Matter of Baker

• Decision Date: 08 August 1974
• Docket Number: Interim Decision Number 2310,A-20224363
• Parties: MATTER OF BAKER In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

15 I&N Dec. 50

MATTER OF BAKER

In Deportation Proceedings

Interim Decision Number 2310

A-20224363

Board of Immigration Appeals.

Decided by Board August 8, 1974

Conviction in the Virgin Islands of assault in the third degree in violation of 14 V.I.C. 297 (1964), as amended (Supp.1973), resulting in a sentence to 2 1/2 years' imprisonment, is conviction of a crime involving moral turpitude within the meaning of section 241(a)(4) of the Immigration and Nationality Act, as amended. This is true notwithstanding the statute under which the conviction occurred contains five different subdivisions and the judgment of conviction does not specify under which subdivision the conviction is based, since all five subdivisions involve moral turpitude.

CHARGE:

Order: Act of 1952 — Section 241(a)(4) [8 U.S.C. 1251(a)(4)] — Convicted of crime involving moral turpitude within five years after entry.

ON BEHALF OF RESPONDENT: James Pomeroy Hendrick, Esquire Mt. Welcome, Above Gallows Bay P.O. Box 2931 Christiansted, St. Croix U.S. Virgin Islands 00802.

This is an appeal from the November 15, 1972 decision of the 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 September 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 convicted 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...."

The only issue to be decided is whether or not the crime of which the respondent was convicted is a crime involving moral turpitude, since it was committed within five years after entry and he was sentenced to confinement in prison 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 14 V.I.C. 297 (1964), as amended (Supp.1973), which provides as follows:

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 not 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). 14 V.I.C. 299 (1964), provides a maximum sentence of 30 days or $50 or both for simple assault and battery. Although it is not clear under which subsection of the third degree assault provision the respondent was convicted, the crime of which he was found guilty was evidently more serious than a simple assault and battery. The greater gravity of third degree assault is evidenced by the specific intent required in subsections (1) and (3), the use of a weapon specified in subsections (2) and (5), the serious injury recited in subsection (4), the more severe penalty which may be imposed for conviction under any of the several subsections, and the fact that the crime is a felony. Because these crimes are more serious than simple assault and battery, we find that they all involve moral turpitude. Consequently, it does not matter under which subsection the respondent was convicted, for all of the subsections involve moral turpitude.

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 majority 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 a 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.

14 V.I.C. 297 (1964), as amended (Supp.1973), assault in the third degree, the statute under which the respondent was convicted, is a divisible statute. It is nowhere stated under which subsection of this statute the respondent was convicted. Therefore, we must look beyond the statute itself to ascertain whether or not the conviction was for a crime involving moral turpitude. However, since this proceeding is based on section 241(a)(4) of the Immigration and Nationality Act, we must limit our efforts to define the nature of the crime of which the respondent was convicted to a consideration of the conviction record.¹ The conviction record consists of the charge, plea, verdict or judgment, and sentence. Matter of Lopez, 13 I. & N. Dec. 725, 726 (BIA 1971). Since the respondent was charged by information under 14 V.I.C. 295(3) (1964) for assault in the first degree², but pleaded not guilty and was not convicted therefor, it is necessary to eliminate from our consideration of the charge those parts which are pertinent to first degree assault but not to third degree assault.

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 14 V.I.C., § 295(3)." If the respondent had been found guilty of assault with intent to commit mayhem, he would have been convicted of assault in the first degree. He was not so convicted, although the immigration judge evidently thought he was. (Transcript p. 9.) Conviction of a lesser included offense is acquittal of the higher offense. U.S. ex rel, Valenti v. Karnuth, 1 F.Supp. 370, 375 (M.D.N.Y.1932); Matter of V---- T----, 2 I. & N. Dec. 213, 216-17 (BIA 1944); cf. Matter of W----, 4 I. & N. Dec. 241 (BIA 1951). What remains of the charge appears to be consonant with the language of subsection (4) of section 297, which is set out in the majority opinion. This subsection, unlike subsections (1) and (3), does not necessarily involve any intent beyond that inherent in a simple assault charge. Simple assault is not 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). Unlike subsections (2) and (5), subsection (4) contains no reference to a weapon.³ Subsection (4) refers to the injury suffered rather than to the intent, but it is in the intent that moral turpitude inheres. U.S. ex rel. Meyer v. Day, 54 F.2d 336, 337 (C.A. 2, 1931); U.S. ex rel. Shladzien v. Warden, 45 F.2d 204, 205-6 (E.D.Pa., 1930); see Matter of L----, 2 I. & N. Dec. 54 (BIA 1944).

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 goes beyond the conviction record to consider the...