Matthew Hoppock

The BIA has issued another nonsense precedent decision, this time on crimmigration. Does South Carolina assault and battery in the 2nd degree automatically, necessarily involve moral turpitude? The Board says it does, but they largely ignore the law to get there. 🧵 www.justice.gov/eoir/media/1...

A broad statute like this helps the state convict people, but it makes it harder for the DHS to prove removability. Those are choices made by legislatures. It's the same reason that "stalking" convictions aren't always "crimes of stalking" under the INA. www.justice.gov/d9/pages/att...

Anyway, this is long enough. And there's probably more wrong with this decision. But it's just another silly BIA precedent, leaving previous law on the books that it contradicts. It doesn't explain its result. And it appears to have gotten the analysis totally wrong in at least three ways.

So, in summary... Matter of Mercader leaves essential questions unanswered: what mental state is actually required for each branch, what aggravating conduct the touching branch necessarily entails, and why its minimum conduct satisfies the CIMT definition.

It's easy to look at a case like this and get icked out - unwanted touching of someone else. It's one of those "of course it must involve moral turpitude" kind of crimes. But states write their criminal statutes broadly to sweep in extra conduct, and they do this to make it easier to get convictions

The noncitizen's failure to produce a reported case cannot do the work of a missing elements analysis. The statutory text plainly establishes broader coverage. The Board first has to identify the offense's actual minimum requirements and explain why they satisfy the CIMT standard.

And it sounds like in this case the inconclusive conviction record made these defects especially important. Even if the injury branch qualifies, DHS still needs the touching branch to qualify on this record, or they lose. Otherwise it has not established which branch supported the conviction.

This is a PRIME example when the text alone is clear enough that no exemplar is necessary. buttocks are included; touching through clothing is included; lewd intent is omitted. The Board needed to analyze what those differences mean for minimum conduct. They didn't even try.

The burden of proof is also really critical here. DHS is proving deportability. The respondent can have an obligation to substantiate an overbreadth argument. But DHS still must establish that the conviction falls within the removal ground. And Matter of Mercader itself recognizes that.

The BIA's decision here, Matter of Mercader, doesn't mention Said. That decision rejected the BIA's insistence on an exemplar prosecution where the text establishes overbreadth. So the 11th Circuit has been pretty clear. "Realistic probability" doesn't demand an actual example when the text is clear

media.ca11.uscourts.govmedia.ca11.uscourts.gov

The Eleventh Circuit reiterated the textual rule just this year. U.S. v. Carter, No. 23-13430, slip op. at 14 (July 6, 2026). media.ca11.uscourts.gov/opinions/pub.... Yet the BIA doesn't mention Carter either.

The legal question is whether the offense's actual reach exceeds the CIMT standard. "Realistic probability" is a test that guards against imaginative interpretations. It does not permit the Board to disregard express statutory coverage without examining its consequences.

And the governing Eleventh Circuit does not invariably require an actual prosecution example. Ramos v. U.S. Att'y Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013), recognizes that statutory text itself can establish the broader reach. There's also the Said case 11th Cir 2022.

To be clear: on my lunch break today I didn't come up with a reported subsection (D) conviction sustained solely on negligence below recklessness. That remains a research question. The narrower point is that Clemons does not establish the floor that the BIA claims it does. Not even remotely.

A 3rd obvious problem: The "realistic probability" discussion addresses a proposed mental state BELOW recklessness. My objection to the touching branch accepts the Board's recklessness premise. But The BIA does not answer the nonlewd-touching problem. Getting into the weeds, but stick with me.

State v. Shank (S.C. May 6, 2026) discussed intent in an actual § 16-3-600(B) assault conviction, repeated the negligence formulation, and cited BOTH MPC recklessness and negligence. So, uh... there's your example, BIA. www.sccourts.org/media/opinio...

sccourts.orgsccourts.org

If it's possible to be convicted in SC of negligently touching a clothed buttocks with no actual intent to do harm, then this can't possibly be a CIMT. Matter of Sanudo is still on the books!! And it very much looks to be possible based on both the statute's own language and the state's cases.

That's the decision that the BIA says *requires* at least recklessness. No, it doesn't. It then faults the noncitizen for failing to give an example where negligent conduct was prosecuted. See p. 188-89. But again, the DHS has the burden of proof, not the noncitizen.

Either way, the case law in SC is actually fairly clear. State v. Perry, 892 S.E.2d 273, 278 (S.C. 2023), says general intent ordinarily includes recklessness or negligence. The BIA acknowledges that statement, but discounts it as arising in another context. There is more recent authority, too.

Then there's the supposed recklessness floor. US v. Clemons, 901 S.E.2d 280 (S.C. 2024), is the Board's principal authority. Clemons establishes that recklessness is enough to suffice. But it doesn't say if a lower level of intent, negligence, can suffice. I just read it again. Not there.

The Fourth Circuit asked what mental state the offenses require. South Carolina's Supreme Court reframed the question: may a defendant be convicted with MPC recklessness? It answered yes. That narrower question leaves the minimum boundary unresolved. Any doubt? Here's the quote:

ecf.ca8.uscourts.govecf.ca8.uscourts.gov

Bakor v. Barr, 958 F.3d 732 (8th Cir. 2020), upheld a statute requiring intentional touching with sexual or aggressive intent. That was a CIMT. But there the court distinguished general-intent assaults encompassing minor conduct. Which is what South Carolina's statute includes.

Another striking detail: the Minnesota statute in Bakor expressly EXCLUDED touching clothing covering the buttocks. Bakor does not direectly decide the South Carolina question. But its much narrower elements illustrate the analysis the BIA needed to undertake here.

The neighboring first-degree provision makes this even harder to ignore. Section 16-3-600(C)(1)(a)(i) requires "lewd and lascivious intent" for this touching. The second-degree provision omits that requirement. So, a reckless touching of a clothed buttocks needs no lewd intent. Still a CIMT?

To be clear, the lack of a sexual-gratification element does not automatically defeat a CIMT classification. Deliberate abusive touching with aggressive intent may qualify. But that proposition does not resolve a statute the Board reads to include reckless contact as the least minimal conduct.

Here is essentially the BIA's entire analysis of branch (b): quote the touching provision, cite cases treating nonconsensual sexual conduct as reprehensible, then announce that even the least conduct covered involves moral turpitude. See p. 190. That's it. No analysis.

The missing step: why is every prohibited touching necessarily sexual conduct of the kind those precedents address? The statute *expressly* includes recklessly touching a person's clothed buttocks with no actual or intended injury. On the Board's reading, a completed battery can be reckless.

Branch (b) independently covers nonconsensual touching of specified private body parts, including through clothing. It contains no moderate bodily injury requirement. Actual, attempted, or potential moderate injury is unnecessary under that alternative. So it's not categorically required.

That's the sleight of hand. An analysis of branch (a)'s injury threshold cannot establish that branch (b) is a CIMT. The Board admits they're two discrete offenses. The touching branch needs its own analysis. Its minimum conduct has to have reprehensible conduct and culpable mental state.

And since the Board accepts recklessness as a sufficient mental state to trigger guilt, conscious disregard of a risk of injury does not establish a purpose to cause the injury. The opinion collapses those concepts in describing the offense.

{Note - I'm not actually sure "recklessness" is even required. There is a pretty recent case law in South Carolina saying that mere negligence might be enough. That matters more later}

The problems start with the headnote. It describes an offense requiring recklessness and the actual or attempted infliction of "moderate bodily injury." That is inaccurate as a description of the whole statute. No actual or attempted infliction of injury is required.

Branch (a) covers cases in which moderate bodily injury results OR could have resulted. That includes potential injury. An act creating a risk of injury does not necessarily establish an attempt to inflict that injury.

When DHS has to prove that a crime involves moral turpitude, it must use the "categorical approach" which asks what the offense's elements necessarily establish. Not what the person did but what minimum conduct may trigger that criminal statute. The reason why this is required is for another thread

The parties agreed that § 16-3-600(D)(1) is divisible into 2 offenses. The record didn't say which one supported the conviction. The BIA therefore needed to establish that BOTH offenses (either version that could be charged under this statute) categorically (i.e. always) involves moral turpitude.

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Background: The immigration judge ended the removal proceedings because DHS hadn't proven the crime was a CIMT. DHS had the burden of proof. DHS appealed. The BIA reversed and reinstated removal proceedings. This is a decision about whether DHS proved a ground of deportation.

Matthew Hoppock reposted

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