Criminal Defense of Immigrants

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).