Safe Havens

 

(B)  Crimes of Moral Turpitude.[23]

Assault may or may not involve moral turpitude depending upon the elements in a given offense.  Simple assault[24] or assault and battery do not involve moral turpitude.  In Matter of Fualaau,[25] the Board clarified that a criminally “reckless state of mind must be coupled with an offense involving serious bodily injury,” before the offense will be considered to be a CMT.  Therefore, simple assaults that do not involve a dangerous weapon, an evil intent, or serious bodily injury do not involve moral turpitude.  Aggravated assault is sometimes held to involve moral turpitude.[26]  The key generally is whether the essential elements include a specific intent to cause bodily harm or criminal recklessness coupled with serious bodily injury.  Where the assault is committed with the further intent of accomplishing a CMT, the assault will also be held to be a CMT.

 

            (1)  Assault on an Officer

 

Board of Immigration Appeals:

 

Matter of B, 5 I. & N. Dec. 538 (BIA 1953) (Massachusetts conviction of simple assault does not involve moral turpitude, and the fact that the assault was committed upon a police officer does not necessarily change the character of the crime to one involving moral turpitude; where the information did not charge that the respondent was armed with any type of weapon, it cannot be found that the assault involved moral turpitude).

 

Matter of O, 4 I. & N. Dec. 301 (BIA 1951) (conviction of participation in riot in violation of § 115 of the German Criminal Code, accompanied by an assault on an official in the lawful exercise of his office in violation of § 113, does not involve moral turpitude, because knowledge that the person assaulted was a police officer is not necessarily an element of the offense). 

 

Second Circuit:

United States ex rel. Zaffarano v Corsi, 63 F.2d 757 (2d Cir. 1933) (New York conviction for second-degree assault was held not to be a crime involving moral turpitude where the person could be convicted for putting forth the mildest form of intentional resistance against an officer attempting to serve lawful process, levy an execution on goods, or apprehend or detain the accused or another, and that such conduct, though usually meriting punishment more severe than that prescribed for a simple assault upon a private person not acting in an official capacity, does not necessarily denote moral depravity).

 

District Courts:

 

Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D.Mass. 1926) (Massachusetts conviction of assault and battery on an officer in the lawful discharge of duty was held not to constitute a crime involving moral turpitude, where the defendant hit an officer while the officer was trying to stop a fight in a restaurant, but it was not charged that the assault was made with the dangerous weapon).

 

            (2)  Intent

 

Board of Immigration Appeals:

 

Matter of Perez-Contreras, 20 I. & N. 615 (BIA 1992) (negligent assault resulting in bodily injury, under Wash. Rev. Code § 9A.36.031(f), is not a crime of moral turpitude where essential elements do not include intentional or reckless (conscious disregard of a substantial and unjustifiable risk) conduct).

 

Matter of Z, 5 I. & N. Dec. 383 (BIA 1953) (aggravated assault with deadly or dangerous weapon, in violation of § 6195, General Statutes of Connecticut, does not involve moral turpitude, since no criminal intent is required).

 

            (3) Simple Assault

 

Board of Immigration Appeals:

 

Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA 2003) (California conviction of simple battery, in violation of Penal Code § 242, does not constitute a CMT).

 

Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996) (assault causing bodily injury, under Hawaii Rev. Stat. § 707-712(1)(a), is not a crime of moral turpitude where the offense is similar to a simple assault; where reckless conduct is an element, a crime of assault can be, but is not automatically, a CMT).

Matter of E, 1 I. & N. Dec. 505 (BIA 1943) (simple assault in the third degree as defined by New York Penal Law § 244(1), is not a crime involving moral turpitude).

 

Fourth Circuit:

 

Medina v. United States, 259 F.3d 220 (4th Cir. 2001) (assault conviction under Va. Code § 18.2-57 is not a crime of moral turpitude).

 

District Courts:

 

United States ex rel. Valenti v Karmuth, 1 F.Supp. 370 (D.N.Y. 1932) (New York misdemeanor conviction of third-degree assault by force, violence, and fear of injury not a CMT).

 

Griffo v. McCandless, 28 F.2d 287 (E.D.Pa. 1928) (conviction of aggravated assault and battery was not CMT, since moral turpitude was not inherent in the charge and not evidenced by the record).

 

United States ex rel. Morlacci v Smith, 8 F.2d 663 (D.N.Y. 1925) (assault and battery not CMT).

 

            (4)  Target Offenses

 

Board of Immigration Appeals:

 

Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989) (“if a simple assault does not involve moral turpitude and the felony intended as a result of that assault also does not involve moral turpitude, then the two crimes combined do not involve moral turpitude”).

 

Matter of M, 2 I. & N. Dec. 525 (BIA 1946) (assault for the purpose of committing an offense is assessed according to whether the offense intended to be committed involves moral turpitude).

 

           

(5)  Weapons

 

Board of Immigration Appeals:

 

Matter of J, 4 I. & N. Dec. 26 (BIA 1950) (conviction of bodily injury in 1948 in violation of § 223(a) of the German Criminal Code by assault with a knife is not equivalent to assault with a dangerous weapon under U.S. law, since malice is not an element of the offense, but is in fact simple assault and hence does not involve moral turpitude).

 

Matter of Z, 1 I. & N. Dec. 446 (BIA 1943) (aggravated assault with a deadly or dangerous weapon, under Conn. Gen. Stats. § 6195, is not a crime of moral turpitude), overruled by Matter of O, 3 I. & N. Dec. 193 (BIA 1948).

Matter of B, 1 I. & N. Dec. 52 (BIA, AG 1941) (second-degree assault in violation of § 10098, Mason’s Minnesota Statutes (1927), does not involve moral turpitude if the charge of conviction charged that the assault was committed with an unknown weapon, since the weapon could not be found from the record of conviction to be dangerous so as to qualify the offense as one involving moral turpitude).

 

Ninth Circuit:

 

Carr v. INS, 86 F.3d 949 (9th Cir. 1996) (Washington conviction of assault with a deadly weapon held not to be a crime involving moral turpitude).

 

District Courts:

 

United States ex rel. Ciarello v. Reimer, 32 F.Supp. 797 (D.N.Y. 1940) (Italian conviction of assault and battery by 16-year-old with stone resulting in injury held not CMT).

 

[23] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § § 9.13-9.17 (2005).

[24] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(b)(1) (“Assault (simple) (i.e., any assault which does not require an evil intent or depraved motive, although it may involve the use of a weapon which is neither dangerous nor deadly)” does not involve moral turpitude).

[25] Matter of Fualaau, 21 I. & N. Dec. 475 at 478 (BIA 1996).

[26] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(3).