Roberto Lepe Moran v. William BarrRoberto Lepe Moran v. William Barr
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 28, 2020 San Francisco, California
Filed June 2, 2020
Before: J. Clifford Wallace, Ronald Lee Gilman,* and Susan P. Graber, Circuit Judges.
SUMMARY**
Immigration
Denying Roberto Alexis Lepe Moran‘s petition for review of a Board of Immigration Appeals’ decision, the panel held that the BIA permissibly held that Petitioner‘s conviction for felony vehicular flight from a pursuing police car while driving against traffic, in violation of
The panel described the two-step process for determining whether an offense is a crime involving moral turpitude: the court reviews the elements of the statute de novo and then asks whether those elements fall within the generic federal definition of a crime involving moral turpitude.
At the first step, the panel observed that
At the second step, the panel explained that the court defers, to some extent, to the BIA‘s conclusion that a crime involves moral turpitude, but the panel concluded that it need not decide the appropriate level of deference because, even affording only minimal deference, the BIA‘s interpretation was correct. In agreeing with the BIA, the panel explained that the category of non-fraudulent crimes involving moral turpitude includes some crimes that seriously endanger others, even if no actual injury occurs. The panel further explained that the greater the requisite state of mind, the less serious the resulting harm has to be in order for the crime to be classified as one involving moral turpitude. Comparing section 2800.4 to relevant precedent, the panel concluded that willfully driving in the wrong direction while fleeing a pursuing police officer inherently creates a risk of harm to others that is substantial enough for the statute categorically to meet the definition of a crime involving moral turpitude.
The panel also rejected Petitioner‘s contention that the risk of harm to others is insufficient in light of the least of the acts criminalized here. The panel noted that, in theory, section 2800.4 could apply to a driver who willfully flees from police at ten miles per hour and drives on the wrong side of the road for just five feet. However, the panel concluded that a highly unlikely theoretical possibility was not enough to remove the statute from the morally turpitudinous realm because: 1) even a short, slow-speed trip in the wrong direction during flight creates substantial risk of harm to others; and 2) a theoretical possibility is insufficient as a matter of law; rather, there must be a “realistic probability” that the state would apply the statute to conduct that falls outside the definition of the generic crime, and the panel concluded that there was no such realistic probability here.
COUNSEL
Victoria Ayeni (argued) and Nicholas J. Hunt, Certified Law Students; Leah Spero, Gary A. Watt, and Stephen R. Tollafield, Supervising Counsel; Hastings Appellate Project, San Francisco, California; for Petitioner.
Tim Ramnitz (argued), Attorney; Russell J.E. Verby, Senior Litigation Counsel; Joseph P. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
GRABER, Circuit Judge:
Petitioner Roberto Alexis Lepe Moran, a native and citizen of Mexico, seeks review of a final decision of the Board of Immigration Appeals (“BIA“) holding that Petitioner is removable by reason of his conviction of a crime involving moral turpitude. We have jurisdiction over this timely petition for review,
Petitioner was admitted to the United States in 2014 as a nonimmigrant. In 2016, he pleaded guilty in California state court to two crimes arising out of the same incident: violations of
Immigration authorities then issued Petitioner a notice to appear that charged him with being removable. After a hearing at which he was represented by counsel, an immigration judge ruled that
Before us, Petitioner challenges only the ruling that
First, we review the elements of the statute de novo, affording no deference to the BIA‘s conclusions. Vinh Tan Nguyen v. Holder, 763 F.3d 1022, 1027 (9th Cir. 2014). Next, we ask whether the elements of the statute of conviction fall within the generic federal definition of a crime involving moral turpitude. Id. In doing so, we presume the conviction rested upon nothing more than the
least of the acts criminalized. Moncrieffe v. Holder, 569 U.S. 184 (2013).
Ramirez-Contreras v. Sessions, 858 F.3d 1298, 1302 (9th Cir. 2017).
At the first step, we and the parties agree on the elements of the crime.
At the second step, we defer, to some extent, to the BIA‘s conclusion that a crime involves moral turpitude. Ramirez-Contreras, 858 F.3d at 1302. Because the BIA‘s decision here is unpublished, we afford only the deference described in Skidmore v. Swift & Co., 323 U.S. 134 (1944). Ramirez-Contreras, 858 F.3d at 1302-03. The extent of the deference that we grant therefore depends on the thoroughness, consistency, and persuasiveness of the BIA‘s reasoning. Id. at 1303. Petitioner asserts that we owe only “minimal deference,” id., to the BIA because its analysis consisted of just a single sentence, followed by citations to cases that Petitioner contends are not controlling. We need not decide what level of deference we should grant because, even affording only minimal deference, we conclude that the BIA‘s interpretation is correct. See Fugow v. Barr, 943 F.3d 456 (9th Cir. 2019) (per curiam) (addressing a moral-turpitude question without mentioning deference to the BIA).
“In comparing the elements of [
With respect to the actus reus, an additional element can transform a crime that does not involve moral turpitude into one that does. For example, in Altayar v. Barr, 947 F.3d 544 (9th Cir. 2020), we held that assault with a “deadly weapon or dangerous instrument” involves moral turpitude even though simple assault does not. We reasoned that the extra element “necessarily makes the offense more serious, more dangerous, and therefore more blameworthy than a simple assault.” Id. at 552; see also Matter of Lopez-Meza, 22 I. & N. Dec. 1188, 1196 (BIA 1999) (holding that an aggravated driving-under-the-influence (“DUI“) offense involves moral turpitude, even though simple DUI does not).
With respect to the mens rea, the greater the requisite state of mind, the less serious the resulting harm has to be in order for the crime to be classified as one involving moral turpitude. Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir. 2014). In Leal, we held that felony endangerment under Arizona law is a crime involving moral turpitude, even though the mens rea is only recklessness, because of the level of risk (actual and substantial) and the severity of the potential harm (imminent death). Id. at 1144. Conversely, we held in Fugow that unlawful imprisonment under Hawaii law is a crime involving moral turpitude because of a high mens rea (knowingly), even though the harm risked (serious bodily injury) was less than the potential harm identified in Leal. Fugow, 943 F.3d at 459.
Here,
Our reasoning in Ramirez-Contreras supports that conclusion, even though Ramirez-Contreras held that a different section of the
We acknowledged “the seriousness of any flight from police.” Id. at 1306. And we recognized that other courts have held that statutes criminalizing intentional flight from police plus an aggravating element constitute crimes involving moral turpitude: Mei v. Ashcroft, 393 F.3d 737 (7th Cir. 2004) (fleeing from police while going 21 or more miles per hour over the speed limit); Cano-Oyarzabal v. Holder, 774 F.3d 914 (7th Cir. 2014) (fleeing from police while interfering with the officer, vehicles,
We did not suggest that any of those cases was wrongly decided. Rather, we distinguished them on two grounds: “The statutes in those cases penalized willful conduct that increased the risk of harm to others.” Id. at 1305 (emphases added). But the aggravating conduct that could give rise to a violation of
By contrast, a violation of
As to this final point, Petitioner argues that the risk of harm to others is insufficient when we consider, as we must, the least of the acts criminalized. Moncrieffe, 569 U.S. at 190-91. We disagree. In theory,
the wrong side of a wide street for just five feet. But a highly unlikely theoretical possibility is not enough to remove
First, even a short, slow-speed trip in the wrong direction during flight creates a substantial risk of harm. Drivers, pedestrians, and others do not expect vehicles to travel in the wrong direction. Oncoming drivers, for example, could swerve dangerously to avoid a collision. Similarly, because the pursued driver is distracted by actively fleeing a pursuing officer, the driver will be less capable of responding alertly to other traffic. Driving in the wrong direction during flight, like speeding up even slightly or turning off headlights, Cano-Oyarzabal, 774 F.3d at 917-18, inherently creates a substantial risk of harm.
Second, a theoretical possibility is insufficient as a matter of law. When the Supreme Court directed us to consider the least of the acts criminalized, it specifically cautioned that “our focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic
Petitioner directs us to two California cases applying
We conclude, then, that the BIA permissibly held that a violation of
Petition DENIED.
Notes
[w]henever a person willfully flees or attempts to elude a pursuing peace officer in violation of Section 2800.1, and the person operating the pursued vehicle willfully drives that vehicle on a highway in a direction opposite to that in which the traffic lawfully moves upon that highway....