PEREZ-CONTRERAS

Interim Decision #3194

MATTER OF PEREZ-CONTRERAS
In Deportation Proceedings

A-35824376
Decided by Board November 20, 1992

(I) A conviction for assault in the third degree under section 9A.36.031(1)(0 of the
Revised Code of Washington is not a firearm offense where use of a firearm is not an
element of the offense.
(2) A conviction for assault in the third degree under section 9A.36.031(I)(f) of the
Revised Code of Washington is not a crime involving moral turpitude where
intentional or reckless conduct is excluded from the statutory definition of the crime.
(3) The Board withdraws from Matter of Baker, 15 I&N Dec. 50 (BIA 1974), to the
extent it holds that assault in die third degree resulting in great bodily harm is a crime
involving moral turpitude without regard to the existence of intentional or reckless
conduct.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2)(A)(ii) [8 U.S.C. § 1251(a)(2)(A)(ii))—Crimes invOlv-
ing moral turpitude
Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)j—Convicted of fire-
arms violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jay W. Stansell, Esquire David B. Hopkins
Northwest Immigrant Rights Project District Counsel
909 8th Avenue
Seattle, Washington 48104

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

The respondent appeals from a decision dated August 3, 1992, in
which the immigration judge found the respondent deportable and
ineligible for relief from deportation and ordered him deported to
Mexico.' The appeal will be sustained and the proceedings will be
terminated. The request for oral argument is denied.

'The respondent was clamed with deportability under sections 741(a)(2)(A)(ii) and
(C) of the Immigration and Nationality Act, 8 U.S.0 §§ 1251(a)(2)(A)(ii) and (C) (Supp.
III 1991), as an alien convicted of two crimes involving moral turpitude and of a firearm
violation. In the summary of his oral decision, the immigration judge did not state the

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Interim Decision #3194

The respondent is a 21-year-old native and citizen of Mexico who
entered the United States on September 15, 1985, as a lawful
permanent resident? On November 19, 1991, he was convicted, in the
Superior Court of the State of Washington for Franklin County, of the
offense of assault in the third degree in violation of section
9A.36.031(1)(f) of the Revised Code of Washington. The respondent
was also convicted in the same court on January 8, 1992, of the offense
of robbery in the second degree in violation of sections 9A.56.190 and
9A.56.210(1) of the Revised Code of Washington. On July 15, 1992,
the Immigration and Naturalization Service issued an Order to Show
Cause and Notice of Hearing (Form 1-221) against the respondent,
charging him with deportability as an alien convicted of two crimes
involving moral turpitude and a firearm violation. At a hearing on
August 3, 1992, the respondent, through counsel, denied deportability.
The immigration judge found the respondent deportable and ordered
his deportation, giving rise to the instant appeal.
The Service has first charged the respondent with deportability
under section 241(a)(2)(C) of the Act, which provides for the
deportability of any alien who

at any time after entry is convicted under any law of purchasing, selling, offering for
sale, exchanging, using, owning, possessing, or carrying in violation of any law, any
weapon, part, or accessory which is a firearm or destructive device (as defined in
section 921(a) of title 18, United States Code).

The criminal information for the respondent's assault charge states
that he shot the victim in the arm with a pistol "with criminal
negligence." The Service alleges, and the immigration judge apparently
found, that the foregoing statement establishes that the respondent was
convicted of a firearm offense. We disagree.
The respondent was convicted of assault in the third degree under
subsection (f) of section 9A.36.031(1) of the Revised Code of
Washington, which provides as follows:

basis for his finding of deportability. During the hearing, he indicated that he found the
respondent deportable under the firearm charge, but he did not explicitly address the
moral turpitude charge. Since the immigration judge's form decision does not discuss
the evidence of deportability, we find that it does not comport with the requirements of
8 C.F.R. § 242.18(a) (1992). To avoid any prejudice to the respondent, we will review
the record de novo and address both charges.
2 Contrary to the allegation in the Order to Show Cause and Notice of Hearing (Form
1-221) that he entered on September 15, 1985, the respondent alleges that he first
entered the United States as a lawful permanent resident in 1975 or 1976 In its brief,
the Immigration and Naturalization Service states that the respondent entered as an
immigrant on May 18, 1976. We need not determine the accurate date of entry for
purposes of this appeal.

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A person is guilty of assault in the third degree if he or she, under circumstances not
amounting to assault in the first or second degree:
(a)With intent to prevent or resist the execution of any lawful process or mandate
of any court officer or the lawful apprehension or detention of himself or another
person, assaults another, or
(b) Assaults a person employed as a transit operator or driver by a public or
private transit company while that person is operating or is in control of a vehicle
that is owned or operated by the transit company and that is occupied by one or more
passengers; or

(c) Assaults a school bus driver employed by a school district or a private
company under contract for transportation services with a school district while the
driver is operating or is in control of a school bus that is occupied by one or more
passengers; or
(d)With criminal negligence, causes bodily harm to another person by means of a
weapon or other instrument or thing likely to produce bodily harm; or
(e)Assaults a fire fighter or other employee of a fire department or fire protection
district who was performing his or her official duties at the time of the assault; or
(f)With criminal negligence, causes bodily harm accompanied by substantial pain
that extends for a period sufficient to cause considerable suffering; or

(g)Assaults a law enforcement officer or other employee of a law enforcement
agency who was performing his or her official duties at the time of the assault.
The respondent entered a plea of guilty to assault in the third degree
under subsection (f) of the above-quoted statute. 3 No element of the
crime to which he pled relates to the use of any weapon. Although the
criminal information states that the respondent used a pistol, he was
not charged with use of a pistol, nor did he plead guilty to such use. 4
Hethrfocanbsidetohvn"ciedfa
firearm offense and is not deportable under section 241(a)(2)(C) of the
Act.
We will next address whether the respondent's conviction for
assault in the third degree constitutes a crime involving moral
turpitude.s We have observed that moral turpitude is a nebulous

We note that subsection (d) of the statute specifically provides for assault with the
use of a weapon. The respondent was not charged under that subsection, nor was he
charged with unlawful use or possession of a firearm. See Wash. Rev. Code Ann. § 9.41
(West 1992).
4 The statement in the information is surplusage. See State v. McGary, 683 P.2d 1125
(1984) (holding that the government need not prove all statements in an information;
surplus statements do not become an element of the crime); State v. Serr, 664 P.2d 1301
(1983) (noting that unnecessary statements in an information do not increase the
elements that must be proved); Matter of Lethbridge, 11 I&N Dec. 444 (BIA 1965)
(stating that language in indictment charging knowledge of counterfeit nature is not
found in statute and is therefore apparently surplusage).
5 The respondent does not contest that his robbery conviction involves moral
turpitude.

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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 generally Matter of Short,
20 I&N Dec. 136 (BIA 1989), and cases cited therein. Assault may or
may not involve moral turpitude. Matter of Danesh, 19 I&N Dec. 669
(BIA 1988). Simple assault is generally not considered to be a crime
involving moral turpitude. Matter of Short, supra.
In determining whether a crime involves moral turpitude, we
consider whether the act is accompanied by a vicious motive or
corrupt mind. Okabe v. INS, 671 F.2d 863 (5th. Cir. 1982); Winestock
v. INS, 576 F.2d 234 (9th Cir. 1978); Hirsch v. INS, 308 F.2d 562 (9th
Cir. 1962); United States ex rel. Meyer v. Day, 54 F.2d 336, 337 (2d
Cir. 1931); United States ex rel. Shladzien v. Warden of Eastern State
Penitentiary, 45 F.2d 204, 205 - 06 (E.D. Pa. 1930); Matter of Balao, 20
I&N Dec. 440 (BIA 1992); Matter of Flores, 17 I&N Dec. 225 (BIA
1980). Where knowing or intentional conduct is an element of an
offense, we have found moral turpitude to be present. Matter of
Danesh, supra. However, where the required mens rea may not be
determined from the statute, moral turpitude does not inhere. See
Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass. 1926)
(holding that assault and battery upon a police officer does not involve
moral turpitude where intent is not charged); Matter of Lopez, 13 I&N
Dec. 725, 726-27 (BIA 1971) (finding no moral turpitude where statute
does not distinguish between voluntary and involuntary manslaughter
and indictment does not reveal intent); Matter of Espinosa, 10 I&N
Dec. 98 (BIA 1962) (finding no moral turpitude where statute did not
distinguish between the offenses of making a false, as opposed to a
fraudulent, statement based on mens rea).
In two cases, we have found moral turpitude present in criminally
reckless conduct. Matter of Wojtkow, 18 I&N Dec. 111 (BIA 1981)
(defining reckless conduct as the awareness of and conscious disregard
of a substantial and unjustifiable risk); Matter of Medina, 15 I&N Dec.
611 (BIA 1976), affd, 547 F.2d 1171 (7th Cir. 1 977) (defining reckless
conduct as the conscious disregard of a substantial and unjustifiable
risk). While reckless conduct may not evince an intent to cause a
particular harm, it does reflect a willingness to disregard the risks
inherent in the conduct. Matter of Medina, supra, at 614.
The respondent was convicted of causing injury to his victim "with
criminal negligence." Criminal negligence exists when the perpetrator
"fails to be aware of a substantial risk that a wrongful act may occur
and his failure to be aware of such substantial risk constitutes a gross
deviation from the standard of care that a reasonable man would
exercise in the same situation." Wash. Rev. Code Ann.
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 Interim Decision #3194

§ 9A.08.010(1)(d) (West 1992). Compare Wash. Rev. Code Ann.
§ 9A.08.010(1)(d) (West 1992) (defining negligent mens rea) with
Wash. Rev. Code Ann. § 9A.08.010(I)(c) (West 1992) (defining
reckless conduct) and Matter of Danesh, supra (holding that aggravated
assault on a peace officer is morally turpitudinous where the assault
was committed "knowingly and intentionally"); and Matter of Medina,
supra (defining reckless conduct). Intentional conduct is specifically
excluded from this section. State v Sample, 757 P.2d 539 (1988)
(stating that simple assault is not a lesser included offense of assault in
the third degree because simple assault requires proof of intent,
whereas assault in the third degree does not). Moreover, the conscious
disregard of a substantial and unjustifiable risk is not required. See
Matter of Wojtkow, supra; Matter of Medina, supra.
Since there was no intent required for conviction, nor any conscious
disregard of a substantial and unjustifiable risk, we find no moral
turpitude inherent in the statute. See United States ex rel. Mongiovi v.
Karnuth, 30 F.2d 825 (W.D.N.Y. 1929) (holding that manslaughter in
the second degree does not involve moral turpitude since no evil intent
was involved); United States ex rel. Mylius v. Uhl, 203 F. 152, 154
(S.D.N.Y. 1913) (ruling that libel is not morally turpitudinous where
conduct is negligent because no moral baseness was shown); Matter of
Szegedi, 10 I&N Dec. 28, 34 (BIA 1962) (finding that involuntary
manslaughter resulting from grossly negligent conduct does not
involve moral turpitude because the intent element is not present);
Matter of J-, 4 I&N Dec. 512 (BIA 1951) (holding that aggravated
assault does not involve moral turpitude because specific intent must
accompany act); Matter of M-, 2 I&N Dec. 686, 691 (BIA 1946)
(finding that conduct proscribed by statute that does not require intent
is not morally turpitudinous).
The Service cites Matter of Baker, 15 I&N Dec. 50 (BIA 1974),
modified, Matter of Short, supra, in support of its contention that the
respondent's conviction involves moral turpitude. 6 The Virgin Islands
statute at issue in Matter of Baker proscribed assault' where serious
injury resulted, without specifying intent. We found that the provision
involved moral turpitude because of the injury caused and because
assault in the third degree was more serious than simple assault. The
holding was criticized by two Board members in dissenting opinions.
To the extent that Matter of Baker holds that any assault resulting in
great bodily harm involves moral turpitude, without regard to the
existence of intentional conduct or the conscious disregard of a

6 1n Matter of Short, the Board withdrew from Matter of Baker to the extent that it
holds that assault with intent to commit a felony constitutes a crime involving moral
turpitude without regard to the nature of the underlying felony.

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substantial and unjustifiable risk, it is inconsistent with other Board
and judicial caselaw and we herein withdraw from it.. See United States
ex rel. Mongiovi v. Karnuth, supra; Matter of Lopez, supra; Matter of
Szegedi, supra.
Accordingly, we conclude that the respondent's conviction for
assault in the third degree does not involve moral turpitude under the
facts of this case. The Service has failed to establish deportability
under either of the grounds charged, and the proceedings will therefore
be terminated.
ORDER: The appeal is sustained and the deportation proceed-
ings are hereby terminated.

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