BAKER
This is an appeal from the November 15, 1972 decision of thе immigration judge in which he found the respondent deportable as charged and ineligible for any discretionary relief. The immigration judge ordered that the respondent be deported to Montserrat, British West Indies. The appeal will be dismissed.
The alien respondent, a native of Montserrat, British West Indies, and a citizen of Great Britain, last entered the United States on Sеptember 12, 1970. He was convicted in the Virgin Islands, on a plea of not guilty, of assault in the third degree, committed on June 3, 1972, and was sentenced to two and one-half years imprisonment. Section 241(a) of the Immigration and Nationality Act provides, in pertinent part: “Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who— . . . (4) is convictеd of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more . . . .”
Crimes involving moral turpitude have been described as crimes which shock the public conscience; crimes of violence, inherent baseness, vileness, or depravity. U.S. ex rel. DeGeorge v. Jordan, 183 F.2d 768 (C.A. 7, 1950), reversed 341 U.S. 223 (1951); U.S. ex rel. Manzella v. Zimmerman, 71 F. Supp. 534, 537 (E.D. Pa., 1947). “It is the inherent nature of the crime as defined by the statute or interpreted by the courts and as limited and described by the record of conviction which determines whether the offense is one involving moral turpitude.” Matter of H—, 7 I. & N. Dec. 616, 618 (BIA 1957).
The respondent was convicted of assault in the third degree, pursuant to
Whoever, under circumstances not amounting to an assault in the first or second degree—
(1) assaults another person with intent to commit a felony;
(2) assaults another with a deadly weapon;
(3) assaults another with premeditated design and by use of means calculated to inflict great bodily harm;
(4) assaults another and inflicts serious bodily injury upon the person assaulted; or
whoever under any circumstances; [sic]
(5) assaults a peace officer in the lawful discharge of the duties of his office with a weapon of any kind, if it was known or declared to the defendant that the person assaulted was a peace officer discharging an official duty;— shall be fined not more than $500 or imprisoned not more than 5 years or both.
Although the conviction record does not mention the use of a weapon, the respondent stated at the deportation hearing that he had used a partly full beer bottle, from which he had been drinking, to strike the victim. Transcript, pp. 7-8. A glass bottle can be a dangerous weapon. See Matter of R—, 1 I. & N. Dec. 353 (BIA 1942).
Simple assault is nоt considered to be a crime involving moral turpitude. U.S. ex. rel. Zaffarano v. Corsi, 63 F.2d 757, 758 (C.A. 2, 1933); Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass., 1926); Matter of B—, 5 I. & N. Dec. 538 (BIA 1953).
We, therefore, agree with the conclusion of the immigration judge that the respondent was convicted of a crime involving moral turpitude.
ORDER: The appeal is dismissed.
Louisa Wilson, Member, Dissenting:
I respectfully dissent.
The mаjority has correctly stated the facts and the issue of this case. However, I must reject the conclusion drawn and the reasoning leading to that conclusion. It does not seem to me that the Immigration and Naturalization Service has established by evidence which is clear, convincing, and unequivocal that the respondent has been convicted of а crime involving moral turpitude. Therefore, the appeal should be sustained and the proceedings terminated.
Matter of H—, 7 I. & N. Dec. 616 (BIA 1957), quoted in the majority opinion, states the following: “It is the inherent nature of the crime as defined by the statute or interpreted by the courts and as limited and described by the record of conviction which determines whether the offense is one involving moral turpitude.” (Emphasis supplied.) Id. at 618.
In the information it is alleged that the respondent “did, with intent to commit mayhem, assault one [name of person assaulted] by cutting him on the chest and wrist, causing serious bodily injury, in violation of Title
Thus, the statute in question includes at least one offense which does not necessarily involve moral turpitude. If a statute includes offenses in which moral turpitude does not necessarily inhere, and if it is not clear from the conviction record under which subsection the respondent was convicted, then the respondent is not deportable, even though in the particular instance his conduct may have been immoral. Ablett v. Brownell, 240 F.2d 625, 627 (D.C. Cir., 1957); U.S. ex rel. Robinson v. Day, 51 F.2d 1022 (C.A. 2, 1931); U.S. ex rel. Mylius v. Uhl, supra, note 2; Forbes v. Brownell, 149 F. Supp. 848, 850-51 (D. D.C., 1957); Matter of N—, 8 I. & N. Dec. 466 (BIA 1959).
Without distinguishing or even mentioning the above-cited decisions,
The majority states that the crime of which the respondent was convicted was “more serious than a simple assault and battery.” This may be true, but moral turpitude is found in the intent with which a crime is committed, not in the “seriousness” of that crime. As pointed out above, the respondent appears to have been convicted under subsection (4) of the third degree assault statute. That subsection does not require any intent to injure beyond that required for any assault, including simple assault, which is not considered to be a crime involving moral turpitude. U.S. ex rel. Zaffarano v. Corsi; Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass., 1926); Matter of B—, 5 I. & N. Dec. 538 (BIA 1953); Matter of E—, 1 I. & N. Dec. 505, 507 (BIA 1943); U.S. ex rel. Moracci v. Smith, 8 F.2d 663 (W.D. N.Y., 1925).
While subsection (4) is included in the same statute with other crimes, some of which probably do involve moral turpitude (because of the stated specific intent and the use of means calculated to inflict great bodily harm or because of the intent inferred from the use of a dangerous weapon), аnd while this may indeed show that the legislature considered all of these crimes to be of comparable “seriousness” and of greater “seriousness” than simple assault and battery, it cannot be assumed that the added seriousness results from the presence of moral turpitude. It often happens that one statute includes both crimes which do involve moral turрitude and crimes which do not. When that occurs, since the burden to prove deportability is upon the Service, we must take the case in the light most favorable to the respondent and assume that he was convicted of a crime that does not involve moral turpitude, Matter of Lopez, supra, at 727; Matter of Espinosa, 10 I. & N. Dec. 98, 100 (BIA 1962). This the majority has not done.
The immigration judge states in his opinion that “assault of an aggravated nature with the use of a deadly or dangerous weapon and with the intent to inflict bodily harm is a crime involving moral turpitude.” Decision of the immigration judge, pp. 2-3. This is true. But it is not stated in the conviction record that the respondent was convicted of such an assault.
Accordingly, it does not appear to me that the crime of which the respondent was convicted necessarily invоlves moral turpitude. Reading the statute at its minimum, we must conclude that the respondent is not deportable as charged.
The appeal should be sustained and the proceedings terminated.
Maurice A. Roberts, Chairman, Dissenting:
I join in the foregoing dissenting opinion.
The decision reached by the majority represents, in my view, an example of result-oriented decision-making. The unarticulated premise of the majority opiniоn seems to be that a person like the respondent, who has received a two and a half year sentence for a serious crime, is a bad person who should be deported. Not every serious crime, however, necessarily involves moral turpitude or calls for deportation.
No alien may be deported unless he clearly fits within one of the categories of deportable aliens specified by Congress. In determining whether an alien comes within any of those classes, certain well-defined principles have emerged through the years. Unless the alien is found to be within one of the deportable classes in the light of those principles, his deportation may not be ordered, no matter how unworthy or bad or immoral we may personally think him to be. We are bound to apply the rule of law.
Deportation statutes, because of their drastic consequences, must be strictly construed, Barber v. Gonzales, 347 U.S. 637, 642-643 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). In
Whether or not a particular offense involves moral turpitude depends upon the ingredients of the crime, the elements which must be proved to establish guilt. If those ingredients necessarily involve baseness, vileness, depravity, an evil intent which shocks the public cоnscience, the crime involves moral turpitude, Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406-07 (C.A. 9, 1969). To determine the nature of the crime, we must look primarily to the statutory definition of the offense, or, if it is
If the charge is a violation of a statute in general terms, and the statute itself is divided into specified subdivisions, each of which necessarily involves moral turpitude, the crime obviously involves moral turpitude. If only some of the subdivisions of a divisible statute involve moral turpitude, then under the rule of strict construction the crime does not involve moral turpitude unless it can be established that the offense as charged was geared to one of the subdivisions involving moral turpitude, Wadman v. INS, 329 F.2d 812 (C.A. 9, 1964).
Reference сan be had to the record of conviction (the indictment or information, the plea, the verdict or judgment, and the sentence) to establish under which subdivision the defendant was charged, U.S. ex rel. Zaffarano v. Corsi, 63 F.2d 757 (C.A. 2, 1933).
In all cases, the nature of the offense and the guilt of the alien can be determined only by the record of conviction. The alien cannot be heard at the deportation hearing to testify that he was not guilty of the offense, or that his actions were actually different from those described in the record of conviction. The criminal case cannot be retried in the deportation proceedings, Zgodda v. Holland, 184 F. Supp. 847 (E.D. Pa., 1960). Similarly, if the crime as made out by the record of conviction does not involve moral turpitude, the testimony of the аlien at the deportation hearing cannot be accepted to prove that his conduct was actually turpitudinous.
Applying these principles, it seems to me that the offense of which the respondent was charged cannot be said to involve moral turpitude. When it comes to assault and battery, whether or not moral turpitude is involved is largely а matter of intent. Simple assault and battery does not involve moral turpitude, Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass., 1926); Matter of B—, 5 I. & N. Dec. 538 (BIA 1953). Assault with intent to kill does, Clark v. Orabona, 59 F.2d 187 (C.A. 1, 1932), cert. denied 287 U.S. 629; U.S. ex rel. Shladzien v. Warden, 45 F.2d 204 (E.D. Pa., 1930). So does assault with a deadly weapon or one likely to inflict great bodily harm, Gonzales v. Barber, 207 F.2d 398 (C.A. 9, 1953).
Respondent was convicted of assault in the third degree. As the crime
The respondent‘s testimony at the deportation hearing that he struck the victim with a partly full beer bottle from which he had been drinking does not supply the missing link to moral turpitude. The nature of the offense must be determined from the conviction record, not from the alien‘s testimony at the deportation hearing, U.S. ex rel. Mylius v. Uhl, 210 Fed. 860 (C.A. 2, 1914); U.S. ex rel. Manzella v. Zimmerman, 71 F. Supp. 534 (E.D. Pa., 1947). In relying for its decision on such testimony given at the deportation hearing, the majority recedes from a long and well-established principle and sets a precedent which may turn out to be unfortunate in many ways. If the testimony of an alien may be adduced to prove that the crime of which he was convicted did involve moral turpitude, no reason appears why an alien should not be permitted to testify as to facts indicating that the crime did not involve moral turpitude. The net result will be to open the door to retrial in the deportation hearing of the question of the naturе of the crime and whether the alien was actually guilty of the crime. This is a major and unwarranted departure from precedents which have stood the test of time.
Since I conclude that the Service has not borne its burden of proving by clear, convincing and unequivocal evidence that the respondent was convicted of a crime involving moral turрitude, I would sustain the appeal and terminate the proceedings.