Matter of Mercader: BIA Holds South Carolina Second-Degree Assault Is a Crime Involving Moral Turpitude

Background of Matter of Mercader

The respondent in Matter of Mercader was a native and citizen of the Philippines who was admitted to the United States on March 1, 2020. On February 11, 2025, he was convicted of second-degree assault and battery under South Carolina Code § 16-3-600(D)(1).

The Department of Homeland Security (DHS) charged him with removability under INA § 237(a)(2)(A)(i), which applies to certain convictions involving moral turpitude committed within five years after admission when the offense is one for which a sentence of one year or longer may be imposed.

The respondent moved to terminate removal proceedings, arguing that the government had not established that his conviction was for a crime involving moral turpitude. The Immigration Judge granted the motion on June 6, 2025. DHS appealed, and the BIA sustained the appeal, vacated the termination decision, reinstated the removal proceedings, and remanded the case for further proceedings.

The decision is available in the official BIA opinion, Matter of Mercader, 30 I&N Dec. 185 (BIA 2026).

Why the BIA Classified the Offense as a CIMT

South Carolina Code § 16-3-600(D)(1) contains two alternative forms of second-degree assault and battery. One involves unlawfully injuring, offering to injure, or attempting to injure another person where moderate bodily injury results or could have resulted. The other involves conduct that includes the nonconsensual touching of another person's private parts.

The parties agreed that the statute was divisible, meaning that its alternative provisions describe separate offenses with different elements. However, the record of conviction did not establish which alternative formed the basis of the respondent's conviction.

Under the categorical approach, immigration adjudicators generally examine the elements of the statute of conviction rather than the specific facts of the individual's conduct. The BIA concluded that both statutory alternatives qualified as crimes involving moral turpitude. Therefore, uncertainty about which alternative applied did not change the outcome.

Recklessness and the risk of bodily injury

The BIA explained that a crime involving moral turpitude generally requires reprehensible conduct combined with a sufficiently culpable mental state. Relying on South Carolina precedent, including State v. Clemons, the Board concluded that the minimum culpable mental state for the relevant offense was recklessness. It found that recklessness, combined with the degree of actual or potential harm contemplated by the statute, was sufficient.

The Board emphasized that moderate bodily injury under South Carolina law can include a fracture or dislocation, temporary or moderate disfigurement, prolonged loss of consciousness, or temporary loss of an organ's function. The offense did not need to result in actual serious bodily injury to qualify as a CIMT.

Nonconsensual touching

The Board separately concluded that the statute's alternative involving nonconsensual touching of private parts categorically involved moral turpitude. It relied on its longstanding treatment of nonconsensual sexual conduct as morally reprehensible. Because both alternatives qualified, the BIA held that the conviction was categorically a CIMT.

Potential Immigration Consequences

A CIMT finding can have serious consequences for noncitizens, but the immigration effect of a conviction depends on the applicable statutory ground, the individual's immigration history, and any available exceptions or forms of relief. Matter of Mercader specifically addressed removability under INA § 237(a)(2)(A)(i); it did not hold that every assault conviction in every state is a CIMT.

For lawful permanent residents and other noncitizens in removal proceedings, the decision underscores the importance of evaluating the exact offense of conviction and the statutory requirements for the charged ground of removability.

• The statutory elements and any alternative elements of the offense must be identified.
• The date of admission, date of conviction, and maximum possible sentence may matter when DHS charges removability under INA § 237(a)(2)(A)(i).
• A CIMT finding does not automatically establish every other ground of removability or inadmissibility, and separate statutory requirements must be assessed.
• Eligibility for relief, including cancellation of removal or other available defenses, requires a separate, fact-specific analysis.

The decision should not be read as establishing a nationwide rule that all offenses labeled assault or battery qualify as crimes involving moral turpitude. The elements and controlling precedent applicable to the specific conviction remain critical.

What This Decision Means for Immigration Defense

For immigration attorneys, Matter of Mercader highlights the need for careful criminal-immigration analysis before conceding removability or deciding how to challenge a charge. A conviction's title, the sentence imposed, or a description such as "non-violent" in the criminal record does not necessarily resolve whether the offense is a CIMT.

Defense counsel should obtain the relevant criminal records, identify the statute and subsection of conviction, examine the elements under applicable state law, and apply the categorical or modified categorical approach as appropriate. Counsel should also assess whether the governing federal circuit has controlling precedent that affects the analysis.

Individuals with assault or battery convictions who are facing removal proceedings, applying for immigration benefits, or considering international travel should seek individualized legal advice before making decisions that could affect their immigration status. The consequences depend on the precise conviction and the person's circumstances.