In re Sanudo

• Citation: 23 I&N Dec. 968
• Decision Date: 01 August 2006
• Docket Number: Interim Decision No. 3537.,File A92 886 946.
• Parties: In re Renato Wilhemy SANUDO, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

23 I&N Dec. 968

In re Renato Wilhemy SANUDO, Respondent.

Interim Decision No. 3537.

File A92 886 946 - San Diego.

Board of Immigration Appeals.

Decided August 1, 2006.

(1) An alien's conviction for domestic battery in violation of sections 242 and 243(e)(1) of the California Penal Code does not qualify categorically as a conviction for a "crime involving moral turpitude" within the meaning of section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2000).

(2) In removal proceedings arising within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, the offense of domestic battery in violation of sections 242 and 243(e)(1) of the California Penal Code does not presently qualify categorically as a "crime of violence" under 18 U.S.C. § 16 (2000), such that it may be considered a "crime of domestic violence" under section 237(a)(2)(E)(i) of the Act. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006), followed.

FOR RESPONDENT: Bill Waddell, Esquire, San Diego, California.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Kathryn E. Stuever, Assistant Chief Counsel.

BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members.

COLE, Board Member.

The Department of Homeland Security ("DHS") appeals from an Immigration Judge's February 17, 2005, decision terminating removal proceedings against the respondent, who had been charged with deportability under sections 237(a)(2)(A)(ii) and (E)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(ii) and (E)(i) (2000), as an alien convicted of two or more crimes involving moral turpitude and a crime of domestic violence, respectively. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico and a lawful permanent resident of the United States. The record reflects that he has sustained two criminal convictions in California that are relevant to these proceedings: (1) on March 1, 2001, for the offense of domestic battery in violation of sections 242 and 243(e)(1) of the California Penal Code; and (2) on September 23, 2003, for the offense of grand theft in violation of section 487(a) of the California Penal Code.

The DHS initiated removal proceedings against the respondent in March 2004, charging him with deportability under section 237(a)(2)(E)(i) of the Act based on his domestic battery conviction. In May 2004, an additional charge of deportability was lodged against him under section 237(a)(2)(A)(ii) of the Act, based jointly on the domestic battery and grand theft convictions. The Immigration Judge dismissed the charges of deportability and terminated the removal proceedings, finding that the respondent's domestic battery offense did not qualify as either a "crime involving moral turpitude" or a "crime of domestic violence" under the immigration laws. It is from this determination that the DHS appeals.

II. ISSUE

This appeal requires us to determine whether the respondent's March 2001 conviction for domestic battery in violation of sections 242 and 243(e) of the California Penal Code qualifies as a conviction for a "crime involving moral turpitude" or a "crime of domestic violence" within the meaning of sections 237(a)(2)(A)(ii) and (E)(i) of the Act, respectively.

III. DOMESTIC BATTERY UNDER CALIFORNIA LAW

Section 242 of the California Penal Code, which defines the California offense of "battery," provides in its entirety that "[a] battery is any willful and unlawful use of force or violence upon the person of another." The California courts have construed section 242 to require an unprivileged "`touching of the victim'" by means of force or violence. People v. Jackson, 91 Cal. Rptr. 2d 805, 809 (Cal. Ct. App. 2000) (quoting People v. Marshall, 931 P.2d 262, 282 (Cal. 1997)). However, they have also significantly qualified the statutory language, emphasizing that "[t]he word `violence' has no real significance." People v. Mansfield, 245 Cal. Rptr. 800, 802 (Cal. Ct. App. 1988). Thus, the courts have held that "the force used need not be violent or severe and need not cause pain or bodily harm." Gunnell v. Metrocolor Labs., Inc., 112 Cal. Rptr. 2d 195, 206 (Cal. Ct. App. 2001) (citing People v. Rocha, 479 P.2d 372, 377 n.12 (Cal. 1971) (quoting 1 Bernard E. Witkin, California Crimes 243-44 (1963))). Furthermore, although battery is a "specific intent" crime in California, the requisite intent pertains only to the commission of the "touching" that completes the offense, and not to the infliction of harm on the victim. People v. Mansfield, supra, at 803 ("A person need not have an intent to injure to commit a battery. He only needs to intend to commit the act.").

Section 243 of the California Penal Code specifies a range of punishments that may be imposed on an offender convicted of battery. According to the statute, the maximum term of imprisonment available for a given offender is tied to the characteristics of his particular offense, such as the nature and extent of any injuries he may have caused to the victim, or the victim's inclusion in some class of persons accorded heightened protection by the California Legislature. The respondent's sentence was imposed pursuant to section 243(e)(1), which provides, in pertinent part, as follows:

When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment.¹

Because the maximum sentence that may be imposed pursuant to section 243(e)(1) is a 1-year term of incarceration in county jail, the offense is classified as a misdemeanor under section 17(a) of the California Penal Code.

IV. DISCUSSION

A. Crimes Involving Moral Turpitude

Based in part on the aforementioned domestic battery conviction, the DHS charged the respondent with deportability under section 237(a)(2)(A)(ii) of the Act, which provides as follows:

Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

As a general rule, a crime involves "moral turpitude" if it is 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 Olquin, 23 I&N Dec. 896, 896 (BIA 2006); Matter of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001); see also Grageda v. U.S. INS, 12 F.3d 919, 921 (9th Cir. 1993) (noting that courts have described moral turpitude in general terms as "an `act of baseness or depravity contrary to accepted moral standards'" (quoting Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406 (9th Cir. 1969)), and as "`basically offensive to American ethics and accepted moral standards'" (quoting Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976))). Whether a particular crime involves moral turpitude is determined by reference to the statutory definition of the offense and, if necessary, to authoritative court decisions in the convicting jurisdiction that elucidate the meaning of equivocal statutory language. See Matter of Olquin, supra, at 897 & n.1. However, we may not consider the actual conduct underlying the conviction. Matter of Torres-Varela, supra, at 84 (citing McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)).

Historically, a case-by-case approach has been employed to decide whether battery (or assault and battery) offenses involve moral turpitude. It has long been recognized that not all crimes involving the injurious touching of another reflect moral depravity on the part of the offender, even though they may carry the label of assault, aggravated assault, or battery under the law of the relevant jurisdiction. Matter of B-, 1 I&N Dec. 52, 58 (BIA, A.G. 1941) (finding that second-degree assault under Minnesota law does not qualify categorically as a crime involving moral turpitude (following United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 758 (2d Cir. 1933))). We have continued to espouse that view in our more recent cases on the subject. Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996) (holding that third-degree assault under the law of Hawaii, an offense that involved recklessly causing bodily injury to another person, is not a crime involving moral turpitude); Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992) (concluding that third-degree assault under the law of Washington, an offense that involved negligently causing bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering, is not a crime involving moral turpitude).

At the same time, we have recognized that assault and battery offenses may appropriately be classified as crimes of moral turpitude if they necessarily involved aggravating factors that significantly increased their culpability. For example, assault and battery with a deadly weapon has long been deemed a crime involving moral turpitude by both this Board and the Federal courts, because the knowing use or attempted use of deadly force is deemed to be an act of moral depravity that takes the offense outside the "simple assault and battery" category. See Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff'd on other grounds, 347 U.S. 637 (1954); Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976), aff'd sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977); see also Sosa-Martinez v. U.S. Att'y Gen., 420 F.3d 1338, 1342 (11th Cir. 2005); Yousefi v. U.S. INS, 260 F.3d 318, 326-27 (4th Cir. 2001); ...