RUIZ-LOPEZ, 25 I&N Dec. 551 (BIA 2011)

Cite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720
1 The Immigration Judge’s decision incorporated a March 12, 2008, decision in which the
question of the respondent’s removability was addressed.
551
Matter of Armando RUIZ-LOPEZ, Respondent
Decided June 30, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The offense of driving a vehicle in a manner indicating a wanton or willful disregard for
the lives or property of others while attempting to elude a pursuing police vehicle
in violation of section 46.61.024 of the Revised Code of Washington is a crime involving
moral turpitude.
(2) The maximum sentence possible for an offense, rather than the standard range
of sentencing under a State’s sentencing guidelines, determines an alien’s eligibility for
the “petty offense” exception under section 212(a)(2)(A)(ii)(II) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006).
FOR RESPONDENT: H. Alan Rothenbuecher, Esquire, Cleveland, Ohio
FOR THE DEPARTMENT OF HOMELAND SECURITY: G. Michael Wick, Assistant
Chief Counsel
BEFORE: Board Panel: FILPPU, PAULEY, and WENDTLAND, Board Members.
WENDTLAND, Board Member:
In a decision dated December 8, 2008, an Immigration Judge found the
respondent removable based on his inadmissibility under sections
212(a)(2)(A)(i)(I) and (6)(A)(i) of the Immigration and Nationality Act,
8 U.S.C. § 1182(a)(2)(A)(i)(I) and (6)(A)(i) (2006), as an alien who was
convicted of a crime involving moral turpitude and who was present in the
United States without having been admitted or paroled.1
The Immigration
Judge further determined that the respondent’s conviction rendered him
statutorily ineligible for cancellation of removal under section 240A(b) of the
Act, 8 U.S.C. § 1229b(b) (2006). The respondent has appealed from the
Immigration Judge’s decision. The appeal will be dismissed.Cite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720
552
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the
United States without having been admitted or paroled. On December 29,
1997, he was convicted of attempting to elude a pursuing police vehicle in
violation of section 46.61.024 of the Revised Code of Washington, for which
he was sentenced to 40 days in confinement. Subsequently, the Department
of Homeland Security (“DHS”) charged that the respondent was inadmissible
because he was convicted of a crime involving moral turpitude and was
present in the United States without having been admitted or paroled. The
Immigration Judge sustained both charges and, finding the respondent
ineligible for cancellation of removal, ordered him removed from the
United States.
II. ANALYSIS
At the time of the respondent’s conviction in 1997, section 46.61.024 of the
Revised Code of Washington provided, in pertinent part, as follows:
Any driver of a motor vehicle who wilfully fails or refuses to immediately bring
his vehicle to a stop and who drives his vehicle in a manner indicating a wanton
or wilful disregard for the lives or property of others while attempting to elude
a pursuing police vehicle, after being given a visual or audible signal to bring the
vehicle to a stop, shall be guilty of a class C felony. The signal given by the police
officer may be by hand, voice, emergency light, or siren. The officer giving such
a signal shall be in uniform and his vehicle shall be appropriately marked showing
it to be an official police vehicle.
On appeal the respondent argues that his conviction was not for a crime
involving moral turpitude. Relying on our decision in Matter of Khourn,
21 I&N Dec. 1041, 1046 (1997), he notes that an evil intent is required for
a finding of moral turpitude. Although “a wanton or wilful disregard for the
lives or property of others” must be established for a conviction under the
Washington statute, the respondent contends that no showing of evil intent
is necessary. Conceding that his attempt to elude a police officer was
a “wilful” act, the respondent claims that it was not committed with the evil
intent generally associated with other crimes found to involve moral turpitude,
such as the offense of aggravated fleeing discussed in Mei v. Ashcroft, 393
F.3d 737 (7th Cir. 2004). Moreover, he asserts that “wanton disregard”
equates to recklessness, which, under Matter of Fualaau, 21 I&N Dec. 475
(1996), must be coupled with the infliction of serious bodily injury for
a finding of moral turpitude.
According to the respondent, a person can be convicted under section
46.61.024 based on a showing of wanton disregard for only property, withoutCite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720
553
any serious bodily harm. He asserts that such reckless harm to property has
not been considered to be morally turpitudinous conduct under our decisions
in Matter of M–, 2 I&N Dec. 686 (C.O., BIA 1946) (involving damage
to railway telegraph property), and Matter of B–, 2 I&N Dec. 867 (C.O., BIA
1947) (involving willful damage to mail boxes and other property). Thus, the
respondent concludes that the offense of attempting to elude a pursuing police
vehicle under the Washington statute is not categorically a crime involving
moral turpitude. Finally, he avers that even if he has been convicted of a crime
involving moral turpitude, the “petty offense” exception under section
212(a)(2)(A)(ii)(II) of the Act applies, and he remains eligible for cancellation
of removal under section 240A(b).
We first note that the Attorney General has provided a framework for
determining whether a particular offense constitutes a crime involving moral
turpitude. See Matter of Silva-Trevino, 24 I&N Dec. 687, 688-89, 696
(A.G. 2008) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967 (2005)). Pursuant to Matter of Silva-Trevino, the first
stage of the analysis employs a categorical approach, under which the criminal
statute at issue is examined to ascertain whether moral turpitude is intrinsic
to all offenses that have a “realistic probability” of being prosecuted under that
statute. Id. at 689-90, 696-98. If the issue cannot be resolved under the
categorical approach, the second stage involves a modified categorical inquiry,
which requires inspection of specific documents comprising the alien’s record
of conviction to discern the nature of the underlying conviction. Id. at 690,
698-99. Finally, if the record of conviction is inconclusive, the Attorney
General has held that because moral turpitude is not an element of an offense,
evidence beyond the record of conviction may be considered when evaluating
whether an alien’s crime involved moral turpitude. Id. at 690, 699-701.
We have long held that moral turpitude refers generally to conduct that
is inherently base, vile, or depraved, and contrary to the accepted rules
of morality and the duties owed between persons or to society in general. See,
e.g., Matter of Solon, 24 I&N Dec. 239, 240 (BIA 2007); Matter
of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001). Moral turpitude is conduct
that is per se morally reprehensible and intrinsically wrong or malum in se.
See Matter of Fualaau, 21 I&N Dec. at 477; Matter of Franklin, 20 I&N Dec.
867 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995); Matter of Serna, 20 I&N
Dec. 579, 582 (BIA 1992). Where knowing or intentional conduct
is an element of a morally reprehensible offense, we have found moral
turpitude to be present. See, e.g., Matter of Danesh, 19 I&N Dec. 669, 673
(BIA 1988).
With regard to mens rea, the Attorney General has concluded that moral
turpitude inheres in “reprehensible conduct that is committed intentionally
or with some other form of scienter such as willfulness or recklessness.”Cite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720
554
Matter of Silva-Trevino, 24 I&N Dec. at 706 n.5. Quoting Partyka v. Attorney
General of the U.S., 417 F.3d 408, 414 (3d Cir. 2005), the Attorney General
noted that “moral turpitude inheres in the commission of certain crimes ‘even
if one acts not with intent, but with recklessness.’” Id. (citing Matter
of Medina, 15 I&N Dec. 611, 613 (BIA 1976), aff’d sub nom. Medina-Luna
v. INS, 547 F.2d 1171 (7th Cir. 1977) (finding that aggravated assault under
Illinois law was a crime involving moral turpitude where the statutory
“definition of recklessness require[d] an actual awareness of the risk created
by the criminal violator’s actions” and “a willingness to commit the act
in disregard of the perceived risk”)). Thus, judicial and administrative
precedents have recognized that “reckless disregard” can constitute the
requisite “evil intent” for a crime involving moral turpitude under at least some
circumstances.
The respondent cites to Matter of Fualaau, 21 I&N Dec. at 478, in support
of his argument that in order to involve moral turpitude, an offense
with a mens rea of recklessness must be coupled with the infliction of serious
bodily injury. However, in Matter of Medina, 15 I&N Dec. at 613-14,
which involved aggravated assault, we concluded that moral turpitude
inhered in criminally reckless conduct with the use of a deadly weapon
as an aggravating factor, but with no serious bodily injury. In addition, when
we have held that a “recklessness” mens rea required either serious bodily
injury or some other aggravating factor to establish moral turpitude, it was
in the specific context of assault offenses. See, e.g., Matter of Solon, 24 I&N
Dec. at 242 (noting that the reasoning of our decisions reflects that “at least
in the context of assault crimes, a finding of moral turpitude involves
an assessment of both the state of mind and the level of harm required
to complete the offense”). The respondent’s offense did not involve assault,
so we find his argument in this regard to be unpersuasive. Moreover, we note
that as a general rule, “the seriousness of a criminal offense . . . is [not]
determinative of whether a crime involves moral turpitude.” Matter of Sejas,
24 I&N Dec. 236, 237 (BIA 2007) (citing Matter of Serna, 20 I&N Dec.
at 581).
To support a conviction for the offense of attempting to elude a pursuing
police officer under section 46.61.024 of the Revised Code of Washington,
three elements must be shown to have occurred in the proper sequence. State
v. Duffy, 936 P.2d 444, 446-47 (Wash. Ct. App. 1997). The first element is that
a uniformed police officer whose vehicle is appropriately marked must give
the driver of a motor vehicle a visual or audible signal to bring the vehicle
to a stop. Next, the driver must willfully fail or refuse to immediately bring his
vehicle to a stop—the willful failure to do so implies knowledge that a signal
has been given. Finally, while attempting to elude a pursuing police vehicle,
the driver must drive his vehicle in a manner indicating a wanton or willful
disregard for the lives or property of others. Cite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720
555
Construing this third element of the offense, the Supreme Court
of Washington stated that “[t]he statute is absolutely clear that at the very least
the manner in which one drives must indicate wanton and willful disregard”
and concluded that this “crime of felony flight” “[o]bviously . . . does contain
culpable mental elements.” State v. Sherman, 653 P.2d 612, 615-16 (Wash.
1982) (en banc). In State v. Mather, 626 P.2d 44, 47 (Wash. Ct. App. 1981),
the court observed that section 46.61.024 is a “resisting arrest” statute, which,
in punishing conduct that indicates a wanton or willful disregard for the life
and property of others, “punishes unreasonable conduct in resisting law
enforcement activities.” Regarding the phrase “wanton or willful disregard,”
it has been noted that
[t]he usual meaning assigned to “willful,” “wanton,” or “reckless,” according to taste
as to the word used, is that the actor has intentionally done an act of an unreasonable
character in disregard of a known or obvious risk that was so great as to make
it highly probable that harm would follow, and which thus is usually accompanied
by a conscious indifference to the consequences.
State v. Brown, 697 P.2d 583, 586 (Wash. Ct. App. 1985) (quoting W. Prosser
& W. Keeton, Torts § 34, at 213 (5th ed. 1984)) (emphasis added).
In Mei v. Ashcroft, 393 F.3d at 742, the United States Court of Appeals for
the Seventh Circuit held that the Illinois offense of aggravated fleeing from
a police officer is a crime involving moral turpitude. The offense involved the
willful failure to obey a police officer’s order to stop, with the aggravating
circumstance that the offender was driving at 21 or more miles per hour above
the speed limit. The court stated that “a person who deliberately flees at a high
speed from an officer who, the fleer knows, wants him to stop, thus
deliberately flouting lawful authority and endangering the officer, other
drivers, passengers, and pedestrians, is deliberately engaged in seriously
wrongful behavior.” Id. As the court pointed out, while the driver may not
want to endanger anyone, he has to know that he is greatly increasing the risk
of an accident as a consequence of his deliberate and improper decision
to ignore a lawful order of the police. Id. Thus, the court implicitly held that
reckless disregard of a substantial risk of an injury-causing accident sufficed
to justify a finding of moral turpitude.
Although Mei v. Ashcroft did not involve an offense containing an element
of willful disregard for lives or property, the Seventh Circuit cited to a case
that did. People v. Dewey, 49 Cal. Rptr. 2d 537, 541 (Cal. Ct. App. 1996),
held that California’s felony offense of fleeing or attempting to elude
a pursuing peace officer by driving in willful or wanton disregard for
the safety of persons or property was a crime involving moral turpitude.
In so holding, the court cited to a decision rejecting the assertion that theCite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720
2 The respondent has cited Matter of M–, 2 I&N Dec. at 691, for the proposition that the
willful disregard for the safety of property (versus that of lives) does not involve moral
turpitude. We noted in that case that the statute did not require a “vicious or corrupt intent”
and that “[t]he mere doing of anything which is likely to cause danger to valuable property,
regardless of the actor’s intent, is punishable.” Id. Stating that the offense was “somewhat
comparable to driving an automobile in a negligent manner,” we concluded that it was not
a crime involving moral turpitude. Id. Thus, in finding a lack of turpitude, we relied on the
absence of a scienter requirement, rather than the fact that the wanton disregard related to the
safety of property. We employed a similar analysis in Matter of B–, 2 I&N Dec. at 868-69,
on which the respondent also relies.
556
offense could not involve moral turpitude because an individual eluding
a police officer might only be acting with the requisite disregard for the safety
of property.
We find little distinction between the respondent’s offense and those
considered in Mei v. Ashcroft and People v. Dewey, both of which held that the
crime involved moral turpitude. The respondent’s conduct was similar to that
involved in those cases, in that he willfully failed or refused to immediately
bring his vehicle to a stop after a uniformed police officer in an appropriately
marked vehicle gave him a signal to stop his motor vehicle and, while
attempting to elude the pursuing police vehicle, drove his vehicle in a manner
indicating a wanton and/or willful disregard for the risk of injury to another
person or to property. Assuming arguendo that there is a “realistic probability”
of prosecution under the Washington statute where the offense of attempting
to elude a pursuing police vehicle was committed with a reckless disregard
for only property, we find that moral turpitude necessarily inheres in such
a crime, given the combination of circumstances involved. See Matter
of Silva-Trevino, 24 I&N Dec. at 689-90, 696-98.
“The finding of moral turpitude . . . results from a building together
of elements by which the criminalized conduct deviates further and further
from the private and social duties that persons owe to one another and
to society in general.” Matter of Lopez-Meza, 22 I&N Dec. 1188, 1196 (BIA
1999). To violate the Washington statute, an individual must recklessly
endanger the person or property of others in the course of impeding law
enforcement activity by willfully disobeying a police officer’s directive
to stop. We conclude that when a person deliberately flouts lawful authority
and recklessly endangers the officer, other drivers, passengers, pedestrians,
or property, he or she is “engaged in seriously wrongful behavior” that violates
the accepted rules of morality and the duties owed to society.2
Mei v. Ashcroft,
393 F.3d at 742; cf. Matter of Lopez-Meza, 22 I&N Dec. at 1196 (holding that
moral turpitude inhered in the offense of aggravated driving under the
influence, which involved the combination of driving under the influence
of intoxicating liquor or drugs and knowingly driving on a suspended,Cite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720
3 The statute provides that the “petty offense” exception applies where “the maximum
penalty possible for the crime of which the alien was convicted . . . did not exceed
imprisonment for one year and . . . the alien was not sentenced to a term of imprisonment in
excess of 6 months.” 4 The respondent also appears to be ineligible for cancellation of removal on the basis that
his offense constitutes a crime involving moral turpitude described under section
237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006), given that the maximum term
of imprisonment for the offense is at least 1 year. See Matter of Pedroza, 25 I&N Dec. 312
(BIA 2010); Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). 5 The respondent also had taken issue with the manner in which the Immigration Judge
conducted his removal proceedings, arguing that this resulted in a denial of due process. He
(continued…)
557
canceled, revoked, or refused license); Matter of S–, 3 I&N Dec. 617 (C.O.,
BIA 1949) (holding that an offense involved moral turpitude when it required
proof that the defendant willfully (defined by Canadian law as being reckless
as to whether an event happened or not), and without legal justification,
committed an act while knowing it would probably cause a fire). See
generally Sykes v. United States, No. 09-11311, 2011 WL 2224437, at *6
(U.S. June 9, 2011) (“Confrontation with police is the expected result of
vehicle flight. It places property and persons at serious risk of injury.”).
We also find that the respondent is not eligible for the “petty offense”
exception under section 212(a)(2)(A)(ii)(II) of the Act, because the maximum
penalty for the crime of which he was convicted is 5 years of imprisonment.3
He asserts that the standard range of sentencing for his offense was from
0 to 60 days under the State of Washington’s Sentencing Guidelines.
However, the presumptive sentence is not the maximum sentence possible.
Although the respondent was only sentenced to a term of imprisonment
of 40 days, the judgment and sentence stated that the maximum term
of imprisonment for the crime to which he pled guilty was 5 years.
Consequently, we conclude that the “petty offense” exception is inapplicable
and that the respondent is inadmissible, and therefore removable, under section
212(a)(2)(A)(i)(I) of the Act.
To qualify for some form of relief or protection from removal, the
respondent bears the burden of demonstrating his eligibility. Section
240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A) (2006). Because his
conviction for a crime involving moral turpitude does not come within the
“petty offense” exception, he has been convicted of an offense described under
section 212(a)(2) of the Act and is therefore ineligible for cancellation
of removal under section 240A(b)(1)(C) of the Act.4
In view of our
conclusions that the respondent is removable and ineligible for relief, we need
not address the remaining arguments presented on appeal. Accordingly, the
appeal will be dismissed.5Cite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720
(…continued)
asserted that the Immigration Judge assumed the role of prosecutor by interrogating the
respondent about his criminal record, tax compliance, and other matters during the course
of direct examination, thereby interrupting the questioning of the respondent by his attorney.
However, we need not reach the merits of the respondent’s allegations, because he has
suffered no prejudice as a result of the timing of the Immigration Judge’s questions. Given
our conclusion that the respondent is removable because of his conviction for a crime
involving moral turpitude, he is ineligible for cancellation of removal as a matter of law.
Consequently, the outcome of his proceedings could not have been affected in any material
way by the Immigration Judge’s method of conducting questioning. Likewise, the
respondent has not suffered prejudice from any other determinations made by the
Immigration Judge that he now contests.
558
ORDER: The appeal is dismissed.