Crimes of Moral Turpitude

 

Crimes of domestic violence may or may not be considered crimes of moral turpitude.  Simple battery is not a CMT.  Battery on a spouse has sometimes been held to be a crime of moral turpitude, because a special relationship of trust exists between offender and victim, but this is not enough to constitute a CMT.  In Matter of Sanudo,[184] the BIA found that a conviction under California Penal Code § 243(e)(1), simple battery on a spouse, was not a CMT.  Although the statute clearly punished battery of a domestic nature, the minimum conduct involved only a simple touching with intent to annoy.  See § 8.7, supra.

 

Additionally a DV assault statute may apply not only to spouses, but also to wider domestic relationships, such as “former spouse, cohabitant, former cohabitant, or the mother or father of his or her child . . . .”[185]  The record of conviction may not establish the exact nature of the relationship sufficient to bring the case within the CMT portion of the statute, and therefore may not establish grounds for removal.

 

            While domestic battery offenses are often considered CMT, sometimes the fact necessary to allow the court to consider the offense to be an offense of domestic or family violence is not contained within the record of conviction:[186]

 

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 Matter of 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.”).[187]

 

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.[188]

 

Domestic assault.

 

Matter of Sejas, 24 I. & N. Dec. 236 (BIA 2007) (Virginia conviction of assault and battery on a family or household member in violation of Virginia Code § 18.2-57.2 is not necessarily 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 additional element of the domestic relationship is insufficient to convert a non-CMT simple assault conviction into a crime of moral turpitude);

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), 8 U.S.C. § 1227(a)(2)(A)(ii), since mere touching is sufficient, and no violence, injury, or intent to injure are required to commit the offense);

Medina v. United States, 259 F.3d 220 (4th Cir. 2001) (conviction of misdemeanor assault against former fiancee, in violation of Virginia Code § 18.2-57 [“any bodily hurt, however slight, done to another in any angry, rude or vengeful manner”], after indictment in Virginia for attempted rape, sexual battery, burglary, petit larceny, and simple assault and battery, might have constituted crime involving moral turpitude);

Dalis v. Brady, 766 F.Supp. 901 (D. Colo. 1991) (felonious assault for shooting at wife and her son was crime of moral turpitude);

Matter of Tran, 21 I. & N. Dec. 291 (BIA 1996) (finding that a conviction for assault with the intent to harm a spouse or child is a crime involving moral turpitude).

 

Spousal abuse.

 

Grageda v. INS, 12 F.3d 919 (9th Cir. 1993) (conviction for willful infliction of injury upon a spouse under California Penal Code § 273.5(a) was offense of moral turpitude);

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).

 

            Abuse of a cohabitant or parent of the offender’s child.

 

Matter of Tran, 21 I. & N. Dec. 291 (BIA 1996).

[184] Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006).

[185] E.g., California Penal Code § 273.5.

[186] Cf. 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 8 U.S.C. § 1227(a)(2)(E)(i), for deportation purposes, since the statutes of conviction do not require proof of a domestic relationship in order to convict).

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

[188] Ibid. (footnotes omitted).