Simple assault, which can be committed though any unwanted touching, has been found not to be a crime of moral turpitude.[60]  On the other hand, offenses requiring, as an essential element, the intent to inflict some sort of significant bodily harm have been found to constitute crimes involving moral turpitude.[61]

 

Assault offenses have also been considered to involve moral turpitude when an “aggravating factor” was present, such as the use of a deadly weapon,[62] or assault against certain victims, such as children, police officers, and spouses.[63]  However, the BIA has recently clarified that even if such an “aggravating factor” is present, a simple assault offense will not become a crime of moral turpitude where the offense could have been committed without “the actual infliction of some tangible harm on a victim.”[64]

 

At least two courts have found that intent to cause bodily injury, resulting in some form of “traumatic condition” beyond a minor injury, combined with willful intent, is sufficient to consider an assault offense to involve moral turpitude.[65]  However, the term “traumatic condition” was defined, for purposes of these cases, as “a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force,” and could include even minor scratches.[66]  Arguably, intent to cause such a minor injury should be insufficient to constitute a CMT.[67]

[60] See, e.g., Knapik v. Ashcroft, 384 F.3d 84, 98 (3d Cir. 2004); United States ex rel. Zffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933); Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 591, 595-596 (BIA 2003) (California conviction of simple battery, in violation of Penal Code § 242, does not constitute a CMT); Matter of Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992).

[61] Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir. 2000) (assault in the second degree requires that the defendant intended to cause and did in fact cause “serious physical injury” to the victim); Matter of P, 7 I. & N. Dec. 376, 377 (BIA 1956).

[62] See, e.g., Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338, 1342 (11th Cir. 2005); Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001); Matter of Medina, 15 I. & N. Dec. 611 (BIA 1976).

[63]See, e.g., Garcia v. U.S. Att’y Gen, 329 F.3d 1217 (11th Cir. 2003) (child); Matter of Tran, 21 I. & N. Dec. 291 (BIA 1996) (spouse); Matter of Danesh, 19 I. & N. Dec. 669 (BIA 1998) (police officer).

[64] Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006) (simple domestic battery, in violation of California Penal Code § 243(e)(1) is not a CMT).

[65] Grageda v. INS, 12 F.3d 919 (9th Cir. 1993) (spousal abuse, in violation of violation of Penal Code § 273.5(a) is a crime of moral turpitude); Matter of Tran, 21 I. & N. Dec. 291 (BIA 1996) (same).

[66] Judicial Counsel of California, Criminal Jury Instructions, Instruction 840 (2007).

[67] See Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) (distinguishing between a “traumatic condition” and minor injury).

CAL CRIM DEF " DOMESTIC VIOLENCE " CORPORAL INJURY OF A SPOUSE " CRIME OF MORAL TURPITUDE
Penal Code 273.5(a) has been amended to expand the list of persons who qualify as victims of this offense. It now includes the offender's fianc or fiance, or someone with whom the offender has or previously had, an engagement or dating relationship, as defined in Penal Code 243(f)(10). In Morales-Garcia v. Holder, 567 F.3d 1058, 1-64-1065 (9th Cir. 2009), the court considered Penal Code 273.5(a) and stated that the inclusion of former co-habitants in the list of covered victims "makes the offense virtually indistinguishable from the run-of-the-mill assault." This further weakens the argument that this offense constitutes a crime of moral turpitude, since the argument is weak that there is a special relationship of trust between the principal and this expanded class of victims.

BIA

CRIMES OF MORAL TURPITUDE " DEADLY CONDUCT
Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015) (Texas conviction of deadly conduct, in violation of Texas Penal Code 22.05(a), is categorically a crime involving moral turpitude).

CRIME OF MORAL TURPITUDE - ASSAULT
Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007) (New York conviction of assault under New York Penal Code 120.00(1) is a crime involving moral turpitude because the offense requires the specific intent to cause physical injury, and that such injury actually [causing substantial pain] occurs).

CRIME OF MORAL TURPITUDE - ASSAULT
Matter of Solon, 24 I.&.N. Dec. 239 (BIA 2007) (New York conviction of assault in the third degree in violation of New York Penal Law 120.00(1), which requires both specific intent and physical injury, is a crime involving moral turpitude). http://www.usdoj.gov/eoir/vll/intdec/vol24/3574.pdf

CRIME OF MORAL TURPITUDE " THREATS
Immigration authorities generally cite Matter of Ajami, 22 I&N Dec. 949 (BIA 1999) (Michigan conviction for aggravated stalking, in violation of M.C.L.A. 750.411i is a crime involving moral turpitude), for the proposition that threatening another is a CMT. Ajami may be not be the end of the issue, however, since that case involved a pattern of behavior, rather than a single instance of issuing a threat. Depending upon the statute at issue, the conviction may not involve an intent to carry out the threat or the intent that the threat was believed. Even though for it to be a true threat it must be normally one that a reasonable person would fear was real, it could be possible, depending on the elements of the statute, for the mens rea as to the outcome of the threat (that it would reasonably be believed) to be as low as negligence. Since an intentional threat that is not intended to be carried out and not intended to be believed can still be a threat if a reasonable person would believe it, you might not have to prove the accused intended or thought it was believable, to be convicted, as long as they were careless to a criminal extent, i.e negligent as to the result of the threat. This arguably detracts from the evil nature of the offense. The nature of the threat may also be an issue, such as a threat to commit a property crime (graffiti), or to damage the other persons reputation. There may also be freedom of speech issues: The First Amendment, applicable to the States through the Fourteenth Amendment, provides that Congress shall make no law ... abridging the freedom of speech. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). While the scope of the First Amendment is broad, it does not extend to unprotected speech. Kilburn, 151 Wash.2d at 42"43, 84 P.3d 1215. True threats occupy one category of unprotected speech. Id. at 43, 84 P.3d 1215. A true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person. Id. (internal punctuation and quotation marks omitted) (quoting State v. Williams, 144 Wash.2d 197, 208"09, 26 P.3d 890 (2001)). . . . The speaker of a true threat need not actually intend to carry it out. Id. at 46, 84 P.3d 1215. It is enough that a reasonable speaker would foresee that the threat would be considered serious. Importantly, only threats that are true may be proscribed. The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole. Id. at 43, 84 P.3d 1215. We recently interpreted the bomb threat statute, RCW 9.61.160, to reach only true threats in order to save it from a constitutional challenge. State v. Johnston, 156 Wash.2d 355, 364, 127 P.3d 707 (2006). We adhere to this principle and construe the threats-to-kill provision of RCW 9A.46.020 to the same effect. State v. Schaler,169 Wash.2d 274, 283-284, 236 P.3d 858, 862-863 (Wash. 2010). See also Fernandez-Ruiz v. Gonzalez, 468 F.3d 1159 (9th Cir. 2006) (placing another person in reasonable apprehension of physical injury is not a CMT). Thanks to Jonathan Moore.

Second Circuit

CRIMES OF MORAL TURPITUDE " THREATS " DEADLY CONDUCT
Matter of Hernandez, 26 I. & N. Dec. 464 (BIA 2015) (Texas conviction of "deadly conduct" in violation of Texas Penal Code 22.05(a), which punishes a person who "recklessly engages in conduct that places another in imminent danger of serious bodily injury," is categorically a crime involving moral turpitude), relying upon Matter of Leal, 26 I&N Dec. 20 (BIA 2012), affd, 771 F.3d 1140 (9th Cir. 2014).

Third Circuit

CRIMES OF MORAL TURPITUDE - SIMPLE ASSAULT ON CHILD
Jean-Louis v. Att'y Gen., __ F.3d __ (3d Cir. Oct. 6, 2009) (Pennsylvania conviction for simple assault on a child under 12, in violation of 18 Pa. Cons. Stat. 2701(b)(2), is not a crime of moral turpitude, since the offense includes, at a minimum causing reckless in jury to a child, but without knowledge of the childs age).

Fourth Circuit

CRIME OF MORAL TURPITUDE - INTENT TO CAUSE INJURY - NORMAL PREGNANCY FALLS WITHIN MEANING OF GREAT BODILY INJURY
People v. Cross, 45 Cal.4th 58, 190 P.3d 706 (Aug. 28, 2008)(great bodily injury enhancement of sentence for committing a lewd act on a child under the age of 14, affirmed where pregnancy without medical complications is sufficient to find great bodily injury).

Fifth Circuit

CRIMES OF MORAL TURPITUDE " ASSAULT WITH A WEAPON
Esparza-Rodriguez v. Holder, 699 F.3d 821 (5th Cir. Oct. 18, 2012) (Texas conviction of assault, in violation of Penal Code 22.01(a)(1), properly held a crime involving moral turpitude, where there was a heightened mens rea, the use of a weapon, and violent conduct, applying the modified categorical analysis).

CRIMES OF MORAL TURPITUDE " ASSAULT " GENERIC DEFINITION OF CMT ASSAULT
Esparza-Rodriguez v. Holder, 699 F.3d 821, *823, 2012 WL 4937384 (5th Cir. Oct. 18, 2012) (To rise to the level of a CIMT, the BIA has held that an assault statute must have at least two characteristics. First, the scienter element must require specific intent, or, put another way, the actus reus must be accompanied by the evil intent, depraved or vicious motive, or corrupt mind associated with moral turpitude. Id. at 241. Second, the assault statute must require a meaningful level of harm, which must be more than mere offensive touching. Id. at 241"42. Several courts, but not all, and the BIA, but not always, require also an aggravating element indicative of the inherent vileness of the prohibited conduct.). In footnote 6, the court cited additional authority: See Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir.2000) (explaining that an assault may or may not be a crime of moral turpitude, noting that the dividing line is the aggravating element); Uppal v. Holder, 605 F.3d 712, 717 (9th Cir.2010) ([T]o rise to the level of moral turpitude, an assault crime must involve a particular type of aggravating factor, one that says something about the turpitude or blameworthiness inherent in the action.). Contra Mustafaj v. Holder, 369 Fed.Appx. 163, 168"69 (2d Cir.2010) (unpublished) (holding that a New York assault statute qualified as a CIMT even though it lacked an aggravating factor). The BIA's decision-making on this point also has been uneven. Compare Matter of Ahortalejo"Guzman, 25 I. & N. Dec. 465, 465 (BIA 2011) (explaining that simple assault is not a CIMT unless it necessarily involves some aggravating factor that indicates the perpetrator's moral depravity), with In re Solon, 24 I. & N. Dec. at 242"46 (explaining that although the presence of an aggravating factor can be important in determining whether a particular assault amounts to a crime involving moral turpitude ... the need for, and the nature of, any aggravating factor is affected by the mental state required for the conviction). (Id. at ___ n.6.)

CRIMES OF MORAL TURPITUDE " ASSAULT
Esparza-Rodriguez v. Holder, 699 F.3d 821, 825 (5th Cir. Oct. 18, 2012) (Texas conviction of assault, in violation of Penal Code 22.01(a)(1), properly held a crime involving moral turpitude: we cannot say that it was unreasonable for the BIA, upon careful consideration, to conclude that an intentional assault that is intended to and does cause more than a de minimis level of physical harm, is contrary to the accepted rules of morality and the duties owed between persons or to society in general.); quoting Mustafaj v. Holder, 369 Fed.Appx. 163, 168"69 (2d Cir.2010) (unpublished) (holding that a New York assault statute qualified as a CIMT even though it lacked an aggravating factor).

Eighth Circuit

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).).

CRIMES OF MORAL TURPITUDE " THREATS " TERRORISTIC THREATS

CRIME OF MORAL TURPITUDE - ASSAULT - RECKLESS
Godinez-Arroyo v. Mukasey, 540 F.3d 848, 2008 WL 3927229 (8th Cir. Aug. 28, 2008) (Missouri conviction for second degree assault, recklessly causing serious physical injury, in violation of V.A.M.S. 565.060(3), is a crime of moral turpitude; Missouri law defines recklessness as a "conscious disregard of a substantial and unjustifiable risk").

Ninth Circuit

CRIMES OF MORAL TURPITUDE " POSSESSION OF A BILLY CLUB
Hernandez-Gonzalez v. Holder, ___ F.3d ___, 2015 WL 618776 (9th Cir. Feb. 13, 2015) (California conviction for a violation of Penal Code 12020(a)(1) for possession of a billy club, does not constitute a crime involving moral turpitude).

CRIMES OF MORAL TURPITUDE " POSSESSION OF A WEAPON
Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1072 (9th Cir. 2007) (en banc) (No court has ever found possession of a weapon to be a crime involving moral turpitude.), overruled on other grounds by United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), abrogated by Descamps v. United States, 133 S.Ct. 2276 (2013); Matter of Serna, 20 I. & N. Dec. 579, 584 (BIA 1992) ([C]arrying or possessing a concealed weapon has been held to involve moral turpitude only when the intent to use it against another person has been established), modified on other grounds by Matter of Franklin, 20 I. & N. Dec. 867 (1994); Matter of Granados, 16 I. & N. Dec. 726, 728"29 (BIA 1979) (holding that possession of sawed-off shotgun is not a crime involving moral turpitude), abrogated by Matter of Wadud, 19 I. & N. Dec. 182, 185 (BIA 1984); United States v. Aguilera"Rios, 754 F.3d 1105, 1116 (9th Cir. 2014) (government conceded that a conviction under California Penal Code 12021(c)(1), for anyone who owns, purchases, receives, or has in possession or under custody or control, any firearm within ten years of a prior conviction for certain misdemeanors, is not a crime of moral turpitude.).

CRIMES OF MORAL TURPITUDE " THREATS " CRIMINAL THREATS
Cervantes v. Holder, ___ F.3d ___, 2014 WL 6463031 (9th Cir. Nov. 19, 2014) (California conviction for threatening to commit a crime resulting in death or great bodily injury under Penal Code 422 is categorically a crime of moral turpitude, for purposes of determining whether immigrant was inadmissible under INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I)); following Latter"Singh v. Holder, 668 F.3d 1156, 1163 (9th Cir. 2012).

CRIMES OF MORAL TURPITUDE " CORPORAL INJURY OF A SPOUSE
Cervantes v. Holder, ___ F.3d ___, ___, 2014 WL 6463031 (9th Cir. Nov. 19, 2014) (California conviction for corporal injury of a spouse, in violation of Penal Code 273.5(a) [[a]ny person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony.], is not categorically a crime of moral turpitude: Our precedents make clear that although 273.5(a) is not categorically a CIMT, it is a divisible statute for which a conviction under one portion of the statute (corporal injury against a spouse) will qualify as a CIMT, while conviction under other subsections (for example, corporal injury against a cohabitant) will not.); compare Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993) (holding that spousal abuse under section 273.5(a) is a crime of moral turpitude (emphasis added)), with Morales"Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) (holding that corporal injury against a cohabitant under 273.5(a) is not a crime involving moral turpitude).

CRIMES OF MORAL TURPITUDE " ASSAULT WITH A DEADLY WEAPON
Ceron v. Holder, ___ F.3d ___, ___ (9th Cir. Mar. 31, 2014) (en banc) (California conviction of assault with a deadly weapon, in violation of Penal Code 245(a)(1), might no longer constitute a crime of moral turpitude, since: Barber is no longer good law for the proposition that 245(a)(1) categorically describes a CIMT, and that G-R- is unpersuasive and not worthy of deference on the point[, and] Carr v. INS, 86 F.3d 949 (9th Cir. 1996), is no longer good law for its holding that CPC 245(a)(2) is not a categorical CIMT; issue remanded to the BIA); overruling Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), and Carr v. INS, 86 F.3d 949 (9th Cir. 1996), and finding Matter of G-R-, 2 I. & N. Dec. 733 (BIA 1946, A.G. 1947) to be unpersuasive.

CRIMES OF MORAL TURPITUDE " ASSAULT WITH A DEADLY WEAPON
Ceron v. Holder, ___ F.3d ___, ___ (9th Cir. Mar. 31, 2014) (en banc) (California conviction of assault with a deadly weapon, in violation of Penal Code 245(a)(1), might no longer constitute a crime of moral turpitude, since: Barber is no longer good law for the proposition that 245(a)(1) categorically describes a CIMT, and that G-R- is unpersuasive and not worthy of deference on the point[, and] Carr v. INS, 86 F.3d 949 (9th Cir. 1996), is no longer good law for its holding that CPC 245(a)(2) is not a categorical CIMT; issue remanded to the BIA); overruling Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), and Carr v. INS, 86 F.3d 949 (9th Cir. 1996), and finding Matter of G-R-, 2 I. & N. Dec. 733 (BIA 1946, A.G. 1947) to be unpersuasive.

CRIMES OF MORAL TURPITUDE " SIMPLE KIDNAPPING
Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. Jan. 9, 2013) (California conviction of simple kidnapping, under Penal Code 207(a), is categorically not a crime involving moral turpitude making a noncitizen statutorily ineligible for cancellation of removal, because it does not require an intent to injure, actual injury, or a special class of victims).

CRIMES OF MORAL TURPITUDE"THREATS"CRIMINAL THREATS
Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. Feb. 17, 2012) (California conviction of criminal threats, in violation of Penal Code 422, categorically constitutes a crime involving moral turpitude, for immigration purposes, because (1) the required threatened conduct is itself a CMT; (2) the victims must suffer sustained fear; and (3) the offense is committed with intent to instill fear), compare Fernandez"Ruiz v. Gonzales, 468 F.3d 1159, 1167 (9th Cir. 2006) (Arizona a conviction for violation of ARS 13-1203, placing another person in reasonable apprehension of imminent physical injury, is not a CMT because no intent to injure is required).

CRIMES OF MORAL TURPITUDE - ASSAULT - AGGRAVATED ASSAULT
Uppal v. Holder, 576 F.3d 1014 (9th Cir. Aug. 11, 2009) (Canadian conviction of aggravated assault, in violation of Criminal Code of Canada 268(2) ("wounds, maims, disfigures, or endangers the life of" another), constituted a crime of moral turpitude, since the mens rea for assault is the intent to apply force intentionally or recklessly or being willfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm), applying Matter of Solon, 24 I. & N. Dec. 239, 242 (BIA 2007) ("[I]n the context of assault crimes, a finding of moral turpitude involves an assessment of both the state of mind and the level of harm required to complete the offense.").

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).

CRIME OF MORAL TURPITUDE " DOMESTIC VIOLENCE " CORPORAL INJURY
Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) (California conviction of corporal injury of a person with a present or former listed domestic relationship, in violation of Penal Code 273.5 is not categorically a crime of moral turpitude, because the listed relationships can cover persons such as former dates, who are not protected by domestic violence laws). NOTE: The DHS may argue that the domestic relationship is a "circumstance-specific" fact that can be proven by evidence extrinsic to the elements of the offense and extrinsic to the record of conviction, by analogy to United States v. Hayes, 555 US 415, 129 SCt 1079 (2009). Although the Ninth Circuit decision in Tokatly has not been overruled, it may be in the future. Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir 2004). See also, Nijhawan v Holder (2009) 129 SCt 2294 (loss to victim is circumstance-specific factor that need not be element of offense and may be proven by evidence outside record of conviction). Therefore, the best practice to avoid a deportable crime of domestic violence is to either plead to an offense that is not a crime of violence, or to a victim who does not have a protected relationship. However, under present law, counsel can file a motion to terminate removal proceedings if the complaint and plea colloquy do not establish that the victim is someone protected by domestic violence laws. Also, if the Service does argue Hayes, counsel can reply that while in Hayes the evidence of the relationship could be extrinisic to the original offense, it still had to be proved beyond a reasonable doubt in a criminal proceeding. The 9th Circuit addressed the difference between the two situations in Cisneros-Perez: [T]he contexts of the two decisions involve different statutory provisions, as to which the pertinent considerations are quite different: In Belless [338 F.3d 1063],the government was required to prove a second, distinct crime in the second prosecution. We concluded that the domestic aspect of a prior domestic violence conviction can be proven as an element of the second crime whether or not established by the conviction documents in the prior proceeding. Tokatly, on the other hand, involved the application of the modified categorical approach in an immigration case, such as this one, in which the inquiry is confined only to determining the nature of the prior crime. Cisneros-Perez v. Gonzales, 465 F.3d 386, 392 (9th Cir. 2006).

Lower Courts of Ninth Circuit

CAL CRIM DEF " SAFE HAVENS " MALICIOUS WITNESS DISSUASION " CRIME OF VIOLENCE " CRIMES OF MORAL TURPITUDE " REALISTIC PROBABILITY OF PROSECUTION
People v. Wahidi, 222 Cal.App.4th 802, 807, 166 Cal.Rptr.3d 416 (2d Dist. Dec. 30, 2013) (defendants request that victim and defendant settle their dispute by Islamic mediation, rather than a criminal case, was held to be both knowing and malicious, within the meaning of the malicious witness dissuasion statute, Penal Code 136.1(a)(2), even though the defendant did not demand the victim drop the charges or threaten any violence: There is no substantial evidence that Wahidi intended to vex, annoy, harm, or injure Khan when Wahidi approached Khan in the mosque. But the evidence does show that Wahidi intended to thwart or interfere in any manner with the orderly administration of justice by convincing Khan not to testify at the preliminary hearing the next day. Under the definition of malice in section 136, Wahidi maliciously attempted to dissuade Khan from testifying.") (emphasis added). Note. Under this decision, California law now defines Penal Code 136.1(a)(2) as including conduct such as a civilized request to resolve an issue according to religious belief and conscience that in no sense of the word involves an element of violence (18 U.S.C. 16(a) or by its nature creates a substantial risk of violence (18 U.S.C. 16(b)). This offense therefore does not constitute an aggravated felony crime of violence. In addition, the conduct here is not depraved, and does not involve an intent to vex, annoy, harm, or injure another. It should therefore not be considered a crime of moral turpitude. It includes conduct motivated solely by religious belief and conscience. This sufficiently establishes a realistic probability of prosecution under this statute for non-removable conduct to prevent a conviction for violating this statute from constituting an aggravated felony crime of violence or crime involving moral turpitude. Thanks to Daniel G. DeGriselles.

CRIMES OF MORAL TURPITUDE - DOMESTIC VIOLENCE
Donley v. Davi, 180 Cal.App.4th 447, 458 (Dec. 2, 2009) (California conviction for willful infliction of corporal injury on person with listed domestic relationship, under Penal Code 273.5(a), constituted crime of moral turpitude under California state law for purposes of state real estate licensing).

CAL SAFE HAVENS - ASSAULT - ELEMENTS
People v. Chance, 44 Cal.4th 1164, 189 P.3d 971 (Aug. 18, 2008) (California assault is defined as, "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another;" the term "present ability" includes situations where the "defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be immediate, in the strictest sense of that term;" the term "injury" includes "any attempt to apply physical force to the victim, and includes even injury to the victim's feelings.").

Tenth Circuit

CRIME OFMORAL TURPITUDE - INTENT TO CAUSE BODILY INJURY
Garcia v. Holder, 584 F.3d 1288 (10th Cir. Oct. 27, 2009) (Colorado conviction for third degree assault in violation of Colo.Rev.Stat. 18-3-204(1)(a) (knowingly or recklessly cause bodily injury) is not necessarily a CMT), following Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007).

Eleventh Circuit

CRIMES OF MORAL TURPITUDE " RESISTING ARREST " RESISTING AN OFFICER WITH VIOLENCE
Cano v. U.S. Attorney General, 709 F.3d 1052 (11th Cir. Feb. 15, 2013) (Florida conviction for resisting an officer with violence, in violation of Fla. Stat. 843.01 [knowingly and willfully resists, obstructs, or opposes any [officer] ... by offering or doing violence to the person of such officer], is a crime involving moral turpitude, because the offense requires intentionally offering or doing violence to the officers person); following United States v. Romo"Villalobos, 674 F.3d 1246, 1250 n.4 (11th Cir. 2012) (rejecting argument that no intent is required for the offering or doing violence element of the crime of resisting an officer with violence, in violation of Fla. Stat. 843.01); see Frey v. State, 708 So.2d 918, 919"20 (Fla.1998).

CRIMES OF MORAL TURPITUDE " RESISTING ARREST " RESISTING AN OFFICER WITH VIOLENCE
Cano v. U.S. Attorney General, ___ F.3d ___, 2013 WL 557171 (11th Cir. Feb. 15, 2013) (Florida conviction for resisting an officer with violence, in violation of Fla. Stat. 843.01 [knowingly and willfully resists, obstructs, or opposes any [officer] ... by offering or doing violence to the person of such officer], is a crime involving moral turpitude, because the offense requires intentionally offering or doing violence to the officers person); following United States v. Romo"Villalobos, 674 F.3d 1246, 1250 n.4 (11th Cir. 2012) (rejecting argument that no intent is required for the offering or doing violence element of the crime of resisting an officer with violence, in violation of Fla. Stat. 843.01); see Frey v. State, 708 So.2d 918, 919"20 (Fla.1998).

Other

DOMESTIC VIOLENCE " CALIFORNIA EXPANDED LIST OF PROTECTED RELATIONSHIP CRIME OF MORAL TURPITUDE " CORPORAL INJURY OF SPOUSE
Penal Code 273.5(a), corporal injury of a spouse, was amended to substitute a new (b), which provides a list of covered relationships, without change except adding: The offenders fianc or fiance, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in [Penal Code section 243, subdivision (f)(10). The definition of dating relationship referred to reads: Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. Because this expanded relationship, like the other listed relationships, can be current or former, without any time restriction, it makes it less likely that this offense will be considered a crime involving moral turpitude.

ARTICLE " CURRENT ELEMENTS OF THE CALIFORNIA OFFENSE OF ASSAULT WITH A DEADLY WEAPON MAY NOT BE A CRIME OF MORAL TURPITUDE
Summary In Ceron v. Holder, the BIA found petitioner deportable, holding his conviction for assault with a deadly weapon, in violation of California Penal Code 245(a)(1), is a removable offense under 8 U.S.C. 1227(a)(2)(A)(i) because it is (I) a crime involving moral turpitude (II) for which a sentence of one year or longer may be imposed. The Ninth Circuit, however, granted the petition for review, and remanded to the BIA to determine in the first instance whether California Penal Code section 245(a)(1) categorically constitutes a crime involving moral turpitude. Ceron v. Holder, ___ F.3d ___, ___ (9th Cir. Mar. 31, 2014) (en banc). Ten of the eleven justices on the en banc court signed the majority opinion, and Judge Bea alone dissented. This en banc court retained jurisdiction over any future petitions for review in this case. The court also found that California felony-misdemeanor convictions, also called wobblers, that can be either felonies (with a three-year state prison maximum) or misdemeanors (with a one-year maximum) constituted convictions for crime[s] for which a sentence of one year or longer may be imposed under 8 U.S.C. 1227(a)(2)(A)(i) since even if they were misdemeanors, the maximum penalty was incarceration for one year. Analysis Petitioner was convicted in California state court of having violated California Penal Code 245(a)(1), which proscribes an assault upon the person of another with a deadly weapon or instrument other than a firearm. The DHS issued Petitioner a notice to appear, alleging that he was removable pursuant to 8 U.S.C. 1227(a)(2)(A)(i) because he had been convicted of a crime involving moral turpitude for which a sentence of one year or longer could have been imposed. The immigration judge sustained the charge of removability and ordered Petitioner removed. The BIA issued its own decision and dismissed Petitioners appeal. The BIA held that a conviction for an assault with a deadly weapon under California Penal Code 245(a)(1) categorically constitutes a crime involving moral turpitude. The court established the proper analysis: The determination whether a conviction under a criminal statute is categorically a crime of moral turpitude involves two steps . . . . Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir. 2013) (internal quotation marks and brackets omitted). The first step is to identify the elements of the statute of conviction. Id. Because the BIA lacks expertise in identifying the elements of state statutes, we review the first step de novo. Id. The second step is to compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition. Id. Because the BIA has expertise in that task, we defer to its conclusion if warranted, following the Chevron framework if the decision is published or directly controlled by a published decision, and otherwise following the Skidmore framework. Id. (Id. at __.) The court then turned to California law to determine, de novo, the essential elements of the offense of assault with a deadly weapon under Penal Code 245(a)(1): California Penal Code section 245(a)(1) prohibits an assault upon the person of another with a deadly weapon or instrument other than a firearm. A deadly weapon or instrument is one that is used in such a manner as to be capable of producing death or great bodily injury. People v. Aguilar, 945 P.2d 1204, 1210 (Cal. 1997) (emphasis omitted). The weapon must be an object extrinsic to the human body. Bare hands or feet, therefore, cannot be deadly weapons . . . . Id. An assault does not require actual harm or even physical contact. See id. at 1207 (One may commit an assault without making actual physical contact with the person of the victim; . . . whether the victim in fact suffers any harm is immaterial.). Assault is a general intent crime. People v. Williams, 29 P.3d 197, 203 (Cal. 2001). An assault requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. Id. at 204. [A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur. Id. at 203. For example, a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery. Id. at 203 n.3. An assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Id. at 204. (Id. at ___.) Relying on two decisions from the 1950s, the BIA held that this conviction was categorically a crime involving moral turpitude. See Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), affd on other grounds, 347 U.S. 637 (1954); Matter of GR-, 2 I & N Dec. 733 (BIA 1946, A.G. 1947). The Ninth Circuit, however, pointed out that: [T]he Supreme Court announced in 1990"decades after Barber and In re G-R- were decided"the now-commonplace categorical approach to determining whether a conviction meets a federal definition. Taylor v. United States, 495 U.S. 575 (1990); see also Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010) (To determine if a crime involves moral turpitude, we first apply the categorical approach.). Relevant here, we do not look to the facts of the underlying conviction, but rather to the state statute defining the conviction. United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir. 2010). In order for a violation of the state statute to qualify [under the federal definition], the full range of conduct covered by the state statute must fall within the scope of the federal statutory provision. Id. (internal quotation marks and brackets omitted). (Id. at ___.) The Ninth Circuit concluded: The reasoning in In re G-R- and Barber runs counter to todays categorical analysis. (Id. at ___.) This was because In re G- R- examined the facts of the case concluded those facts involved moral turpitude, contrary to the current Taylor categorical analysis which ignores the facts of the case, and examines whether the full range of conduct prohibited by the statute involves moral turpitude. The earlier Ninth Circuit decision in Barber based its conclusion totally on the basis that four states other than California had concluded that their ADW offenses were crimes involving moral turpitude, but current categorical analysis ignores decisions concerning different statutes in other states. As the Ninth Circuit stated in Ceron: the fact that other state statutes with the same title qualify under the relevant federal definition does not resolve whether the state statute at hand qualifies under the federal definition, see, e.g., United States v. Kelly, 422 F.3d 889, 894"95 (9th Cir. 2005) (holding that, even though eluding statutes in three other states categorically met the federal definition of a crime of violence, the Washington statute did not categorically meet the federal definition). (Id. at ___.) The court continued: State law developments, too, have undermined the reasoning of In re G-R- and Barber. As discussed above, the California courts only recently defined with precision the requisite mental state for assault. Indeed, when In re G-R and Barber were decided, the California cases were unclear, if not contradictory, about that element of the crime. We find it implausible, at best, that the BIA in In re G-R- or we in Barber discerned the nuanced definition of the requisite mental state that the California Supreme Court announced decades later in Williams. (Id. at ___.) In addition, the Ninth Circuit overruled Carr v. INS, 86 F.3d 949 (9th Cir. 1996), which had improperly held, without following the binding Barber decision, that a violation of Penal Code 245(a) could be a crime of moral turpitude, and the later Ninth Circuit decisions following Carr. (Id. at ___ and n.2.) The Ninth Circuit found no other Ninth Circuit or BIA authority on point on this statute. Examining other BIA decisions more generally on other assault with a deadly weapon statutes, the court stated: we find guidance that points in both directions, leaving us uncertain whether a conviction under California Penal Code section 245(a)(1) categorically involves moral turpitude. (Id. at ___.) The BIA had considered a number of factors in deciding those cases, including: (1) The use of a deadly weapon argues in favor of a finding of moral turpitude. (2) The fact that the statute requires no injury at all nor even physical contact argues against a finding of moral turpitude. The BIA has held that the presence of an aggravating factor is not always dispositive. See, e.g., In re Sejas, 24 I. & N. Dec. 236, 238 (BIA 2007) (although the assault statute at issue contained an aggravating factor"assault against a member of ones family or household"the statute nevertheless was not categorically a crime involving moral turpitude because it does not require the actual infliction of physical injury and may include any touching, however slight.). On the question of the mental element required for conviction under this statute " a critical factor in any moral turpitude decision, the court stated: Perhaps most importantly, the need for, and the nature of, any aggravating factor is affected by the mental state required for the conviction. In re Solon, 24 I. & N. Dec. at 245. California Penal Code section 245(a)(1) is a general intent crime and does not require a specific intent to injure. Williams, 29 P.3d at 203. Nor does the statute require that the offender actually perceive the risk created by his or her actions. Id. The offender must commit an intentional act and must have knowledge of the circumstances that would lead a reasonable person to perceive the risk, but the offenders subjective appreciation of the risk is not required. Id. On this point, the BIAs decision in In re Medina, 15 I. & N. Dec. 611 (BIA 1976), which involved an Illinois statute criminalizing assault with a deadly weapon, is instructive. The BIA concluded that, even though the statute permitted a conviction with only a recklessness mental state, the statute nevertheless involved moral turpitude. Id. at 613"14. Crucial to the BIAs analysis, however, was that the person acting recklessly must consciously disregard a substantial and unjustifiable risk. Id. (emphasis added); see also id. at 614 (This definition of recklessness requires an actual awareness of the risk created by the criminal violators action. . . . [T]he violator must show a willingness to commit the act in disregard of the perceived risk. (emphases added)). Neither In re Medina nor any other BIA decision instructs us definitively on how the BIA would assess a statute"like California Penal Code section 245(a)(1)"that requires knowledge of the relevant facts but does not require subjective appreciation of the ordinary consequences of those facts. (Id. at ___.) The Ninth Circuit therefore held: Given the circumstances, the prudent course of action is to remand this case to the BIA to consider the issue in the first instance. (Id. at ___.) The court urged the BIA to decide the question promptly: We note, however, that a prompt decision from the BIA could help to limit the number of individuals who decide to plead guilty without proper guidance as to the immigration consequences of that decision. (Id. at ___.) In dissent, Judge Bea disagreed that the Taylor categorical analysis is applicable to crimes of moral turpitude, and instead would decide " as the BIA did here " under the weight of authority.

DOMESTIC VIOLENCE " CALIFORNIA EXPANDED LIST OF PROTECTED RELATIONSHIP CRIME OF MORAL TURPITUDE " CORPORAL INJURY OF SPOUSE
Penal Code 273.5(a), corporal injury of a spouse, was amended to substitute a new (b), which provides a list of covered relationships, without change except adding: The offenders fianc or fiance, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in [Penal Code section 243, subdivision (f)(10). The definition of dating relationship referred to reads: Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. Because this expanded relationship, like the other listed relationships, can be current or former, without any time restriction, it makes it less likely that this offense will be considered a crime involving moral turpitude.

CAL CRIM DEF " DOMESTIC VIOLENCE " CORPORAL INJURY OF A SPOUSE " CRIME OF MORAL TURPITUDE
Penal Code 273.5(a) has been amended to expand the list of persons who qualify as victims of this offense. It now includes the offender's fianc or fiance, or someone with whom the offender has or previously had, an engagement or dating relationship, as defined in Penal Code 243(f)(10). In Morales-Garcia v. Holder, 567 F.3d 1058, 1-64-1065 (9th Cir. 2009), the court considered Penal Code 273.5(a) and stated that the inclusion of former co-habitants in the list of covered victims "makes the offense virtually indistinguishable from the run-of-the-mill assault." This further weakens the argument that this offense constitutes a crime of moral turpitude, since the argument is weak that there is a special relationship of trust between the principal and this expanded class of victims.

CRIMES OF MORAL TURPITUDE"FIREARMS"POSSESSION OF AN ASSAULT WEAPON
People v. Gabriel, 203 Cal.App.4th 199, 137 Cal.Rptr.3d 382 (2d Dist. Feb. 3, 2012) (California conviction of possession of an assault weapon, in violation of Penal Code 12280(b), constituted a crime of moral turpitude, for purposes of impeachment of a witness with that conviction; Defendant's conviction of this charge required, at the least, that he should have known the weapon possessed the characteristics that made it particularly dangerous to human life. ( 12280, subd. (b); see In re Jorge M., supra, 23 Cal.4th at p. 885, 98 Cal.Rptr.2d 466, 4 P.3d 297.) We thus conclude that under Castro's least adjudicated elements test, the mere possession of such a weapon demonstrates a general readiness to do evil. (Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.)).

PRACTICE ADVISORY " CRIMES OF MORAL TURPITUDE " THREATS " FIRST AMENDMENT PROTECTION
It is possible, under some statutes criminalizing threats, for a threat to be punished even though (a) the defendant did not intend to carry out the threat, and (b) the defendant did not intend the threat to be believed. Under these circumstances it is possible the statute might punish a defendant who was merely negligent on these issues. A mental state of mere negligence is insufficient to constitute a crime of moral turpitude. A conviction does not constitute a crime of moral turpitude if the minimum intent required to commit the offense is criminal or gross negligence, defined as a lack of awareness of a substantial risk, unless the record of conviction shows noncitizen pleaded to a greater intent. Matter of Perez-Contreras, 20 I. & N. 615 (BIA 1992) (3d degree assault); Matter of Sweetser, 22 I. & N. Dec, 709 (BIA 1999) (child abuse); Matter of B, 2 I. & N. 867 (BIA 1947) (Canadian conviction for willfully damaging property not CMT, where willfully defined to include gross or wanton negligence). If the threat is not a true threat, i.e., there is no element requiring the victim to reasonably believe the threat, it may be protected under the First Amendment to the United States Constitution. The First Amendment, applicable to the States through the Fourteenth Amendment, provides that Congress shall make no law ... abridging the freedom of speech. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). While the scope of the First Amendment is broad, it does not extend to unprotected speech. Kilburn, 151 Wash.2d at 42"43, 84 P.3d 1215. True threats occupy one category of unprotected speech. Id. at 43, 84 P.3d 1215. A true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person. Id. (internal punctuation and quotation marks omitted) (quoting State v. Williams, 144 Wash.2d 197, 208"09, 26 P.3d 890 (2001)). . . . The speaker of a true threat need not actually intend to carry it out. Id. at 46, 84 P.3d 1215. It is enough that a reasonable speaker would foresee that the threat would be considered serious. Importantly, only threats that are true may be proscribed. The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole. Id. at 43, 84 P.3d 1215. We recently interpreted the bomb threat statute, RCW 9.61.160, to reach only true threats in order to save it from a constitutional challenge. State v. Johnston, 156 Wash.2d 355, 364, 127 P.3d 707 (2006). We adhere to this principle and construe the threats-to-kill provision of RCW 9A.46.020 to the same effect. State v. Schaler 169 Wash.2d 274, 283-284, 236 P.3d 858, 862-63 (Wash. 2010). Thanks to Jonathan Moore.