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Interim Decision #3574

In re Ernst SOLON, Respondent

File A30 045 420 - New York

Decided July 25, 2007

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The offense of assault in the third degree in violation of section 120.00(1) of the New York

Penal Law, which requires both specific intent and physical injury, is a crime involving

moral turpitude.

FOR RESPONDENT: Robert J. Shannon, Esquire, New York, New York

BEFORE: Board Panel: OSUNA, Acting Chairman; FILPPU and PAULEY, Board

Members

FILPPU, Board Member:

In a decision dated August 30, 2005, an Immigration Judge denied the

respondent’s request for a waiver under former section 212(c) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1988), and all other

forms of relief from removal for which he had applied. The respondent has

appealed only from the Immigration Judge’s denial of the waiver. The appeal

will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Haiti who entered the United States

as a lawful permanent resident on October 15, 1970. The record reflects that

he was convicted of conspiracy to import cocaine on January 2, 1996. He was

originally ordered removed by an Immigration Judge in an August 9, 1999,

decision finding him removable under sections 237(a)(2)(A)(iii) and (B)(i) of

the Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i) (Supp. V 1999), as an alien

convicted of an aggravated felony and a controlled substance violation. He

appealed from that decision. In July 2001, the United States District Court for

the Eastern District of New York vacated the order of removal and remanded

the matter to allow the respondent to apply for relief from removal pursuant to

former section 212(c) of the Act and INS v. St. Cyr, 533 U.S. 289 (2001). In

July 2002, the Immigration Judge granted a motion of the Department of

Homeland Security (“DHS”) to reopen the removal proceedings.

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Interim Decision #3574

In 2003, the DHS lodged additional factual allegations and charges against

the respondent. Specifically, the DHS alleged that the respondent was

convicted on April 30, 2002, of assault in the third degree in violation of

section 120.00(1) of the New York Penal Law. On the basis of the conviction

record submitted by the DHS, the Immigration Judge sustained the lodged

charge and concluded that the respondent is removable under section

237(a)(2)(A)(ii) of the Act as an alien convicted of two or more crimes

involving moral turpitude.1 Because the respondent’s 2002 assault conviction

occurred subsequent to the repeal of section 212(c) of the Act, the Immigration

Judge found that he was not eligible for relief and denied his request for a

waiver.

II. ISSUE

The only issue the respondent has raised on appeal regarding his eligibility

for a section 212(c) waiver is whether assault in the third degree in violation

of section 120.00(1) of the New York Penal Law is a crime involving moral

turpitude.

III. ANALYSIS

The Act does not define the term “crime involving moral turpitude.”

However, we have held that it encompasses conduct that shocks the public

conscience as being “inherently base, vile, or depraved, and contrary to the

accepted rules of morality and the duties owed between persons or to society

in general.” Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999); see also

Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992). It generally

refers to acts that are per se morally reprehensible and intrinsically wrong.

See Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006). Neither

the seriousness of the underlying offense nor the severity of the punishment

imposed is determinative of whether a crime involves moral turpitude. See

Matter of Serna, 20 I&N Dec. 579, 581 (BIA 1992).

Crimes committed intentionally or knowingly have historically been found

to involve moral turpitude. See Michel v. INS, 206 F.3d 253, 263 (2d Cir.

2000); Matter of Perez-Contreras, supra. Moral turpitude may also inhere in

criminally reckless conduct, i.e., conduct that reflects a conscious disregard for

a substantial and unjustifiable risk. See, e.g., Matter of Franklin, 20 I&N Dec.

867 (BIA 1994) (involuntary manslaughter); Matter of Wojtkow, 18 I&N Dec.

111 (BIA 1981) (second-degree manslaughter); Matter of Medina, 15 I&N

Dec. 611 (BIA 1976) (aggravated assault). Fraud is categorized as a crime

involving moral turpitude, as are certain other offenses involving acts of

1

The Immigration Judge relied on Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997), in

finding that conspiracy to import cocaine is a crime involving moral turpitude.

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Interim Decision #3574

baseness and depravity, even though they have no element of fraud or, in some

cases, no explicit element of evil intent. See Matter of Torres-Varela, 23 I&N

Dec. 78, 84 (BIA 2001) (noting that such crimes include murder, rape,

statutory rape, robbery, kidnaping, voluntary manslaughter, some involuntary

manslaughter offenses, mayhem, theft offenses, spousal abuse, child abuse, and

incest).

Assault may or may not involve moral turpitude. See Matter of Danesh,

19 I&N Dec. 669, 670 (BIA 1988). Offenses characterized as “simple

assaults” are generally not considered to be crimes involving moral turpitude.

See Matter of Perez-Contreras, supra; Matter of Short, 20 I&N Dec. 136, 139

(BIA 1989). This is so because they require general intent only and may be

committed without the evil intent, depraved or vicious motive, or corrupt mind

associated with moral turpitude. See Matter of J-, 4 I&N Dec. 512, 514 (BIA

1951); Matter of J-, 4 I&N Dec. 26, 27 (BIA 1950); Matter of O-, 3 I&N Dec.

193, 194-95 (BIA 1948).

In addition, we have recognized that not all crimes involving the injurious

touching of another person reflect moral depravity on the part of the offender.

See Matter of Sanudo, 23 I&N Dec. 968, 971 (BIA 2006). Many simple

assault statutes prohibit a wide range of conduct or harm, including de minimis

conduct or harm, such as offensive or provocative physical contact or insults,

which is not ordinarily considered to be inherently vile, depraved, or morally

reprehensible. See, e.g., Ariz. Rev. Stat. Ann. § 13-1203 (West, Westlaw

through June 2007 legislation); Iowa Code Ann. § 708.1 (West, Westlaw

through 2007 First Reg. Sess.); Me. Rev. Stat. Ann. tit. 17-A, § 207 (West,

Westlaw through 2007 First Reg. Sess.); N.M. Stat. Ann. § 30-3-1 (West,

Westlaw through June 2007 legislation); Tenn. Code Ann. § 39-13-101 (West,

Westlaw through 2007 First Reg. Sess.).

The specific provision under which an alien was convicted may or may not

be discernible from the record. See Matter of Torres-Varela, supra, at 84-85

(stating that a determination whether a violation of a particular statute is a

crime involving moral turpitude requires an objective analysis of the elements

necessary to secure a conviction under that statute). In such cases, the

conviction will be found to be for a crime involving moral turpitude only if the

full range of the conduct prohibited in the statute supports such a finding. See

Michel v. INS, supra, at 263 (stating that generally, if a statute encompasses

both acts that do and do not involve moral turpitude, a deportability finding

based on that statute cannot be sustained).

In previous cases we have held that neither the offender’s state of mind nor

the resulting level of harm, alone, is determinative of moral turpitude. For

example, in Matter of Sanudo, supra, at 972-73, we found that the alien’s

California domestic battery offense was not a crime involving moral turpitude

because, despite the intent element of the offense, a conviction required only

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Interim Decision #3574

a minimal touching without any evidence of actual injury.2 Moreover, in

Matter of Fualaau, 21 I&N Dec. 475, 478 (BIA 1996), where the alien was

convicted of third-degree assault in Hawaii after pleading guilty to reckless

infliction of bodily injury, we concluded that a reckless state of mind must be

coupled with an offense involving the infliction of serious bodily injury in

order for the assault to be a crime involving moral turpitude. However, in

Matter of Perez-Contreras, supra, at 619, we found that moral turpitude was

not inherent in the Washington third-degree assault statute, because neither

intent nor recklessness was required for a conviction for causing bodily harm

with criminal negligence. Moreover, in that case we specifically withdrew

from Matter of Baker, 15 I&N Dec. 50 (BIA 1974), to the extent it held that

any assault resulting in great bodily harm involves moral turpitude, without

regard to the existence of intentional or reckless conduct. Matter of

Perez-Contreras, supra, at 619-20.

The reasoning from these decisions reflects that at least in 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. Thus,

intentional conduct resulting in a meaningful level of harm, which must be

more than mere offensive touching, may be considered morally turpitudinous.

However, 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. Moreover, where no conscious

behavior is required, there can be no finding of moral turpitude, regardless of

the resulting harm. This body of law, then, deems intent to be a crucial

element in determining whether a crime involves moral turpitude. See Matter

of Perez-Contreras, supra, at 618-19, and cases cited therein.

In Matter of E-, 1 I&N Dec. 505, 507 (BIA 1943), we held that assault in the

third degree in New York was not a crime involving moral turpitude, observing

that “a mere assault and battery does not involve moral turpitude.” The alien

in that case was convicted under former section 244(1) of the New York Penal

Law, which was in effect in 1940 and provided that a person who committed

an assault, or an assault and battery, which was not specified in either section

240 and 242, was guilty of assault in the third degree.3 Thus, the offense

2

As discussed below, a conviction under section 120.00(1) of the New York Penal Code

requires a battery. We therefore emphasize that regardless of the label assigned to the crime,

the California battery conviction at issue in Matter of Sanudo, supra, is analogous to the

respondent’s New York third-degree assault conviction.

3

Sections 240 and 242 of the former New York Penal Law defined first-degree and

second-degree assault, respectively. Under section 240, first-degree assault was essentially

assault with intent to kill. Under section 242, second-degree assault included the intentional

administration of dangerous or intoxicating drugs; willful wounding or infliction of grievous

bodily harm with or without a weapon; willful assault with the use of a weapon or other

instrument or thing likely to produce grievous bodily harm; and assault with intent to commit

a felony or to prevent or resist lawful process, apprehension, or detention. New York

(continued...)

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Interim Decision #3574

described in the third-degree assault statute was a simple assault. See People

v. Katz, 49 N.E.2d 482, 484 (N.Y. 1943); People v. Martini, 309 N.Y.S.2d 831,

833 (N.Y. City Crim. Ct. 1970); Brereton v. McEvoy, 353 N.Y.S.2d 512, 516

(N.Y. App. Div. 1974). The statute did not require any specific intent for a

conviction. See People v. Fruci, 67 N.Y.S.2d 512, 515 (N.Y. City Ct. 1947).

Moreover, no proof of actual physical injury was required. See People v.

Martini, supra; see also People v. Wood, 199 N.Y.S.2d 342 (N.Y. App. Div.

1960) (finding that pointing an unloaded gun at someone may support a

conviction for third-degree assault).

In this case, the respondent was convicted in 2002 under section 120.00(1)

of the revised New York Penal Law, which provides that a person is guilty of

assault in the third degree when, “[w]ith intent to cause physical injury to

another person, he causes such injury to such person or to a third person.”4 We

find that this statute is clearly distinguishable from the 1940 version of the

third-degree assault statute that we examined in Matter of E-, supra, and

conclude that we are not bound to apply the holding in that case here. For the

following reasons, we find that assault in the third degree under section

120.00(1) of the New York Penal Law, which requires both specific intent and

physical injury, is a crime involving moral turpitude.

As noted above, section 120.00(1) of the New York Penal Law requires

“intent to cause physical injury.” According to section 15.05(1) of the New

York Penal Law, a person acts intentionally “with respect to a result or to

conduct . . . when his conscious objective is to cause such result or to engage

in such conduct.” (Emphasis added.) Thus, the statute under which the

respondent was convicted requires the specific intent to cause physical injury,

as opposed to the general intent associated with simple assault. See People v.

Juarez, 827 N.Y.S.2d 564, 567-68 (N.Y. Co. Ct. 2006) (acquitting the

defendant of third-degree assault where the evidence showed that the victim’s

injury was inadvertent, rather than specifically intended by the defendant);

People v. Williams, 819 N.Y.S.2d 212 (N.Y. City Crim. Ct. 2006) (finding that

the occurrence of a physical injury is insufficient to sustain a conviction for

third-degree assault, absent evidence that the defendant’s objective or purpose

was to cause that injury); People v. Loewinger, 323 N.Y.S.2d 98, 101

(N.Y. App. Div. 1971) (finding that the jury instruction that “assault in the

third degree is an assault and battery made voluntarily and knowingly” was

proper because it apprised the jury that the assault must be intentional).

3

(...continued)

substantially revised its assault provisions in 1965 to include the statute under which the

respondent was convicted.

4

A person is guilty of third degree assault under section 120.00(2) of the New York Penal

Law when he “recklessly” causes physical injury to another person. Section 120.00(3)

requires that “[w]ith criminal negligence,” a person causes physical injury to another person

by means of a deadly weapon or dangerous instrument.

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Interim Decision #3574

Therefore, the inclusion of the specific intent element distinguishes

third-degree assault under section 120.00(1) of the New York Penal Law from

the general-intent simple assaults, which are not considered to involve moral

turpitude.

A conviction for third-degree assault under section 120.00(1) of the New

York Penal Law also requires proof of actual physical injury. “Physical

injury” is defined in section 10.00(9) of the New York Penal Law as

“impairment of physical condition or substantial pain.” In applying the statute,

New York State courts have been mindful that this definition includes

“substantial pain,” as opposed to mere “pain.” Thus, the courts have required

evidence of a certain objective level of pain (or impairment of physical

condition) in order to sustain a charge of, or a conviction for, assault in the

third degree.

For example, a charge of assault in the third degree was dismissed as legally

insufficient where the victim alleged only generically that the defendant hit and

kicked him, causing a lot of pain and injury. See People v. Strong, 689

N.Y.S.2d 341, 343 (N.Y. Sup. Ct. 1999). Similarly, where there was evidence

that the victim was treated for a bite on the hand, but none as to the extent of

pain or impairment of physical condition, the evidence was insufficient to

support a conviction for third-degree assault. See People v. Estes, 517

N.Y.S.2d 230 (N.Y. App. Div. 1987). See generally Mary Ellen P ex rel.

Johnathan Q v. John R, 718 N.Y.S.2d 442, 445 (N.Y. App. Div. 2000) (stating

that although “substantial pain” is generally a question of fact, there is an

objective level below which it is a question of law). On the other hand, there

was sufficient evidence to support a conviction for third-degree assault where

the record showed that the victim was struck repeatedly, sustaining bruises,

scratches, and bite and rope marks, that she sought medical treatment after the

incident, and that the bruises remained “very painful” for a couple of days after

the incident. See People v. Rambali, 813 N.Y.S.2d 103, 104 (N.Y. App. Div.

2006).

The legislative history of the New York statute reflects an intent to amend

the assault laws, which included some mere common-law assaults, to establish

that every assault offense requires a battery that produces actual physical

injury.5 See People ex rel.Clifford v. Krueger, 297 N.Y.S.2d 990, 993-94

(N.Y. Sup. Ct. 1969) (citing the Third Interim Report of the Temporary

Commission on Revision of the Penal Law and Criminal Code, N.Y.

Legislative Document (1964) No. 14, p. 21). See generally United States v.

Chestaro, 197 F.3d 600, 605 (2d Cir. 1999) (stating that the common-law

definition of “simple assault” is a crime committed by either a willful attempt

to inflict injury upon the person of another, or a threat to inflict injury upon the

5

Other New York State criminal statutes continue to prohibit some of the lesser conduct

traditionally encompassed within common-law assault. See, e.g., N.Y. Penal Law § 120.15

(McKinney, Westlaw through 2007) (menacing in the third degree).

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Interim Decision #3574

person of another, which, when coupled with an apparent present ability,

causes a reasonable apprehension of immediate bodily harm). The legislative

history also reflects the intent to exclude from third-degree assault conduct

such as “‘petty slaps, shoves, kicks and the like delivered out of hostility,

meanness and similar motives.’” Matter of Philip A, 400 N.E.2d 358, 359

(N.Y. 1980) (quoting Temporary Commission on Revision of the Penal Law

and Criminal Code, Proposed Penal Law, p. 330); see also Matter of Shane E,

679 N.Y.S.2d 209 (N.Y. App. Div. 1998). In applying the “physical injury”

requirement of section 120.00(1), New York State courts have excluded from

third-degree assault the kinds of minor offenses that may be encompassed

within the simple assault statutes of other states. See, e.g., People v. Doe, 380

N.Y.S.2d 549 (N.Y. City Ct. 1976) (nudge on the shoulder without physical

injury); People v. Facey, 499 N.Y.S.2d 517 (N.Y. App. Div. 1986), aff’d, 506

N.E.2d 536 (N.Y. 1987) (petty shove); Hitchcock Plaza, Inc. v. Clark, 781

N.Y.S.2d 624 (N.Y. Civ. Ct. 2003) (spitting).

In summary, as we understand New York law, a conviction for assault in the

third degree under section 120.00(1) of the New York Penal Law requires, at

a minimum, (1) that the offender acts with the conscious objective to cause

another person impairment of physical condition or substantial pain of a kind

meaningfully greater than mere offensive touching, and (2) that such

impairment of physical condition or substantial pain actually results. Thus, a

conviction under this statute requires, at a minimum, intentionally

injurious conduct that reflects a level of depravity or immorality appreciably

greater than that associated with the crime at issue in Matter of Sanudo, supra,

at 971-72 (stating that the minimal conduct necessary for a battery conviction

under section 242 of the California Penal Code was in the nature of a simple

battery). Accordingly, we conclude that a conviction under section 120.00(1)

of the New York Penal Law is a conviction for a crime involving moral

turpitude.

The respondent argues that his conviction is not for a crime involving moral

turpitude because it did not involve serious physical injury or the use of a

deadly weapon.6 As discussed above, the presence of an aggravating factor can

be important in determining whether a particular assault amounts to a crime

involving moral turpitude. See Matter of Fualaau, supra (requiring serious

bodily injury); Matter of Danesh, supra (requiring that the defendant

knowingly and intentionally caused bodily injury to a peace officer who was

in the lawful discharge of his official duty). However, as that discussion makes

clear, the need for, and the nature of, any aggravating factor is affected by the

mental state required for the conviction.

6

Assault involving serious physical injury or the use of a deadly weapon with intent to

cause physical injury is defined as assault in the second degree under sections 120.05(1) and

(2) of the New York Penal Law, respectively.

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In the instant case, the respondent was convicted of both specifically

intending and causing meaningful physical injury to another person. Moral

turpitude generally inheres when the specific intent to accomplish a base act is

an element of the offense. See Matter of Perez-Contreras, supra, at 618. The

presence or absence of an aggravating factor is not determinative. Further,

there is no merit in the contention that the crime does not involve moral

turpitude simply because assault in the third degree is the lowest degree of

assault in New York or because the respondent received only probation. See

Matter of Serna, supra.

In conclusion, we find that the respondent’s conviction for assault in the

third degree under section 120.00(1) of the New York Penal Law is for a crime

involving moral turpitude. Accordingly, the respondent’s appeal will be

dismissed.

ORDER: The appeal is dismissed.

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