SHORT

Interim Decision #3125




                            MATTER OF SHORT
                           In Deportation Proceedings

                                     A-38827315

                   Decided by Board November 16, 1989

(1) If the underlying or substantive crime involves moral turpitude, then a conviction for
  aiding in the commission of the crime or for otherwise acting as an accessory before
  the fact is also a conviction for a crime involving moral turpitude. Matter ofF-, 

 (BIA 1955), followed.
(2) The Board of Immigration Appeals withdraws from Matter of Baker, 

  (BIA 1974), to the extent that it holds that an assault with intent to commit a felony is
  per se a crime involving moral turpitude without regard to whether the underlying
  felony involves moral turpitude; there must be a finding that the felony intended as a
  result of the assault involves moral turpitude.
(3) For purposes of determining whether the respondent's conviction for aiding and
  abetting in the assault with intent Lu commit a felony upon the peisuu of a minor in
  violation of 

 (1982) and 

(b) (Supp. IV 1986) was for a
  crime involving moral turpitude, the conviction record of the respondent's husband,
  whom she was convicted of aiding and abetting, may not be properly be admitted as
  evidence where the respondent's record of conviction nowhere related her crime of
  aiding and abetting to the specific sexual offense of which her husband was convicted,
  the respondent's prior conviction for engaging in deviate sexual intercourse with a 3-
  year-old female was overturned on appeal, and the statute under which she was
 subsequently convicted specifically excluded felonies under Chapter 109A of Title 18
 (

 (Supp. IV 1986)), which concerns sexual abuse offenses.

CHARGE:
Order: Act of 1952—Sec. 241(a)(4) [

(a)(4)]—Crime involving moral
                    turpitude
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
 Susan Schreiber, Esquire                               Samuel Der-Yeghiayan
 Travelers & Immigrants Aid                            District Counsel
 327 South LaSalle Street, Room 1400
 Chicago, Illinois 60604                                 John F. Hurlbut
                                                         Acting Assistant
                                                         District Counsel

                                                         Michael L. Harper
                                                         General Attorney

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

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   In a decision dated February 15, 1989, an immigration judge found
the respondent deportable as charged under section 241(a)(4) of the
Immigration and Nationality Act, 

(a)(4) (1982), as an
alien convicted of a crime involving moral turpitude committed
within 5 years after entry and sentenced to confinement or confined
therefor for a year or more, and ordered her deported from the United
States to West Germany. The respondent has appealed from that
decision. The record will be remanded to the immigration judge.
   The respondent is a native and citizen of West Germany who was
admitted to the United States as an immigrant on June 29, 1984. Her
conviction record shows that she was convicted on December 19,
1986, in the United States District Court for the Western District of
Kentucky of the crim.e of aiding and abetting in the assault with intent
to commit a felony upon the person of a minor in violation of 

 (1982) and 

(b) (Supp. IV 1986), the crime
having been committed on September 15, 1984. The respondent was
sentenced to 8 years' imprisonment.

 provides:
       (a)Whoever commits an offense against the United States or aids, abets, counsels,
     commands, induces or procures its commission, is punishable as a principal.
        (b) Whoever willfully causes an act to be done which if directly performed by him
     or another would be an offense against the United States, is punishable as a principal.

   

(b) provides for punishment of "[a]ssault with
intent to commit any felony, except murder or a felony under chapter
 109A, by fine of not more than $3,000 or imprisonment for not more
than ten years, or both."
   In determining whether a crime involves moral turpitude, it is the
nature of the offense itself which determines moral turpitude. Matter
of Esfandiary, 

 (BIA 1979). It is the inherent nature of
the crime as defined by statute and interpreted by the courts and as
limited and described by the record of conviction which determines
whether the offense is one involving moral turpitude. Okabe v. INS,

 (5th Cir. 1982); United States v. Neelly, 

(7th Cir. 1953); Matter ofBaker, 

 (BIA 1974); Matter of
H , 

 (BIA 1957). The statute under which the
 -


conviction occurred controls. If it defines a crime in which turpitude
necessarily inheres, then the conviction is for a crime involving moral
turpitude for the purposes of the deportation statute. United States ex
rel. Guarino v. Uhl, 

 (2d Cir. 1939); United States ex rel.
Mylius v. Uhl, 

 (2d Cir. 1914). Only where the statute under
which the respondent was convicted includes some offenses which
involve moral turpitude and some which do not do we look to the
record of conviction, meaning the indictment, plea, verdict, and

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Interim Decision #3125

sentence, to determine the offense for which the respondent was
convicted. Matter of Esfandiary, supra; Matter of Ghunaim, 15 I &N
Dec. 269 (BIA 1975); Matter of Lopez, 

 (BIA 1971);
Matter of S-, 

 (BIA, A.G. 1945).
  In his decision, the immigration judge concluded that there existed
two separate bases for determining that the respondent had been
convicted of a crime of moral turpitude. He first determined that the
respondent's case was controlled by Matter of Baker, supra, in which
the Board held that an assault of another person with intent to commit
a felony constitutes a crime of moral turpitude. Alternatively, the
immigration judge found that even if the Board's holding in that case
were not followed, the crime of which the respondent was convicted
still could be viewed as one involving moral turpitude. He observed
that the respondent had been convicted of aiding and abetting her
husband to commit an assault upon their 3-year-old child and
concluded that it was appropriate to examine the husband's felony
conviction, citing Matter of Sanchez-Marin, 

 (BIA
1965), where the Doard held that the crime of accessory after the fact
to a felony involved moral turpitude when the principal perpetrator
had been convicted of voluntary manslaughter, a crime involving
moral turpitude.' In the case at hand, the respondent's husband had
been convicted on May 22, 1985, in the United. States District Court
for the Western District of Kentucky of the crime of rape of a 3-year-
old female on a government reservation in violation of 

 (1982), and the crime of engaging in deviate sexual intercourse
with a 3-year-old female on a government reservation in violation of

 and 13 (1982), and section 510.070 of the Kentucky
Revised Statutes. Accordingly, the immigration judge concluded that
the respondent's conviction was for a crime involving moral turpitude.
   On appeal, the respondent contends in part that Matter of Baker,
supra, should be overruled, asserting that its holding that assault with
intent to commit any felony constitutes a crime of moral turpitude,
without regard to the nature of the felony involved, does not comport
with past judicial and Board precedent. She points out that an assault
is not necessarily viewed as a crime of moral turpitude, and that the
classification of a crime as a felony also is not determinative of moral
turpitude.
   The Immigration and Naturalization Service contends on appeal
that the immigration judge's decision should be upheld, as the issue of
    If the underlying or substantive crime involves moral turpitude. then conviction for
aiding in the commission of the crime or for otherwise acting as an accessory before the
fact is also a conviction for a crime involving moral turpitude. See Matter of -, 

 (BIA 1955).

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whether the respondent's crime is to be characterized as one involving
moral turpitude is clearly resolved by Matter of Baker, supra.
   After giving the matter further consideration, and in view of past
precedent and the principles underlying the determination of whether
a particular crime involves moral turpitude, the Board withdraws front
Matter of aker, supra, to the extent that it holds that an assault with
intent to commit a felony is per se a crime involving moral turpitude
without regard to whether the underlying felony 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, contrary to the rules of morality and the duties owed
between man and man, either one's fellow man or society in general.
Matter of Danesh, 

 (BIA 1988); see also Matter of
Flores, 

 (BIA 1980); Matter of McNaughton, 

 (81A 1978); Matter of Baker, supra; Matter of S-, supra;
Matter of G-, I I&N Dec. 73 (BIA, A.G. 1941).
   Simple assault is not considered to be a crime involving moral
turpitude. United States ex rel. Zaffarano v. Corsi, 

 (2d Cir.
1933) Ciambelli ex reL Maranci v. Johnson, 

 (D. Mass.
1926); Matter of Danesh, supra; Matter of Logan, 

(BIA 1980); Matter of Baker, supra. Additionally, the classification of a
crime as a felony is not determinative of whether it constitutes a crime
involving moral turpitude. Tillinghast v. Edmead, 

 (1st Cir.
1929).
   Accordingly, if a simple assault does not involve moral turpitude
and the felony intended as a result of that assault also does not involve
moral turpitude, then the two crimes combined do not involve moral
turpitude. Moral turpitude cannot be viewed to arise from some
undefined synergism by which two offenses are combined to create a
crime involving moral turpitude, 'where each crime individually does
not involve moral turpitude. There must be some particular criminal
activity with which to evaluate whether the nature of that activity
involves moral turpitude. As such, there must be a finding that the
felony intended as a result of the assault involves moral turpitude.
   This view better comports with past precedent where the Board has
considered whether an assault with intent to commit a felony involved
moral turpitude. In Matter of eato, 

 (BIA 1964), the
respondent had been convicted under a provision of New York penal
law defining assault in the second degree to include an assault with
intent to commit a felony. There, the Board determined that the
respondent had been convicted of a crime involving moral turpitude,
not on the basis that the assault was committed with intent to commit
any felony, but on the finding, derived from the respondent's

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Interim Decision #3125

conviction record, that the intended felony concerned carnal abuse
and rape. In Matter of M-, 

 (BIA. 1946), the Board had
reviewed the same New York penal law and again found that the
conviction for assault with intent to commit a felony involved a crime
of moral turpitude, because the underlying intended crime involved
moral turpitude, specifically abortion, which at that time constituted a
felony under New York law.
   The respondent further contends on appeal that the immigration
judge erred in considering the conviction record of her husband, as the
determination of whether the crime of which she was convicted
involved moral turpitude must be confined to her own record of
conviction.
   The Service, analogizing the respondent's case to those involving
convictions for the crime of conspiracy, contends that the immigration
judge could appropriately consider the conviction record of the
respondent's husband, since his record defined the underlying crime of
which the respondent was convicted of aiding and abetting.
   The Board agrees that the immigration judge improperly admitted
as evidence and considered the conviction record of the respondent's
husband. Her husband was convicted of sexual offenses against a 3-
year old child. However, it was inappropriate to consider the hus-
    -


band's conviction record for purposes of determining the underlying
crime of which the respondent was convicted of aiding and abetting.
Nowhere did the respondent's record of conviction before the
immigration judge relate her crime of aiding and abetting to the
specific sexual offense of which her husband was convicted, although
the information upon which she was convicted did charge that it was
her husband she aided and abetted. Importantly, the record reflects
that the respondent was in fact initially convicted on May 23, 1985, of
engaging in a sexual crime, specifically, engaging in deviate sexual
intercourse with a 3-year-old female, as charged in an indictment that
alleged that she perpetrated this crime with her husband. However,
this conviction was overturned on appeal. Thereafter, she pled guilty
to and was convicted of aiding and abetting in the assault upon the
person of a minor with the intent to commit a felony. As noted above,
the statute under which she was convicted specifically excluded
felonies under chapter 109A of Title 18 (

 (Supp.
IV 1986)), which concerns sexual abuse offenses.
   The immigration judge's reliance on Matter of Sanchez-Marin,
supra, was misplaced. The Board did rule in that case that as the
underlying crime of which the principals were convicted, namely
voluntary manslaughter, involved moral turpitude, the respondent's
conviction for the crime of accessory after the fact to manslaughter
also involved moral turpitude. However, in that case, the Board was

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                                                  Interim Decision #3125

able to look to the principals' conviction records, as we specifically
found that the respondent's indictment linked him to the crime
committed by the two principals. As previously stated, no linkage has
been established in this case. For this reason, the Service's reference to
cases involving conspiracy to commit a crime involving moral
turpitude is also not pertinent, as the conspiracy charge would
necessarily be linked to the underlying crime upon which the
conspiracy was based. In sum, the respondent's husband's conviction
record did not provide a proper basis for determining that her
conviction was for a crime involving moral turpitude.
   As the Board no longer holds that an assault with intent to commit
any felony necessarily constitutes a crime involving moral turpitude
without regard to the nature of the underlying felony, the Service has
not established that the respondent was in fact convicted of a crime
involving moral turpitude where it failed to establish the underlying
felony that was intended. In failing to do so, the Service understand-
ably relied on Matter of Baker, supra. In view of our withdrawal from
the pertinent holding in that ease, we will remand the record to the
immigration judge in order to afford the Service an opportunity to
provide further evidence from the respondent's record of conviction
regarding the nature of the crime of which the respondent was
convicted.
   ORDER         The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion.




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