(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).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable under this statute did not create a substantial risk that the defendant would intentionally use physical force against person or property, since the minimum conduct included reckless conduct), applying Leocal v. Ashcroft, 543 U.S. 1 (2004).

CRIME OF MORAL TURPITUDE -BATTERY WITH INJURY - NOT CMT
Matter of Muceros, Index Decision (BIA 2000) (Battery, in violation of California Penal Code section 243(d) is not a crime of moral turpitude for immigration purposes).
http://www.usdoj.gov/eoir/vll/intdec/indexnet00/muceros.pdf

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT " INTENT
Villanueva v. Holder, 784 F.3d 51 (1st Cir. Apr. 24, 2015) (Connecticut conviction for assault in the third degree, under Conn. Gen.Stat. 53a"61, did not constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), where the record of conviction did not indicate the subdivision under which the noncitizen was convicted, since two of the three sections involved only recklessness or negligence which are insufficient intent to constitute a crime of violence under 18 U.S.C. 16).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT AND BATTERY
United States v. Martinez, ___ F.3d ___, 2014 U.S. App. LEXIS 15173 (1st Cir. Aug. 6, 2014) (Massachusetts convictions for assault and battery and simple assault, under Mass. Gen. L. ch. 265, 13A, did not categorically constitute crimes of violence under the Federal Sentencing Guidelines, U.S.S.G. 4B1.2(a), even though the defendant admitted having struck his girlfriend, because the term struck covers conduct that is neither intentional nor involves violent force). Note: The defendant did not raise a claim that the assault and battery statute was not divisible, so no resort to the record of conviction was proper; therefore, the court did not reach that issue. Immigration attorneys should argue that under Martinez, Massachusetts simple assault can never be an aggravated felony as a crime of violence or a crime of domestic violence under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i). Similarly, immigration counsel should argue that Massachusetts assault and battery is not a crime of violence " both because the record of conviction does not clearly and necessarily establish a conviction for harmful battery and because (most importantly) assault and battery is not a divisible offense and therefore should never be considered a crime of violence.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(a), because the minimum conduct punishable under this statute does not have as an element the use of violent force, but instead covers even the slightest touching with a dangerous weapon).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ATTEMPTED RECKLESS ASSAULT
Dale v. Holder, 610 F.3d 294 (5th Cir. Jun. 25, 2010) (New York conviction for first degree assault, in violation of New York Penal Code 120.10, is not necessarily an aggravated felony crime of violence since the statute is divisible and includes reckless assault; BIA erred in finding that defendants in New York cannot be convicted of "attempted" reckless assault - although attempted reckless assault does not necessarily appear logical from a criminal standpoint, New York case law indicates that the offense is an acceptable plea), citing People v. Guishard, 15 A.D.3d 731, 789 N.Y.S.2d 332, 333 (N.Y.App.Div.2005) (affirming plea conviction to attempted assault in the first degree although the crime was a "legal impossibility").

Second Circuit

CRIME OF MORAL TURPITUDE - ASSAULT - SECOND DEGREE Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb. 29, 2008) (New York conviction of second degree assault, under New York Penal Law 120.05, is a divisible statute; a conviction of violating NYPL 120.05(4) is not a crime of moral turpitude), following Gill v. INS, 420 F.3d 82, 90-91 (2d Cir. 2005) (holding that N.Y.P.L. 120.05(4) is not a crime of moral turpitude because it requires only that the defendant acted with attempted recklessness instead of specific intent).

CRIME OF MORAL TURPITUDE - RECKLESS ASSAULT
Gill v. INS, __ F.3d __, 2005 WL 1983700 (2nd Cir. Aug. 18, 2005) (attempted reckless assault in violation of New York Penal Code 120.5(4) is not a crime involving moral turpitude because no discernable mental element in present since it is impossible to "attempt" to commit an act "recklessly" under New York law).

Third Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SIMPLE ASSAULT
United States v. Otero, __ F.3d __ 2007 WL 2610412 (3d Cir. Sept. 12, 2007) (Pennsylvania conviction of simple assault, in violation of 18 Pa. Cons.Stat. Ann. 2701(a) (2003), is not necessarily a crime of violence for illegal re-entry sentencing purposes since the offense does not necessarily require proof of the use of force when causing "bodily injury."), applying reasoning of Popal v. Gonzales, 416 F.3d 249, 254 (3d Cir. 2005) (same statute is not necessarily an aggravated felony crime of violence) to the sentencing context.

CRIME OF MORAL TURPITUDE - NEGLIGENT AGGRAVATED ASSULT ON AN OFFICER
Partyka v. Atty. Gen., __ F.3d __ (3rd Cir. Aug. 11, 2005) (aggravated assault on a law enforcement officer in the third degree, in violation of N.J. Stat. Ann. 2C:12-1b(5)(a), is not necessarily a crime of moral turpitude, where the statute may be committed with negligent intent). http://caselaw.lp.findlaw.com/data2/circs/3rd/042804p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS MENS REA INSUFFICIENT
Popal v. Gonzalez, __ F.3d __, 2005 WL 1791998 (3d Cir. July 29, 2005) (simple assault (reckless), in violation of Pennsylvania Penal Code 18 Pa.C.S.A. 2701, is not an aggravated felony crime of violence for immigration purposes, since a mens rea of recklessness is insufficient to qualify as a crime of violence). Following Tran v. Gonzales, __ F.3d __, 2005 WL 1620320 (3d Cir. July 12, 2005).

Fourth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SECOND-DEGREE ASSAULT
United States v. Royal, 731 F.3d 333 (4th Cir. Oct. 1, 2013) (Maryland conviction for second-degree assault, in violation of Md. Code, Crim. Law 3"203(a), did not constitute a predicate violent felony under the Armed Career Criminal Act, because the Maryland offense was a facially indivisible statute, i.e., one that does not set out elements of the offense in the alternative, but which may nevertheless broadly criminalize qualitatively different categories of conduct; Maryland courts do not require unanimity on whether the offense was committed by offensive physical contact or infliction of physical harm.).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - 18 USC 16(a)
Garcia v. Gonzales, ___ F.3d ___, 2006 WL 2061819 (4th Cir. Jul. 26, 2006) (New York conviction of second-degree assault, in violation of N.Y. Penal Law 120.05 ["recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument"], does not constitute an aggravated felony "crime of violence" under 18 U.S.C. 16(a), since its definition does not contain an element that there be the intentional employment of physical force against a person or thing).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSALUT - 18 USC 16(b)
Garcia v. Gonzales, ___ F.3d ___, 2006 WL 2061819 (4th Cir. Jul. 26, 2006) (New York conviction of second-degree assault, in violation of N.Y. Penal Law 120.05 ["recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument"], does not constitute a "crime of violence" under 18 U.S.C. 16(b), and thus is not an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since recklessness, like negligence, is not enough to support a determination that a crime is a "crime of violence"), following Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 447 (4th Cir. 2005) (such a violation did not qualify as a "crime of violence" because "[a]lthough the crime of violating Va. Code Ann. 18.2-36 intrinsically involves a substantial risk that the defendants actions will cause physical harm, it does not intrinsically involve a substantial risk that force will be applied as a means to an end.").

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault [[e]ngag[ing] in conduct that creates a substantial danger of death or serious physical injury to another person.] is not a crime of violence under the residual clause of USSG 2L1.2, because the statute does not require any contact or injury or attempt or threat of offensive contact or injury, thus did not have as an element "the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault, in violation of Ark. Code 5-13-204(a)(1), is not a crime of violence for illegal re-entry sentencing purposes, under U.S.S.G. 2L1.2 cmt. n.1(B)(iii), because it does not require proof of an assault as that crime is generally defined"i.e., as an offense that involves the use, attempted use, or threatened use of offensive contact against another person).

AGGRAVATED FELONY"CRIME OF VIOLENCE"DOMESTIC ASSAULT AND BATTERY
United States v. Miranda-Ortegon, 670 F.3d 661 (5th Cir. Feb. 10, 2012) (Oklahoma conviction for domestic assault and battery, in violation of Okla. Stat. tit. 21, 644C [[a]ny person who commits an assault and battery against a current or former spouse ... [or] a child ... shall be guilty of domestic abuse.], did not constitute an aggravated felony crime of violence for illegal re-entry sentencing purposes because the elements of the offense require only the slightest touching is necessary to constitute the force or violence element of battery.); quoting Steele v. State, 778 P.2d 929, 931 (Okla.Crim.App.1989); see United States v. Smith, 652 F.3d 1244, 1246 (10th Cir.2011) (Oklahoma assault-and-battery offense did not fall within the first prong of the Armed Career Criminal Act [has as an element the use, attempted use, or threatened use of physical force against the person of another, 18 U.S.C. 924(e)(2)(B)(i)]); see Johnson v. United States, """ U.S. """", 130 S.Ct. 1265, 1269"71, 176 L.Ed.2d 1, (2010) (holding that Florida felony battery conviction was not a violent felony under 18 U.S.C. 924(e)(1)(2)(B)(i), because the offense's elements are satisfied by any physical contact, no matter how slight (quotation marks and internal citation omitted)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INJURY OF CHILD
United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. Jun. 8, 2010) (Texas conviction for injury to child, in violation of Texas Penal Code 22.04(a), did not constitute a crime of violence, for illegal re-entry sentencing purposes, since it does not require use of force; Texas Penal Code 22.04(a) can be committed, for example, "by intentional act without the use of physical force by putting poison or another harmful substance in a child's food or drink.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Villegas-Hernandez, __ F.3d __, 2006 WL 3072558 (5th Cir. Oct. 31, 2006) (Texas conviction for violation of Penal Code 22.01(a), assault, is not an aggravated felony crime of violence for illegal re-entry sentencing purposes since the statute may be violated without the perpetrator using force against the victim). http://caselaw.lp.findlaw.com/data2/circs/5th/0540988cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT ON POLICE OFFICER
United States v. Fierro-Reyna, __ F.3d __ (5th Cir. Sept. 28, 2006) (Texas conviction from 1979 for aggravated assault on a police officer, in violation of Penal Code 22.02(a)(2) (1974) [punishing simple assault on a police officer] is not a "crime of violence" for illegal re-entry sentencing purposes, since simple assault does not necessarily require use of force; state classification of assault as aggravated because it is committed against a police officer is irrelevant). http://caselaw.lp.findlaw.com/data2/circs/5th/0551198cr0p.pdf

AGGRAVATED FELONY - AGGRAVATED BATTERY - CRIME OF VIOLENCE
Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas conviction of aggravated battery under Kan. Stat. Ann. 21-3414(a)(1)(C), defined as intentional physical contact with a deadly weapon in a rude, insulting or angry manner defines a crime which is categorically a "crime of violence," under 18 U.S.C. 16(b) and thus an aggravated felony for removal purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Gonzalez-Chavez, __ F.3d __, 2005 WL 3196524 (5th Cir. Nov. 30, 2005) (aggravated battery under 784.045 of the Florida Statutes is a divisible statute, as the statute may be committed by any assault on a pregnant woman, including spitting, which does not involve the use, attempted use, or threatened use of force, and therefore may not be an aggravated felony crime of violence for sentencing purposes).
http://caselaw.lp.findlaw.com/data2/circs/5th/0440173cr0p.pdf

Sixth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. McMurray, 653 F.3d 367 (6th Cir. Aug 4, 2011) (Tennessee conviction of aggravated assault, in violation of Tenn.Code Ann. 39"13"102 (1991), was not a violent felony under the ACCAs use of physical force clause, or under its residual clause, for purposes of the Armed Career Criminal Act, where the offense could be committed recklessly).

Seventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED BATTERY
United States v. Aviles-Solarzano, 623 F.3d 470, 472-473 (7th Cir. Oct. 13, 2010) (Illinois conviction of aggravated battery, under 720 ILCS 5/12-4(b), is not categorically a crime of violence, within the meaning of U.S.S.G. 2L1.2(b)(1)(A)(ii), since Illinois aggravated battery may include non-violent offenses, such as spitting on another person while standing on a sidewalk).

CRIME OF MORAL TURPITUDE - AGGRAVATED BATTERY OF A PEACE OFFICER
Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. Feb. 5, 2008) (Illinois conviction of "aggravated battery of a police officer," in violation of 720 ILCS 5/12-4(b)(6), did not constitute a crime involving moral turpitude, because the minimum conduct includes spitting on a police officer and other de minimus conduct).

Eighth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD DEGREE ASSAULT ON AN OFFICER AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESS INTENT CATEGORICAL ANALYSIS " RECORD OF CONVICTION " PRESENTENCE REPORT
United States. v. Garcia-Longoria, ___ F.3d ___, 2016 WL 1658120 (8th Cir. Apr. 27, 2016) (Nebraska conviction for third-degree assaulting a police officer, in violation of Neb.Rev.St. 28"931(1) (intentionally, knowingly, or recklessly cause bodily injury to a police officer), was a crime of violence for purposes of the ACCA, because the presentence report, to which the defendant did not object, reflected a mens rea of intent); see United States v. Ossana, 638 F.3d 895, 900"03 & n. 6 (8th Cir. 2011) (at least in some circumstances, a crime involving a mens rea of mere recklessness does not qualify as a crime of violence); compare United States v. Boose, 739 F.3d 1185, 1187 (8th Cir.2014), and United States v. Dawn, 685 F.3d 790, 795 (8th Cir. 2012) (following Ossana), with United States v. Kosmes, 792 F.3d 973, 977 (8th Cir. 2015) (distinguishing Ossana ), cert. denied, __ S.Ct. __ (2016).

CRIMES OF MORAL TURPITUDE " ASSAULT " GENERAL CRIMINAL INTENT
Alonzo v. Lynch,___ F.3d ___, ___, 2016 WL 1612772 (8th Cir. Apr. 22, 2016) ([T]he BIA and various courts have declined to classify [simple assault] as a [CIMT]. Simple assault typically is a general intent crime, and it is thus different in character from those offenses that involve a vicious motive, corrupt mind, or evil intent. Chanmouny v. Ashcroft, 376 F.3d 810, 814"15 (8th Cir. 2004) (emphasis added) (quoting Matter of O, 3 I. & N. Dec. 193, 194"95 (BIA 1948)); see also [Matter of] Solon, 24 I. & N. Dec. at 241 (same).).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " SECOND-DEGREE BATTERY
United States v. Dawn, 685 F.3d 790 (8th Cir. Jun. 28, 2012) (Arkansas conviction of second-degree battery, in violation of Ark. Code Ann. 5"13"202(a) (2006), is not categorically a crime of violence for purposes of the Armed Career Criminals Act, because it includes recklessly causing serious physical injury, including reckless driving).

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED ASSAULT
United States v. Esparza-Herrera, ___ F.3d ___, 2009 WL 455512 (9th Cir. Feb. 25, 2009) (per curiam) (Arizona conviction for aggravated assault under Arizona Revised Statutes 13-1204(A)(11) ("[i]ntentionally, knowingly or recklessly causing any physical injury to another person") was not a conviction for a "crime of violence" under USSG 2L1.2(b)(1)(A)(ii), as an "offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another," under U.S.S.G. 2L1.2 n. 1(b)(iii), because "Under the categorical approach, aggravated assault requires a mens rea of at least recklessness "under circumstances manifesting extreme indifference to the value of human life." Esparza-Herrera's statute of conviction, A.R.S. 13-1204(A)(11), encompassed ordinary recklessness, and therefore his conviction was not a conviction for generic aggravated assault or a crime of violence.").

CRIMES OF MORAL TURPITUDE " DOMESTIC VIOLENCE
Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) (California conviction of corporal injury of a spouse, in violation of Penal Code 273.5(a), did not categorically constitute a crime involving moral turpitude, because it includes victims other than a spouse); distinguishing Grageda v. INS, 12 F.3d 919 (9th Cir. 1993) (California conviction of corporal injury of a spouse, in violation of Penal Code 273.5(a), constituted a crime involving moral turpitude under the modified categorical analysis where the record of conviction established that the victim was the defendants spouse); Matter of Tran, 21 I. & N. Dec. 291 (BIA 1996) (same).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (Washington conviction for fourth degree assault, in violation of RCW 9A.36.041 is not categorically an aggravated felony crime of violence, since it may be committed by any offensive touching).

CRIME OF MORAL TURPITUDE - SIMPLE ASSAULT - CONVICTION OF SIMPLE ASSAULT GENERALLY DOES NOT CONSTITUTE A CRIME OF MORAL TURPITUDE
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) ("With regard to the crime of assault, courts generally have held that a conviction for simple assault does not involve moral turpitude."), citing Reyes-Morales v. Gonzales, 435 F.3d 937, 945 n.6 (8th Cir. 2006) (simple assault does not involve moral turpitude); Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933).

CRIME OF MORAL TURPITUDE - SIMPLE ASSAULT
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona conviction in 2003 of class 2 misdemeanor domestic violence/assault, in violation of A.R.S. 13-1203(A), 13-3601, does not constitute a crime of moral turpitude, because the offense can be committed by "physical contacts that result in the most minor of injuries "), distinguishing Grageda v. INS, 12 F.3d 919 (9th Cir. December 28, 1993)(California conviction of corporal injury of spouse, in violation of Penal Code 273.5(a), constituted crime of moral turpitude, because the statute required intent to cause injuries that were more than insubstantial).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Fernandez-Ruiz v. Gonzales, ___ F.3d ___ (9th Cir. Oct. 26, 2006) (Arizona conviction of domestic violence assault, in violation of Ariz. Rev. Stats. 13-1203(A)(1) ["[i]ntentionally, knowingly, or recklessly causing any physical injury to another"], did not constitute a crime of violence under 18 U.S.C. 16(a), and is therefore not a domestic violence conviction, within the meaning of INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), for immigration purposes, because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BATTERY - CALIFORNIA BATTERY CONVICTION DOES NOT CONSTITUTE A CRIME OF VIOLENCE UNDER 18 USC 16(A)
Ortega-Mendez v. Gonzales, ___ F.3d ___, 2006 WL 1642755 (9th Cir. Jun. 15, 2006) (California misdemeanor conviction of battery, in violation of Penal Code Penal Code 242 is not categorically a "crime of violence" within the meaning of 18 U.S.C. 16(a), because the "force or violence" element requires neither force capable of hurting or causing injury nor violence in the usual sense of the term since the least touching suffices), implicitly overruling United States v. Robinson, 967 F.2d 287 (9th Cir. 1992)(simple battery is crime of violence under USSG U .S.S.G. 4B1.1 (1989), since contrary higher authorities were later decided, e.g., United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc), and United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir.2001) (en banc), and Leocal v. Ashcroft, 543 U.S. 1, 11 (2004). http://caselaw.lp.findlaw.com/data2/circs/9th/0374711p.pdf

On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - DOMESTIC VIOLENCE
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), did not invariably constitute a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer, but the "physically abuse" prong "requires, at a minimum, a reckless use of physical force. See State v. Eastman, 81 Hawai'i 131, 913 P.2d 57, 66 (Haw.1996); see also State v. Miller, 105 Hawai'i 394, 98 P.3d 265, 266 n.1 (Haw.Ct.App.2004). "Recklessness" is an adequate mens rea to establish a "violent" use of force. See, e .g., United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125 (9th Cir.2003), cert. denied, --- U.S. ----, 125 S.Ct. 863, 160 L.Ed.2d 781 (2005); United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir.2000). Nobriga's AFHM conviction was therefore for a "violent use of force."); but this decision may have been undermined by Leocal v Ashcroft, 125 S.Ct. 377 (2004); see Lara-Cazares v. Gonzales, ___ F.3d ___ (9th Cir. May 23, 2005); Lara-Cazares v. Gonzales, ___ F.3d ___ (9th Cir. May 23, 2005).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CONVICTION OF HAWAII OFFENSE DOES NOT CATEGORICALLY REQUIRE USE OF VIOLENT FORCE AND DOES NOT CONSTITUTE "CRIME OF DOMESTIC VIOLENCE" FOR PURPOSES OF FEDERAL FELON WITH GUN OFFENSE
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), did not invariably constitute a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer), following United States v. Belless, 338 F.3d 1063 (9th Cir. 2003).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT
United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (Arizona conviction of assault, under A.R.S. 13"1204(A), is overbroad with respect to 18 U.S.C. 16, because the definition of assault in subsection (1) of the Arizona statute includes simple recklessness, whereas a crime of violence requires a mens rea of at least heightened recklessness, see United States v. Gomez"Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012), and is divisible); see United States v. Cabrera"Perez, 751 F.3d 1000, 1004"05 (9th Cir. 2014).

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - PREGNANT WOMAN
United States v. Barraza-Ramos, 550 F.3d 1246 (10th Cir. Dec. 30, 2008) (Florida conviction for aggravated battery, under Fla. Stat. 784.045(1)(b) (intentionally touching a pregnant woman against her will, striking her against her will, or causing her bodily harm), is not categorically a crime of violence, under USSG 2L1.2(b)(1)(A)(ii) ("crime of violence" includes listed offenses plus "any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another."), supporting a 16-level enhancement of sentence for illegal reentry after deportation, because the intentional touching offense does not have sufficient violence as an element), following United States v. Hays, 526 F.3d 674, 679 (10th Cir. 2008) (Wyoming conviction of battery [unlawfully touching another in a rude, insolent, or angry manner] does not contain an element of the use or attempted use of physical force, and is therefore not categorically a crime of violence to support a conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence under 18 U.S.C. 922(g)(9) and 924(a)(2), since physical force in a crime of violence must entail more than mere contact).").

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. Mar. 10, 2008) (Colorado conviction for assault two (drugging a victim), in violation of Colo.Rev.Stat. Ann. 18-3-203(1)(e) (2001), is not a crime of violence for illegal re-entry sentencing purposes, since drugging by surreptitious means does not involve the use of physical force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ELEMENT RELATING TO INJURY RATHER THAN USE OF FORCE
United States v. Perez-Vargas, ___ F.3d ___ (10th Cir. 2005) (Colorado conviction for third-degree assault, "knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon," in violation of C.R.S. 18-3-204, where judicial decisions did not require use of force, did not constitute a "crime of violence," as defined by United States Sentencing Guideline (USSG) 2L1.2, for purposes of enhancement of a sentence for illegal reentry, since the criminal statute has as an element causation of injury, rather than use of force: "In other words, Colorado's statute looks to the consequences of the conduct, however applied, whereas the Guidelines look to the type of conduct that causes the injury.").

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT ON AN OFFICER
United States v. Palomino-Garcia, 606 F.3d 1317 (11th Cir. May 21, 2010) (Arizona conviction for violation of Ariz. Stat. 13-1204(A)(7), aggravated assault against a police officer, defined as any simple assault against a law enforcement agent, is not necessarily a crime of violence for illegal re-entry sentencing purposes since the identity of the victim as a police officer does not affect the level of force required to constitute a crime of violence).

Other

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS INTENT INSUFFICIENT
See § 7.49

AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR MANSLAUGHTER
See § 7.49