Matter of Short

• Decision Date: 16 November 1989
• Docket Number: Interim Decision Number 3125,A-38827315
• Citation: 20 I&N Dec. 136
• Parties: MATTER OF SHORT. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 136

MATTER OF SHORT.

In Deportation Proceedings.

Interim Decision Number 3125

A-38827315

Board of Immigration Appeals

Decided by Board November 16, 1989

(1) If the underlying or substantive crime involves moral turpitude, then a conviction for aiding in the commission of the crime or for otherwise acting as an accessory before the fact is also a conviction for a crime involving moral turpitude. Matter of F----, 6 I&N Dec. 783 (BIA 1955), followed.

(2) The Board of Immigration Appeals withdraws from Matter of Baker, 15 I&N Dec. 50 (BIA 1974), to the extent that it holds that an assault with intent to commit a felony is per se a crime involving moral turpitude without regard to whether the underlying felony involves moral turpitude; there must be a finding that the felony intended as a result of the assault involves moral turpitude.

(3) For purposes of determining whether the respondent's conviction for aiding and abetting in the assault with intent to commit a felony upon the person of a minor in violation of 18 U.S.C. § 2 (1982) and 18 U.S.C. § 113(b) (Supp. IV 1986) was for a crime involving moral turpitude, the conviction record of the respondent's husband, whom she was convicted of aiding and abetting, may not be properly be admitted as evidence where the respondent's record of conviction nowhere related her crime of aiding and abetting to the specific sexual offense of which her husband was convicted, the respondent's prior conviction for engaging in deviate sexual intercourse with a 3-year-old female was overturned on appeal, and the statute under which she was subsequently convicted specifically excluded felonies under Chapter 109A of Title 18 (18 U.S.C. §§ 2241-45 (Supp. IV 1986)), which concerns sexual abuse offenses.

CHARGE:

Order: Act of 1952—Sec. 241(a)(4) [8 U.S.C. § 1251(a)(4)]—Crime involving moral turpitude

ON BEHALF OF RESPONDENT: Susan Schreiber, Esquire Travelers & Immigrants Aid 327 South LaSalle Street, Room 1400 Chicago, Illinois 60604

ON BEHALF OF SERVICE: Samuel Der-Yeghiayan District Counsel

John F. Hurlbut Acting Assistant District Counsel

Michael L. Harper General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated February 15, 1989, an immigration judge found the respondent deportable as charged under section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1982), as an alien convicted of a crime involving moral turpitude committed within 5 years after entry and sentenced to confinement or confined therefor for a year or more, and ordered her deported from the United States to West Germany. The respondent has appealed from that decision. The record will be remanded to the immigration judge.

The respondent is a native and citizen of West Germany who was admitted to the United States as an immigrant on June 29, 1984. Her conviction record shows that she was convicted on December 19, 1986, in the United States District Court for the Western District of Kentucky of the crime of aiding and abetting in the assault with intent to commit a felony upon the person of a minor in violation of 18 U.S.C. § 2 (1982) and 18 U.S.C. § 113(b) (Supp. IV 1986), the crime having been committed on September 15, 1984. The respondent was sentenced to 8 years' imprisonment.

18 U.S.C. § 2 provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

18 U.S.C. § 113(b) provides for punishment of "[a]ssault with intent to commit any felony, except murder or a felony under chapter 109A, by fine of not more than $3,000 or imprisonment for not more than ten years, or both."

In determining whether a crime involves moral turpitude, it is the nature of the offense itself which determines moral turpitude. Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979). It is the inherent nature of the crime as defined by statute and interpreted by the courts and as limited and described by the record of conviction which determines whether the offense is one involving moral turpitude. Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); United States v. Neelly, 208 F.2d 337 (7th Cir.1953); Matter of Baker, 15 I&N Dec. 50 (BIA 1974); Matter of H----, 7 I&N Dec. 616 (BIA 1957). The statute under which the conviction occurred controls. If it defines a crime in which turpitude necessarily inheres, then the conviction is for a crime involving moral turpitude for the purposes of the deportation statute. United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir.1939); United States ex rel. Mylius v. Uhl, 210 F. 860 (2d Cir.1914). Only where the statute under which the respondent was convicted includes some offenses which involve moral turpitude and some which do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted. Matter of Esfandiary, supra; Matter of Ghunaim, 15 I&N Dec. 269 (BIA 1975); Matter of Lopez, 13 I&N Dec. 725 (BIA 1971); Matter of S----, 2 I&N Dec. 353 (BIA, A.G.1945).

In his decision, the immigration judge concluded that there existed two separate bases for determining that the respondent had been convicted of a crime of moral turpitude. He first determined that the respondent's case was controlled by Matter of Baker, supra, in which the Board held that an assault of another person with intent to commit a felony constitutes a crime of moral turpitude. Alternatively, the immigration judge found that even if the Board's holding in that case were not followed, the crime of which the respondent was convicted still could be viewed as one involving moral turpitude. He observed that the respondent had been convicted of aiding and abetting her husband to commit an assault upon their 3-year-old child and concluded that it was appropriate to examine the husband's felony conviction, citing Matter of Sanchez-Marin, 11 I&N Dec. 264 (BIA 1965), where the Board held that the crime of accessory after the fact to a felony involved moral turpitude when the principal perpetrator had been convicted of voluntary manslaughter, a crime involving moral turpitude.¹ In the case at hand, the respondent's husband had been convicted on May 22, 1985, in the United States District Court for the Western District of Kentucky of the crime of rape of a 3-year-old female on a government reservation in violation of 18 U.S.C. § 2031 (1982), and the crime of engaging in deviate sexual intercourse with a 3-year-old female on a government reservation in violation of 18 U.S.C. §§ 2 and 13 (1982), and section 510.070 of the Kentucky Revised Statutes. Accordingly, the immigration judge concluded that the respondent's conviction was for a crime involving moral turpitude.

On appeal, the respondent contends in part that Matter of Baker, supra, should be overruled, asserting that its holding that assault with intent to commit any felony constitutes a crime of moral turpitude, without regard to the nature of the felony involved, does not comport with past judicial and Board precedent. She points out that an assault is not necessarily viewed as a crime of moral turpitude, and that the classification of a crime as a felony also is not determinative of moral turpitude.

The Immigration and Naturalization Service contends on appeal that the immigration judge's decision should be upheld, as the issue of whether the respondent's crime is to be characterized as one involving moral turpitude is clearly resolved by Matter of Baker, supra.

After giving the matter further consideration, and in view of past precedent and the principles underlying the determination of whether a particular crime involves moral turpitude, the Board withdraws from Matter of Baker, supra, to the extent that it holds that an assault with intent to commit a felony is per se a crime involving moral turpitude without regard to whether the underlying felony involves moral turpitude.

Moral turpitude is a nebulous concept, which refers generally to conduct that shocks the public...