Is New York Assault Conviction a CIMT?

I have received several questions recently about whether a state conviction in New York for assault constitutes a crime involving moral turpitude for immigration purposes.  There are various assault offenses in New York and most of these are divisible statutes meaning that an analysis of the specific subsection is necessary.  Consequently, I don’t have a definitive answer on whether a New York assault convictions is a CIMT or not.  Instead, below I provide some information regarding three of the most common assault statutes–assault in the 3rd degree, assault in the 2nd degree, and assault in the 1st degree.  Hopefully immigration attorneys can use this to begin an analysis of the New York assault statute relevant to their client.

NY Penal § 120.00–Assault in the 3rd degree

This is a divisible statute with 3 sections.  The BIA says that a conviction under § 120.00(1) is a CIMT: “we find that assault in the third degree under section 120.00(1) of the New York Penal Law, which requires both specific intent and physical injury, is a crime involving moral turpitude.” 
NY Penal § 120.05–Assault in the 2nd degree

This is a divisible, twelve-part statute. There are no published BIA decisions interpreting whether this statute is a CIMT.  There is fertile ground to argue that it’s not a CIMT.  (On a related note, one unpublished BIA decision found that it was an aggravated felony.)

NY Penal §120.10–Assault in the 1st degree

This is a divisible, four-part statute.  Again there are no published BIA decisions interpreting whether this statute is a CIMT.  There is one unpublished BIA decision finding that a violation of § 120.10(3) is a CIMT: “Taken together we find that these elements of depravity, recklessness, and the grave risk of death to another person, are sufficient to establish moral turpitude. Accordingly, we affirm the decision of the Immigration Judge that assault in the first degree under the New York Penal Law is a crime involving moral turpitude.”  Matter of Darlin Antonio Beato-Gomez, A 45-868-562, 2004 WL 848512 (BIA 2004).

(There are several unpublished BIA decisions finding that a violation of § 120.10 was an aggravated felony.)

Analysis of Other Sections

These cases set out the framework to argue that a conviction is not a CIMT.

From /files/0/6/4/7/5/167292-157460/3285.pdf”>Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996) (where non-citizen pled to “recklessly” inflicting bodily injury on another person): “However, assault with a deadly weapon has been held to be a crime involving moral turpitude. . . . The offense at issue here is fundamentally different from those that have been determined to involve moral turpitude. The instant assault conviction does not arise under a statute which has as an element “the death of another person,” Matter of Franklin, supra; the use of a deadly weapon, Matter of Medina, supra; or any other aggravating circumstance, Matter of Danesh, supra. Therefore, we find the crime at issue here is similar to a simple assault. . . . In order for an assault of the nature at issue in this case to be deemed a crime involving moral turpitude, the element of a reckless state of mind must be coupled with an offense involving the infliction of serious bodily injury.”