Criminal Defense of Immigrants


§ 22.6 (C)

Skip to § 22.

For more text, click "Next Page>"

(C)  Crimes of Moral Turpitude.  Crimes of domestic violence may or may not be considered crimes of moral turpitude.  The same is true for other offenses listed under this ground of deportation: stalking and child abuse offenses may or may not also be crimes involving moral turpitude.  Certain DV convictions, with certain records of conviction, may therefore cause inadmissibility or deportability under the CMT grounds.  See Chapter 20, supra.


                In 2006 the Ninth Circuit addressed whether domestic violence offenses are crimes involving moral turpitude in Galeana-Mendoza v. Gonzales[20] and Fernandez-Ruiz v. Gonzales (panel decision on remand from the court en banc), [21] while the BIA considered the issue in Matter of Sanudo.[22]


In Galeana-Mendoza v. Gonzales and Matter of Sanudo, the Ninth Circuit and BIA considered whether spousal battery under California Penal Code § 243(e) is a crime involving moral turpitude.  The Ninth Circuit found that because the statute does not require the intent to injure as an essential element, and there is no requirement that any injury be inflicted, this offense does not involve grave acts of baseness or depravity sufficient to meet the moral turpitude definition.  Similarly, the BIA found that this offense cannot involve moral turpitude based on the use of force alone, because the minimal conduct sufficient to commit the offense requires only intentional touching without consent does not require any actual violence, injury, or intent to injure the victim.


                In Fernandez-Ruiz v. Gonzales, the Ninth Circuit considered whether an Arizona conviction of misdemeanor domestic assault[23] is a crime involving moral turpitude.  The court held that none of the three subsections within the Arizona simple assault statute categorically involves moral turpitude.[24]  The court reasoned that the statute does not require a willful or intentional act and that the involvement of reckless conduct does not suffice because under Arizona law it is not purposeful.  The court also found that subsection (A)(3), criminalizing the knowing touching of another person with intent to insult or provoke, did not rise to the level of being inherently base or vile since a husband who inadvisedly pats his wife on the rear end and says, “You could stand to lose a little weight, fatso,” could fall under that section.


                These decisions rejected the argument that the offenses at issue should be held to involve moral turpitude based merely on the fact that they were committed against a person who is in a class deserving of special protection, i.e., one who has a current or former domestic relationship with the defendant.  The Ninth Circuit distinguished its decisions in Grageda v. INS and Guerrero de Nodahl v. INS, which held that corporal injury upon a spouse resulting in a traumatic condition[25] is a crime involving moral turpitude.[26]  In Grageda, the Ninth Circuit emphasized the combination of the elements of the seriousness of the assault with the relationship of trust and dependence that one has with a spouse, finding that when a person “willfully beats his or her spouse severely enough to cause ‘a traumatic condition,’ he or she has committed an act of baseness or depravity contrary to accepted moral standards.”[27]  The BIA concurred in Matter of Tran, noting that the “test to determine whether a crime involves moral turpitude is if the act is accompanied by a vicious motive or a corrupt mind.”[28]


                Although a conviction of simple battery on a spouse is not categorically a crime involving moral turpitude, both the Ninth Circuit and BIA held that under the modified categorical approach, the court could still find that it involves moral turpitude if the record of conviction establishes that there is an actual intent and significant injury against a person with whom the defendant has a domestic relationship.  Notably, however, in Galeana-Mendoza, the Ninth Circuit found that language in the count of conviction that the defendant “committed battery against the mother of his children using ‘force and violence’” was not sufficient to establish it involved moral turpitude.[29]  The court held that the words “force and violence” under California battery law have a different meaning and require only the slightest touching.  While Galeana-Mendoza establishes that the court can sometimes look to the record of conviction under these circumstances, counsel should argue that it cannot do so for the offense of battery since battery is not actually a divisible statute.  See § 16.10, supra.


                While domestic battery offenses are often considered CMTs, sometimes the facts necessary to allow the court to consider the offense to be an offense of domestic or family violence are not contained within the record of conviction.


The INS – which is statutorily authorized to administer the immigration laws and determine what constitutes a CMT – has, in the past several years, taken steps to assert that crimes of assault upon victims that have a “special relationship” with the assaulter may be a CMT.  See In re Tran, 21 I. & N. Dec. 291, 292-293 (BIA 1996) (concluding that acts of violence against someone in a special relationship with the assaulter is “different from [assault] between strangers or acquaintances,” and is a CMT); Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993) (holding that spousal abuse is a CMT); Toutounjian v. INS, 959 F.Supp. 598, 603 (W.D.N.Y. 1997) (“[S]exual or physical abuse of women or children has been almost uniformly found to involve a crime of moral turpitude.”).[30]


Medina strenuously contends, however, that this fact is irrelevant since (1) it was not an element of the offense of conviction (as in Tran and Grageda) and (2) his special relationship with the victim was mentioned nowhere in the record of conviction; indeed, Adaway [the INS agent] was aware of Medina’s relationship with his exfiancee only as a result of the newspaper article.  We acknowledge authority in support of Medina’s stance, see, e.g., Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (holding that the “particular family relationship allegedly involved in the crimes” was not relevant since it was not included in the record of conviction), but the INS certainly had the discretion to assert otherwise.  Indeed, there are significant and persuasive legal bases for the INS to take such a position.[31]


In a jurisdiction which enforces the record of conviction limitation, such as the Ninth Circuit, a conviction will not be held to be deportable under this ground or as a crime involving moral turpitude where the record does not establish the protected relationship.[32]


                The assumption that betrayal of trust is more profound when violence occurs between spouses breaks down when the domestic violence protections are extended very broadly to someone with whom the relationship is so attenuated as someone the defendant used to date even once years ago.  Under those circumstances, the immigration courts should be encouraged to re-examine and reject the assumption that domestic violence always involves moral turpitude.


                In the meantime, however, criminal counsel must assume that a conviction of domestic violence will often be considered a crime of moral turpitude for immigration purposes, always analyze the conviction to see whether that is true, and ascertain the immigration consequences if it is.

[20] Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006)

[21] Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006).

[22] Matter of Sanudo, 23 I. & N. Dec. 968 (BIA 2006)

[23] Ariz.R.S. § § 13-1203(A) and 13-3601(A).

[24] Ariz.R.S. § 13-1203(A)(1) criminalizes “intentionally, knowingly or recklessly causing any physical injury to another person,” section (A)(2) criminalizes “intentionally placing another person in reasonable apprehension of imminent physical injury” and A.R.S. § 13-1203(A)(3) criminalizes “knowingly touching another person with the intent to injure, insult or provoke such person.” 

[25] California Penal Code § 273.5.

[26] Grageda v. INS, 12 F.3d 919 (9th Cir. 1993); Guerrero de Nodahl v. INS, 407 F.2d 1405 (9th Cir. 1969).

[27] Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993).

[28] Matter of Tran, 21 I. & N. Dec 291 (BIA 1996) (all acts covered by California Penal Code § 273.5, including assault against a co-habitant, involve moral turpitude, relying on Grageda).

[29] Galeana-Mendoza, supra, 465 F.3d at 1062.

[30] Medina v. United States, 259 F.3d 220, 228 (4th Cir. 2001).

[31] Ibid. (footnotes omitted).

[32] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Oregon convictions of First Degree Burglary and Attempted First Degree Kidnapping, in violation of Or. Rev. Stat. § § 163.225, 163.235, found not to be “crimes of domestic violence,” under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), for deportation purposes, since there was no evidence in the record of conviction that victim was protected person under that statute, and Immigration Judge was precluded from relying upon testimony adduced at removal hearing, including admissions by respondent).