Matter of Danesh
| Decision Date | 20 June 1988 |
| Docket Number | A-23240808.,Interim Decision Number 3068 |
| Citation | 19 I&N Dec. 669 |
| Parties | MATTER OF DANESH. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated February 21, 1984, the immigration judge found the respondent deportable as charged, declined to accept applications for suspension of deportation and a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), and ordered him deported from the United States. The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of Iran who last entered the United States on September 25, 1983, as a nonimmigrant student. The record reflects that he was convicted in the 16th Judicial District Court of Denton County, Texas, on January 27, 1981, of aggravated assault on a peace officer. The imposition of his 2-year prison sentence was suspended and he was placed on probation.
At the deportation hearing, the Immigration and Naturalization Service introduced the respondent's conviction record into evidence without objection from counsel. However, the respondent claimed that he was not guilty of the alleged criminal activity and argued that, in any case, his offense did not constitute a crime involving moral turpitude. The immigration judge rejected these contentions and found that the respondent was deportable and ineligible for voluntary departure as a result of his conviction.
On appeal, the respondent has reiterated his arguments that he is innocent and that his crime is not one involving moral turpitude. As the immigration judge noted, the law is well established that in deportation proceedings the immigration judge cannot go behind the judicial record to determine the guilt or innocence of an alien. See Matter of Khalik, 17 I&N Dec. 518 (BIA 1980); Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978); Matter of Fortis, 14 I&N Dec. 576 (BIA 1974). We therefore reject the respondent's contentions regarding his innocence of the alleged assault.
We further find that the crime of which the respondent was convicted is one which involves moral turpitude. Moral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general. See Matter of Flores, 17 I&N Dec. 225 (BIA 1980); Matter of McNaughton, supra; Matter of Baker, 15 I&N Dec. 50 (BIA 1974); Matter of S----, 2 I&N Dec. 353 (BIA, A.G. 1945); Matter of G----, 1 I&N Dec. 73 (BIA, A.G. 1941). Assault has been said to be an offense that may or may not involve moral turpitude, depending on the circumstances of the particular case. Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass. 1926).
In this case the respondent was charged with aggravated assault as having knowingly and intentionally caused bodily injury to a peace officer who was in the lawful discharge of his official duty when the respondent knew the person assaulted was a peace officer.1 A review of our decisions dealing with assault on a peace officer reveals that we have not previously determined whether an offense of this precise nature involves moral turpitude. In Matter of Logan, 17 I&N Dec. 367 (BIA 1980), the crime of interference with a law enforcement officer, which was deemed to be analogous to assault, was held to involve moral turpitude because physical force was employed, in that case by the use of a knife. It was noted there that assault with a deadly weapon has generally been considered to be a crime involving moral turpitude. See also Matter of Medina, 15 I&N Dec. 611 (BIA 1976); Matter of Ptasi, 12 I&N Dec. 790 (BIA 1968); Matter of G---- R----, 2 I&N Dec. 733 (BIA 1946; A.G. 1947). In Matter of Baker, supra, we examined a statute containing five offenses categorized as third degree assault, one of which involved assault on a peace officer with a weapon of any kind.2 We held that this constituted a crime involving moral turpitude because the use of a weapon was an essential element of the offense.
The alien in Matter of B----, 5 I&N Dec. 538 (BIA 1953), was charged with assaulting a prison guard whom he knew to be in the discharge of his lawful duties. We concluded that the offense charged appeared only to have been a simple assault, which is not generally considered a crime involving moral turpitude. Relying on Ciambelli ex rel. Maranci v. Johnson, supra, we also found that moral turpitude was not involved because there was no weapon used in the commission of the assault. In Ciambelli it was determined that, despite the fact that the alien was armed with a razor, moral turpitude was not involved because there was no charge that the assault was made with the weapon. In reaching that conclusion the court relied heavily on the alien's claim that he was only caught in the middle of a fight at a restaurant when an officer rushed in and was struck by another person. However, it was further noted by the Ciambelli court that if one "deliberately assaulted an officer of the law with a dangerous weapon and with felonious intent, or for the purpose of interfering with the officer in the performance of his duty, the attendant circumstances showing an inclination toward lawlessness, the act might well be considered as one involving moral turpitude." Id. at 466.
Finally, in Matter of O----, 4 I&N Dec. 301 (C.O., BIA 1951), we examined an offense under German law involving an assault on a police officer by a participant in a public riotous gathering. It was determined that the statute under consideration required no knowledge on the part of the accused that the person assaulted was a police officer engaged in the performance of his duties and, therefore, it could not be deemed to involve moral turpitude. In that decision we also discussed a similar unpublished case in which we had concluded that moral turpitude was not involved, noting that there was "nothing in the record to show that the arresting officer was assaulted or that he suffered any bodily injury" during the arrest of the alien. Id. at 311 (quoting Matter of S----, A7 476 137 (September 15, 1950)) (emphasis added). It was acknowledged in Matter of O----, supra, that an inference could be drawn from the unpublished case that an assault by force or violence on an arresting officer, as distinguished from a passive resistance to arrest, would involve moral turpitude.
We find from our review of the decisions referred to above that each is distinguishable from the situation before us and, therefore, none is controlling. Although the crime in Matter of O----, supra, was found not to involve moral turpitude, there is a strong inference that our conclusion would have been to the contrary if the statute violated had required knowledge by the accused that he was assaulting...
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