I.	Respondent’s Convictions Do Not Constitute a Particularly Serious Crime 
Respondent was convicted of Class D felony criminal recklessness, pursuant to Indiana Criminal Code §35-42-2-2 (2008) and of Class C reckless homicide, pursuant to Indiana Criminal Code §35-42-1-5 (2008).  Respondent was sentenced to 3 years and 545 days, respectively.  She was permitted to serve her sentences concurrently and was released from criminal custody after serving approximately 8 months in total.  As stated in INA §241(b)(3)(B)(ii),  “an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime.”  As discussed above, Respondent maintains that she has not been convicted of an aggravated felony.  However, even if this court should find that her offenses constitute an aggravated felony, Respondents crimes cannot be held to be per se particularly serious crimes because her convictions did not  have a sentence of five years or more imposed as required by INA §241(b)(3)(B)(ii) to constitute per se particularly serious crimes.
Respondent’s convictions, whether taken individually or collectively, do not constitute a “particularly serious crime” under the Act.  Respondent’s criminal convictions stem from one event in which she was involved in a vehicular accident that had unintentional consequences to all parties involved.  While the court has the authority to find non-aggravated felonies to be particularly serious crimes, under Matter of Frentescu, the court should defer to the Frentescu balance factors to conduct a case-by-base analysis to consider whether an aggravated felony conviction for which sentences of less then five years imprisonment constitutes a particularly serious crime.  See Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982).  Under the Frentescu analysis, in determining whether someone has been convicted of a particularly serious crime, courts should consider the following factors; (1) the nature of the conviction; (2) the circumstances and underlying facts of the conviction; (3) the type of sentence imposed; and (4) whether the type and circumstances of the crime indicate that the respondent is a danger to the community.  Id.
In applying the Frentescu analysis in Respondent’s convictions for reckless homicide and criminal recklessness, it is apparent that based on the underlying facts of the convictions and the circumstances of the crimes, Respondent did not commit crimes which would constitute “particularly serious crimes” as defined by the statute.  

a.	Respondent was Convinced of A Crime that Involved Reckless, not Intentional Behavior
Respondent convictions for reckless homicide and criminal recklessness lack the level of culpability that would suggest the nature of the crimes committed were intentional, willful, planned, or purposeful.  The crimes undeniably had tragic consequences but fail to rise to the level of culpability that would suggest that they were committed by an individual that had malice aforethought or intent to cause harm or injury to another.
Unlike other possible crimes, Respondent was convicted of crimes which involved passive conduct that lacked significant risk that the Respondent would apply force to any victims, and the crimes lacked any level of culpability that would suggest that the Respondent exercised affirmative conduct with intent to commit a crime.
In a BIA decision involving the determination of whether an alien’s conviction for first degree armed robbery constituted a particularly serious crime, the court applied the Frentescu individualized analysis and affirmed the Immigration Judge’s holding that the conviction did constitute a particularly serious crime.  In re S-S, 22 I. & N. Dec. 458 (1999).  In examining the nature of the conviction, the court examined the statute under which the alien was convicted.  The court focused on the fact that the statute not only involved the element of armed robbery but also the additional element of being armed, appearing to be armed, or inflicting bodily harm.  Id. at 17-18.  In addition, the court looked to the “Judgment and Sentence” to examine the length of the sentence imposed and any additional orders that were imposed upon the alien’s release from custody as well as any restitution that the alien was ordered to pay.  Id. at 18.  The court found that the alien’s sentence of 55 months was just 5 month shy of the 5 year period that would have rendered him statutorily ineligible for withholding of removal combined with the $5000 restitution requirement and 2 year community placement order, had a bearing on the characterization of the respondent’s conviction.  Id.
Respondent’s convictions, unlike the individuals in In re S-S, did not involve crimes that required an affirmative act or intent.  The sentences imposed do not indicate that the sentencing judge felt it was important to keep the respondent out of the community for a reasonably long period of time.  The court, in imposing its sentence made a distinction based on the underlying facts of the crime from other more serious crimes involving purposeful and intentional acts.  In imposing Respondent’s sentences, the court suspended Respondent’s sentence in part, and allowed her to serve the sentences concurrently, indicating that the court did not believe the nature of the crimes were of such severity that would warrant harsher punishment.

b.	The Underlying Facts of the Conviction Do Not Support a Finding of a Particularly Serious Crime.

Respondent’s criminal convictions stem from a tragic vehicular accident.  On April 18, 2006, Respondent was driving to school at high rate speed when she lost control of her vehicle and struck a vehicle in the next lane.  The collision caused the other vehicle involved in the accident to loose control and strike and kill an individual working on the side of the highway.  One of the passengers in the vehicle suffered a spinal cord injury as a result of the accident.  It was estimated by a certified crash reconstructionist investigator that Respondent was traveling at a rate of speed of approximately 79 to 83 miles per hour at the time of the accident.  The posted speed limit in the area was 55 miles per hour.  See Exhibit H.
While what transpired was tragic, it was the result of a vehicular accident that was not and could not have been planned.  There is nothing in the record to suggest that Respondent had a history of reckless conduct or reckless driving or anything to suggest that what occurred was intentional or purposeful.  While her actions may have been reckless, what transpired was an accident.

c.	The Sentences Imposed on Respondent Were Minimal
Respondent was sentenced to serve three years for her conviction of reckless homicide and 545 days for the reckless homicide conviction.  However, the sentencing judge allowed Respondent to serve her sentences concurrently and she was ultimately released after only 8 months in custody due to good behavior.  See Exhibit D.
The sentencing judge’s allowance that the sentences be served concurrently, indicates not only that the sentencing judge believed that Respondent should be offered some leniency but more importantly that the crimes committed were of not such nature that would rise the level that would warrant the imposition of harsher punishment within the limits of the relevant sentencing guidelines.

d.	Respondent Does Not Pose a Danger to the Community
The nature of the offenses while tragic were neither planned nor intended.  The mens rea required for the offenses for which Respondent was convicted, requires a lower degree of culpability that falls below intentional and purposefully, indicating that these offenses present no evidence that Respondent presents a danger to the community.  The crimes, for which Respondent was convicted, are not on their face “particularly serious crimes,” and when viewed on a case by case basis, it is clear that based on the totality of the circumstances; there is no basis to conclude that Respondent will be a danger to the community if she were permitted to remain in the United States.  
In support of this assertion, Respondent submits that the fact that the sentencing judge allowed Respondent to serve her sentences concurrently and the length of the imposed sentences were well below the maximum allowed sentence, is indicative that the judge did not believe that it was important to keep the respondent out of the community for a reasonably long period of time.  In addition, upon examining the underlying facts of the crime it is apparent that the crime was a result of an accident that while arguably avoidable, was unintentional or purposeful. 
Contrary to the assertion that Respondent poses a threat to the community, Respondent has assimilated to American society with exceptional ease and was always a contributing and productive member of our society.  Upon arriving to the United States, she sought an education and earned a GED followed by an Associates Degree, all the while working full-time to support herself and her family and to pay for her educational expenses. See Exhibits A,G,H,I.  The fact that Respondent chose to enter the health care field and pursue a degree in nursing and work with the mentally disabled and elderly, indicate that she was dedicated to a good cause and was an ideal member of society.