DANESH

                                                    Interim Decision #3068




                          MATTER OF DANESH

                        In Deportation Proceedings

                                 A-23240808

                     Decided by Board June 20, 1988

   An aggravated assault against a peace officer, which results in
bodily harm to the victim and which involves knowledge by the of-
fender that his force is directed to an officer who is performing an
official duty, constitutes a crime involving moral turpitude. Matter
of B , 

 (BIA 1953), modified.
     -



CHARGE:
 Order: Act of 1952—Sec. 241(aXl) [

(aX1)J— Excludable at entry
                     under section 212(aX9) [

(aX9)]--Crime involv-
                     ing moral turpitude
ON BEHALF OF RESPONDENT:                        ON BEHALF OF SERVICE:
 Robert G. Margolis, Esquire                     Sue Ying Leong
 8035 East R.L. Thornton, Suite 514              General Attorney
 Dallas, Texas 75228

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



  In a decision dated February 21, 1984, the immigration judge
found the respondent deportable as charged, declined to accept ap-
plications for suspension of deportation and a waiver of inadmissi-
bility under section 212(c) of the Immigration and Nationality Act,

(c) (1982), and ordered him deported from the United
States. The respondent has appealed from that decision. The appeal
will be dismissed.
  The respondent is a native and citizen of Iran who last entered
the United States on September 25, 1983, as a nonimmigrant stu-
dent. The record reflects that he was convicted in the 16th Judicial
District Court of Denton County, Texas, on January 27, 1981, of ag-
gravated assault on a peace officer. The imposition of his 2 year          -


prison sentence was suspended and he was placed on probation.
  At the deportation hearing, the Immigration and Naturalization
Service introduced the respondent's conviction record into evidence
Interim Decision #3068

without objection from counsel. However, the respondent claimed
that he was not guilty of the alleged criminal activity and argued
that, in any case, his offense did not constitute a crime involving
moral turpitude. The immigration judge rejected these contentions
and found that the respondent was deportable and ineligible for
voluntary departure as a result of his conviction.
   On appeal, the respondent has reiterated his arguments that he
is innocent and that his crime is not one involving moral turpitude.
As the immigration judge noted, the law is well established that in
deportation proceedings the immigration judge cannot go behind
the judicial record to determine the guilt or innocence of an alien.
See Matter of Khalif 

 (BIA 1980); Matter of
McNaughton, 

 (BIA 1978); Matter of Fortis, 

 (BIA 1974). We therefore reject the respondent's conten-
tions regarding his innocence of the alleged assault.
  We further find that the crime of which the respondent was con-
victed is one which involves moral turpitude. Moral turpitude is a
nebulous concept, which refers generally to conduct that shocks the
public conscience as being inherently base, vile, or depraved, con-
trary to the rules of morality and the duties owed between man
and man, either one's fellow maxi or society in general. See Matter
of Flores, 

 (BIA 1980); Matter of McNaughton,
supra; Matter of Baker; 

 (BIA 1974); Matter of 5-, 

 (BIA, A.G. 1945); Matter of G-, 

 (BIA,
A.G. 1941). Assault has been said to be an offense that may or may
not involve moral turpitude, depending on the circumstances of the
particular case. Ciambelli ex rel. Maranci v. Johnson, 

(D. Mass. 1926).
  In this case the respondent was charged with aggravated assault
as having knowingly and intentionally caused bodily injury to a
peace officer who was in the lawful discharge of his official duty
when the respondent knew the person assaulted was a peace offi-
cer. 1 A review of our decisions dealing with assault on a peace offi-
cer reveals that we have not prviously determined whether an of-
fense of this precise nature involves moral turpitude. In Matter of

    Although the record does not state the specific statute that the respondent was
charged with violating, it appears clear that the statute involved was section
22.02(aX2XA) of the Texas Penal Code Annotated, which provides as follows:
    Aggravated Assault. (a) A person commits an offense if he commits assault as
  defined in Section 22.01 of this code and he:
    (2) causes bodily injury to a peace officer when he knows or has been intormed
    the person assaulted is a peace officer:
      (A) while the peace officer is lawfully discharging an official duty. . . .
  

(aX2XA) (Vernon 1979).

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                                                         Interim Decision #3068

Logan, 

 (BIA 1980), the crime of interference with
a law enforcement officer, which was deemed to be analogous to as-
sault, was held to involve moral turpitude because physical force
was employed, in that case by the use of a knife. It was noted there
that assault with a deadly weapon has generally been considered to
be a crime involving moral turpitude. See also Matter of Medina,

 (BIA 1976); Matter of Ptasi, 

 BIA
1968); Matter of G R , 

 (BIA 1946; A.G. 1947). In
                        -   -



Matter of Baker, supra, we examined a statute containing five of-
fenses categorized as third degree assault, one of which involved as-
sault on a peace officer with a weapon of any kind. 2 We held that
this constituted a crime involving moral turpitude because the use
of a weapon was an essential element of the offense.
  The alien in Matter of B-, 

 BIA 1953), was
charged with assaulting a prison guard whom he knew to be in the
discharge of his lawful duties. We concluded that the offense
charged appeared only to have been a simple assault, which is not
generally considered a crime involving moral turpitude. Relying on
Ciambelli ex rel. Maranci v. 

 we also found that
moral turpitude was not involved because there was no weapon
used in the commission of the assault. In Ciambelli it was deter-
mined that, despite the fact that the alien was armed with a razor,
moral turpitude was not involved because there was no charge that
the assault was made with the weapon. In reaching that conclusion
the court relied heavily on the alien's claim that he was only
caught in the middle of a fight at a restaurant when an officer
rushed in and was struck by another person. However, it was fur-
ther noted by the Ciambelli court that if one "deliberately assault-
ed an officer of the law with a dangerous weapon and with feloni-
ous intent, or for the purpose of interfering with the officer in the
performance of his duty, the attendant circumstances showing an

 2 The statute involved in Matter of Baker, supra, provided that a person who com-
mits any .of the following offenses is guilty of assault in the third 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
    (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. . . .
We determined that each of these offenses was considered to be a crime involving
moral turpitude.

                                          R71
Interim Decision #3068

inclination toward lawlessness, the act might well be considered as
one involving moral turpitude." Id. at 466.
  Finally, in Matter of 0-, 

 (C.O., BIA 1951), we ex-
amined an offense under German law involving an assault on a
police officer by a participant in a public riotous gathering. It was
determined that the statute under consideration required no
knowledge on the part of the accused that the person assaulted was
a police officer engaged in the performance of his duties and, there-
fore, it could not be deemed to involve moral turpitude. In that de-
cision we also discussed a similar unpublished case in which we
had concluded that moral turpitude was not involved, noting that
there was "nothing in the record to show that the arresting officer
was assaulted or that he suffered any bodily injury" during the
arrest of the alien. 

 at 311 (quoting Matter of S-, A7 476 137
(September 15, 1950)) (emphasis added). It was acknowledged in
Matter of 0-, supra, that an inference could be drawn from the un-
published case that an assault by force or violence on an arresting
officer, as distinguished from a passive resistance to arrest, would
involve moral turpitude.
  We find from our review of the decisions referred to above that
each is distinguishable from the situation before us and, therefore,
none is controlling. Although the crime in Matter of 0-, supra, was
found not to involve moral turpitude, there is a strong inference
that our conclusion would have been to the contrary if the statute
violated had required knowledge by the accused that he was as-
saulting a police officer engaged in the performance of his duties.
Moreover, the comments made regarding the unpublished decision
discussed there indicate our belief that other factors that should be
considered in determining if moral turpitude is involved in an as-
sault are whether force and violence have been employed and
whether the victim has suffered bodily injury.
  Matter of B-, supra, differs from the instant case in that the as-
sault there on a prison guard was deemed to be only a simple as-
sault, and no bodily injury to the victim was alleged.. Furthermore,
we now find that decision to be in error since it was based on the
faulty premise that an aggravated assault can only involve moral
turpitude if a deadly weapon is used. As authority for that position,
citation was made to United States ex rel. Zaffarano v. Corsi, 

 (2d Cir. 1933). A review of that case reveals that the court
stated only that assault with a dangerous weapon was conceded to
be a crime involving moral turpitude. There is no support in the
opinion for the converse proposition asserted in Matter of B-,
supra. Furthermore, as noted in our discussion of Matter of Baker,
supra, other assaults of an aggravated nature that do not involve

                                A79
                                             Interim Decision #3068

the use of a deadly weapon have been deemed to be morally turpi-
tudinous. We therefore conclude that Matter of B-, supra, is incor-
rect insofar as it stands for the proposition that an aggravated as-
sault only involves moral turpitude if a deadly or dangerous
weapon is used. To the extent that Matter of B-, supra, relies on
this erroneous assertion, it is hereby modified.
  We also find that the cases relied on in Matter of B-, supra, are
distinguishable from the facts before us in that the courts in both
Ciambelli ex reL Maranci v. 

 and United States ex
reL Zaffarano v. 

 noted strongly the lack of force or
violence employed in the offenses alleged, which apparently did not
result in any bodily harm to the assaulted peace officers. Moreover,
in Ciambelli it was indicated that a deliberate assault for the pur-
pose of interfering with the performance of an officer's official
duties might be considered as one involving moral turpitude since
it evidences an inclination toward lawlessness.
   In the case before us the respondent was convicted of aggravated
assault on a peace officer. Under Texas law that offense requires
that the following elements be present: (1) the person assaulted
must sustain bodily injury; (2) the accused must know that the
person assaulted is a peace officer; and (3) the peace officer must be
engaged in the lawful discharge of an official duty. 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. Furthermore, the requirements that there be
knowledge of the assaulted person's status as a peace officer and
that the officer be discharging an official duty establish that the
accused has used violence to intentionally interfere with the lawful
functions of a peace officer. Such conduct exhibits a deliberate dis-
regard for the law, which we consider to be a violation of the ac-
cepted rules of morality and the duties owed to society. See general-
ly Matter of Flores, supra. Consequently, we conclude that an ag-
gravated assault against a peace officer, which results in bodily
harm to the victim and which involves knowledge by the offender
that his force is directed to an officer who is performing an official
duty, constitutes a crime that involves moral turpitude. The record
clearly establishes that the respondent was convicted of such an of-
fense. Accordingly, the appeal will be dismissed.
  ORDER,: The appeal is dismissed.



                                 ATI