Matter of Danesh

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 -, 5 I&N Dec. 538 (BIA 1953), modified.

对正在执行公务的治安官员实施的加重殴打，导致受害人身体伤害，且行为人明知其暴力针对的是正在执行公务的官员，构成涉及道德败坏的犯罪。B-案，5 I&N Dec. 538（BIA 1953），予以修改。

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

代表被调查人： 代表移民局： Robert G. Margolis，律师 Sue Ying Leong 8035 East R.L. Thornton, Suite 514 总律师 Dallas, Texas 75228

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, 8 U.S.C. § 1182(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

在1984年2月21日的决定中，移民法官认定被调查人如所指控可被驱逐出境，拒绝接受暂停驱逐出境申请和根据《移民与国籍法》第212(c)条，8 U.S.C. § 1182(c)（1982）的不可入境豁免申请，并命令将其驱逐出美国。被调查人对该决定提出上诉。上诉将被驳回。 被调查人是伊朗国民和公民，最后一次于1983年9月25日作为非移民学生进入美国。记录显示，他于1981年1月27日在德克萨斯州登顿县第16司法地区法院被判犯有对治安官员的加重殴打罪。其2年监禁刑罚的判处被缓期执行，并被置于缓刑。 在驱逐出境听证会上，移民和归化局将被调查人的定罪记录作为证据提交

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 17 I&N Dec. 518 (BIA 1980); Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978); Matter of Fortis, 14 I&N Dec. 576 (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, 17 I&N Dec. 225 (BIA 1980); Matter of McNaughton, supra; Matter of Baker; 15 I&N Dec. 50 (BIA 1974); Matter of 5-, 2 I&N Dec. 353 (BIA, A.G. 1945); Matter of G-, 1 I&N Dec. 73 (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, 12 F.2d 465 (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

未遭律师反对。然而，受访者声称他对所指控的犯罪活动无罪，并辩称，无论如何，其罪行不构成涉及道德败坏的犯罪。移民法官驳回了这些主张，并认定受访者因定罪而可被驱逐出境且无资格获得自愿离境。 在上诉中，受访者重申了其无罪以及其罪行不属于涉及道德败坏的犯罪的主张。正如移民法官所指出的，法律已明确确立，在驱逐出境程序中，移民法官不能超越司法记录去判定外国人的有罪或无罪。见 Matter of Khalif 17 I&N Dec. 518 (BIA 1980)；Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978)；Matter of Fortis, 14 I&N Dec. 576 (BIA 1974)。因此，我们驳回受访者关于其对所指控的袭击无罪的主张。 我们进一步认定，受访者被定罪的罪行属于涉及道德败坏的罪行。道德败坏是一个模糊的概念，一般指本质上卑劣、邪恶或堕落，违反道德规则以及人与人之间（无论是同胞之间还是与社会整体之间）所负义务，从而震惊公众良知的行为。见 Matter of Flores, 17 I&N Dec. 225 (BIA 1980)；Matter of McNaughton, supra；Matter of Baker; 15 I&N Dec. 50 (BIA 1974)；Matter of 5-, 2 I&N Dec. 353 (BIA, A.G. 1945)；Matter of G-, 1 I&N Dec. 73 (BIA, A.G. 1941)。袭击一直被认为是一种可能涉及也可能不涉及道德败坏的罪行，取决于具体案件的情况。Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass. 1926)。 在本案中，受访者被指控犯有加重袭击罪，理由是其明知且故意对一名正在合法执行公务的治安官员造成身体伤害，且受访者当时知道被袭击者是治安官员。1 对涉及袭击治安官员的我们的裁决进行审查后发现，我们此前并未判定这一确切性质的罪行是否涉及道德败坏。在 Matter of

Logan, 17 I&N Dec. 367 (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, 15 I&N Dec. 611 (BIA 1976); Matter of Ptasi, 12 I&N Dec. 790 BIA 1968); Matter of G-R-, 2 I&N Dec. 733 (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-, 5 I&N Dec. 538 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. Johnson, supra, 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

Logan案，17 I&N Dec. 367（BIA 1980）中，妨碍执法官员的犯罪被视为类似于殴打，被认定涉及道德败坏，因为使用了身体暴力，该案中使用了刀。该案指出，持致命武器殴打通常被认为涉及道德败坏的犯罪。另见Medina案，15 I&N Dec. 611（BIA 1976）；Ptasi案，12 I&N Dec. 790（BIA 1968）；G-R-案，2 I&N Dec. 733（BIA 1946；A.G. 1947）。在Baker案，同上中，我们审查了一项包含五种被归类为三级殴打的犯罪的法规，其中一种涉及持任何种类武器殴打治安官员。2 我们认定这构成涉及道德败坏的犯罪，因为使用武器是该犯罪的基本要素。 B-案，5 I&N Dec. 538（BIA 1953）中的外国人被指控殴打一名他知道正在执行合法职务的监狱看守。我们得出结论，所指控的犯罪似乎仅为简单殴打，通常不被认为涉及道德败坏的犯罪。依据Ciambelli ex rel. Maranci v. Johnson，同上，我们还认定不涉及道德败坏，因为实施殴打时未使用武器。在Ciambelli案中，尽管外国人携带剃刀，但认定不涉及道德败坏，因为没有指控殴打是使用该武器实施的。在得出该结论时，法院很大程度上依赖外国人的主张，即他只是在餐馆斗殴中被卷入，当时一名官员冲进来并被另一个人击中。然而，Ciambelli法院进一步指出，如果一个人“故意持危险武器并怀有重罪意图，或为妨碍官员执行职务而殴打执法官员，伴随情节显示

inclination toward lawlessness, the act might well be considered as one involving moral turpitude." Id. at 466. Finally, in Matter of 0-, 4 I&N Dec. 301 (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. Id. 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, 63 F.2d 757 (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

倾向于无法无天，该行为很可能被视为涉及道德败坏。Id. at 466。 最后，在Matter of 0-, 4 I&N Dec. 301 (C.O., BIA 1951)中，我们审查了德国法律下的一项罪行，涉及一名参与公开骚乱聚集的人袭击警察。经认定，所审议的法规不要求被告知道被袭击者是正在执行职务的警察，因此不能被视为涉及道德败坏。在该裁决中，我们还讨论了一个类似的未公布案件，在该案中我们得出的结论是不涉及道德败坏，并指出在逮捕该外国人期间“记录中没有任何内容显示逮捕警官遭到袭击或遭受任何身体伤害”。Id. at 311（引用Matter of S-, A7 476 137（1950年9月15日））（着重号为原文所加）。在Matter of 0-, supra中，我们承认可以从该未公布案件中推断出，以武力或暴力袭击逮捕警官，区别于对逮捕的消极抵抗，将涉及道德败坏。 我们通过对上述各项裁决的审查发现，每一项都与我们面前的情况有所区别，因此均不具有控制力。尽管在Matter of 0-, supra中的罪行被认定不涉及道德败坏，但有强有力的推断表明，如果所违反的法规要求被告知道其正在袭击一名执行职务的警察，我们的结论本会相反。此外，关于该处讨论的未公布案件所作的评论表明，我们认为在确定袭击是否涉及道德败坏时应考虑的其他因素是，是否使用了武力和暴力，以及受害人是否遭受了身体伤害。 Matter of B-, supra与本案的不同之处在于，该案中对监狱看守的袭击被认定为仅为简单袭击，且未指控受害人遭受身体伤害。此外，我们现在认定该裁决有误，因为它基于一个错误的前提，即加重袭击只有在使用致命武器时才可能涉及道德败坏。作为该立场的依据，引用了United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933)。对该案的审查显示，法院仅指出，使用危险武器的袭击被承认属于涉及道德败坏的罪行。该意见中没有支持Matter of B-, supra中所主张的反向命题的依据。此外，正如我们在对Matter of Baker, supra的讨论中所指出的，其他不涉及

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. Johnson, supra, and United States ex reL Zaffarano v. Corsi, supra, 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.

使用致命武器已被认定属于道德败坏。因此，我们得出结论：Matter of B-, supra 案在此范围内——即其主张加重殴打只有在使用致命或危险武器时才涉及道德败坏——是不正确的。在 Matter of B-, supra 案依赖这一错误主张的范围内，该案特此被修改。 我们还认定，Matter of B-, supra 案所依赖的判例与本院面前的事实可相区分，因为 Ciambelli ex reL Maranci v. Johnson, supra 案和 United States ex reL Zaffarano v. Corsi, supra 案中的法院均着重指出，所指控的罪行中未使用武力或暴力，这显然未对受袭击的治安官员造成任何身体伤害。此外，在 Ciambelli 案中，有人指出，为干扰官员履行公务而故意实施的殴打，可能被视为涉及道德败坏，因为它表明了一种无视法律的倾向。 在本院面前的案件中，被申请人因对治安官员实施加重殴打而被定罪。根据德克萨斯州法律，该罪行要求具备以下要件：(1) 受袭击者必须遭受身体伤害；(2) 被告人必须知道受袭击者是治安官员；以及 (3) 该治安官员必须正在合法履行公务。身体伤害是基本要件这一事实表明，必须使用了足以对受害人的人身造成伤害的武力。因此，该罪行被恰当地认定为比普通殴打更为严重。此外，要求知道受袭击者作为治安官员的身份以及该官员正在履行公务，这确立了被告人使用暴力故意干扰治安官员的合法职能。此类行为表现出对法律的故意漠视，我们认为这违反了公认的道德规则和对社会所负的义务。See generally Matter of Flores, supra。因此，我们得出结论：对治安官员实施加重殴打，造成受害人身体伤害，且行为人知道其武力针对的是正在履行公务的官员，构成涉及道德败坏的罪行。记录清楚地证明被申请人因该罪行而被定罪。据此，上诉将被驳回。 ORDER,: 上诉被驳回。