Simple assault[39] or assault and battery (generally[40]) do not involve moral turpitude.  In Matter of Fualaau,[41] 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.  See § 8.7, supra.

 

Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (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.");

Reyes-Morales v. Gonzales, 435 F.3d 937, 945 n.6 (8th Cir. 2006) (simple assault does not involve moral turpitude);

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 Fualaau, 21 I. & N. Dec. 475 (BIA 1996) (third-degree assault is not a crime involving 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 Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992) (Washington conviction for third-degree assault not a crime involving moral turpitude where essential elements do not include intentional or reckless conduct);

Matter of Short, 20 I. & N. Dec.136 (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 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 committed by him involved moral turpitude);

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 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).

United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933);

United States ex rel. Valenti v Karmuth, 1 F.Supp. 370 (D.N.Y. 1932) (New York misdemeanor third-degree assault by force, violence, and fear of injury not a CMT);

Griffo v. McCandless, 28 F.2d 287 (E.D.Pa. 1928) (aggravated assault and battery was not CMT, since it was not inherent in the charge and not evidenced by the record);

Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D.Mass. 1926) (under an indictment charging that the noncitizen armed with a certain dangerous weapon, to wit, a razor, did assault and beat a police officer who was in the lawful discharge of his duties did not involve moral turpitude, in the absence of a charge that the assault was made with the weapon);

United States ex rel. Morlacci v Smith, 8 F.2d 663 (D.N.Y. 1925) (assault and battery not CMT).

[39] 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).

[40] See § 9.13, supra.

[41] Matter of Fualaau, 21 I. & N. Dec. 475 at 6 (BIA 1996).

Ninth Circuit

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).

Tenth Circuit

CRIME OF MORAL TURPITUDE - ASSAULT
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).