Aggravated assault is sometimes held to involve moral turpitude.[42]  See § 8.7, supra.  In this context, “aggravated” simply means that some element of proof is required to convict beyond that involved in a “simple assault,” such as use of a weapon, a protected victim, or a higher level of injury.  See § 9.13, supra.  It is irrelevant whether it is labeled “aggravated assault” by the convicting jurisdiction.[43]     

 

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 both the specific intent to cause physical injury, and that such injury actually occur [causing substantial pain] occurs);

Sosa-Martinez v. U.S. Atty. Gen., 420 F.3d 1338 (11th Cir. Aug. 22, 2005) (aggravated battery, in violation of Fla. Stat. Ann. § 784.045, is a conviction for a crime involving moral turpitude for immigration purposes);

Nguyen v. Reno, 211 F.3d 692 (1st Cir. 2000) (Connecticut conviction of second-degree assault, in violation of Connecticut General Statutes § 53(a)(60), was a crime of moral turpitude, since the statute required the aggravating element that the defendant intended to cause, and did cause, “serious physical injury,” defined as a physical injury creating a substantial risk of death, or causing serious disfigurement, serious impairment of health, or serious loss or impairment of function of a bodily organ);

Pichardo v. INS, 104 F.3d 756 (5th Cir. 1997) (conviction for aggravated assault, under 18 Pa.Cons.Stat. § 2702, involved moral turpitude, since each of the four subdivisions of the statute involved moral turpitude, because each subdivision required as an essential element either intentional use of a deadly weapon, or commission of bodily injury together with a minimum mens rea of recklessness);

Matter of Medina, 15 I. & N. Dec. 611, 613-614 (BIA 1976) (Illinois conviction of aggravated assault under Chapter 38, § 12-2(a)(1) of the Illinois Revised Statutes, held to be CMT, overruling previous decisions holding that criminally reckless conduct does not necessarily involve moral turpitude, Matter of Szegedi, 10 I. & N. Dec. 28 (BIA 1962); see Matter of Gantus-Bobadilla, 13 I. & N. Dec. 777 at 778 (BIA 1971), overruled by Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994), and concluding that moral turpitude can lie in criminally reckless conduct, where the actor must consciously disregard a substantial and unjustifiable risk, and such disregard must constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation);

Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974) (conviction in the Virgin Islands of assault in the third degree in violation of 14 V.I.C. § 297 (1964), as amended (Supp. 1973), held to be a crime involving moral turpitude, notwithstanding the statute under which the conviction occurred contains five different subdivisions and the judgment of conviction does not specify under which subdivision the conviction is based, since all five subdivisions involve moral turpitude);

Matter of O, 3 I. & N. Dec. 193 (BIA 1948) (Connecticut conviction of aggravated assault in violation of § 6195 of the General Statutes of Connecticut constituted CMT since an assault aggravated by the use of a dangerous or deadly weapon is contrary to accepted standards of morality in a civilized society).

 

            Assault with reckless intent can constitute a CMT. 

 

Matter of Wojtkow, 18 I. & N. Dec. 111 (BIA 1981) (New York conviction of second-degree manslaughter constitutes a crime involving moral turpitude because an essential element is recklessness);

Matter of Medina, 15 I. & N. Dec. 611 (BIA 1976) (Illinois conviction under Chapter 38, § 12-2(a)(1) of the Illinois Revised Statutes, of aggravated assault was crime of moral turpitude because an essential element required criminally reckless conduct), aff’d sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977).

 

 

            Assault with intent to do great bodily harm constitutes a CMT.[44]

 

Matter of P, 3 I. & N. Dec. 5 (BIA 1947) (conviction of assault with intent to do great bodily harm under Michigan Penal Code § 28.279, title 28, Chapter 286(a), involves moral turpitude).

 

Assault with intent to harm a spouse or child may or may not constitute a CMT, depending upon the minimum conduct.  See also § 9.93, infra.

 

Matter of Sejas, 24 I. & N. Dec. 236 (BIA Jul. 25, 2007) (Virginia conviction of assault and battery against a family or household member in violation of Virginia Code § 18.2-57.2 is not categorically a crime involving moral turpitude).

Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (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 offense can be committed by "physical contacts that result in the most minor of injuries ");

Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (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);

Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006) (California conviction of domestic battery in violation of Penal Code § § 242 and 243(e)(1) does not qualify categorically as a conviction for a “crime involving moral turpitude” within the meaning of INA § 237(a)(2)(A)(ii), since mere touching is sufficient, and no violence, injury, or intent to injure are required to commit the offense);

Matter of Tran, 21 I. & N. Dec. 291 (BIA 1996) (willful infliction of corporal injury on a spouse, cohabitant, or parent of the perpetrator’s child, in violation of California Penal Code § 273.5(a) constitutes a crime involving moral turpitude);

Grageda v. INS, 12 F.3d 919 (9th Cir. Dec. 28, 1993) (California conviction of corporal injury of spouse, in violation of Penal Code § 273.5(a), constituted crime of moral turpitude, because the statute required intent to cause injuries that were more than insubstantial).

Matter of Nodahl, 12 I. & N. Dec. 338 (BIA 1967) (conviction of inflicting upon a child a corporal injury resulting in a traumatic condition, in violation of California Penal Code § 273(d), constitutes a crime involving moral turpitude).

 

Indecent assault constitutes a CMT. [45]

 

Maghsoudi v. INS, 181 F.3d 8 (1st Cir. 1999) (Massachusetts conviction for indecent assault and battery on a person 14 years old or older, under Mass. Gen. Laws ch. 265, § 13H, was for a crime involving moral turpitude);

Gouveia v. INS, 980 F.2d 814 (9th Cir. 1992) (indecent assault and battery of child under 14 held CMT);

Marinelli v. Ryan, 285 F.2d 474 (2d Cir. 1961) (Connecticut conviction of indecent assault, under § 53-217 General Statutes, of mature male for touching a boy under 16 with sexual intent was a crime involving moral turpitude);

Fitzgerald v. Landon, 238 F.2d 864 (1st Cir. 1956) (conviction of indecent assault and battery of a female child under 14 held CMT);

Matter of Z, 7 I. & N. Dec. 253 (BIA 1956) (conviction of indecent assault in violation of § 6052 of the General Statutes of Connecticut, Revision of 1930, is a crime involving moral turpitude);

Matter of S, 5 I. & N. Dec. 686 (BIA 1954) (conviction for indecent assault under Canada Criminal Code § 292(a) involves moral turpitude);

Matter of B, 3 I. & N. Dec. 1 (BIA 1947) (conviction of indecent assault upon a female without her consent, under Canada Criminal Code § 292(b), involves moral turpitude).

 

Similar offenses may also be classified as attempted rape, § 9.103, carnal abuse, § 9.104, or homosexual advance, § 9.100.  See those sections for additional decisions.

 

Assault by means of force likely to produce great bodily injury.

 

Matter of R, 1 I. & N. Dec. 352 (BIA 1942) (assault in California by means of force likely to produce great bodily injury, by striking, hitting, and beating the person assaulted upon the head with a glass milk bottle, involves moral turpitude).

 

            Conviction of the offense of bodily injury, however, in violation of German Criminal Code § 223(a) by assault with a knife (when allegedly attacked by three persons), was not equivalent to assault with a dangerous weapon in United States law, since malice is not a requirement of the crime, but is in fact simple assault and does not involve moral turpitude.[46]

 

Assault with a dangerous or deadly weapon, with a specific or reckless intent to inflict bodily injury, constitutes a CMT.  For purposes of consular processing, the State Department has listed as a crime involving moral turpitude:

 

Assault with a dangerous or deadly weapon.  (Some weapons may be found to be lethal as a matter of law, while others may or may not be found factually to be such depending upon all the circumstances in the case.  Such circumstances may include, but are not limited to, the size of the weapon, the manner of its use, and the nature and extent of injuries inflicted.)[47]

 

Membreno v. Ashcroft, 385 F.3d 1245 (9th Cir. Oct. 19, 2004) (California conviction of assault with a firearm, in violation of Penal Code § 245(a)(2), constituted a crime of moral turpitude);

Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001) (District of Columbia conviction for assault with a dangerous weapon was crime of moral turpitude, since the offense included as an essential element the use of a weapon that was likely to produce death or serious bodily injury) (alternative holding);

Lopez-Mendez v. INS, 187 F.3d 642 (8th Cir. 1999) (Table) (Nebraska conviction of second-degree assault under Neb.Rev.Stat. Ann. § 28-309 (Michie 1995), intentionally or knowingly causing bodily injury to another person with dangerous instrument, or recklessly causing serious bodily injury to another person with dangerous instrument, held a crime of moral turpitude);

Castillo v. INS, 91 F.3d 150 (9th Cir. 1996) (Table) (conviction of assault with a deadly weapon in violation of California Penal Code § 245(A)(1) is a crime involving moral turpitude); see also Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), cert. den., 346 U.S. 914, 74 S.Ct. 274, 98 L.Ed. 410 (1953) (same);

Thomas v. INS, 976 F.2d 786 (1st Cir. 1992) (assault and battery with a dangerous weapon in Massachusetts held CMT);

Guerrero de Nodahl v. INS, 407 F.2d 1405 (9th Cir. 1969) (inflicting traumatic corporal injury on child held CMT);

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

United States ex rel. Ciccerelli v Curran, 12 F.2d 394 (2d Cir. 1926);

Weedin v. Yamada, 4 F.2d 455 (9th Cir. 1925) (assault with a deadly weapon, with an intent to inflict bodily injury upon another, where no considerable provocation appears, or where the circumstances of the assault show a willful, malignant, and abandoned heart, was held to involve moral turpitude);

Puig y Garcia v. Murff, 168 F.Supp. 890 (D.N.Y. 1958);

United States ex rel. Pellegrino v Karnuth, 23 F.Supp. 688 (D.N.Y. 1938);

Ciambelli ex rel. Maranci v Johnson, 12 F.2d 465 (D.Mass. 1926) (Massachusetts conviction of assault and battery on an officer in the lawful discharge of his duties was held not to constitute a crime involving moral turpitude, where the defendant hit an officer while he was trying to stop a fight in a restaurant, but it was not charged that the assault was made with the dangerous weapon); 

United States ex rel. Morlacci v. Smith, 8 F.2d 663, 664 (W.D.N.Y. 1925) (“Mere assault and battery  . . . does not involve such a degree of depravity, but an assault with a dangerous weapon, in this case a revolver, and shooting the person, is simply an act . . . contrary to good morals and proper conduct”);

Matter of Danesh, 19 I. & N. Dec. 669 (BIA 1988) (aggravated assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime of moral turpitude);

Matter of Logan, 17 I. & N. Dec. 367, 368 (BIA 1980) (conviction of interference with government officer held CMT where record of conviction established defendant used deadly physical force by pulling a knife);

Matter of Ptasi, 12 I. & N. Dec. 790 (BIA 1968);

Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (conviction of assault in the second degree (by the use of a knife), in violation of New York Penal Law § 242(4), is conviction of a crime involving moral turpitude);

Matter of S, 8 I. & N. Dec. 344 (BIA 1959) (Minnesota conviction of carrying concealed weapon (loaded revolver) with intent to use it on another person held CMT);

Matter of P, 7 I. & N. Dec. 376 (BIA 1956) (atrocious assault and battery, i.e., maiming or wounding by assault and battery, in violation of New Jersey Statutes Annotated, Chapter 90, § 2A: 90-1, is a crime involving moral turpitude);

Matter of S, 5 I. & N. Dec. 668 (BIA 1954) (conviction of assault, second degree, with a .38-caliber revolver, in violation of § 2414(4) of Remington’s Revised Statutes of Washington (1932), is a conviction of a crime involving moral turpitude, since a criminal intent to inflict bodily injury is implicit in the act of making an assault on another with a .38-caliber revolver);

Matter of Z, 5 I. & N. Dec. 383 (BIA 1953) (New York conviction of second-degree assault charged as being accomplished “with force and arms . . . did make an assault on another person with a knife” held to be crime of moral turpitude since the offense required a specific criminal intent to inflict bodily injury);

Matter of Z, 5 I. & N. Dec. 383 (BIA 1953) (conviction of second-degree assault, with evil (criminal) intent, in violation of New York Penal Law § 242(4) – punishing one who willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm – is a crime involving moral turpitude). 

Matter of J, 4 I. & N. Dec. 512 (BIA 1951) (assault and battery with a dangerous weapon in violation of Chapter 265, § 15A of the Annotated Laws of Massachusetts involves moral turpitude not only in view of the definition of “dangerous weapon” by the Massachusetts courts but also on the basis of the conviction for an offense involving evil intent as shown by the use of the dangerous weapon involved);

Matter of O, 3 I. & N. Dec. 193 (BIA 1948) (conviction of assault with an unspecified deadly and dangerous weapon in violation of § 6195 of the General Statutes of Connecticut, involves moral turpitude), overruling Matter of Z, 1 I. & N. Dec. 446 (BIA 1943);

Matter of P, 3 I. & N. Dec. 5 (BIA, AG 1947) (assault with a deadly weapon);

Matter of GR, 2 I. & N. Dec. 733 (BIA, AG 1946) (conviction of assault with a deadly weapon in violation of California Penal Code § 245 is a crime involving moral turpitude);

Matter of N, 2 I. & N. Dec. 201 (BIA 1944) (conviction of assault and battery with a dangerous weapon held to involve moral turpitude, where the dangerous character of the weapon is shown (a razor) and the intent to injure is clearly present, no other conclusion can be reached but that moral turpitude inheres in this crime of battery, as well as assault with a dangerous weapon, upon the victim);

Matter of R, 1 I. & N. Dec. 209 (BIA 1942) (assault with a deadly weapon with intent to do bodily harm in violation of § 103-7-6 of the Revised Statutes of Utah is a crime involving moral turpitude, since the offense requires as an essential element an intent to inflict a bodily injury upon another person, where no considerable provocation appears, or where the circumstances of the assault show a willful, malignant, and abandoned heart).

 

Assault with a dangerous or deadly weapon with no requirement of intent to inflict injury or reckless conduct does NOT constitute a CMT. 

 

Carr v. INS, 86 F.3d 949 (9th Cir. 1996) (Washington conviction of assault with a deadly weapon held not to be a crime involving moral turpitude); 

United States ex rel. Ciarello v. Reimer, 32 F.Supp. 797 (D.N.Y. 1940) (Italian conviction of assault and battery by 16-year-old with stone resulting in injury held not CMT).

 

The BIA formerly held that the intent to inflict bodily injury was implicit in a conviction for assault with a deadly weapon.[48]  This holding has been overruled.[49] 

 

Assault with unknown weapon does NOT involve moral turpitude.

 

Matter of B, 1 I. & N. Dec. 52 (BIA, AG 1941) (second-degree assault in violation of § 10098, Mason’s Minnesota Statutes (1927), does not involve moral turpitude if the charge of conviction charged that the assault was committed with an unknown weapon, since the weapon could not be found from the record of conviction to be dangerous so as to qualify the offense as one involving moral turpitude).

 

Assault on an officer is NOT necessarily a crime involving moral turpitude, especially where no aggravating factors are present. 

 

Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. Feb. 5, 2008) (Illinois conviction of "aggravated battery of a police officer," in violation of 720 ILCS 5/12-4(b)(6), is not categorically a crime involving moral turpitude, because the minimum conduct includes spitting on a police officer and other de minimus conduct);

Partyka v. Atty. Gen., 417 F.3d 408 (3d Cir. Aug. 11, 2005) (aggravated assault on a law enforcement officer in the third degree, in violation of N.J. Stat. Ann. § 2C:12-1b(5)(a), is not necessarily a crime of moral turpitude, where the statute may be committed with negligent intent);

United States ex rel. Zaffarano v Corsi, 63 F.2d 757 (2d Cir. 1933) (New York conviction for second-degree assault was held not to be a crime involving moral turpitude where the person could be convicted for putting forth the mildest form of intentional resistance against an officer attempting to serve lawful process, levy an execution on goods, or apprehend or detain the accused or another, and that such conduct, though usually meriting punishment more severe than that prescribed for a simple assault upon a private person not acting in an official capacity, does not necessarily denote moral depravity);

Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass. 1926) (Massachusetts conviction of assault and battery on an officer in the lawful discharge of his duties was held not to constitute a crime involving moral turpitude, where the defendant hit an officer while he was trying to stop a fight in a restaurant, but it was not charged that the assault was made with the dangerous weapon); 

Matter of B, 5 I. & N. Dec. 538 (BIA 1953) (Massachusetts simple assault conviction held not CMT, though committed upon a police officer in attempting to aid a prisoner in escaping from jail);

Matter of O, 4 I. & N. Dec. 301 (BIA 1951) (conviction of participation in riot in violation of § 115 of the German Criminal Code, accompanied by an assault on an official in the lawful exercise of his office in violation of § 113 of such code, does not involve moral turpitude, because knowledge that the person assaulted was a police officer is not necessarily an element of the offense). 

 

Aggravated assault on an officer is a CMT.

 

Matter of Danesh, 19 I. & N. Dec. 669 (BIA 1988) (aggravated assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime of moral turpitude);

Matter of Logan, 17 I. & N. Dec. 367 (BIA 1980) (interfering with a law enforcement officer by knowingly threatening to employ deadly physical force, by pulling a knife on a law enforcement officer engaged in the performance of his official duties, in violation of Arkansas Statute 41-2804, is analogous to assault, and where the record of conviction established the use of “deadly physical force by pulling a knife” in violation of Arkansas Statute 41-2804(2)(i), the crime was one involving moral turpitude).

[42] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(3).

[43] Cf. Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994).

[44] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(3)(d).

[45] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(3)(b) (assault with intent to commit rape).

[46] Matter of J, 4 I. & N. Dec. 26 (BIA 1950).

[47] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(3)(e).

[48] Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974) (assault involving serious bodily injury, Virgin Islands, where respondent testified at deportation hearing that victim was struck with partly full beer bottle, convicted of felony); Matter of Ptasi, 12 I. & N. Dec. 790 (BIA 1968) (Connecticut); Matter of S, 5 I. & N. Dec. 668 (BIA 1954); Matter of Z, 5 I. & N. Dec. 383 (BIA 1953) (aggravated assault with deadly or dangerous weapon, in violation of § 6195, General

Statutes of Connecticut, does not involve moral turpitude, since no criminal intent is required); Matter of O, 3 I. & N. Dec. 193 (BIA 1948); Matter of N, 2 I. & N. Dec. 201 (BIA 1944).  Cf. Mazzillo v. Day, 15 F.2d 391 (S.D.N.Y. 1926) (New York second-degree assault committed with the intention of ousting persons from the possession of their property, so the trespasser could use the same for his own enjoyment, and to the danger of the community, constituted CMT). 

[49] See Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992) (holding assault resulting in great bodily harm does not automatically involve moral turpitude, without regard to the existence of intentional conduct or the conscious disregard of a substantial and unjustifiable risk); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (holding assault with intent to commit a felony is not per se a crime involving moral turpitude unless the underlying felony intended to be committed involves moral turpitude).

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).

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).

Ninth Circuit

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 - 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.").

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).