Interim Decision #2810 

MATTER OF BAKER 

In Deportation Proceedings 

A-20224363 

Decided Board August 8, 1974 

Conviction in the Virgin Islands of oggoult in the third degree in violation of 14 V. L C. 297 

(1964), as amended (Supp. 1978), resulting in a sentence to 21/2 years' imprisonment, is 

conviction of a crime involving moral turpitude within the meaning of section 241(a)(4) of 

the Immigrati an 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, 197 2, 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, br a year or more . . . ." 

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Interim Decision #2310 

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.211 

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; (ate] 

(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. L 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 

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Interim Decision #2310 

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. I 

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 degree 2, but pleaded not guilty and was 

not convicted therefor, it is necessary to eliminate from our considers- 

' The situation would be slightly different in a case where the alien was charged under 

sections 241(a)(1) and 212(a)(9) of the Act, where actual conviction may not be necessary. 

z "Whoever—. . . (2) with intent to commit rape, sodomy, mayhem, robbery or larceny, 

assaults another—shall be imprisoned not more than 15 years." 

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Interim Decision #23101 

don 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 

hini 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. Dee. 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 5 I. & N. Dec. 538 (BIA 1953). Unlike 

subsections (2) and (5), subsection (4) contains no reference to a 

weapon. 3Subsection (4) refers to the injury suffered rather than to the 

intent, but it is in the intent that moral turpitude inheres. TT 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 wasconvicted, 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. Broilinell, 149 F. Supp. 848,•850-51 (D. D.C., 1957); Matter 

of N-1, 8 I. & N. Dee. 466 (BIA 1959). 

-Without diStinguishing or even mentioning the above-cited decisions, 

3The respondent testified at his deportation hearing that he had struck the victim with 

a partly full beer bottle; however, the conviction record contains no mention of k weapon. 

Therefore, it does not appear that the conviction was based on the use of a weapon. In any 

case, it is improper to look beyond the conviction record to find moral turpitude. U.S. ex 

rel. Guarino v. Uhl, 107 F.2d 399, 400 (C.A. 2,1939); U.S. ex rel. Mylius v. Uhl, 210 F. 

860, 862-63 (C.A. 2,1914); Zgodda v. Holland, 184 F. Supp. 847, 851 (E.D. Pa., 1960); 

Vidal y Planes v. London., 104 P. Supp. 384, 080 (S.D. Cal., 1952); U.S. ex rd. Manzalla 

v. Zimmerman, 71 F. Supp. 534, 536 (E.D. Pa., 1947). ' • 

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Interim Decision #2310 

the majority goes beyond the conviction record to consider the respondent's testimony at the deportation hearing. When an alien is to be 

deported on the basis of conviction for a crime involving moral turpitude, we may look only at what he was convicted of, not at what he 

may have testified to at a deportation hearing. A deportation hearing is 

not a criminal trial, and it is improper to retry a criminal case in a 

deportation proceeding. • 

The majority states that the crime of which the respondent was 

convicted was "more serious than a simple assault and battery." This 

may be true, but moral turpitude is found in the intent with which a 

crime is committed, not in the "seriousness" of that crime. As pointed 

out above, the respondent appears to have been convicted under subsection (4) of the third degree assault statute. That subsection does not 

require any intent to injure beyond that required for any assault, 

including simple assault, which is not considered to be a crime involving 

moral turpitude. U.S. ex rel. Zaffarano v. Corsi; Ciambelli as rel. 

Maranci v. Johnson, 12 F.2d 465 (D. Mass., 1926); Matter of B—,5 I. & 

N. Dec. 538 IBIA 1953); Matter of E—, 1 I. & N. Dec. 505, 507 (BIA 

1943); U.S. ex rel. Moracci v. Smith, 8 F.2d 663 (W.D. N.Y., 1925). 

While subsection (4) is included in the same statute with other crimes, 

some of which probably do involve moral turpitude (because of the 

stated specific intent and the use of means calculated to inflict great 

bodily harm or because of the intent inferred from the use of a dangerous weapon), and while this may indeed show that the legislature 

considered all of these crimes to be of comparable "seriousness" and of 

greater "seriousness" than simple assault and battery, it cannot be 

assumed that the added seriousness results from the presence of moral 

turpitude. It often happens that one statute includes both crimes which 

do involve moral turpitude and crimes which do not. When that occurs, 

since the burden to prove deportability is upon the Service, we must 

take the case in the light most favorable to the respondent and assume 

that he was convicted of a crime that does not involve moral turpitude, 

Matter of Lopez, supra, at 727; Matter of Espinosa, 10 I. & N. Dec. 98, 

100 (BIA 1962). This the majority has not done. , 

The immigration judge states in his opinion that "assault of an aggravated nature with the use of a deadly or dangerous weapon and with the 

intent to inflict bodily harm is a crime involving moral turpitude." 

Decision of the immigration judge, pp. 2-3. This is true. But it is , not 

stated in the conviction record that the respondent was convicted of 

such an assault. • 

Accordingly, it does not appear to me that the crime of which the 

respondent was convicted necessarily involves moral turpitude. Reading the statute at its minimum, we must conclude that the respondent is 

not deportable as charged. 
Interim Decision #2310 

The appeal should be sustained and the proceedings terminated. 

Maurice A. Roberts, Chairman, Dissenting: 

I join in the foregoing dissenting opinion. 

The decision reached by the majority respresents, in my view, an 

example of result-oriented decision-making. The unarticulated premise 

of the majority opinion seems to be that a person like the respondent, 

who has received a two and a half year sentence for a serious crime, is a 

bad person who should be deported. Not every serious crime, however, 

necessarily involves moral turpitude or calls for deportation. 

No alien may be deported unless he clearly fits within one of the 

categories of deportable aliens specified by Congress. In determining 

whether an alien comes within any of those classes, certain well-defined 

principles have emerged through the years. Unless the alien is found to 

be within one of the deportable classes in the light of those principles, 

his deportation may not be ordered, no matter how unworthy or bad or 

immoral we may personally think him.to be. We are bound to apply the 

rule of law. 

Deportation statutes, because of their drastic consequences, must be 

strictly construed, Barber v. Gonzales, 347 U.S. 637, 642-643 (1954); 

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). In section 241(a)(4) of 

the Immigration and Nationality Act, Congress has prescribed deportation if an alien is convicted of "a crime involving moral turpitude" 

committed within five years of entry. It is the crime of which he is 

convicted, and not the alien's conduct, which determines deportability. 

If the crime of which he is convicted does not inherently involve moral 

turpitude, he may not be deported even if his actual conduct was 

immoral, U.S. ex rel. Robinson v. Day, 51 F.2d 1022 (C.A. 2, 1931); 

Abiett v. Brownell, 240 F.2d 625, 627 (D.C. Cir., 1957); U.S. ex rel. 

Giglio v. Neelly, 208 F.2d 337 (C.A. 7, 1953). On the other hand, if the 

crime of which he was convicted does involve moral turpitude, deportability is established even if the alien's actual conduct as he later describes it might not seem so reprehensible, U.S. ex rel. Manzella v. 

Zimmerman, 71 F. Supp. 534 (E.D. Pa., 1947). In other words, it is the 

alien's crime, and not his conduct, which is determinative under section 

241(a)(4). 

Whether or not a particular offense involves moral turpitude depends 

upon the ingredients of the crime, the elements which must be proved to 

establish guilt. If those ingredients necessarily involve baseness, vileness, depravity, an evil intent which shocks the public conscience, the 

crime involves moral turpitude, Guerrero de'Noclahl v. INS, 407 F.2d 

1405, 1405-07 (C.A. 9, 1969). To determine the nature of the crime, we 

must look primarily to the statutory definition of the offense, or, if it is 

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Interim Deeisi on #2310 

undefined, to the court decisions which define its elements, U.S. ex rel 

Zaffarano v. Corsi, 63 F.2d 757 (C.A. 2, 1933). If the crime as defined 

by the statute under all circumstances encompasses conduct which 

involves moral turpitude, the crime involves moral turpitude, U.S. ex 

rel. Guarino v. Uhl, 107 F.2d 399 (C.A. 2, 1939). If the crime as defined 

by statute punishes conduct which may or may not be turpitudinous, 

and if it is not clear under which aspect of the statute the conviction was 

rendered, the definition of the crime must be taken at its minimum, i.e., 

as not involving moral turpitude, U.S. ex rel. Manzella v. Zimmerman, 

71 F. Supp. 594 (E.D. Pa., 1947). 

If the charge is a violation of a statute in general terms, and the 

statute itself is divided into specified subdivisions, each of which necessarily involves moral turpitude, the crime obviously involves moral 

turpitude. If only some of the subdivisions of a divisible statute involve 

moral turpitude, then under the rule of strict construction the crime 

does not involve moral turpitude unless it can be established that the 

offense as charged was geared to one of the subdivisions involving moral 

turpitude, Wadman v. INS, 329 F.2d 812 (C.A. 9, 1964). 

Reference can be had to the record of conviction (the indictment or 

information, the plea, the verdict or judgment, and the sentence) to 

establish under which subdivision the defendant ,was charged, U.S. ex 

rel. Zaffarano v. Corsi, 63 F.2d 757 (C.A. 2, 1933). 

In all cases, the nature of the offense and the guilt of the alien can be 

determined only by the record of conviction. The alien cannot be heard 

at the deportation hearing to testify that he was not guilty of the 

offense, or that his actions were actually different from those described 

in the record of conviction. The criminal case cannot be retired in the 

deportation proceedings, Zgodda v. Holland, 184 F. Supp. 847 (E.D. 

Pa., 1960). Similarly, if the crime as made out by the record of conviction does not involve moral turpitude, the testimony of the alien at the 

deportation hearing cannot be accepted to prove that his conduct was 

actually turpitudinous. 

Applying these principles, it seems to me that the offense of which the 

respondent was charged cannot be said to involve moral turpitude. 

When it comes to assault and battery, whether or not moral turpitude is 

involved is largely a matter of intent. Simple assault and battery does 

not involve moral turpitude, Ciambelii ex re/. Maranci v. Johnson, 12 

F.2d 465 (D. Mass., 1926); Matter of B—, 5 L & N. Dec. 538 (BIA 1953). 

Assault with intent to kill does, Clark v. Orabona, 59 F.2d 187 (CA. 1, 

1932), cert. denied 287 U.S. 629; U.S. ex rel. Shladzien v. Warden, 45 

F.2d 204 (E.D. Pa., 1930). So does assault witha deadly weapon or one 

likely to inflict great bodily harm, Gonzales v. Barber, 207 F.2d 398 

(C.A. 9, 1953). 

Respondent.was convicted of assault in the third degree. As the crime 

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Interim Decision #2310 

is defined in the Virgin Islands statute before us, five different types of 

conduct are covered. Categories (1), (2), (3) and (5) must be ruled out. 

There is nothing in the record of conviction to show either that (1) there 

was an intent to commit a felony; or (2) that a deadly weapon was used; 

or (3) that there was a premeditated design and that respondent used 

means calculated to inflict great bodily harm; or (5) that the victim was a 

peace officer and that a weapon was used. This leaves the fourth subdivision as the only possible basis for the third degree assault charge. 

Although that subdivision is obviously different from simple assault and 

battery, the difference does not lie in the intent involved but in the 

nature of the resultant injury. Under the fourth subdivision, it is the 

serious bodily injury which results from the assault, and not the intent 

with which the assault was committed, that is determinative. A simple 

assault and battery which unintentionally results in serious bodily injury is within the ambit of the fourth subdivision. Absent the evil intent 

which goes beyond simple assault and battery, the crime defined by the 

fourth subdivision cannot be said to involve moral turpitude; the gravity 

of the punishment is not controlling, ET .S. as rel. Zaffarano v. Corsi, 63 

F.2d 757 (C.A. 2, 1933); Gonzales v. Barber, 207 F.2d 398 (C.A. 9, 

1953). 

The respondent's testimony at the deportation hearing that he struck 

the victim with a partly full beer, bottle from which he had been drinking 

does not supply the missing link to moral turpitude. The nature of the 

offense must be determined from the conviction record, not from the 

alien's testimony at the deportation hearing, U.S. ex rel. Mylius v. Uhl, 

210 Fed. 860 (C.A. 2, 1914); U.S. ex rel. Manzella v. Zimmerman, 71 

F. Supp. 534 (E.D. Pa., 1947). In relying for its decision on such testimony given at the deportation hearing, the majority recedes from a 

long and well-established principle and sets a precedent which may turn 

out to be unfortunate in many ways. If the testimony of an alien may be 

adduced to prove that the crime of which he was convicted did involve 

moral turpitude, no reason appears why an alien should not be permitted to testify as to facts indicating that the crime did not involve moral 

turpitude. The net result will be to open the door to retrial in the 

deportation hearing of the question of the nature of the crime and 

whether the alien was actually guilty of the crime. This is a major and 

unwarranted departure from precedents which have stood the test of 

time. 

Since I conclude that the Service has not borne its burden of proving 

by clear, convincing and unequivocal evidence that the respondent was 

convicted of a crime involving moral turpitude, I would sustain the 

appeal and terminate the proceedings. 

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