Professional Documents
Culture Documents
Department of Justice
Name: M , W P A -160
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Malphrus, Garry D.
Liebowitz, Ellen C
Mullane, Hugh G.
Userteam: Docket
Cite as: W-P-M-, AXXX XXX 160 (BIA July 18, 2017)
,. .
APPEAL
CHARGE:
The respondent, a native and citizen of Jamaica and lawful permanent resident of the United
States, appeals the Immigration Judge's February 9, 2015, decision denying his application for a
waiver of inadmissibility under former section 212(c) of the Immigration and Nationality Act,
8 U.S.C. l 182(c) (1995), and deeming abandoned his application for cancellation of removal
under section 240A(a) of the Act, 8 U.S.C. 1229b(a) (2016) (l.J. at 2-3 & n.3). The Department
of Homeland Security ("DH S") opposes the appeal. The appeal will be dismissed in part and the
record remanded to the Immigration Judge for further proceedings.
The notice to appear ("NTA") charges the respondent with removability under
section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. l182(a)(2)(A)(i)(I}, as an arriving alien, following
his arrival at a border port of entry (Exh. 1). See section 101(a)(l3)( C)(v) of the Act, 8 U. S.C.
l 101(a)(13)( C)(v) (specifying that an LPR may not be regarded as seeking admission to the
United States ''unless the alien . . has committed an offense identified in section 212(a)(2)").
.
The respondent was convicted of assault with intent to commit criminal sexual conduct
involving sexual penetration in violation of Mich. Comp. Laws 750.520g(l) (hereafter
"section 750.520g( l )") in 1992, and of misdemeanor aggravated assault in violation of Mich.
Comp Laws 750.81a (hereafter "section 750.8la"), in 1997 (U at l; Tr. at 3, 5-6; Exh. 1). The
Immigration Judge concluded that both of these convictions were for crimes involving moral
turpitude (" CIMTs") (U at 6-10; Tr. at 7). The respondent does not contest that his 1992 conviction
is a CIMT, but argues that his 1997 conviction is not (Respondent's Br. at 2, 4, 7-11).
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Although the parties agree that the respondent's 1992 conviction is for a CIMT, that conviction
alone cannot support an allegation that the respondent is an applicant for admission, as it preceded
the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"). See Vartelas v. Holder, 566 U.S. 257, 261 (2012) (holding that
section 10l(a)( l 3)(C)(v) of the Act cannot be applied retroactively to a lawful permanent resident
whose conviction preceded the effective date of IIRIRA). Thus, our review of the
Immigration Judge's removability finding is limited to analyzing whether the respondent's
June 1997 conviction is a CIMT (U at 3 n.5). 1
Moral turpitude generally refers to conduct that is "inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed between persons or to society in
general." See Matter of Silva-Trevino, 26 l&N Dec. 826, 833 (BIA 2016) (citation omitted);
see also Se"ato-Soto v. Holder, 510 F.3d 686, 689 (6th Cir. 2009). "To involve moral turpitude,
a crime requires two essential elements: reprehensible conduct and a culpable mental state."
Matter of Silva-Trevino, 26 l&N Dec. at 834. We employ the categorical approach to determine
whether the respondent's conviction is for a CIMT, and thus focus on the minimum conduct
necessary for a conviction under the statute, rather than on the actual conduct which led to the
respondent's particular conviction. Id at 831-33; see also Reyes v. Lynch, 835 F.3d 556, 559
(6th Cir. 2016).
At the time of the respondent's conviction, the Michigan aggravated assault statute, in pertinent
part, provided as follows:2
1 The OHS argued before the Immigration Judge that the respondent, in a motion to change venue,
conceded removability as charged in the NTA (DHS's Position Statement as to the Respondent's
Eligibility for Relief at 1-3; Respondent's Motion to Change Venue at 4). The prior
Immigration Judge did not rule on the removability issue and the new Immigration Judge did not
rely on the respondent's concession in determining he was removable as charged (U at 2, 10;
U order, May 2, 2011). See 8 C.F.R. 1240.lO(c) (providing that the Immigration Judge "may
determine that removability as charged has been established" by the alien's admission) (emphasis
added). The OHS does not raise this issue on appeal.
2 The respondent asserts that he was convicted under subsection (1) (Respondent's Br. at 9-11).
However, the Immigration Judge made no such finding (IJ at 1, 3). The record reflects the
respondent admitted allegation five in the NTA, which does not reference a specific subsection of
section 750.8la (U at l; Tr. at 3, 6; Exh. l; Respondent's Br. at 2).
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A conviction under section 750.8la(l) involves two essential elements: (1) that the perpetrator
have committed an assault against the victim, and (2) that the assault have caused serious or
aggravated injury. See Michigan Model Criminal Jury Instructions ("MMCll") 17.6 (2016).
"Assault" in Michigan is a specific intent crime that requires an individual to intentionally attempt
to commit a battery or to commit an unlawful act with the intent to put the victim in reasonable .
fear or apprehension of an immediate battery. See People v. Datema, 533 N.W.2d 272,
279 (Mich. 1995); People v. Johnson, 284 N.W.2d 718, 718-19 (Mich. 1979); MMCll 17.6
(indicating that the prosecution must establish that the defendant intended either to injure the
victim or to make the victim reasonably fear an immediate battery); see also People v. Reeves,
580 N.W.2d 433, 435 (Mich. 1998) (defining "battery" as "an intentional, unconsented and
harmful or offensive touching of the person of another, or of something closely connected with the
person"). A "serious or aggravated injury" is defined as "substantial bodily (physical) injury or
injury that necessitated immediate medical treatment or caused disfigurement, impairment of
health or impairment of any bodily part." People v. Brown, 296 N.W.2d 121, 123 (Mich. Ct.
App. 1980); see MMCn 17.6.
Simple assault and battery-Le., the mere offensive touching or threatened offensive touching
of another person, committed with general intent and not resulting in serious bodily harm-is not
a CIMT. See, e.g., Matter of Wu, 27 I&N Dec. 8, 11 (BIA 2017); Matter of Ahortalejo-Guzman,
25 I&N Dec. 465, 466 (BIA 2011); Matter of Fualaau, 21 I&N Dec. 475, 477 (BIA 1996).
"However, this general rule does not apply where a statute contains elements that deviate from
those associated with simple assault and battery and 'involves some aggravating factor that
indicates the perpetrator's moral depravity.'" Matter of Wu, 27 I&N Dec. at 11 (quoting
Matter of Ahortalejo-Guzman, 25 l&N Dec. at 466); see also Matter of Ahortalejo-Guzman,
25 l&N Dec. at 466 (indicating that where an assault or battery involves an aggravating factor such
as the infliction of serious injury on a child or domestic partner, moral turpitude may inhere);
Matter of Fualaau, 21 I&N Dec. at 478 (noting that a reckless state of mind coupled with infliction
of serious bodily injury can be a CIMT).
Here, the respondent's statute of conviction differs from a simple assault statute because it
requires a specific intent-rather than general intent-to commit assault and requires the
3
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perpetrator to have caused serious physical injury to the victim. 3 In other words, section
750.8la(l) covers more than simple assault (or a more offensive touching); it covers assault that
inflicts serious or aggravated injury. Such aggravating elements not only increase the gravity of
the danger contemplated by the offender's conduct, but also increase the degree of mental
culpability. See Matter of Wu, 27 l&N Dec. at 11; see also Matter ofSolon, 24 I&N Dec. 239, 243
(BIA 2007) (determining that an assault statute requiring both the specific intent to injure and the
2016) (per curiam); Matter ofLeal, 26 I&N Dec. 20, 24-25 (BIA 2012) (holding that "recklessly
endangering another person with a substantial risk of imminent death" is a CIMT}, aff'd, Leal v.
Holder, 771 F.3d 1140 (9th Cir. 2014). Additionally, we note that Michigan has a separate simple
assault statute that does not require the serious physical injury necessary for a conviction under
section 750.8la. See MICH. COMP. LAW 750.81 (2017). Thus, the conduct criminalized by
section 750.81a is of a more serious and morally turpitudinous nature than that of simple assault.
We are unpersuaded by the respondent's argument that his conviction under section 750.8la
is not for a CIMT because he was allegedly acting in self-defense (Respondent's Br. at 10).
Self-defense is an affirmative defense to a charge under section 750.8la, and therefore
such conduct would not sustain a conviction. See People v. George, 540 N.W.2d 487, 488
(Mich. App. 1995) (remanding for an opportunity for the defendant, charged under
section 750.81a, to present a character witness to support his claim he was acting in self-defense);
see also People v. Dupree, 788 N.W.2d 399, 406 (Mich. 2010) ("It is axiomatic that the common
law affirmative defense of self-defense is embedded in our criminal jurisprudence."). Moreover,
the respondent has not identified-nor have we uncovered-any case in which Michigan applied
section 750.8la to conduct falling outside the CIMT definition (Respondent's Br. at 10-11).
Based on the foregoing, we conclude that the respondent's conviction under section 750.8la
is categorically for a CIMT. See Matter ofSilva-Trevino, 26 I&N Dec. at 831-33. The respondent
is therefore removable as charged under section 212(a)(2)(A)(i)(I) of the Act. See
Matter ofRivens, 25 I&N Dec. at 625-26; section 10 l(a)(l3)(C)(v) of the Act. Additionally,
because this conviction occurred in June 1997, a waiver of inadmissibility under former
section 212(c) of the Act is unavailable. See Matter of Abdelghany, 26 l&N Dec. 254, 261
(BIA 2014).
3 Although section 750.8la requires a specific intent to commit assault, it does not require the
perpetrator to have intended to cause serious or aggravated injury. See People v. Van Diver,
263 N.W.2d 370, 372 (Mich. Ct. App. 1977) (noting that aggravated assault is distinguishable
from other types of assault because it lacks a specifically intended result as an element); cf MICH.
COMP. LAW 750.84 (2017) (defining a separate crime which requires that an individual commit
assault with the intent to cause great bodily harm).
4
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The respondent argues on appeal that he is eligible for cancellation of removal under
section 240A(a) of the Act and that the Immigration Judge improperly concluded that he had
abandoned his application (U at 2-3 & n.3; Respondent's Br. at 2-7). The Immigration Judge
deemed abandoned the respondent's claim for cancellation of removal because he did not submit
an application for the requested relief and because he did not submit briefing on the issue following
the OHS's renewed motion to pretermit the respondent's applications (U at 2-3 & n.3). The
The record indicates that although the parties discussed the issue of cancellation of removal at
the June 22, 2011, hearing and the Immigration Judge granted the respondent's request to submit
briefing on the issue, neither the Immigration Judge nor the parties mentioned the respondent's
eligibility for cancellation of removal at the final hearing (l.J. at 3 n.3; Tr. at 14-15, 19-22). Insofar
as the Immigration Judge indicated he would consider the respondent's arguments relating to
cancellation eligibility and did not specify a deadline for the respondent to file his cancellation
application, we conclude that the respondent did not abandon his application for cancellation of
removal. Cf. Matter ofR-R-, 20 l&NOec. 547, 549 (BIA 1992) (noting that where an Immigration
Judge sets a time limit for the filing of an application, an application not filed by that deadline will
be deemed abandoned); 8 C.F.R 1003.31(c).
On appeal, the OHS argues that the respondent is not eligible for cancellation of removal
because he has been convicted of an aggravated felony. See section 240A(a)(3) of the Act.
Specifically, the OHS claims that the respondent's 1992 conviction for assault with intent to
commit criminal sexual conduct under section 750.520g(l) constitutes sexual abuse of a minor
(DHS's Br. at 2). See section 10l(a)(43)(A) of the Act, 8 U.S.C. 110l(a)(43)(A). We employ
the categorical approach to determine whether the respondent's offense qualifies as an aggravated
felony, and thus focus on the minimum conduct that has a realistic probability of being prosecuted
under section 750.520g(l). See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013).
Section 750.520g(l) criminalizes as a felony "[a]ssault with intent to commit criminal sexual
conduct involving sexual penetration." MICH. COMP. LAWS 750.520g(l) (1992). Michigan has
defined the elements of the offense as "(l) an assault, and (2) an intent to commit [criminal sexual
conduct] involving sexual penetration." People v. Nickens, 685 N.W.2d 657, 661 (Mich. 2004);
accord People v. Love, 283 N.W.2d 781, 784 (Mich. Ct. App. 1972). The age of the victim is not
an element of the offense. See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (defining
"elements" as ''things the prosecution must prove to sustain a conviction" and noting that the focus
of the categorical approach is on elements rather than facts (internal citation omitted)). Because
an individual could be convicted under this statute regardless of whether the victim was an adult
or a minor, the statute is overboard vis-a-vis the age of the victim. See Matter ofV-F-D-, 23 l&N
Dec. 859, 862 (BIA 2006) (holding that "minor" means an individual under the age of 18 for the
purposes of determining whether an alien has been convicted of sexual abuse of a minor pursuant
to section 101(a)(43)(A) of the Act); but see Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568
(2017) (holding that in the context of statutory rape offenses that criminalize sexual intercourse
based solely on the age of the participants, the generic federal definition of "sexual abuse of a
5
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minor". under section 10 l (a)(43)(A) of the Act requires the victim to be younger than 16).
Section 750.520g( l ) is therefore not categorically sexual abuse of a minor.
Although the DHS claims that the respondent's conviction records establish that the victim
was under the age of 13, we may look at conviction records only when a statute is divisible and
Based on the foregoing, we will remand the record to the Immigration Judge to allow the
respondent to apply for cancellation of removal under section 240A(a) of the Act and any other
relief for which he may be eligible. On remand, the Immigration Judge should make the necessary
findings of fact and conclusions of law regarding the respondent's eligibility for the relief sought.
Additionally, the Immigration Judge should analyze whether the respondent's conviction under
section 750.520g( l ) is for a rape or attempted rape aggravated felony under sections 10 l (a)(43)(A)
and (U) of the Act, and thus bars him from cancellation of removal (Respondent's Br. at 4-7;
Respondent's Br. Opposing Intent to Pretermit, Nov. 17, 2011 at 3-6). See section 240A(a)(3) of
the Act. The Immigration Judge should also consider whether the respondent warrant s relief from
removal in the exercise of discretion and is not limited to the categorical approach in this analysis.
Accordingly, the following orders will be entered.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.
6
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j "
I. PROCEDURAL HISTORY
Permanent Resident on November 22, 1975. On March 19, 1992, respondent pied guilty to
assault with intent to commit criminal sexual conduct involving sexual penetration, in violation
of MICH. COMP. LAWS 750.520g(l) [hereinafter "CSC Conviction'l In 1997, he pied guilty to
aggravated assault, in violation of MICH. COMP. LAWS 750.8la.1 On April 16, 2010,
1 This offense is "[s]ometimes referred to as 'assault and infliction of serious injury."' People v. Brown, 296
N.W.2d 121, 123 n.2 (Mich. Ct App. 1980).
I
'
respondent arrived in Atlanta, Georgia, following a visit to Montego Bay, Jamaica. At that time,
inadmissible arriving alien pursuant to section 212(a)(2)(A)(i)(I) of the Act. Respondent was
Following a change of venue, respondent attended his first master calendar hearing in this
Court on June 22, 2011. At that hearing, respondent admitted all factual allegations contained in
his NTA, but denied the alleged charge of inadmissibility. Specifically, respondent claimed that
while he was convicted of two crimes, only the CSC Conviction constituted a crime involving
moral turpitude ("CIMT"). Furthermore, respondent alleged prima facie eligibility for a waiver
of that conviction under former section 212(c) of the Act. Consequently, respondent argued that
he would ultimately be eligible for relief. 2 The Court continued the matter to provide respondent
time to submit his 212(c) waiver materials, and set an individual hearing date to determine
respondent's 212(c) eligibility. The Court also charged the Government with obtaining and
Prior to respondent's scheduled individual hearing, the Government requested that the
Court reset his master calendar hearing. At that reset master calendar hearing, respondent
requested time to brief his 212(c) waiver eligibility as well as his eligibility for relief in the
form of Cancellation of Removal for Certain Permanent Residents under INA 240A(a). The
Court granted respondent the requested time, instructing him to brief all "eligibility for relief
issues." While both respondent and the Government provided the requested briefing prior to
respondent's next master calendar hearing, neither party was able to procure the records related
2 Respondent also stated at that time that he would be seeking Voluntary Departure in the alternative. However, as
the Government correctly noted, respondent is ineligible for such relief due to his status as an arriving alien. See
INA 240B(a)(4), (b)(l).
2
"
3
to respondent's aggravated assault conviction. The Court, believing at that time that the entire
CIMT, thus disqualifying him from relief following a 212(c) waiver, denied the Government's
reconsider the Government's position if a renewed motion to pretermit was submitted in tandem
accompanied by a General Incident Report prepared by the Grand Rapids Police Department
Officer's Offense Report Follow-Up prepared by Officer Bekker, presumably a member of the
4
GRPD. DHS's Renewed Motion to Pretermit, Tab 1 (May 23, 2014). Respondent declined to
respond to the Government's renewed motion, which the Court will now decide. As there is no
dispute whether respondent's first and second convictions are or are not covered by former
5
section 212(c) of the Act, respectively, the Court's discussion is limited to the issue of whether
respondent's conviction for aggravated assault, in violation of MICH. COMP. LAWS 750.8la,
constitutes a CIMT.
3 There was no discussion of respondent's eligibility for 240A(a) relief at that hearing, and respondent bas not
since submitted briefing on that issue, nor bas he submitted an application for such relief. The Court thus considers
respondent's 240A(a) eligibility claim abandoned.
4 The Court notes that these documents fall far short of respondent's full conviction record for the offense.
However, the Court's prior request for respondent's complete conviction records was made under the presumption
that a modified categorical approach would be necessary in reaching its decision. As will be shown below,
respondent's offense is categorically a CIMT, and thus access to his full conviction record is unnecessary.
Additionally, the Court notes that the documents submitted would have been insufficient even if it had conducted a
modified categorical approach as "a police report, standing alone, is not a part of a 'record of conviction' . . . . "
Mattero/Teixeira, 21 I&N Dec. 316, 316 (BIA 1996); see also text accompanying note 6.
s The parties and the Court are in agreement that respondent is eligible to seek a 212(c) waiver for his CSC
Conviction, which occurred following a guilty plea on March 19, 1992, but that his June 1997 aggravated assault
conviction would be ineligible for such relief. See generally Matter ofAbdelghany, 26 I&N Dec. 245 (BIA 2014)
(permitting 212(c) waiver for convictions obtained by guilty plea prior to April 24, 1996, but eliminating such
relief for all convictions occurring after April 1, 1997).
3
II. LEGAL STANDARDS
To qualify as a CIMT, "a crime must involve both reprehensible conduct and some
of Silva-Trevino, 24 l&N Dec. 687, 689 n.l (A.G. 2008). Generally, moral turpitude refers to
conduct that is inherently base, vile, depraved, or contrary to the accepted rules of morality and
the duties owed between persons or society in general. See Ruiz-Lopez v. Holder, 682 F.3d 513,
518-19 (6th Cir. 2012); Matter ofFranklin, 20 l&N Dec. 867, 868 (BIA 1994). The seriousness
of a criminal offense, the severity of the sentence imposed, or the particular circumstances of the
crime's commission are of no import. Matter of Serna, 20 l&N Dec. 579, 581 (BIA 1992);
Matter ofShort, 20 I&N Dec. 136, 137 (BIA 1989). Therefore, when evaluating whether a crime
involves moral turpitude, the specific statute under which the conviction occured
r controls.
Matter of Lopez-Meza, 22 l&N Dec. 1188, 1193 (BIA 1999); see also Matter ofKhourn, 21 I&N
employed a two-step analysis, first using a categorical and then a modified categorical approach,
as enumerated in Taylor v. United States, 495 U.S. 575, 600-02 (1990), and Shepard v. United
States, 544 U.S. 13, 16-17 (2005). Prior to Descamps v. United States, 133 S. Ct. 2276 (2013),
some immigration judges applied the three-step CIMT analysis set forth in Matter of Silva-
6It is worth noting that the Sixth Circuit Court of Appeals, in whose jurisdiction this Court sits, never formally
adopted this three-tiered approach. See Ruiz-Lopez, 682 F.3d at 518 (applying only the first two steps of Si/va
Trevino); Kellerman v. Holder, 592 F.3d 700, 703-05 (6th Cir. 2010) (same); Serrato-Soto v. Holder, 510 F.3d 686,
689-90 (6th Cir. 2009) (same). Further, Silva-Trevino was recently overruled by the Fifth Circuit Court of
Appeals. See Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014). While the Fifth Circuit decision is not binding
on this Court, the decisions of the Sixth Circuit are. In light of the foregoing, the Court will only employ the
categorical and modified categorical approaches for determining whether an offense constitutes a crime involving
4
Although Descamps involved the analysis employed for determining whether a
conviction is for a violent felony under the Armed Career Criminal Act, it provided clarification
759, 763 (6th Cir. 2014) (applying Descamps in the sentencing context). As the Board, the
Attorney General, and the Sixth Circuit Court of Appeals have adopted the categorical and
modified categorical approaches for determining whether a crime involves moral turpitude, the
Under the categorical approach, the Court is limited to reviewing the elements of the
statute of conviction, rather than the specific facts of the alien's crime. Descamps, 133 S. Ct. at
2283; Serrato-Soto, 510 F.3d at 690. The Court must presume that the conviction rests upon
nothing more than the least serious of the acts criminalized by the statute. Moncrieffe v. Holder,
133 S. Ct. 1678, 1684 (2013). However, there must be a realistic probability that the state would
apply its statute to non-turpitudinous conduct contained within the offense in order to show that
the statute in question is not a categorical match. Id.; see also Gonzales v. Duenas-Alvares, 549
If all offenses under the statute are crimes which necessarily involve moral turpitude,
then the alien's conviction is for a crime involving moral turpitude and the inquiry ends. Ruiz
Lopez, 682 F.3d at 518. If instead the statutory language could encompass ''both conduct that
involves moral turpitude and conduct that does not," then the statute is not a categorical match.
Silva-Trevino, 24 l&N Dec. at 697. Under Descamps, deviation from the categorical approach
(i.e., application of the modified categorical approach) is permitted in only one scenario: when
(1) the respondent's prior conviction was for violating a divisible statute, and (2) only some of
moral turpitude.
5
7
the offenses or elements in the statute are a categorical match to the generic crime. Descamps,
133 S. Ct. at 2282-85 (citing Taylor, 495 U.S. at 602; Shepard, 544 U.S. at 17).
A divisible statute sets out one or more elements of the offense in the alternative-for
with or without a weapon. Id. at 2281, 2283. An offense's elements are those aspects which a
jury is required to find ''unanimously and beyond a reasonable doubt.'' Id. at 2288; Matter of
Chairez, 26 l&N Dec. 349, 354 (BIA 2014) (citations omitted). If jury unanimity is not required,
then the disjunctively presented alternatives are merely various ''means" by which a defendant
can commit the offense, not alternative "elements" of the offense. Chairez at 354 (citing Schad
v. Arizona, 501 U.S. 624, 636 (1991)). The focus of the modified categorical analysis is to
determine under which of the alternate elements respondent was convicted, rather than to
discover what respondent actually did. Id. at 2285. Using this approach, the Court may look at
extrinsic evidence such as the "charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant assented."
imprisonment for not more than 1 year or a fine of not more than
7In the CIMT context, this means that some of the offenses contemplated by the statute do not fit the definition of a
CIMT. Ruiz-Lopez, 682 F.3d at 518.
6
$1,000.00, or both.
her spouse or former spouse, an individual with whom he or she has or has
imprisonment for not more than l year or a fine of not more than
$1,000.00, or both.8
MICH. COMP .. LAWS 750.8la(l)-(2) (West 2014). As indicated by the Michigan Model
Criminal Jury Instructions, three elements must be proven beyond a reasonable doubt in
aggravated assault cases: (l) that the defendant tried to physically injure another person; (2) that
the defendant intended to injure; and (3) that the assault caused a serious or aggravated injury.
MICH. M CRIM JI 17.6 (2014); see also Brown, 296 N.W.2d at 122-23 (rejecting defendant's
claim that prosecution failed to sustain burden of proof on aggravated assault charge, finding
evidence "sufficient to justify ... a serious or aggravated injury" where testimony showed victim
had been rendered unconscious by blow to the head, struck his head on concrete as a result, and
CIMT. The Board of Immigration Appeals (''BIA" or "Board'') has routinely stated that
8 Subsection (3) includes the same basic requirements as subsection (2), but provides for increased penalties if the
perpetrator has previously committed a similar domestic violence offense. See MICH. COMP. LAWS 750.8 l a(3).
7
'"simple assaults' are generally not considered to be crimes involving moral turpitude." Matter
of Solon, 24 I&N Dec. 239, 241 (BIA 2007) (citing Matter of Danesh, 19 I&N Dec. 669, 670
(BIA 1988)). Simple assaults often lack an intent requirement, and many "prohibit a wide range
However, "( c]rimes committed intentionally or knowingly have historically been found to
meaningful level of harm, which must be more than mere offensive touching, may be considered
morally turpitudinous." Id. at 242; see also Singh v. Holder, 321 Fed. App'x 473, 476-77 (6th
Cir. 2009) (citations omitted) (noting that in the assault context, aggravating factors such as the
infliction of physical harm have prompted the BIA to find morally turpitudinous behavior). The
Board has previously found such a "meaningful level of harm," and ultimately a CIMT, where
the intentional action of the offender results in "impairment of physical condition or substantial
pain." Solon, 24 I&N Dec. at 245; see also Danesh, 19 I&N Dec. at 674 (''The fact that bodily
injury is an essential element indicates that sufficient force must have been employed to cause
harm to the victim's person. The offense is therefore properly deemed to be more serious than a
simple assault.").
Michigan's aggravated assault statute bears a striking resemblance to the New York
statute the Board deemed a CIMT in Matter of Solon. There, the Board determined that there
were two elements necessary to sustain a conviction of assault in the third degree: "(l) that the
offender acts with the conscious objective to cause another person [meaningful physical injury] .
. . and (2) that such impairment of physical condition or substantial pain actually results." Solon,
24 I&N Dec. at 245. Similarly, to sustain an aggravated assault conviction in Michigan, the
8
prosecutor must show beyond a reasonable doubt: (1) that the defendant tried to physically injure
another person; (2) that the defendant intended to injure; and (3) that the assault caused a serious
or aggravated injury. MICH. M CRIM JI 17.6 (2014). Though different in form, these three
of aggravated assault in Michigan, the defendant must have intentionally acted to cause another
an injury decidedly more serious than a ''mere offensive touching," and been successful in that
9
attempt This is true regardless of which subset of the offense the defendant is charged under.
probability that any conduct which is not sufficiently base, vile, depraved, or contrary to the
accepted rules of morality and the duties owed between persons or society in general will be
punished under MICH. COMP. LAWS 750.81a. See Ruiz-Lopez, 682 F.3d at 518-19. As such,
this Court is precluded from conducting a modified categorical approach, and the lack of
10
waiver for his aggravated assault conviction under former section 212(c) of the Act and he has
abandoned his claim for cancellation of removal, the Government's motion to pretermit will be
granted.
9The Court notes, however, that "it has often been found that moral turpitude necessarily inheres in assault and
battery offenses that are defined by reference to the infliction of bodily harm upon a person whom society views as
deserving of special protection, such as ... a domestic partner." Matter ofSanudo, 23 I&N Dec. 968, 971-72 (BIA
2006) (emphasis added) (citations omitted). This suggests that subsections (2) and (3), which specifically relate to
aggravated assault of a domestic partner, are only more vile and reprehensible than the most basic form of
aggravated assault. See MICH. COMP. LAWS 750.Sl a.
10
See supra note 5.
9
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IV. ORDERS
Date Hoa D
U.S. hnmigration Judge
10