SANUDO

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 (BIA 2006)                                  Interim Decision #3537




              In re Renato Wilhemy SANUDO, Respondent
                            File A92 886 946 - San Diego
                                Decided August 1, 2006
                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) An alien’s conviction for domestic battery in violation of sections 242 and 243(e)(1) of
   the California Penal Code does not qualify categorically as a conviction for a “crime
   involving moral turpitude” within the meaning of section 237(a)(2)(A)(ii) of the
   Immigration and Nationality Act, 

(a)(2)(A)(ii) (2000).

(2) In removal proceedings arising within the jurisdiction of the United States Court of
   Appeals for the Ninth Circuit, the offense of domestic battery in violation of sections 242
   and 243(e)(1) of the California Penal Code does not presently qualify categorically as a
   “crime of violence” under 

 (2000), such that it may be considered a “crime
   of domestic violence” under section 237(a)(2)(E)(i) of the Act. Ortega-Mendez v.
   Gonzales, 

 (9th Cir. 2006), followed.
FOR RESPONDENT: Bill Waddell, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kathryn E. Stuever, Assistant
Chief Counsel
BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members.
COLE, Board Member:

  The Department of Homeland Security (“DHS”) appeals from an
Immigration Judge’s February 17, 2005, decision terminating removal
proceedings against the respondent, who had been charged with deportability
under sections 237(a)(2)(A)(ii) and (E)(i) of the Immigration and Nationality
Act, 

(a)(2)(A)(ii) and (E)(i) (2000), as an alien convicted of
two or more crimes involving moral turpitude and a crime of domestic
violence, respectively. The appeal will be dismissed.
              I. FACTUAL AND PROCEDURAL HISTORY

  The respondent is a native and citizen of Mexico and a lawful permanent
resident of the United States. The record reflects that he has sustained two
criminal convictions in California that are relevant to these proceedings:
(1) on March 1, 2001, for the offense of domestic battery in violation of
sections 242 and 243(e)(1) of the California Penal Code; and (2) on

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September 23, 2003, for the offense of grand theft in violation of section
487(a) of the California Penal Code.
  The DHS initiated removal proceedings against the respondent in March
2004, charging him with deportability under section 237(a)(2)(E)(i) of the Act
based on his domestic battery conviction. In May 2004, an additional charge
of deportability was lodged against him under section 237(a)(2)(A)(ii) of the
Act, based jointly on the domestic battery and grand theft convictions. The
Immigration Judge dismissed the charges of deportability and terminated the
removal proceedings, finding that the respondent’s domestic battery offense
did not qualify as either a “crime involving moral turpitude” or a “crime of
domestic violence” under the immigration laws. It is from this determination
that the DHS appeals.
                                     II. ISSUE
  This appeal requires us to determine whether the respondent’s March 2001
conviction for domestic battery in violation of sections 242 and 243(e) of the
California Penal Code qualifies as a conviction for a “crime involving moral
turpitude” or a “crime of domestic violence” within the meaning of sections
237(a)(2)(A)(ii) and (E)(i) of the Act, respectively.
     III. DOMESTIC BATTERY UNDER CALIFORNIA LAW
  Section 242 of the California Penal Code, which defines the California
offense of “battery,” provides in its entirety that “[a] battery is any willful and
unlawful use of force or violence upon the person of another.” The California
courts have construed section 242 to require an unprivileged “‘touching of the
victim’” by means of force or violence. People v. Jackson, 

 (Cal. Ct. App. 2000) (quoting People v. Marshall, 

(Cal. 1997)). However, they have also significantly qualified the statutory
language, emphasizing that “[t]he word ‘violence’ has no real significance.”
People v. Mansfield, 

, 802 (Cal. Ct. App. 1988). Thus, the
courts have held that “the force used need not be violent or severe and need
not cause pain or bodily harm.” Gunnell v. Metrocolor Labs., Inc., 

 (Cal. Ct. App. 2001) (citing People v. Rocha, 

,
377 n.12 (Cal. 1971) (quoting 1 Bernard E. Witkin, California Crimes 243-44
(1963))). Furthermore, although battery is a “specific intent” crime in
California, the requisite intent pertains only to the commission of the
“touching” that completes the offense, and not to the infliction of harm on the
victim. People v. Mansfield, supra, at 803 (“A person need not have an intent
to injure to commit a battery. He only needs to intend to commit the act.”).
  Section 243 of the California Penal Code specifies a range of punishments
that may be imposed on an offender convicted of battery. According to the
statute, the maximum term of imprisonment available for a given offender is

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tied to the characteristics of his particular offense, such as the nature and
extent of any injuries he may have caused to the victim, or the victim’s
inclusion in some class of persons accorded heightened protection by the
California Legislature. The respondent’s sentence was imposed pursuant to
section 243(e)(1), which provides, in pertinent part, as follows:
        When a battery is committed against a spouse, a person with whom the defendant
      is cohabiting, a person who is the parent of the defendant’s child, former spouse,
      fiancé, or fiancée, or a person with whom the defendant currently has, or has
      previously had, a dating or engagement relationship, the battery is punishable by a
      fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail
      for a period of not more than one year, or by both that fine and imprisonment.1

Because the maximum sentence that may be imposed pursuant to section
243(e)(1) is a 1-year term of incarceration in county jail, the offense is
classified as a misdemeanor under section 17(a) of the California Penal Code.
                                 IV. DISCUSSION
                      A. Crimes Involving Moral Turpitude

 Based in part on the aforementioned domestic battery conviction, the DHS
charged the respondent with deportability under section 237(a)(2)(A)(ii) of the
Act, which provides as follows:
        Any alien who at any time after admission is convicted of two or more crimes
      involving moral turpitude, not arising out of a single scheme of criminal misconduct,
      regardless of whether confined therefor and regardless of whether the convictions
      were in a single trial, is deportable.

  As a general rule, a crime involves “moral turpitude” if it 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. Matter of Olquin, 

 (BIA 2006); Matter of Torres-Varela, 

(BIA 2001); see also Grageda v. U.S. INS, 

 (9th Cir. 1993)
(noting that courts have described moral turpitude in general terms as “an ‘act
of baseness or depravity contrary to accepted moral standards’” (quoting
Guerrero de Nodahl v. INS, 

 (9th Cir. 1969)), and as
“‘basically offensive to American ethics and accepted moral standards’”
(quoting Castle v. INS, 

 (4th Cir. 1976))). Whether a
particular crime involves moral turpitude is determined by reference to the
statutory definition of the offense and, if necessary, to authoritative court
decisions in the convicting jurisdiction that elucidate the meaning of
1
   Section 243(f)(10) of the California Penal Code further defines the phrase “dating
relationship” to mean “frequent, intimate associations primarily characterized by the
expectation of affectional or sexual involvement independent of financial considerations.”

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equivocal statutory language. See Matter of Olquin, supra, at 897 & n.1.
However, we may not consider the actual conduct underlying the conviction.
Matter of Torres-Varela, supra, at 84 (citing McNaughton v. INS, 

 (9th Cir. 1980)).
  Historically, a case-by-case approach has been employed to decide whether
battery (or assault and battery) offenses involve moral turpitude. It has long
been recognized that not all crimes involving the injurious touching of another
reflect moral depravity on the part of the offender, even though they may carry
the label of assault, aggravated assault, or battery under the law of the relevant
jurisdiction. Matter of B-, 

, 58 (BIA, A.G. 1941) (finding that
second-degree assault under Minnesota law does not qualify categorically as
a crime involving moral turpitude (following United States ex rel. Zaffarano
v. Corsi, 

 (2d Cir. 1933))). We have continued to espouse
that view in our more recent cases on the subject. Matter of Fualaau, 

 (BIA 1996) (holding that third-degree assault under the law of
Hawaii, an offense that involved recklessly causing bodily injury to another
person, is not a crime involving moral turpitude); Matter of Perez-Contreras,

 (BIA 1992) (concluding that third-degree assault under the
law of Washington, an offense that involved negligently causing bodily harm
accompanied by substantial pain that extends for a period sufficient to cause
considerable suffering, is not a crime involving moral turpitude).
  At the same time, we have recognized that assault and battery offenses may
appropriately be classified as crimes of moral turpitude if they necessarily
involved aggravating factors that significantly increased their culpability. For
example, assault and battery with a deadly weapon has long been deemed a
crime involving moral turpitude by both this Board and the Federal courts,
because the knowing use or attempted use of deadly force is deemed to be an
act of moral depravity that takes the offense outside the “simple assault and
battery” category. See Gonzales v. Barber, 

 (9th Cir. 1953),
aff’d on other grounds, 

 (1954); Matter of Medina, 

 (BIA 1976), aff’d sub nom. Medina-Luna v. INS, 

 (7th
Cir. 1977); see also Sosa-Martinez v. U.S. Att’y Gen., 

(11th Cir. 2005); Yousefi v. U.S. INS, 

, 326-27 (4th Cir. 2001);
Pichardo v. INS, 

 (5th Cir. 1997); United States ex rel.
Zaffarano v. 

 Likewise, assault and battery offenses that
necessarily involved the intentional infliction of serious bodily injury on
another have been held to involve moral turpitude because such intentionally
injurious conduct reflects a level of immorality that is greater than that
associated with a simple offensive touching. Sosa-Martinez v. U.S. Att’y
Gen., supra; Nguyen v. Reno, 

 (1st Cir. 2000); Matter of P-,

, 377 (BIA 1956).
  Moreover, it has often been found that moral turpitude necessarily inheres
in assault and battery offenses that are defined by reference to the infliction


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of bodily harm upon a person whom society views as deserving of special
protection, such as a child, a domestic partner, or a peace officer, because the
intentional or knowing infliction of injury on such persons reflects a
degenerate willingness on the part of the offender to prey on the vulnerable
or to disregard his social duty to those who are entitled to his care and
protection. Garcia v. Att’y Gen. of U.S., 

 (11th Cir.
2003); Grageda v. INS, supra; Guerrero de Nodahl v. INS, supra; Matter of
Tran, 

 (BIA 1996); Matter of Danesh, 

(BIA 1988). The DHS argues that the respondent’s offense falls within this
class of cases because he was necessarily convicted of battering “a spouse, a
person with whom the defendant is cohabiting, a person who is the parent of
the defendant’s child, former spouse, fiancé, or fiancée, or a person with
whom the defendant currently has, or has previously had, a dating or
engagement relationship” in violation of section 243(e)(1). Under the
circumstances of this case, we do not agree.
  The respondent was convicted of committing a “battery,” as defined by
section 242 of the California Penal Code. The minimal conduct necessary to
complete such an offense in California is simply an intentional “touching” of
another without consent. Thus, one may be convicted of battery in California
without using violence and without injuring or even intending to injure the
victim. Such an offense is in the nature of a simple battery, as traditionally
defined, and on its face it does not implicate any aggravating dimension that
would lead us to conclude that it is a crime involving moral turpitude.
  Moreover, in each of the aforementioned cases that involved battery
offenses committed against the members of a protected class, the crimes at
issue were defined by statute to require proof of the actual infliction of some
tangible harm on a victim. See Garcia v. Att’y Gen. of U.S., supra
(aggravated child abuse under Florida law); Grageda v. INS, supra (willful
infliction of corporal injury resulting in a traumatic condition on a spouse
under California law); Guerrero de Nodahl v. INS, supra (willful infliction of
“cruel or inhuman corporal punishment or injury” on a child in violation of
California law); Matter of Tran, supra (willful infliction of corporal injury
resulting in a traumatic condition on a spouse, cohabitant, or parent of the
perpetrator’s child under California law); Matter of Danesh, supra
(aggravated assault against a peace officer under Texas law, resulting in
bodily harm to the officer and requiring knowledge by the offender that his
force is directed toward an officer who is performing an official duty).
  In the instant case, by contrast, neither the statute of conviction nor the
admissible portion of the respondent’s conviction record reflects that his
battery was injurious to the victim or that it involved anything more than the




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minimal nonviolent “touching” necessary to constitute the offense.2 In the
absence of admissible evidence reflecting that the respondent’s offense
occasioned actual or intended physical harm to the victim, we agree with the
Immigration Judge that the existence of a current or former “domestic”
relationship between the perpetrator and the victim is insufficient to establish
the morally turpitudinous nature of the crime.
  Because we agree with the Immigration Judge that the California offense of
domestic battery does not qualify categorically as a crime involving moral
turpitude, the respondent is not deportable under section 237(a)(2)(A)(ii), and
we have no occasion to decide whether his 2003 conviction for grand theft
was for a crime involving moral turpitude or whether his two crimes arose out
of a “single scheme of criminal misconduct.”
                          B. Crimes of Domestic Violence

  Because the respondent’s domestic battery offense is not a crime involving
moral turpitude, the respondent’s deportability depends on whether the
offense qualifies as a “crime of domestic violence” under section
237(a)(2)(E)(i) of the Act. See generally Tokatly v. Ashcroft, 

(9th Cir. 2004). Section 237(a)(2)(E)(i) provides, in pertinent part, as follows:
        Any alien who at any time after admission is convicted of a crime of domestic
      violence . . . is deportable. For purposes of this clause, the term “crime of domestic
      violence” means any crime of violence (as defined in section 16 of title 18, United
      States Code) against a person committed by a current or former spouse of the person,
      by an individual with whom the person shares a child in common, by an individual
      who is cohabiting with or has cohabited with the person as a spouse, by an individual
      similarly situated to a spouse of the person under the domestic or family violence laws
      of the jurisdiction where the offense occurs, or by any other individual against a
      person who is protected from that individual’s acts under the domestic or family
      violence laws of the United States or any State, Indian tribal government, or unit of
      local government.

  As this statutory language makes clear, an offense cannot qualify as a “crime
of domestic violence” unless it is also a “crime of violence,” as defined by

 (2000).3 The United States Court of Appeals for the Ninth

2
  Where a statute encompasses some offenses that do involve moral turpitude as well as
offenses that do not, the United States Court of Appeals for the Ninth Circuit consults the
record of conviction to determine whether the particular offense of which the respondent
was convicted involved moral turpitude. Hernandez-Martinez v. Ashcroft, 

 (9th Cir. 2003).
3
  To qualify as a “crime of violence” under 

(a), an offense must either have
the use, attempted use, or threatened use of physical force against the person or property of
another as an element; to qualify under § 16(b), it must be a felony that, by its nature,
involves a substantial risk that physical force against the person or property of another may
                                                                             (continued...)

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Circuit, in whose jurisdiction this proceeding arises, has recently issued a
precedent decision which confirms the Immigration Judge’s conclusion that
battery under section 242 does not qualify categorically as a crime of violence
under 

. Ortega-Mendez v. Gonzales, 

 (9th Cir.
2006). That determination is binding on this Board and the Immigration
Judges in cases arising within the jurisdiction of the Ninth Circuit. Matter of
Yanez, 

 (BIA 2002); Matter of Anselmo, 

 (BIA 1989).
  Although a violation of section 242 does not qualify categorically as a crime
of violence under 

, the Ortega-Mendez court acknowledged the
possibility that it could qualify as a crime of violence under a so-called
“modified categorical inquiry.” See Ortega-Mendez v. Gonzales, supra, at
1021. Where an alien was convicted by means of a plea agreement and the
statutory definition of the offense is broad enough to encompass some conduct
that would conform to the meaning of the phrase “crime of violence,” as well
as conduct that would not, Ninth Circuit law permits the adjudicator to consult
a limited class of judicially-noticeable documents constituting the “record of
conviction” in order to determine whether the alien pled guilty to conduct
comprehended within the scope of the “crime of violence” definition. See
Tokatly v. Ashcroft, supra, at 624. According to the United States Supreme
Court, evidence that may be consulted for this purpose includes “the terms of
the charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this
information.” Shepard v. United States, 

 (2005).
  The conviction record admitted into evidence by the Immigration Judge in
this matter consists of certified copies of the criminal complaint that charged
the offense, the plea agreement, the criminal judgment, and a police arrest
report. The complaint and plea agreement merely echo the statutory language
of section 242, which refers to the willful and unlawful use of “force or
violence” against another. Ortega-Mendez v. Gonzales, supra, makes clear
that this statutory language is not sufficient–in light of the interpretation that
language is given by the California courts–to qualify the offense as a crime of
violence. The criminal judgment is a preprinted form that memorializes the
respondent’s guilty plea and reflects the entry of a judgment of guilt and the
imposition of a sentence; however, it contains no explicit findings on the part
of the court as to the factual basis for the respondent’s plea.
  The police report, standing alone, is not admissible to prove the nature of the
respondent’s conviction because there is no indication that it was incorporated
into the charging instrument under the convicting state’s rules of criminal
3
    (...continued)
be used in the course of committing the offense. See generally Leocal v. Ashcroft, 

 (2004).

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procedure. Matter of Teixeira, 

, 319-20 & n.2 (BIA 1996).
While Ninth Circuit law permits police reports to be considered in the context
of a “modified categorical inquiry” if the factual narrative set forth in the
report is “specifically incorporated into the guilty plea or admitted by a
defendant” during a plea colloquy, the present record does not reflect that any
such incorporation or admission occurred here. Parrilla v. Gonzales, 

 (9th Cir. 2005). Accordingly, the police report cannot be
considered in determining whether the respondent is removable.
  Because the admissible portions of the respondent’s conviction record do
not reflect that he pled guilty to conduct encompassed within the “crime of
violence” definition, we agree with the Immigration Judge that the DHS has
not satisfied its burden of proving by clear and convincing evidence that the
respondent has been convicted of a crime of violence under 

 or,
by extension, a crime of domestic violence under section 237(a)(2)(E)(i) of the
Act.
                             V. CONCLUSION
  In conclusion, we find no reversible error in the Immigration Judge’s
determination that the respondent’s California domestic battery conviction
was not for a crime involving moral turpitude or a crime of domestic violence
under the immigration laws. The respondent’s grand theft conviction,
standing alone, cannot support any of the charges of deportability filed against
him by the DHS. Therefore the DHS’s appeal from the Immigration Judge’s
decision will be dismissed.
  ORDER: The appeal of the Department of Homeland Security is
dismissed.




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