(B)  Crimes of Moral Turpitude.[237]

 

Crimes of domestic violence may or may not be considered crimes of moral turpitude.  A domestic violence conviction may not automatically constitute a crime involving moral turpitude.  Simple battery is not a CMT.  Battery on a spouse has been held to be a crime of moral turpitude, because a special relationship of trust exists between offender and victim.  That rationale may not apply to all cases that fall within the wider domestic violence statute, since some domestic violence statutes apply not only to spouses, but also to the “former spouse, cohabitant, former cohabitant, or the mother or father of his or her child . . . .”[238]  If the immigration court’s rationale for making a non-CMT battery into a crime of moral turpitude may or may not apply under the statutory elements of the offense, it can be considered a divisible statute.  The record of conviction may not establish the exact nature of the relationship sufficient to bring the case within the CMT portion of the statute, and therefore may not establish grounds for removal.

 

[237] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.93 (2005).

[238] E.g., California Penal Code § 273.5.

Ninth Circuit

CRIME OF MORAL TURPITUDE - SIMPLE DOMESTIC 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 additional element of the domestic relationship is insufficient to convert a non-CMT simple assault conviction into a crime of moral turpitude).

CRIMES OF MORAL TURPITUDE - DOMESTIC BATTERY
Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 2006 WL 2846379 (9th Cir. Oct. 6, 2006) (California convictions of simple battery on the mother of defendant's child, in violation of Penal Code 243(e)(1), were not categorically crimes of moral turpitude since the least touching was sufficient to violate the statute, and the domestic relationship, standing alone, was insufficient to establish moral turpitude).