock v.
INS, 576 F.2d 234, 235 (9th Cir. 1978) (same); Lozano-Giron v. INS, 506
F.2d 1073, 1077 (7th Cir. 1974) (same); Burr v. INS, 350 F.2d 87, 91 (9th
Cir. 1965) (same).    Indeed, for some courts, the absence of an element of
fraudulent conduct from the definition of the crime has been sufficient to
find that the crime was not one involving moral turpitude.               See, e.g.,
Chaunt v. United States, 364 U.S. 350, 353 (1960) (breach of peace not a
crime involving moral turpitude, because no "fraudulent conduct" was
involved).


     Courts    have   consistently    held    that   statutory   rape   is   a   crime
involving moral turpitude, even though it has no intent element, because
such a crime is "usually classed as rape," which "manifestly involves moral
turpitude."     See, e.g., Marciano, 450 F.2d at 1025 (citing cases so
holding).     So, too, courts have expressed similar certainty that theft
crimes involve moral turpitude.      See, e.g., Dashto v. INS, 59 F.3d 697, 699
(7th Cir. 1995) (recognizing prior decision holding that "'[t]heft has
always been held to involve moral turpitude, regardless of the sentence
imposed or the amount stolen,'" quoting Soetarto v. INS, 516 F.2d 778, 780
(7th Cir. 1975)); United States v. Villa-Fabela, 882 F.2d 434, 440 (9th
Cir. 1989) ("theft[s] [are] crime[s] of moral turpitude."), overruled on
other grounds, United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir.
1992) (en banc); Chiaramonte v. INS, 626 F.2d 1093, 1097 (2d Cir. 1980)
(thefts are presumed to be




                                       -37-
crimes     involving   moral   turpitude   "however   they   may   be   technically
translated into domestic penal provisions," and citing cases so holding);
Christianson v. United States, 226 F.2d 646, 655 (8th Cir. 1955) (for
purposes of impeaching a witness, crimes of larceny and embezzlement have
always been held to involve moral turpitude), cert. denied, 350 U.S. 994
(1956); United States ex rel. Berlandi v. Reimer, 113 F.2d 429, 431 (2d
Cir. 1940) ("An intent to steal or defraud in the [case of one who defrauds
a private citizen of property] has repeatedly been held to render an
offense one which involves moral turpitude and for which an alien may be
deported or excluded under the Immigration Laws," and finding an intent to
defraud element in forgery).      This certainty of the courts remains in spite
of, or perhaps because of, Congress's refusal to define "crime involving
moral turpitude" with greater specificity even after Rep. Sabath pointed
out that state theft laws were not uniform.      See supra, p. - 33 -.       As the
Second Circuit Court of Appeals observed, "whatever the vicissitudes of the
state laws of larceny, it is clear that for immigration purposes, a crime
of moral turpitude is involved when . . . one carries away property knowing
it to belong to another."      Chiaramonte, 626 F.2d at 1099 (citing Gordon &
Rosenfield, Immigration Law and Procedure § 4.14(d)(1977)).16


     Of greater pertinence here are cases involving homicides.               Courts
have uniformly held voluntary murder to be a "crime involving moral
turpitude."    Cabral, 15 F.3d at 195-96 (citing Fong Haw Tan v. Phelan, 162
F.2d 663, 664 (9th Cir. 1947), rev'd on




      16
       The venerable decision of this circuit court of appeals in
United States v. O'Rourke, 213 F.2d 759, 762 (8th Cir. 1954),
asserts that "there can be nothing more depraved or morally
indefensible than conscious participation in the illicit drug
traffic," such that drug trafficking offenses would always
necessarily involve moral turpitude. However, drug trafficking
offenses figure little in the question of what crimes constitute
crimes involving moral turpitude.       Drug use and trafficking
provided an independent ground for deportation under former 8
U.S.C. § 1251(a)(11), and do so now under 8 U.S.C. § 1251(a)(2)(B).

                                       -38-
other grounds, 333 U.S. 6 (1948)); In re Johnson, 822 P.2d 1317 (Cal.
1992); Burleigh v. State Bar of Nevada, 643 P.2d 1201, 1204 (Nev. 1982);
State v. Lee, 404 S.W.2d 740, 748 (Mo. 1966); In re Noble, 423 P.2d 984,
984 (N.M. 1967).     Courts have also consistently held that voluntary
manslaughter is a crime involving moral turpitude.       See, e.g., Vincent v.
State, 442 S.E.2d 748, 749 (Ga. 1994) (impeachment with conviction of crime
involving moral turpitude based on voluntary manslaughter conviction was
proper, but exceeded proper scope when prosecutor explored facts of
conviction); Harris v. Deafenbaugh, Slip. Op., No. CV91-0320379, 1993 WL
407983,   *1 (Conn. Super. Ct. Sept. 30, 1993) (murder and voluntary
manslaughter are crimes involving moral turpitude, citing Drazen v. New
Haven Taxicab Co., 95 Conn. 500, 507 (1920)); People v. Gutierrez, 18 Cal.
Rptr. 2d 371, 376 (Cal. Ct. App. 1993) (voluntary manslaughter is crime
involving moral turpitude for purposes of impeaching witness); People v.
Ballard, 16 Cal. Rptr. 2d 624, 628 (Cal. Ct. App. 1993) (parties conceded
conviction for voluntary manslaughter was conviction of crime involving
moral turpitude); People v. Von Villas, 15 Cal. Rptr. 2d 112, 143 (Cal. Ct.
App. 1992) (same conclusion, but such conviction may not be useable for
impeachment of witness for other reasons), cert. denied, ___ U.S. ___, 114
S. Ct. 118 (1993); People v. Foster, 246 Cal. Rptr. 855, 857 (Cal. Ct. App.
1988) (voluntary manslaughter is crime involving moral turpitude for
purposes of witness impeachment); In re Strick, 738 P.2d 743, 750 (Cal.
1987)   (circumstances   surrounding    attorney's   conviction   for   voluntary
manslaughter and assault with a deadly weapon exhibited moral turpitude as
a matter of law in attorney discipline case); People v. Partner, 225 Cal.
Rptr. 502, 506 (Cal. Ct. App. 1986) (voluntary manslaughter is crime
involving moral turpitude for purposes of impeachment of witness); People
v. Parrish, 217 Cal. Rptr. 700, 709 (Cal. Ct. App. 1985) (same, but stating
that discussion applied only to voluntary manslaughter, despite defendant's
arguments, which had principally involved involuntary manslaughter); but
see Mitchell v. State, 379 S.E.2d 123, 125 (S.C. 1989) (voluntary




                                       -39-
manslaughter under South Carolina law, and therefore like offense with same
elements under New York law, are not crimes involving moral turpitude for
purposes of impeaching a witness); In re Mostman, 765 P.2d 448, 454 (Cal.
1989) (in attorney discipline case, court read its precedent as holding
that voluntary manslaughter is not necessarily a crime involving moral
turpitude, citing In re Strick, 738 P.2d 743, 750 (Cal. 1987), and In re
Nevill, 704 P.2d 1332 (Cal. 1985)); People v. Thomas, 254 Cal. Rptr. 15,
19 (Cal. Ct. App. 1988) (in considering impeachment with conviction for
assault with a deadly weapon, court discussed, but did not decide, question
of   whether   "imperfect   self-defense"   should   call   into   doubt   whether
voluntary manslaughter necessarily involves moral turpitude); State v.
Morgan, 541 S.W.2d 385, 390 (Tenn. 1976) (concluding that voluntary
manslaughter was not "infamous crime" under Tennessee statute allowing use
of "infamous crimes," to be used to impeach credibility, but not deciding
whether such a crime was one involving moral turpitude, finding issue of
fact to be settled on remand as to whether conviction was too remote to be
used in any event).


      Yet, the question presented here is whether the crime of       involuntary
manslaughter is also a crime universally recognized as a "crime involving
moral turpitude."     A merely anecdotal survey of court decisions, many of
which involve impeachment of witnesses, would suggest that a conviction for
involuntary manslaughter is not such a crime, because of the lack of any
intent, let alone an "evil intent."         See, e.g., United States ex rel.
Mongiovi v. Karnuth, 30 F.2d 825 (W.D.N.Y. 1929) (involuntary manslaughter
does not involve moral turpitude); Carreker v. State, No. CR-93-2858, Slip
Op., 1994 WL 620880 (Ala. Crim. App. 1994) (holding that involuntary
manslaughter, defined either as reckless or negligent, was not a crime of
moral turpitude, because it was "based on unintentional conduct, in
contrast to those crimes involving some form of evil intent.        It is not an
offense that is mala in se and, thus, does not fall within the definition
of crimes involving moral




                                     -40-
turpitude."); Matter of Frascinella, 1 Cal. State Bar Ct. Rptr. 543, 1991
WL 94403, *5 (Cal. Bar Ct. 1991) (recognizing involuntary manslaughter as
an offense that does not in and of itself constitute a crime involving
moral turpitude for purposes of attorney disbarment); In re Strick, 738
P.2d   743,   750   (Cal.   1987)(involuntary    manslaughter    is    not   a   crime
necessarily involving moral turpitude for purposes of attorney disbarment);
People v. Montilla, 513 N.Y.S.2d 338 (N.Y. Sup. Ct. 1987) (vehicular
manslaughter is not a crime involving moral turpitude because it did not
involve evil intent, but crime was defined in terms of criminal negligence,
even though court considered precedents to establish rule that reckless
manslaughter did not involve moral turpitude); People v. Coad, 226 Cal.
Rptr. 386 (Cal. Ct. App. 1986) (voluntary manslaughter always involves
intent to do evil, and hence involves moral turpitude, citing federal INS
cases in which involuntary manslaughter was held not to involve moral
turpitude); People v. Solis, 218 Cal. Rptr. 469 (Cal. Ct. App. 1985)
(involuntary manslaughter is not a crime involving moral turpitude); Abbey
v. Lord, 336 P.2d 226, 231 (Cal. Dist. Ct. App. 1959) (in deciding whether
causing   death     of   insured   barred   payment   of   insurance   proceeds     to
beneficiary, court noted that involuntary manslaughter "does not involve
the same kind of moral turpitude present in a voluntary killing"); see also
People v. Ford, 597 N.Y.S.2d 882 (N.Y. Sup. Ct. 1993) (where person who
pleaded guilty to reckless manslaughter sought to have trial judge reduce
plea to negligent homicide so that person could avoid deportation for
conviction of a crime involving moral turpitude, the court held jury should
decide if crime involved moral turpitude, and set aside plea for trial by
jury); Kentucky Bar Ass'n v. Jones, 759 S.W.2d 61 (Ky. 1988) (it was not
necessary for court to determine if reckless homicide was a crime of moral
turpitude, because it was conduct inappropriate of an attorney allowing
suspension of license); People v. Cazares, 235 Cal. Rptr. 604, 605-06 (Cal.
Ct. App. 1987) (trial court could properly deny probation on the ground
that unusual circumstances were absent in conviction for involuntary




                                        -41-
manslaughter, because firing a loaded weapon into a crowded dance hall was
"acting with a depraved heart and with reckless abandon," even if crime did
not involve moral turpitude, because of the lack of intent or malice); In
re Morris, 397 P.2d 475, 478 (N.M. 1965) (court need not decide whether
conviction for involuntary manslaughter rendered attorney unfit to practice
law on ground of conviction of crime involving moral turpitude, because
involuntary manslaughter as the result of driving under the influence of
alcohol otherwise supported suspension of attorney's license); State Bd.
of Medical Examiners v. Weiner, 172 A.2d 661, 670 (N.J. Super. Ct. App.
Div. 1961) (refusing to foreclose the possibility that manslaughter, even
involuntary manslaughter, was crime that did not involve moral turpitude
for purposes of suspending license to practice medicine); In re Welansky,
65 N.E.2d 202 (Mass. 1946) (court need not consider whether involuntary
manslaughter was crime involving moral turpitude or otherwise indicating
unfitness to practice law where attorney offered no evidence that crime of
which he was convicted was not one that disclosed his unfitness to remain
at the bar).17



          17
          These cases demonstrate that under the common law,
involuntary manslaughter was consistently viewed as not being a
crime involving moral turpitude, and commentators agree.       See,
e.g., Tarik H. Sultan, Immigration Consequences Of Criminal
Convictions, ARIZ. ATT'Y 15 (June 30, 1994) ("[T]he following
crimes do not generally involve moral turpitude:        involuntary
manslaughter, simple assault and battery, attempted suicide, libel,
riot, vagrancy, maintaining a nuisance, fornication or Mann Act
violations, breaking and entering or unlawful entry, possession of
stolen property, joyriding, damaging private property, failure to
report for induction, conspiracy to commit offenses against the
United States, desertion, false statements not amounting to
perjury, and violation of regulatory laws such as gambling or drunk
driving."); Robert D. Ahlgren, State Dep't Implementation Of The
1990 Act: Grounds Of Exclusion Related To Criminal Activity, 422
PRAC. LAW INST./LIT & ADMIN. PRAC. COURSE HANDBOOK SERIES 165
(1991) ("[A] [crime involving moral turpitude] is any crime showing
an innate "moral depravity."      This can include anything from
shoplifting to murder, but would not include, for example, a
fistfight,   drinking   in   a   public   place,   or   involuntary
manslaughter."); Arthur C. Helton, Gaining Status For Your Client
Under The Immigration Reform And Control Act Of 1986, 329 PRAC.
LAW. INST./LIT. & ADMIN. PRAC. COURSE HANDBOOK SERIES 123 (1987)
("Moral turpitude is defined on a case by case basis. For example,

                                   -42-
      Prior to the decision in this case, the BIA itself made a distinction
between voluntary manslaughter, which it invariably held was a crime
involving moral turpitude, and involuntary manslaughter, which the BIA held
was not such a crime.   See Matter of Sanchez-Linn, Interim Dec. 3156 (BIA
1991) (voluntary manslaughter is a crime involving moral turpitude); Matter
of Rosario, 15 I. & N. Dec. 416, 417 (BIA 1975) ("It is well settled that
voluntary manslaughter—[defined as] an intentional killing of a human
being—is a crime involving moral turpitude."); Matter of Ghunaim, 15 I. &
N. Dec. 269, 270 (BIA 1975) ("Murder and voluntary manslaughter are crimes
involving   moral   turpitude;   involuntary    manslaughter    is   not;"   thus,
immigration judge properly found conviction was for crime involving moral
turpitude in the form of voluntary manslaughter where manslaughter statute
included both voluntary and involuntary manslaughter, but record of
conviction revealed indictment for a voluntary murder, and a necessary
element of involuntary manslaughter, unintentional killing while in the
commission of some unlawful act, was missing); Matter of Lopez, 13 I. & N.
Dec. 725, 726-27 (BIA 1971) (finding no moral turpitude where statute did
not   distinguish   between   voluntary   and   involuntary    manslaughter    and
indictment did not reveal intent); Matter of Ptasi, 12 I. & N. Dec. 790
(BIA 1968) (conviction of manslaughter by stabbing was conviction of crime
involving moral turpitude); Matter of Sanchez-Marin, 11 I. & N. Dec. 264,
266 (BIA 1965) ("Voluntary manslaughter has generally been held to involve
moral turpitude while involuntary manslaughter has not," but where alien
indicted for second degree murder pleaded guilty to lesser offense




murder, voluntary manslaughter and assault with intent to kill
involve moral turpitude, while involuntary manslaughter, assault
and battery and simple possession of weapon do not."); Noah
Kinigstein,   Strategies    For   Ameliorating    The   Immigration
Consequences Of Criminal Convictions:        A Guide For Defense
Attorneys, 23 AM. CRIM. L. REV. 425, 434 (Spring 1986) ("Crimes
that have been held not to involve moral turpitude include:
involuntary manslaughter, simple assault, and attempted suicide.").

                                     -43-
of manslaughter under statute that did not distinguish between voluntary
and involuntary manslaughter, it was "reasonable" to conclude alien had
pleaded guilty to voluntary homicide, which is a crime involving moral
turpitude); Matter of Abi-Rached, 10 I. & N. Dec. 551 (BIA 1964) (voluntary
manslaughter was crime involving moral turpitude); Matter of Szegedi, 10
I. & N. Dec. 28, 34 (BIA 1962) (finding that involuntary manslaughter,
defined as "homicide by reckless conduct," and defining mens rea as
"grossly negligent conduct," did not involve moral turpitude because the
intent element was not present); Matter of S, 9 I. & N. Dec. 496 (BIA 1961)
(conviction under Peruvian statute was analogous to conviction of voluntary
manslaughter in the United States, and therefore was conviction for crime
involving moral turpitude); Matter of P, 6 I. & N. Dec. 788 (BIA 1955)
(citing   prior   cases   holding   that   voluntary   manslaughter   is   a   crime
involving moral turpitude and so holding); Matter of R, 5 I. & N. Dec. 463
(BIA 1953) (where indictment charged voluntary killing, guilty plea under
statute that makes no distinction between voluntary and involuntary
manslaughter was conviction for crime involving moral turpitude); Matter
of H R, 4 I. & N. Dec. 742 (BIA 1952) (in absence of evidence in record of
conviction indicating involuntary nature of crime, manslaughter under
statute making no distinction was deemed to be voluntary, and therefore a
crime involving moral turpitude);18 Matter of K, 4 I. & N. Dec. 108 (BIA
1951) (where neither statute nor conviction record make clear whether
conviction was for voluntary or involuntary manslaughter, board cannot
conclude that conviction under statute making no distinction is for crime
involving moral turpitude); Matter of D, 3 I. & N. Dec. 51 (BIA 1947)
(where statute does not distinguish between voluntary and involuntary
manslaughter, but indictment is for homicide committed by means of an
assault with malice aforethought,




     18
      In my opinion, it would be improper to "deem" a crime to be
one necessarily involving moral turpitude where the statute under
which the alien has been convicted does not make this distinction,
at least where the indictment makes no such distinction either.

                                       -44-
conviction    is   for   voluntary    manslaughter,    and   hence    involves   moral
turpitude); Matter of J, 2 I. & N. Dec. 477 (BIA 1947); Matter of N, 1 I.
& N. Dec. 181 (BIA 1947) (involuntary manslaughter is not crime involving
moral turpitude); Matter of S, 1 I. & N. Dec. 519 (BIA 1947) (voluntary
manslaughter is crime involving moral turpitude).               Thus, on a purely
"anecdotal" basis, this should have been an "easy case," and the result
should have been contrary to the BIA's decision below.


      The INS argues that a change from its prior interpretations of the
meaning of "crime involving moral turpitude" does not necessarily make the
new interpretation unreasonable, citing Rust v. Sullivan, 500 U.S. 173, 186
(1991) ("An initial agency interpretation is not instantly carved in
stone. . . .        This Court has rejected the argument that an agency's
interpretation 'is not entitled to deference because it represents a sharp
break with prior interpretations' of the statute in question," quoting
Chevron, 467 U.S. at 862); Yanez-Popp v. INS, 998 F.2d 231, 235 (4th Cir.
1993) ("[t]he Board has discretion to reinterpret the INA if it employs a
'reasoned analysis'"); Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084,
1088 (6th Cir. 1987) (new agency interpretation still should be afforded
deference even if it conflicts with agency's prior interpretation), cert.
denied sub nom. E & S Design and Dev., Ltd. v. Montgomery, 485 U.S. 1008
(1988).    However, in Thomas Jefferson Univ. v. Shalala, 512 U.S. ___, 114
S.   Ct.   2381    (1994),   the    Supreme   Court   held   that    an   inconsistent
interpretation of a statutory provision by the agency is "'"entitled to
considerably less deference" than a consistently held agency view.'"
Thomas Jefferson Univ., 512 U.S. at ___-___, 114 S. Ct. at 2392-94 (1994)
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30, 107 S. Ct. 1207,
1221 n.30 (1987), in turn quoting Watt v. Alaska, 451 U.S. 259, 273, 101
S. Ct. 1673, 1681 (1981)).         That rule is only inapplicable when the party
challenging the current interpretation has failed to present persuasive
evidence that the agency has interpreted the statutory provision in




                                         -45-
an inconsistent manner.      Id. at ___, 114 S. Ct. at 2388.         In this case, the
inconsistency with prior BIA determinations that involuntary manslaughter
is   not   a   crime    involving    moral   turpitude   is   more   than   adequately
demonstrated.


      Furthermore, the "new" interpretation here is not merely a change of
interpretation of statutory language, but a reinterpretation of language
with a long history of application and interpretation in the statutes and
common law of this country.         Here, the BIA's new interpretation of "crimes
involving moral turpitude" as including involuntary manslaughter is against
the entire weight of the common law and the interpretations of the phrase
by the courts of this country, as well as contrary to the BIA's prior
interpretations.       On that basis alone, I do not find the BIA's change of
interpretation reasonable.


      Nor do I find the requisite "reasoned analysis" that might sustain
a new interpretation of a statute even where it is contrary to prior agency
interpretations.       Yanez-Popp v. INS, 998 F.2d at 235.       The BIA's analysis
below consists of the following:
                     In Matter of Median, 15 I. & N. Dec. 611
               (BIA 1976), aff'd sub nom. Medina-Luna v. INA,
               547 F.2d 1171 (7th Cir. 1977), the Board
               revisited the issue of whether criminally
               reckless conduct constituted a crime involving
               moral turpitude.    In Medina, the alien had
               been convicted of aggravated assault in
               violation of Illinois law. Holding that the
               criminally reckless conduct defined by the
               Illinois "recklessness" statute provided the
               basis for a finding of moral turpitude, the
               Board construed the statute as follows:
                     The person acting recklessly must
                     consciously disregard a substantial and
                     unjustifiable risk, and such disregard
                     must constitute a gross deviation from
                     the standard of care which a reasonable
                     person would exercise in the situation.
                     This definition of recklessness requires
                     an actual awareness of the risk created
                     by the criminal violator's action.
                     While the Illinois recklessness statute
                     may not




                                          -46-
                 require a specific intent to cause
                 a particular harm, the violator
                 must show a willingness to commit
                 the act in disregard of the
                 perceived risk.   The presence or
                 absence of a corrupt or vicious
                 mind is not controlling.
           Id. at 613-14.
                 Later, in Matter of Wojtkow, [18 I. & N.
           Dec. 111 (BIA 1981)], the Board relied upon
           the holding in Medina to conclude that an
           alien's    conviction   for    second   degree
           manslaughter under the New York Penal Law
           constituted a crime involving moral turpitude.
           Quoting the New York statute, the Board noted
           that a person is guilty of second degree
           manslaughter in New York if "'he recklessly
           causes the death of another person.'" Matter
           of Wojtkow, supra, at 112 n.1.       The Board
           further observed that the definition of
           "recklessness" under New York law was the same
           as the definition under Illinois law that had
           been analyzed in Medina. Id. at 112-13.

Matter of Franklin, Interim Dec. (BIA) 3228, Slip. op., pp. 3-4.   Rejecting
all prior precedent to the contrary, the BIA found these two decisions
sufficient to find involuntary manslaughter based on reckless conduct to
be a crime involving moral turpitude.


     The authority upon which the BIA relied in this case, however,
suffers from its own fatal deficiencies.   As the BIA noted in its opinion
below, the decision in Wojtkow relies upon that in Medina.   Indeed, I find
no analysis at all in the Wojtkow decision except a parroting of the
conclusions of the Medina court.    Wojtkow, 18 I. & N. Dec. at 112-13. The
decision in Medina had been based upon an Illinois statute and the Wojtkow
Board simply applied the Medina Board's conclusions to a New York statute
framed in similar language.   Id.   In Medina, the BIA stated that "we have
reconsidered the general position taken in [prior] cases, and we have
concluded that moral turpitude can lie in criminally reckless conduct."
Medina, 15 I. & N. Dec. 611 (BIA 1976).    The extent of the Medina Board's
analysis is the following:
           The person acting recklessly must consciously
           disregard a substantial and unjustifiable




                                    -47-
             risk, and such disregard must constitute a
             gross deviation from the standard of care
             which a reasonable person would exercise in
             the   situation.       This   definition    of
             recklessness requires an actual awareness of
             the risk created by the criminal violator's
             action.    While the Illinois recklessness
             statute may not require a specific intent to
             cause a particular harm, the violator must
             show a willingness to commit the act in
             disregard of the perceived risk. The presence
             or absence of a corrupt or vicious mind is not
             controlling. Guerrero de Nodahl v. INS, 407
             F.2d 1405 ([9th Cir.] 1969). We hold that the
             criminally reckless conduct defined by [the
             Illinois statute] be [sic] the basis for a
             finding of moral turpitude.

Medina, 15 I. & N. Dec. 611 (also rejecting assertions that an "infamous
crime" is synonymous with "crime involving moral turpitude").              I find that
the Medina decision gives no explanation or analysis to support its
conclusion that willingness to commit an act in disregard of a perceived
risk is moral turpitude, because that decision does not consider the
relationship of willingness to commit the act to an evil intent or any
other    necessary   element   of   moral   turpitude.      It   asserts    only    that
willingness to commit an act does not equate with a corrupt or vicious
mind, but that the lack of a corrupt or vicious mind is not dispositive of
the question of whether a crime involves moral turpitude.           Nor does the BIA
consider    in   Medina   whether   its     reading   of   the   statute    bears    any
relationship to the reading given the statute by the state's highest court,
the body properly charged with interpreting the laws of the state.


        Furthermore, the BIA's decision in this case is against the far
greater weight of precedent.         As the state and federal court decisions
cited in this section indicate, most courts require an evil intent element
or, at the very least, a knowledge element, for a crime to be one that
involves moral turpitude.      Additional examples of decisions so holding are
Wadman v. INS, 329 F.2d 812 (9th Cir. 1964) (requirement of knowledge that
items were stolen




                                       -48-
was sufficient to involve moral turpitude); People v. Coad, 226 Cal. Rptr.
386 (Cal. Ct. App. 1986) (intent to do evil is required to find moral
turpitude, and intent to do evil is always involved in the intentional
taking of a human life); In re Conduct of Chase, 702 P.2d 1082 (Or. 1985)
(finding that federal cases are in agreement that moral turpitude requires
an intentional mental state).     Only a few cases specifically consider
whether recklessness suffices to show moral turpitude.      Compare In re
Wilkins, 649 A.2d 557 (D.C. App. 1994) ("recklessness" may satisfy intent
element of offense, but is insufficient to find moral turpitude within
meaning of attorney disciplinary rule, because "recklessness" won't "stand
in for" the specific intent required to find moral turpitude); Willis v.
State,   No. B14-89-00215-CR, 1989 WL 156268 (Tex. Ct. App. Dec. 21,
1989)(not reported) (reckless conduct is not a crime of moral turpitude);
Patterson v. State, 783 S.W.2d 268 (Tex. Ct. App. 1989) (companion to
Willis) (reckless misdemeanor not involving violence towards women does not
involve moral turpitude); Ricketts v. State, 436 A.2d 906 (Md. Ct. App.
1981) (crime is too unspecific to be one of moral turpitude where it
includes within the definition acts that are reckless or negligent, for
purposes of impeachment of a witness); with Gutierrez-Chavez v. INS, 8 F.3d
26 (Table), 1993 WL 394916 (9th Cir. 1993) (recklessly receiving a stolen
gun, second degree theft, was crime involving moral turpitude under Alaska
statute interpreted by Alaska courts to contain both "an element of guilty
knowledge and an implied element of intent to deprive the owner of property
which has been stolen,"); People v. Campbell, 28 Cal. Rptr. 2d 716 (Cal.
Ct. App. 1994) (definition of "maliciously" as "wanton and wilful (or
'reckless') disregard of the plain dangers of harm, without justification,
excuse, or mitigation," exceeding "mere intentional harm," can show the
state of mind that betokens a "general readiness to do evil," which
constitutes moral turpitude).   Courts have therefore only rarely parlayed
"recklessness" into the "evil intent" required to find that a crime
involves moral turpitude.   In the cases where courts did so, the




                                   -49-
courts found that the governing statute had been interpreted by the state's
highest courts to include at least an implied "evil intent" element.                      The
BIA here undertook no such analysis of Missouri law.                       Thus, I find no
"reasoned basis" either for the BIA's determination that recklessness can
suffice to make a crime one involving moral turpitude, nor for finding that
"recklessness" as defined under Missouri law can be parlayed into an
element of guilty knowledge or implied intent that could be acknowledged
to imbue a crime with moral turpitude.


      In   part    because    of     the   BIA's    change   of   direction    from     these
precedents    in     this    case,    I    deem     it   essential,    in    deciding     the
reasonableness of the BIA's new position, to move beyond an anecdotal
determination of what is a "crime involving moral turpitude," and instead
attempt to find a concrete meaning for the phrase.                   However, I find that
such a quest has rarely been made, and even more rarely has reached its
objective.


                       D.    The Lack Of A Concrete Meaning
      Despite the copious number of decisions addressing whether or not
certain categories of crimes are or are not "crimes involving moral
turpitude," the courts have rarely been able to strike upon a concrete
meaning of the phrase.         For example, the Supreme Court in Jordan had no
difficulty in finding that a crime with an element of fraud was a "crime
involving moral turpitude," because of a substantial body of precedent so
holding.   Jordan, 341 U.S. at 227-29. However, when asked to decide whether
the phrase "crime involving moral turpitude" in the deportation statute was
"void for vagueness," the Court pulled what I must respectfully suggest was
an intellectual sleight of hand.             See Id. at 230-32.


       The Court first acknowledged that deportation is a drastic measure,
then recognized that the purpose of the "void for vagueness" doctrine was
to   ensure   that    criminal     statutes       placed   persons    on    notice   of   the
consequences of their conduct.             Id. at




                                            -50-
230-31.    Thus, the Court found, the test was "whether the language conveys
sufficiently definite warning as to the proscribed conduct when measured
by common understanding and practices."        Id. at 231-32 (citing Connally v.
General Constr. Co., 269 U.S. 385 (1926), for this test).            However, rather
than grappling with whether the phrase "crime involving moral turpitude"
conveyed    any    definite   warning   at   all,   the   Court   again   referred   to
precedent:
              Whatever else the phrase "crime involving
              moral turpitude" may mean in peripheral cases,
              the decided cases make it plain that crimes in
              which fraud was an ingredient have always been
              regarded as involving moral turpitude.      We
              have recently stated that doubt as to the
              adequacy of a standard in less obvious cases
              does not render that standard unconstitutional
              for vagueness. See Williams v. United States,
              [341 U.S. 97 (1951)]. But there is no such
              doubt present in this case.      Fraud is the
              touchstone by which this case should be
              judged.   The phrase "crime involving moral
              turpitude"   has   without    exception   been
              construed to embrace fraudulent conduct. We
              therefore decide that Congress sufficiently
              forewarned respondent that the statutory
              consequence of twice conspiring to defraud the
              United States is deportation.

Id. at 232.       Herein lies the Court's sleight of hand:         the phrase "crime
involving moral turpitude" had a concrete meaning and conveyed sufficiently
definite warning in the Jordan case only because courts had always held
that the kind of crime in question fits the standard, whatever that
standard may mean.       Thus, as long as a case requires the court to tread
only the familiar territory of well-cultivated precedent, the phrase "crime
involving moral turpitude" provides no uncomfortable uncertainty.19             But I


     19
      Although "vagueness" is not an issue here, and I present the
"vagueness" conclusions of the Jordan Court only to demonstrate
that courts are most comfortable in examining "moral turpitude"
when they are not required to stray far from the beaten path, I am
not persuaded that the Jordan majority's "vagueness" argument is
enhanced by one of the grounds on which it is based. The Court
opined that "[t]he phrase 'crime involving moral turpitude'
presents no greater uncertainty or difficulty than language found
in many other statutes repeatedly sanctioned by the Court."
Jordan, 341 U.S. at 231 n.15 (identifying, inter alia, "restraint
of trade" in the Sherman Act). Comparative uncertainty isn't the

                                        -51-
repeat,




standard for "vagueness"; due notice of consequences, by the
Court's own statement, is the applicable standard. Id. at 231-32
(citing Connally, 269 U.S. at 385).


                              -52-
this is not such a case.       Rather, this is one of those uncomfortable
"peripheral" or "less obvious" cases in which the standard, even if its
adequacy were free from doubt, id., is plainly of dubious certainty in its
application.    Does the phrase convey any definite warning that the conduct
in question here would fall within the standard?       More importantly, since
"vagueness" is not the issue here, is anyone, including the BIA, able to
define the meaning of the phrase, and is the BIA's definition reasonable,
or merely capricious?


      The   dissenting   justices   in   Jordan   recognized   that   these   very
questions were unresolved.   In a stinging dissent, Justice Jackson, writing
for himself and Justices Black and Frankfurter, described an alien who is
deported for conviction of one or more crimes involving moral turpitude as
being "punished with a life sentence of banishment in addition to the
punishment which a citizen would suffer for the identical acts."          Id. at
232 (Jackson, J., dissenting).      The dissenting justices "believe[d] the
phrase 'crime involving moral turpitude,' found in the Immigration Act, has
no sufficiently definite meaning to be a constitutional standard for
deportation."   Id. (Jackson, J., dissenting).      Justice Jackson found that
"[w]hat the Government seeks, and what the Court cannot give, is a basic
definition of 'moral turpitude' to guide administrators and lower courts."
Id.   "Except for the Court's opinion," Justice Jackson wrote, "there
appears to be universal recognition that we have here an undefined and
undefinable standard.    The parties agree that the phrase is ambiguous and
have proposed a variety of tests to reduce the abstract provision of this
statute to some concrete meaning."       Id. at 235.   It is just




                                     -53-
such a reduction to concrete meaning that is necessary in this case,
involving as it does a case on the "periphery" of settled territory.       No
reasonably concrete definition has been forthcoming in this case, but only
what I find to be a capricious determination of the deportability of one
person setting a dangerous precedent for anecdotal decision making.


     Unlike the majority in Jordan, the dissenting justices attempted to
find a concrete definition of the phrase "crime involving moral turpitude,"
rather than simply an anecdotal one.   Here, the dissenters were frustrated:
            [T]he    phrase   "crime     involving    moral
            turpitude" . . . is not one which has settled
            significance from being words of art in the
            profession. If we go to the dictionaries, the
            last resort of the baffled judge, we learn
            little   except   that   the    expression   is
            redundant, for turpitude alone means moral
            wickedness or depravity and moral turpitude
            seems to mean little more than morally
            immoral. The Government confesses that it is
            "a term that is not clearly defined," and
            says:    "the various definitions of moral
            turpitude provide no exact test by which we
            can classify the specific offenses here
            involved."

Jordan, 341 U.S. at 234-35 (Jackson, J., dissenting).20       After reviewing
attempts to define the phrase in administrative and judicial decisions, the
frustrated dissenters threw up their hands:
            The lower court cases seem to rest, as we feel
            this Court's decision does, upon the moral
            reactions of particular judges to particular




       20
        The baffled dissenting justices turned to the edition of
Black's Law Dictionary current at the time to find "turpitude"
defined as "[I]nherent baseness or vileness of principle or action;
shameful wickedness; depravity," and to Bouvier's Law Dictionary,
Rawles Third Revision, in which "moral turpitude" was defined as
"An act of baseness, vileness or depravity in the private and
social duties which a man owes to his fellow men or to society in
general, contrary to the accepted and customary rule of right and
duty between man and man."     Jordan, 341 U.S. at 234 n.6 & n.7
(Jackson, J., dissenting).

                                    -54-
                 offenses. What is striking about the opinions
                 in these "moral turpitude" cases is the
                 wearisome repetition of clichés attempting to
                 define "moral turpitude," usually a quotation
                 from Bouvier. But the guiding line seems to
                 have no relation to the result reached. The
                 chief impression from the cases is the caprice
                 of the judgments.

Id. at 239 (Jackson, J., dissenting) (emphasis added).21                         As both my
statement of the standard of review and that of the majority indicate,
"moral reactions of particular judges to particular offenses" is not a
proper basis for determining whether any particular crime is or is not one
in which moral turpitude necessarily inheres; rather, the court must decide
the question of whether the alien has been convicted of a crime involving
moral        turpitude    based    on   a   categorical      assessment   of   the   crime   of
conviction, not the facts of the particular case.                     See, e.g., Ramsey, 55
F.3d at 583 (BIA and court must look to nature of crime, not facts of the
particular case); Rodriguez-Herrera, 52 F.3d at 239-40; Gonzalez-Alvarado,
39 F.3d at 246; Reyes-Castro, 13 F.3d at 379;                 Goldeshtein, 8 F.3d at 647;
McNaughton, 612 F.2d at 459; Robinson, 51 F.2d at 1022-23.                            To what
dictionary or other source did the INS turn to discover its meaning for a
"crime        involving    moral    turpitude,"       and,    more   importantly,    to   what
dictionary or other source did the INS turn in concocting a meaning for the
phrase that encompassed reckless conduct?               How universal is the definition
upon which the INS has struck?                How reasonable?        Is that definition the
result of the "caprice" the Jordan dissenters found so prevalent in "moral
turpitude" cases?          I will consider these questions below.




        21
      The reference in the preceding quotation to Bouvier is to the
definition found in Bouvier's Law Dictionary, Rawles Third
Revision, which the Jordan dissenters had previously cited and
which is quoted herein in footnote 20 supra.

                                               -55-
          E.   Reasonableness In The Light Of A Concrete Meaning
     In this case, the INS employed a definition of a crime involving
moral turpitude as a crime involving "conduct which is inherently base,
vile, or depraved, and contrary to the accepted rules of morality and
duties owed between persons or to society in general."   I acknowledge that
the definition of "crime involving moral turpitude" employed by the INS is
used with remarkable consistency.   See, e.g., Rodriguez-Herrera v. INS, 52
F.3d 238, 239 (9th Cir. 1995) (whether a crime is one involving moral
turpitude depends on whether crime is one that "necessarily involves an
'act of baseness or depravity contrary to accepted moral standards,'"
quoting Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993), in turn quoting
Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406 (9th Cir. 1969)); Grageda
v. INS, 12 F.3d 919, 921 (9th Cir. 1993); Guerrero de Nodahl v. INS, 407
F.2d 1405, 1406 (9th Cir. 1969); and compare Hunter, 471 U.S. at 226
(Alabama Supreme Court's definition of "crime involving moral turpitude"
in the Alabama constitutional provision disqualifying voters convicted of
such crimes was "an act that is '"immoral in itself, regardless of the fact
whether it is punishable by law.    The doing of the act itself, and not its
prohibition by statute[,] fixes the moral turpitude,"'" quoting Pippin v.
State, 73 So. 340, 342 (Ala. 1916), in turn quoting Fort v. Brinkley, 112
S.W. 1084 (Ark. 1908)).   Hence, whatever dictionary the INS used to select
such a definition, it was in good company, and my disagreement with the
majority and with the INS does not lie in the words they have used to
define "moral turpitude."   Rather, my disagreement lies in the reach given
that definition by both the majority and the INS, in the first instance,
to include criminally reckless conduct within the ambit of crimes that
necessarily involve moral turpitude, and, in the second instance, to
include the crime, defined by Missouri law, of which Myrisia Franklin was
convicted.


     There are a few cases that attempt to develop a concrete definition
of what is a crime involving moral turpitude by looking




                                     -56-
at the elements of this definition of moral turpitude or by drawing from
the crimes universally recognized as involving moral turpitude those
characteristics that define the general class of "crimes involving moral
turpitude."    Among the most valiant of such efforts was that undertaken by
the Ninth Circuit Court of Appeals in Rodriguez-Herrera v. INS, 52 F.3d 238
(9th Cir. 1995).


     In Rodriguez-Herrera, the court tried to discover from the anecdotal
decisions finding or not finding moral turpitude to inhere in certain
categories of offenses some guiding principles or defining characteristics
that could be used to recognize or classify certain crimes as involving
moral turpitude.      See Rodriguez-Herrera, 52 F.3d at 240-41.      In other
words, the court attempted to develop what might be called a "taxonomy" of
moral turpitude.


     The court in Rodriguez-Herrera discovered that
              [f]or crimes like malicious mischief that are
              not of the gravest character, a requirement of
              fraud has ordinarily been required. . . .
                    On the other hand, certain crimes
              necessarily involving rather grave acts of
              baseness or depravity may qualify as crimes of
              moral turpitude even though they have no
              element of fraud. Applying this standard we
              have found that spousal abuse, child abuse,
              first-degree   incest,   and   having   carnal
              knowledge with a 15 year old female, all
              involve moral turpitude. . . .

Id. at 240 (citations omitted).    Applying these principles, the court held
that the Washington statute prohibiting malicious mischief did not define
a crime involving moral turpitude.       Id. Although the crime included an
"evil intent" element in the form of "malice," it was a minor offense,
including pranks resulting from poor judgment, that lacked either depravity
or fraud, and therefore did not involve moral turpitude.       Id.    The INS
resisted this conclusion, arguing that if a statute requires an "evil
intent, wish, or design to vex, annoy, or injure another person," as the




                                     -57-
Washington statute defining "malice" did, it defined a crime necessarily
involving moral turpitude.      Id.    The court rejected this proposition:
            It is true that in the fraud context we have
            placed a great deal of weight on the
            requirement of an evil intent. But even in
            this context, we have not held that if a
            statute requires evil intent, it necessarily
            involves moral turpitude. We have held only
            that without an evil intent, a statute does
            not necessarily involve moral turpitude. See
            Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.
            1962) ("A crime that does not necessarily
            involve evil intent, such as an intent to
            defraud, is not necessarily a crime involving
            moral turpitude.") To state the proposition
            positively, we have held that in the fraud
            context an evil intent is necessary, but not
            sufficient, for a crime inevitably to involve
            moral turpitude.    Cf. Gonzalez-Alvarado [v.
            INS],39 F.3d [245,] 246 [(9th Cir. 1994)]
            (holding that "[a] crime involving the willful
            commission of a base or depraved act is a
            crime involving moral turpitude, whether or
            not the statute requires proof of evil
            intent.").

Id.   The Ninth Circuit Court of Appeals rejected the argument that all
crimes   requiring   some    degree   of    evil   intent   are   necessarily   crimes
involving moral turpitude.      Id. at 241.        The court reasoned that
            evil intent may become much too attenuated to
            imbue the crime with the character of fraud or
            depravity that we have associated with moral
            turpitude.    At least outside of the fraud
            context, the bare presence of some degree of
            evil intent is not enough to convert a crime
            that is not serious into one of moral
            turpitude   leading   to   deportation   under
            [former] section 241(a)(4) of the Immigration
            and Nationality Act.

Id. (footnote omitted).         The court held that Washington's statutory
definition of malicious mischief defined such a crime in which evil intent
was "too attenuated" for the crime to be one that necessarily involved
moral turpitude.     Id.    Therefore, an alien




                                           -58-
convicted     under   the    Washington    malicious    mischief   statute   was   not
deportable for conviction of a crime involving moral turpitude.              Id.


        The classifying principles or taxonomy of moral turpitude as stated
by the Ninth Circuit Court of Appeals in Rodriguez-Herrera may be distilled
into the following propositions:          1) for minor crimes, an element of fraud
has been required; 2) for fraud crimes, an element of evil intent, such as
intent to defraud, is necessary, but not sufficient, to define a crime as
one involving moral turpitude; 3) for serious crimes, an element of
baseness or depravity suffices even if there is no explicit element of
fraud or evil intent; 4) at least for minor crimes not involving fraud,
evil intent may become too attenuated to meet the requirement of either
fraud    or   depravity     such   that   the   crime   necessarily   involves   moral
turpitude.     Id. at 240-41.


        Other cases, nearly all of them also decided by the Ninth Circuit
Court of Appeals, in which the court attempted to develop a classification
system for crimes that necessarily do or do not involve moral turpitude,
have    grappled   with     similar   defining    elements.    Notable   among   these
decisions are two cited by the court in Rodriguez-Herrera.                See, e.g.,
Gonzalez-Alvarado v. INS, 39 F.3d 245 (9th Cir. 1994) (holding that "[a]
crime involving the willful commission of a base or depraved act is a crime
involving moral turpitude, whether or not the statute requires proof of
evil intent."); Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962) ("A crime
that does not necessarily involve evil intent, such as an intent to
defraud, is not necessarily a crime involving moral turpitude.").            A theme
running through all of these decisions is the relationship between evil
intent and other elements of the crime as defining a crime involving moral
turpitude.


        For example, in Gonzalez-Alvarado v. INS, 39 F.3d 245 (9th Cir.
1994), a decision slightly earlier than Rodriguez-Herrera, the




                                           -59-
Ninth Circuit Court of Appeals made a similar attempt to develop a
classification system of crimes involving moral turpitude from its prior,
anecdotal decisions:
           Typically, crimes of moral turpitude involve
           fraud. See Grageda v. U.S. INS, 12 F.3d 919,
           921 (9th Cir. 1993); Goldeshtein, 8 F.3d at
           647.    However, we have included in this
           category acts "of baseness or depravity
           contrary   to   accepted   moral   standards,"
           Grageda, 12 F.3d at 921 (quotation omitted),
           such as spousal abuse, child abuse, and
           statutory rape which involve moral turpitude
           "by their very nature."       See id. at 922
           (spousal abuse); Guerrero de Nodahl v. INS,
           407 F.2d 1405, 1406-07 (9th Cir. 1969) (child
           abuse); Bendel v. Nagle, 17 F.2d 719, 720 (9th
           Cir. 1927) (statutory rape).      Incest also
           involves an act of baseness or depravity
           contrary to accepted moral standards, and we
           hold that it too is a "crime involving moral
           turpitude."     See also II American Law
           Institute, Model Penal Code and Commentaries
           § 230.2 cmt. 2(d), 406-07 (1980) (recognizing
           that laws against incest reinforce a community
           norm of "general and intense hostility" toward
           such conduct).

Gonzalez-Alvarado, 39 F.3d at 246.   Taking a slightly different approach
to the "evil intent" element from the later decision in Rodriguez-Herrera,
the Ninth Circuit Court of Appeals in Gonzalez-Alvarado found that "[e]ven
if evil intent is not explicit in the definition of [a crime under state
law], we have held that 'a crime nevertheless may involve moral turpitude
if such intent is implicit in the nature of the crime.'"         Gonzalez-
Alvarado, 39 F.3d at 246 (quoting Goldeshtein, 8 F.3d at 648).   The court
therefore concluded that "[a] crime involving a willful commission of a
base or depraved act is a crime involving moral turpitude, whether or not
the statute requires proof of evil intent."   Id. (citing Grageda, 12 F.3d
at 922, and Guerrero de Nodahl, 407 F.2d at 1407); see also Guerrero de
Nodahl, 407 F.2d at 1407 (child beating is considered so heinous that
"willful conduct and moral turpitude are synonymous").   Thus, rather than
creating a separate category of crimes involving moral turpitude based on
depravity or baseness




                                  -60-
instead of evil intent, I read Gonzalez-Alvarado to hold that elements of
baseness and depravity define a crime in which evil intent is implicit,
even if evil intent is not separately and explicitly made an element of the
offense.      Id.; Cf. Rodriguez-Herrera, 52 F.3d at 240 ("[E]vil intent is
necessary, but not sufficient, for a crime inevitably to involve moral
turpitude.").


      This reading is in accord with other decisions, none of which find
a crime involves moral turpitude unless "evil intent" or "guilty knowledge"
is a required element.        See Goldeshtein, 8 F.3d at 648 (crime that does not
necessarily involve evil intent is not necessarily a crime involving moral
turpitude, citing Hirsch, 308 F.2d at 567); Gutierrez-Chavez, 8 F.3d at 26
(Table), 1993 WL 394916, at **3 (9th Cir. 1993) (referring to state case
law   to   find     guilty   knowledge     requirement   implicit     in   definition   of
recklessly receiving stolen property); Lennon v. INS, 527 F.2d 187, 194 (2d
Cir. 1975) (Congress would not have classified an alien as deportable if
the   crime    of    which   the   alien    was    convicted   made   guilty   knowledge
irrelevant); Wadman, 329 F.2d at 814 (where "guilty knowledge" is an
essential element of a crime, moral turpitude is present); Hirsch, 308 F.2d
at 567 (crime that does not necessarily involve evil intent is not
necessarily a crime involving moral turpitude); Matter of P, 2 I. & N. Dec.
117, 121 (BIA 1944) ("it is in the intent that moral turpitude inheres.").
Furthermore, decisions also hold that such an intent or knowledge element
may be implicit rather than explicit.             Goldeshtein, 8 F.3d at 648-49 (evil
intent, in the form of intent to defraud, may be implicit rather than
explicit, but no such implicit intent to defraud was apparent in particular
offense, structuring currency transactions to avoid currency reports, at
issue); McNaughton, 612 F.2d at 459 (evil intent element may appear from
the statutory definition or the "nature of the crime"); Winestock v. INS,
576 F.2d 234, 235 (9th Cir. 1978) (evil intent, in the form of intent to
defraud, may be "implicit in the nature of the crime," and thus the crime
involves moral turpitude); Matter of Flores, 17 I. & N.




                                            -61-
Dec. 225, 228 (BIA 1980) ("where fraud is inherent in an offense, it is not
necessary that the statute prohibiting it include the usual phraseology
concerning fraud in order for it to involve moral turpitude").


      In Grageda, the Ninth Circuit Court of Appeals focused on another
element in the definition of the crime, this time "willfulness," and its
relationship to baseness and depravity.     Grageda, 12 F.3d at 922.   Because
spousal abuse as defined under California law was an act of baseness or
depravity contrary to accepted moral standards, and willfulness was one of
its elements, the court held that spousal abuse was a "crime involving
moral turpitude."   Id.   The appellant argued that such a conclusion equated
conduct done "willfully" with moral turpitude.     Id.   The court, however,
found that
             the term 'willfully' does not constitute moral
             turpitude. Rather, it is the combination of
             the base or depraved act and the willfulness
             of the action that makes the crime one of
             moral turpitude.

Id.   The court suggested that it was the willfulness of the injurious
conduct to one committed to a relationship of trust that, in part, made the
act of spousal abuse base and depraved.     Id.; see also Goldeshtein, 8 F.3d
at 648 (proof that defendant acted "willfully" is not the same as proving
the "evil intent" required for a "crime involving moral turpitude" in a
deportation case; "'"wilful" means no more than that the forbidden act is
done deliberately and with knowledge,'" quoting Hirsch, 308 F.2d at 566,
in turn quoting Neely v. United States, 300 F.2d 67, 72 (9th Cir.), cert.
denied, 369 U.S. 864 (1962)).22




      22
      Another variant on the mental state required for a crime to
be one necessarily involving moral turpitude is the "corrupt mind"
element. See, e.g., Okabe v. INS, 671 F.2d 863, 865 (5th Cir.
1982) ("Offering a bribe under this statute [18 U.S.C. § 201(b)(3)]
is a crime involving moral turpitude, for a corrupt mind is an
essential element of the offense."). Thus, a "corrupt mind" is
sufficient, but not necessary, for a crime to involve moral
turpitude. See Medina, 15 I. & N. Dec. 611 (citing Guerrero de
Nodahl, 407 F.2d at 1405, for the proposition that presence or
absence of a corrupt or vicious mind is not controlling).

                                     -62-
     Thus, in light of these cases, the classification system I believe
is applicable to the question of whether or not a crime as defined is one
in which moral turpitude necessarily inheres is as follows:                    1) "evil
intent," either explicit or implicit, is necessary, but not sufficient to
define a crime as one necessarily involving moral turpitude; 2) for
relatively minor crimes, mere "evil intent" may become too attenuated to
define a crime in which moral turpitude necessarily inheres; 3) baseness
and depravity, while not necessary, are always sufficient to define a crime
as one involving moral turpitude, because implicit in such crimes is the
necessary "evil intent" as well as sufficient moral obliquity contrary to
accepted moral standards.


     This taxonomy of moral turpitude accords with the substantial weight
of authority defining the phrase "crime involving moral turpitude" in
merely anecdotal fashion.          Thus, under this taxonomy of moral turpitude,
fraud crimes will always be crimes involving moral turpitude, Jordan, 341
U.S. at 232; Izedonmwen, 37 F.3d at 417, because they have the requisite
"evil intent," in the form of intent to defraud, which is never too
attenuated to remove the crime from the realm of "crimes involving moral
turpitude."       Rape,      and   even   statutory   rape,    which   has    no   intent
requirement,    would   be    crimes      involving   moral    turpitude     under   this
classification system, because such crimes are base and depraved, and
therefore "manifestly involve[] moral turpitude."             See, e.g., Marciano, 450
F.2d at 1025.   Similarly, theft crimes would always be recognized as crimes
involving moral turpitude, see, e.g., Dashto, 59 F.3d at 699; Soetarto, 516
F.2d at 780; Villa-Fabela, 882 F.2d at 440; Chiaramonte, 626 F.2d at 1097;
Christianson, 226 F.2d at 655; Berlandi, 113 F.2d at 431, because the
intent to deprive another of property is an "evil intent" implicit in such
crimes.   Voluntary




                                           -63-
homicide, defined as either murder or voluntary manslaughter, remains a
crime involving moral turpitude, because it involves an "evil intent," at
the very least, if not baseness and depravity.      See, e.g., Cabral, 15 F.3d
at 195-96.


     But what of criminally reckless conduct, such as reckless theft or
involuntary manslaughter?    As noted above, the vast majority of decisions
find reckless or involuntary conduct does not fit the paradigm.           However,
we must be most concerned with cases that appear to depart from, not merely
confirm, an anticipated result.   Such cases require careful analysis to see
if they fit the paradigm offered here after all.


     One case at first blush appears to define reckless conduct as
defining conduct imbuing a crime with the essential elements of moral
turpitude.    See People v. Campbell, 28 Cal. Rptr. 2d 716 (Cal. Ct. App.
1994).   In    Campbell,   however,   the    California   Court   of   Appeals   was
determining whether a conviction for felony vandalism, which had a "malice"
element, constituted a crime involving moral turpitude for purposes of
impeachment of a witness.     Campbell, 28 Cal. Rptr. 2d at 719.         The court
observed that, under California law, a witness may be impeached for
conviction of a crime involving moral turpitude, where such a crime is
defined by an element of "general readiness to do evil."               Id. (citing
People v. Castro, 696 P.2d 111 (Cal. 1985)).          The court also noted the
following:
             "It is generally held that [the term 'malice'
             in such statutes] calls for more than mere
             intentional harm without justification or
             excuse; there must be a wanton and wilful (or
             'reckless') disregard of the plain dangers of
             harm,   without   justification,   excuse  or
             mitigation."    ([2 Witkin & Epstein, Cal.
             Criminal Law (2d ed. 1988) Crimes Against
             Property, § 678,] p. 762.) Such a state of
             mind betokens that "general readiness to do
             evil" which constitutes moral turpitude. (See
             Castro, supra, 38 Cal. 3d at 314, 211 Cal.
             Rptr. 719, 38 Cal. 3d 301.)




                                      -64-
Id.     However, the California Court of Appeals specifically stated that
immigration    decisions,   pressed   by   the   defendant,   did   not   apply   the
standards for a crime involving moral turpitude set forth in the Castro
decision controlling on the state law question of impeachment of witnesses.
Id. at 720.    Furthermore, it is apparent from the quoted language that the
"recklessness" in question in Campbell was "disregard" of the "dangers of
harm, without justification, excuse or mitigation," exceeding a "mere
intention" to harm the victim.        Id. at 719.     Thus, there is already an
intent to harm present in Campbell's discussion of recklessness and moral
turpitude; the recklessness involved is as to the dangers of the intended
harm.    Campbell therefore does not support the general proposition that
recklessness can stand in for the evil intent element that is necessary for
a crime to involve moral turpitude.


        As a general matter, I find the California standard of "readiness to
do evil" as defining a crime involving moral turpitude to be inadequate.
To my mind, "readiness to do evil" does not necessarily imply intent to do
evil.    "Readiness" is a disposition, but "intent" is the formulation of a
purpose.    It is "evil intent," not readiness to have such an intent, in
which moral turpitude necessarily inheres.          However, the Campbell court
noted that its "readiness to do evil" standard differed from that applied
to a determination of crimes involving moral turpitude for immigration
purposes, and therefore that standard, with what I would consider an
unreasonable extension of the meaning of "crime involving moral turpitude,"
is simply inapplicable here.     Finally, it is apparent that the Campbell
court was actually looking at a mens rea that exceeded "mere intent," not
one that fell short of intent.        Thus, the Campbell court may have been
addressing a crime in which more than the necessary elements of a crime
involving moral turpitude were necessarily present.


        In an unpublished decision, Gutierrez-Chavez v. INS, 8 F.3d 26
(Table), 1993 WL 394916 (9th Cir. 1993), the Ninth Circuit Court of




                                      -65-
Appeals upheld the BIA's order of deportation of an alien, denying the
alien's request for voluntary departure, where the alien had been convicted
of a crime with only a "recklessness" mens rea.           Gutierrez-Chavez, 8 F.3d
at 26 (Table), 1993 WL 394916, at **1.         In Gutierrez-Chavez, the alien had
been convicted of second degree theft under Alaska statutes, Alaska Stat.
§§ 11.46.130(a) & 11.46.190 (a), which had as an element of the offense
proof that the defendant acted recklessly.         Id.   The court reviewed de novo
the question of law of whether a conviction in Alaska for theft in the
second degree is a crime involving moral turpitude.                Id.    The court
recognized both that it had held that moral turpitude "is shown when evil
motive or bad purpose is part of the crime," Id. (citing Tseung Chu, 247
F.2d at 934), and that "'theft[s] [are] crime[s] of moral turpitude.'"
Id., 1993 WL 394916, at **2 (quoting Villa-Fabela, 882 F.2d at 440).
However, the court recognized that it had not previously reached the
question of whether a theft conviction under a statute requiring only proof
of recklessness would suffice to constitute a crime involving moral
turpitude.    Id.


      Searching for the defining characteristics of a crime involving moral
turpitude, the court inquired "whether the statute contains an element of
guilty knowledge or evil intent." Id. (citing, inter alia, Wadman, 329 F.2d
at 814.).    Sifting through the applicable state statutes, the court found
that second degree theft could include "theft by receiving," and that theft
by   receiving   was   in   turn    defined   as   buying,   receiving,   retaining,
concealing, or disposing of stolen property "with reckless disregard that
the property was stolen."          Id. , 1993 WL 394916, at **3 (citing Alaska
Stat. §§ 11.46.100(4) & 11.46.190 (a)).        Alaska law defined "recklessness"
in terms similar to those used in the Missouri statute at issue here:
             "[A] person acts "recklessly" with respect to
             a result or to a circumstance described by a
             provision of law defining an offense when the
             person is aware of and consciously disregards




                                        -66-
            a substantial and unjustifiable risk that the
            result will occur or that the circumstance
            exists; the risk must be of such a nature and
            degree that disregard of it constitutes a
            gross deviation from the standard of conduct
            that a reasonable person would observe in the
            situation. . . ."

Id. (quoting Alaska Stat. § 11.81.900(3)).


     The court in Gutierrez-Chavez then performed the crucial step in the
analysis by carefully analyzing interpretations of the statutes in question
by the Alaska courts before concluding that "Alaska courts have interpreted
the theft by receiving statute to contain both an element of guilty
knowledge and an implied element of intent to deprive the owner of property
which has been stolen."   Id. (citing Andrew v. State, 653 P.2d 1063, 1065
(Alaska Ct. App. 1982).       The court concluded that "[u]nder Alaska's
interpretation of its theft by receiving statute, a conviction under the
statute suffices to meet the requirements of a crime involving moral
turpitude because guilty knowledge and evil intent are elements of the
crime."   Id.   The court noted that this conclusion was in accord with the
decisions in Matter of Wojtkow, 18 I. & N. Dec. 111 (BIA 1981), and Matter
of Medina, 15 I. & N. Dec. 611 (BIA 1976), which had found similar
statutory language defined a crime involving moral turpitude.    Id., 1993
WL 394916, at **4.   Thus, in Gutierrez-Chavez, the reviewing court looked
to state case law to determine whether the statutory language actually
defined a crime in which the essential elements of moral turpitude inhered,
and found from those state court decisions that the statute did define a
crime with those essential elements.


     "Guilty knowledge" has been recognized as a minimum degree of
culpability for a crime to involve moral turpitude.   See,e.g., Lennon, 527
F.2d at 194; Wadman, 329 F.2d at 814.      When the state's highest court
interprets the elements of the crime as including "guilty knowledge"
coupled with implied intent to do a wrong or




                                    -67-
evil act, as was the case in Gutierrez-Chavez, moral turpitude may well be
present.      See, e.g., Goldeshtein, 8 F.3d at 648 (crime that does not
necessarily involve evil intent is not necessarily crime involving moral
turpitude, citing Hirsch, 308 F.2d at 567).    It was not mere "recklessness"
that provided the necessary elements of guilty knowledge and implied intent
to do evil under the Alaska statute, but reckless theft in which such
elements were implicit.   Theft, of course, is universally recognized as a
crime involving moral turpitude.    See, e.g., Dashto, 59 F.3d at 699.


     However, other decisions determining that crimes involving only a
recklessness mens rea were crimes involving moral turpitude   fall far short
of this careful search for the defining elements of a "crime involving
moral turpitude" found in Campbell and Gutierrez-Chavez.    The deficiencies
in the analysis in Wojtkow and Medina have already been demonstrated above,
beginning at page - 45 -.       Neither of these cases looked beyond the
statutory definition of the state crimes in question, thus pulling out of
thin air the BIA's own interpretation of whether the state crime involved
the essential elements of a crime involving moral turpitude.        Thus, in
Medina, the case upon which Wojtkow relies, the BIA glibly ignored a long
string of precedent holding reckless or involuntary conduct not to involve
moral turpitude, because of the lack of any intent, by remarking that
"willingness to commit the act in disregard of the perceived risk" was
sufficient.    Medina, 15 I. & N. Dec. 611.   However, recklessness, defined
as "conscious disregard," or "willingness to commit the act," does not
equal "evil intent"; otherwise, the law would not distinguish among
culpable states of mind, separating intentional acts from the merely
reckless, and meting out punishment accordingly.        Nor is a "conscious
disregard" of or "gross deviation" from a standard of care necessarily
vile, base, or depraved, nor does it raise an inference of implicit evil
intent.


     Thus, nowhere do I find an adequately reasoned opinion holding




                                    -68-
that "recklessness," defined by applicable state court decisions as lacking
elements of intent or guilty knowledge, can be a crime involving moral
turpitude.      The BIA's decision below is not such a decision and does not
rely on such decisions.             To the extent that the BIA concluded that
recklessness, defined only as a "conscious disregard" of harm to another,
involved     the     essential    characteristics     of       a     crime   involving    moral
turpitude, I find the BIA's inclusion of criminally reckless conduct within
the    ambit    of     the    deportation     statute,     §       241(a)(2)(A),   8     U.S.C.
§ 1251(a)(2)(A), to be wholly unreasonable.


                F.     Missouri's Involuntary Manslaughter Statute
       Although it may be possible that "recklessness," properly defined,
could define a crime involving moral turpitude, I find the BIA's conclusion
that the Missouri recklessness statute provides such a definition is wrong
as a matter of law.          As I have postulated the standard of review for this
issue, the BIA is entitled to no deference whatsoever in its interpretation
of Missouri law.       That is well, because I find that the BIA made two errors
in its interpretation of Missouri law in this case.                     First, the language
of    the   Missouri    recklessness    statute    does        not    explicitly   state    the
characteristic elements of a crime involving moral turpitude, nor is the
language of the statute amenable to such an interpretation.                     Furthermore,
the BIA looked only at the Missouri statutes defining Ms. Franklin's
offense, and not at Missouri case law, which properly defines the nature
of the statutory elements of the offense.                Had the BIA done so, it would
have    found   that     Missouri    courts    have   never          interpreted   Missouri's
involuntary manslaughter statute as involving the essential elements of a
"crime involving moral turpitude."23


       23
      As I observed above, at note 13, the question is not whether
Missouri courts have ever recognized involuntary manslaughter under
the Missouri statute as a crime involving moral turpitude, because
to do so would indeed surrender to state determination a matter of
federal law. Rather, the question is whether Missouri courts have
defined the elements or nature of the crime in such a way that it
necessarily involves the essential elements of a "crime involving
moral turpitude" under the federal definition of such crimes.
     However, I do not believe that a determination by a Missouri
court that the state's involuntary manslaughter statute was or was
not a crime involving moral turpitude would be unpersuasive in this

                                            -69-
     Missouri's statutory definition of criminal recklessness at issue
here is found in Mo. Rev. Stat. § 562.016.4.   That statute




case, because Missouri employs the same definition of moral
turpitude as does the BIA in attorney disciplinary cases. See,
e.g., In re Warren, 888 S.W.2d 334, 335-36 (Mo. 1994) (en banc)
(attorney disciplinary case defining moral turpitude as an "act of
baseness, vileness or depravity in the private and social duties
which a man owes to his fellowmen or to society in general,
contrary to the accepted and customary rule of right and duty
between man and man; everything done contrary to justice, honesty,
modesty and good morals."); In re Shunk, 847 S.W.2d 789, 791 (Mo.
1993) (en banc) (definition focusing only on acts contrary to
justice, honesty, modesty, or good morals, but also noting moral
turpitude can be shown by act involving baseness, vileness, or
depravity); In re Duncan, 844 S.W.2d 443, 444 (Mo. 1993) (en banc)
(attorney disciplinary case finding moral turpitude is defined by
the Missouri Supreme Court as "baseness, vileness, or depravity,"
and conduct "contrary to justice, honesty, modesty, or good
morals"); In re Littleton, 719 S.W.2d 772, 775 (Mo. 1986) (en banc)
("Moral turpitude has been defined as 'an act of baseness, vileness
or depravity in the private and social duties which a man owes to
his fellowmen or to society in general, contrary to the accepted
and customary rule of right and duty between man and man;
everything done contrary to justice, honesty, modesty and good
morals."); In re Frick, 694 S.W.2d 473, 479 (Mo. 1985) (en banc)
(same definition); In re Burrus, 258 S.W.2d 625, 626 (Mo. 1953) (en
banc) (same definition); In re McNeese, 142 S.W.2d 33, 33-34 (Mo.
1940) (en banc) (same definition); In re Wallace, 19 S.W.2d 625
(Mo. 1929) (en banc) (same definition).      So, too, the Missouri
courts recognize this definition of moral turpitude as applicable
to other circumstances. See, e.g., Kluttz v. State, 813 S.W.2d
315, 316 (Mo. Ct. App. 1991) (doctor attempted to withdraw plea to
felony failure to return leased or rented property because he had
not been advised that he was pleading guilty to offense of moral
turpitude leading to the automatic loss of his medical license;
court applied similar definition of crime as one involving "an
essential element of fraud, dishonesty, or moral turpitude.");
Durham v. State, 571 S.W.2d 673, (Mo. Ct. App. 1978) (although not
defining phrase, court held that defendant could be impeached as
witness on the basis of conviction for use of the mails in
furtherance of a scheme to defraud). However, I find no case in
which a Missouri court has considered or found that involuntary
manslaughter fits within this definition.

                                 -70-
defines a person who has acted with criminal recklessness as one who
"consciously      disregards   a     substantial     and   unjustifiable      risk    that
circumstances exist or that a result will follow, and [the] disregard
constitutes a gross deviation from the standard of care [that] a reasonable
person would exercise in the situation."           Mo. Rev. Stat. § 562.016.4.        This
statutory language does not define an "evil intent" element of a crime,
because, as I observed above, it does not state any kind of intent at all,
let alone an intent to do evil.              The law distinguishes among culpable
states of mind, separating intentional acts from the merely reckless, and
meting out punishment accordingly.           Neither "conscious disregard" of nor
"gross deviation" from a standard of care is necessarily vile, base, or
depraved, nor does either raise an inference of implicit evil intent.


        Thus, although the language of the statute does not explicitly state
the essential elements of a crime involving moral turpitude, the BIA "reads
into"    the   explicit   elements    some    inference    or   possibility    of    moral
turpitude.      Following Medina, 15 I. & N. Dec. 611, the BIA in this case
apparently finds sufficient a "willingness to commit the act in disregard
of the perceived risk," which is its own interpretation of the meaning of
"conscious disregard."         I do not find that interpretation supportable,
nor, if it were proper, would I find such "willingness" sufficient.                   Like
"readiness to do evil," such a "willingness" to act in disregard of risks
does    not    necessarily   imply     intent   to   do    evil.     "Readiness"       and
"willingness" to act in a certain way or in disregard of risks is a
disposition, but "intent" is the formulation of a purpose.                 It is "evil
intent," not readiness or willingness to have such an intent, in which
moral turpitude necessarily inheres.            Nor is an inference or possibility
of moral turpitude the proper standard.          A crime is not a "crime involving
moral turpitude" unless it is one in which moral turpitude necessarily
inheres.       Goldeshtein, 8 F.3d at 647; Chu Kong Yin, 935 F.2d at 1003;
Wadman, 329 F.2d at 814; Tseung Chu, 247 F.2d at 935;




                                         -71-
Ablett, 240 F.2d at 625; Giglio, 208 F.2d at 337; Guarino, 107 F.2d at 399.


       Thus, it is not necessary to subscribe to my position that review of
the BIA's interpretation of Missouri law is de novo, according the BIA no
deference, to come to the conclusion that the BIA's interpretation of this
Missouri statute cannot stand.              Even if I am wrong, and the BIA must be
accorded deference in its interpretation of the Missouri statute, the BIA's
interpretation simply is not reasonable.              Neither "conscious disregard" nor
the BIA's gloss on the meaning of that phrase as "willingness to commit an
act"   can    be     construed,    as   a    matter    of   law   or   as   a   matter    of
"reasonableness," to be the requisite "evil intent" element of moral
turpitude.


       It    might   be   argued   that     Missouri    courts    nonetheless    recognize
elements of moral turpitude in the state's involuntary manslaughter
statute.24    In State v. Hamlett, 756 S.W.2d 197, 200 (Mo. Ct. App. 1988),
and State v. Harris, 825 S.W.2d 644, 647-48 (Mo. Ct. App. 1992), the
Missouri Court of Appeals held that persons convicted under Mo. Rev. Stat.
§ 565.024.1(1) have committed an act with "such reckless character as to
indicate an utter disregard for human life, and [they have] knowledge,
actual or imputed, that [their] conduct would endanger human life."                      I do
not find these




       24
       The BIA, as I have noted, made no examination of Missouri
case law to determine whether the courts have ever interpreted the
statutory language in question to include the elements of moral
turpitude in the nature of the crime. On appeal, the INS has cited
Missouri cases only for the proposition that Missouri recognizes
"recklessness" as a "culpable mental state."        See State v.
Jennings, 887 S.W.2d 752, 755 (Mo. Ct. App. 1994); State v. Pogue,
851 S.W.2d 702, 704 n.3 (Mo. Ct. App. 1993); State v. Hernandez,
815 S.W.2d 67, 72 (Mo. Ct. App. 1991). However, a "culpable mental
state" does not necessarily equate with "evil intent" or "guilty
knowledge." The majority here has restricted its consideration of
Missouri law to the statutory definitions of involuntary
manslaughter and criminal recklessness, rather than looking to the
interpretations of those statutes by Missouri courts.

                                             -72-
cases contrary to the conclusion that involuntary manslaughter under
Missouri law is not a crime involving moral turpitude.


      In Harris, the Missouri Court of Appeals distinguished between acting
recklessly and knowingly under Missouri law on the ground that recklessness
"'involves conscious risk creation.    It resembles knowingly in that a state
of awareness is involved, but the awareness is of risk, that is of a
probability less than a substantial certainty. . . .'"    Harris, 825 S.W.2d
at 647-48 (quoting Model Penal Code § 202 at 236 (1985)).          The court
observed that where awareness rises to a "practical certainty" and is
accompanied by conduct evidencing intent to harm another, the proper charge
was second degree murder.     Id. at 648.    Thus, Harris actually stands for
the lack of evil intent or guilty knowledge as an element of involuntary
manslaughter under the Missouri statute, not for the presence of such an
element.


      Similarly, in Hamlett, the Missouri Court of Appeals points out that
"recklessness" in Missouri's involuntary manslaughter statute "has the same
connotation as the term 'culpable negligence' which appeared in the old
manslaughter statute."    Hamlett, 756 S.W.2d at 199.   It is this definition
of "culpable negligence" that was then applied to involuntary manslaughter.
Id.   However, the Hamlett decision points out that conduct is not
"reckless," within the meaning of the new involuntary manslaughter statute,
if it was "intentional."     Thus, Hamlett also stands for the proposition
that involuntary manslaughter under the Missouri statute lacks rather than
includes an evil intent or guilty knowledge element.


      I have found no Missouri cases finding or suggesting that involuntary
manslaughter under the Missouri statute involves the essential elements of
a crime involving moral turpitude, but I have found many that suggest that
involuntary manslaughter under the Missouri statute lacks precisely the
necessary elements.      See, e.g., State v. Isom, ___ S.W.2d ___, 1995 WL
493993, *2-3 (Mo. Ct.




                                      -73-
App.    Aug.   21,   1995)   (slip.        op.)   (quoting   same   distinction     between
recklessly and knowingly as in Harris, in the context of involuntary
manslaughter       conviction,       and     further   finding      distinction     between
involuntary manslaughter and voluntary manslaughter is whether there is
"evidence of recklessness as opposed to intentional conduct; "[e]vidence
that a defendant intended the act which caused the death, even if he did
not intend the result, supports submission of voluntary, not involuntary,
manslaughter"; thus conduct that "goes beyond recklessness and constitutes
conduct    which     was   likely     to     produce   death"    constitutes      voluntary
manslaughter); State v. Smith, 891 S.W.2d 461, 467 (Mo. Ct. App. 1994)
(same     distinction      between     involuntary      manslaughter     and      voluntary
manslaughter on the basis of intent); State v. Jennings, 887 S.W.2d 752,
754 (Mo. Ct. App. 1994) (although involuntary manslaughter lacks any
element of intent to cause harm, it may still support conviction for armed
criminal action); State v. Schmidt, 865 S.W.2d 761, 764 (Mo. Ct. App. 1993)
(involuntary manslaughter does not involve elements of acting purposefully
or knowingly, but involuntary manslaughter may still support a conviction
for armed criminal action); State v. Burke, 809 S.W.2d 391, 397-98 (Mo. Ct.
App. 1990) ("consciously disregards" in definition of "recklessness" for
the purposes of involuntary manslaughter has its meaning in "common usage,"
and neither it nor "recklessness" define an intent element); State v.
Morris, 784 S.W.2d 815, 820 (Mo. Ct. App. 1990) (intending act, even if not
intending result, makes crime voluntary manslaughter); State v. Smith, 747
S.W.2d 678, 680 (Mo. Ct. App. 1988) (intent to do conduct which could lead
to death of another goes beyond recklessness); State v. Arellano, 736
S.W.2d 432, 435-36 (Mo. Ct. App. 1987) (one may be reckless if one's
conduct is "undirected and random," without intent to harm any particular
person or persons); State v. Skinner, 734 S.W.2d 877, 882 (Mo. Ct. App.
1987) (evidence of intent to do the act leading to death, even if death was
not intended, negates a finding of recklessness, and makes it inappropriate
for court or jury to consider involuntary




                                             -74-
manslaughter instead of murder).


         The   present   Missouri    manslaughter        statute,   which   distinguishes
between voluntary and involuntary manslaughter on the basis of intent,
became effective on October 10, 1984, State v. Galbraith, 723 S.W.2d 55,
60 (Mo. Ct. App. 1986), but decisions of Missouri courts ante-dating this
amendment of the state's criminal code are nevertheless still instructive
on the lack of any intent necessary to support conviction of involuntary
manslaughter under Missouri law.             See, e.g., State v. Rideau, 650 S.W.2d
675, 676 (Mo. Ct. App. 1983) (former Missouri manslaughter statute,
§ 565.005, did not make common-law distinction between voluntary and
involuntary manslaughter based on presence or lack of intent); State v.
Cox, 645 S.W.2d 33, 36 (Mo. Ct. App. 1982) (manslaughter can be committed
recklessly, that is, without any intent); State v. Elgin, 391 S.W.2d 341,
345 (Mo. Ct. App. 1965) (even though statute made no distinction, voluntary
manslaughter could be distinguished from involuntary manslaughter because
the former embraces "an intentional killing," while the latter "extends to
an unintentional killing while culpably negligent").


         Thus, de novo review of the nature of the crime of involuntary
manslaughter under Missouri law demonstrates that the essential elements
of   a     "crime   involving       moral    turpitude"      are    missing.     Even    a
"reasonableness" review cannot countenance an interpretation of the crime
as it is defined under Missouri law as involving such elements.                  I cannot
hold that Myrisia Franklin has been convicted of a crime in which moral
turpitude      necessarily   inheres,       and   must    therefore   dissent   from    the
majority's opinion affirming the BIA's conclusion that deportation is
appropriate pursuant to § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A), in this
case.


                                     V.     CONCLUSION
         When the proper standard of review is applied to the issues involved
in this appeal, the decision of the BIA should be




                                            -75-
reversed.     Although the BIA's definition of a "crime involving moral
turpitude" is reasonable, indeed, almost universal, it does not reasonably
extend to crimes, such as involuntary manslaughter, involving merely
criminal recklessness as a mens rea, at least not where that mens rea is
defined      as    "conscious       disregard"        of      risk      to     another.
      The BIA provides no reasoned basis for its sudden view to the
contrary.     Furthermore, a de novo review of Missouri law conclusively
demonstrates that the crime of which Myrisia Franklin was convicted has
never been defined by Missouri courts as one in which the essential
elements of a crime involving moral turpitude necessarily inhere.                      By
imposing its own interpretation of the language of a Missouri statute,
instead of examining how the Missouri courts have interpreted that statute,
the   BIA   committed   a   fatal   error   as   a   matter    of    law.     The   BIA's
interpretation so imposed was also wrong as a matter of law, because it was
contrary to the interpretation of the statute by Missouri courts.


      However, even if one accords the BIA deferential review of its
interpretation of Missouri law, as well as deferential review of the
entirely federal matter of the meaning of the phrase "crime involving moral
turpitude," the BIA's interpretation of Missouri law is not reasonable.
Neither the language of the Missouri statute itself nor the gloss put upon
it by the BIA can reasonably be construed as stating the requisite elements
of a crime involving moral turpitude.


      My journey to this conclusion has been long and arduous.                It may not
be practicable to expect the BIA to embark upon such an involved analysis
in each deportation case.     Indeed, there is no need for the BIA to travel
the whole path I have marked, because the BIA would not be concerned with
the proper standard of review for its deportation decisions.                That part of
the road less traveled is only for the courts entrusted with review of BIA
decisions.    However, given the gravity of deportation decisions, justice
requires that the BIA travel some of this trail.              The BIA must




                                       -76-
undertake a careful analysis of state law in order to determine whether
crimes as defined by state statutory law and judicial decisions are crimes
in which the essential elements of moral turpitude necessarily inhere.            The
BIA did not even attempt such an analysis here.


     For each of the reasons discussed above, involuntary manslaughter as
defined   under   Missouri   law   simply   is   not   a   "crime   involving   moral
turpitude," subjecting an alien to deportation under § 241(a)(2)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A).                The BIA's
strained and tortured notions about the nature of the offense of which
Myrisia Franklin was convicted is dramatically at odds with two centuries
of this nation's common law and with its own long standing prior rulings.
Furthermore, involuntary manslaughter, as it is typically defined, does not
include elements characteristic of a "crime involving moral turpitude."
Finally, and of most critical importance, Myrisia Franklin’s conviction for
involuntary manslaughter does not include those characteristic elements as
the crime is defined under Missouri law.          This being so — I end where I
began — the deportation of Myrisia Franklin to the Philippines is, in my
view, a miscarriage of justice.       I dissent.


     A true copy.


            Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                      -77-
