Crimes of Moral Turpitude

(B)

BIA Analysis.  The BIA’s method for determining whether an assault or battery offense will be considered a CMT has become rather scientific – or in some ways like cooking:

To make an assault a CMT, three ingredients are necessary: intent, injury, and aggravation.  If the recipe is missing any of these three, then the offense is not a CMT.  However, just because each of these three bases is present does not necessarily mean that the offense is a CMT.  Instead, whether a CMT will be created from these three bases will depend upon the strength of each of the three bases.  One or two of the three may be weak, as long as the remaining base is strong.

Looking to the first base – there are three types of intent that may be used in the recipe (in order of strength): specific intent to cause (aggravated or minor) injury; general intent to commit an act that will result in (aggravated or minor) injury; conscious disregard of the risk in taking an act that may result in (aggravated or minor) injury.  See § § 8.9-8.18, infra, for further discussion of the varying levels of intent.

Looking to the second base – there must be proof of some sort of physical injury (or attempted injury).[1]  This must be more than a mere touching,[2] but (for purposes of this model of analysis),[3] includes relatively minor physical injuries, such as soreness from a slap or a kick.

Looking to the third base – there must be some sort of aggravating factor.  This is the broadest of the bases, and may include the use of a weapon, infliction of injury beyond that required to meet the second base, or a special victim (defined as “a person whom society views as deserving of special protection, such as a child, a domestic partner, or a police officer, because the . . . infliction of injury on such persons reflects a degenerate willingness to . . . prey on the vulnerable or to disregard . . . social duty to those who are entitled to . . . care and protection.” )[4]

In mixing these ingredients, the BIA has observed that, “as the level of conscious behavior decreases, i.e., from intentional to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude.”[5]  In finding that a conviction for third-degree assault[98] was a crime of moral turpitude, the BIA confirmed that some injury was required, established that the level of intent required by that statute was a specific intent to cause physical injury, and found that New York law required the physical injury to involve “impairment of a physical condition or substantial pain”[7] beyond that associated with simple assault (i.e., deep bruises causing pain for several days).[8]  The BIA suggests that absent the requirement of specific intent, the minimum level of physical injury required would not have been sufficient to qualify as a CMT.  Likewise, absent the (slightly) heightened level of physical injury, the requirement of specific intent would not have been enough.

[99] But see Gill v. INS, 420 F.3d 82 (2nd Cir. Aug. 18, 2005) (attempted reckless assault in violation of New York Penal Code § 120.5(4) is not a crime involving moral turpitude because no discernable mental element is present since it is impossible under New York law to "attempt" to commit an act "recklessly").

[100] See, e.g., Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006).

[101] In Matter of Solon, 23 I. & N. Dec. 239, 241-242 (BIA Jul. 25, 2007), the BIA notes that absent any injury or attempted injury there can be no CMT assault.  The BIA analysis somewhat differs from the cooking model, however, as it does not consider physical injury beyond a simple slap, but less than “serious physical injury” to be an “aggravating factor,” but rather a heightened level of injury.  The present model should be less confusing to apply.

[102] Matter of Sanudo, supra, at 972.

[103] Matter of Solon, supra, at 242.

[104] New York Penal Law § 1200(1) (2002).

[105] New York Penal Law 10.00(9).

[98] Matter of Solon, supra, at 244.