BIA Finds Driving with Wanton or Willful Disregard for Lives or Property to Elude Police is a CIMT

The BIA held in Matter of Ruiz-Lopez, 25 I.&N. Dec. 551 (B.I.A. June 3, 2011) that (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 Wash. Rev. Code § 46.61.024 is a crime involving moral turpitude (CIMT) and (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 INA § 212(a)(2)(A)(ii)(II) [8 USCA § 1182(a)(2)(A)(ii)(II)] (2006).

The respondent, a native and citizen of Mexico, entered the U.S. without having been admitted or paroled. On December 29, 1997, he was convicted of attempting to elude a pursuing police vehicle in violation of Wash. Rev. Code § 46.61.024, for which he was sentenced to 40 days confinement. Subsequently, the Department of Homeland Security (DHS) charged that the respondent was inadmissible because he was convicted of a CIMT and was present in the U.S. without having been admitted or paroled. The immigration judge (IJ) sustained both charges. In addition, the IJ determined that the respondent's conviction rendered him statutorily ineligible for cancellation of removal under INA § 240A(b) [8 USCA § 1229b(b)] (2006). The IJ ordered him removed from the U.S. and the respondent appealed to the BIA, contending that his conviction was not for a CIMT and that, even if it was, the “petty offense” exception under INA § 212(a)(2)(A)(ii)(II) applies so that he remains eligible for cancellation of removal.

At the time of the respondent's conviction, Wash. Rev. Code § 46.61.024 provided, in pertinent part, that:

"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."

The respondent contended that his conviction was not for a CIMT because (1) pursuant to the holding in Matter of Khourn, 21 I. & N. Dec. 1041, 1046 (B.I.A. 1997), an evil intent is required for a finding of moral turpitude and although “a wanton or wilful disregard for the lives or property of others” must be established for a conviction under the Washington statute, no showing of evil intent is necessary; (2) although his attempt to elude a police officer was a willful act, 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); and (3) “wanton disregard” equates to recklessness, which, under Matter of Fualaau, 21 I. & N. Dec. 475 (B.I.A. 1996), must be coupled with the infliction of serious bodily injury for a finding of moral turpitude, and under Wash. Rev. Code § 46.61.024 a person may be convicted based on a showing of wanton disregard for only property, without any serious bodily harm, and further, under the Board's decisions in Matter of M-, 2 I. & N. Dec. 686 (C.O., B.I.A. 1946) (involving damage to railway telegraph property), and Matter of B-, 2 I. & N. Dec. 867 (C.O., B.I.A. 1947) (involving willful damage to mail boxes and other property), such reckless harm to property has not been considered to be morally turpitudinous. Therefore, he contended, the offense of attempting to elude a pursuing police vehicle under the Washington statute is not categorically a CIMT.

The Board, in an opinion written by Board Member Linda S. Wendtland for the panel which included Board Members Lauri S. Filppu and Roger Pauley, rejected each of these contentions. The Board noted that judicial and administrative precedents have recognized that “reckless disregard” can constitute the requisite “evil intent” for a CIMT under at least some circumstances. In rejecting the respondent's reliance on Matter of Fualaau for the proposition 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, the Board pointed out that (1) in Matter of Medina, 15 I. & N. Dec. 611, 613-14 (B.I.A. 1976), [FN6] aff'd sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977) which involved aggravated assault, it 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, and (2) whenever it has held that a “recklessness” mens rea requires either serious bodily injury or some other aggravating factor to establish moral turpitude, it has been in the specific context of assault offenses. Since the respondent's offense did not involve assault, the Board found his argument in this regard unpersuasive. Moreover, the Board pointed out 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 (B.I.A. 2007).

Turning to the offense for which the respondent was convicted, the Board explained that three elements are required to support a conviction of attempting to elude a pursing police officer under Wash. Rev. Code § 46.61.024: (1) 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; (2) the driver must willfully fail or refuse to immediately bring his vehicle to a stop; and (3) while attempting to elude a pursuing police vehicle, the driver must drive his or her vehicle in a manner indicating a wanton or willful disregard for the lives or property of others. The Board noted that, in construing this last element, the Supreme Court of Washington has 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). Moreover, Washington courts have found that the usual meaning of “willful,” “wanton,” or “reckless” 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).

The Board also pointed out that the U.S. Court of Appeals for the Seventh Circuit, in Mei v. Ashcroft, held that the Illinois offense of aggravated fleeing from a police officer--which 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--is a CIMT. 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.” Mei v. Ashcroft, 393 F.3d at 742. The Seventh Circuit pointed out that, 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. The Board noted further that, while 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), which 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 CIMT and which specifically rejected the contention that the 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.

The Board found little distinction between the respondent's offense and those considered in Mei v. Ashcroft and People v. Dewey as 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, the Board found that moral turpitude necessarily inheres in such a crime given the combination of circumstances involved. The Board concluded 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. Thus the respondent's conviction was for a CIMT.

The Board also found that the respondent was not eligible for the “petty offense” exception under INA § 212(a)(2)(A)(ii)(II) because the maximum penalty for the crime of which he was convicted is five years of imprisonment. The Board rejected the respondent's assertion that he was eligible for this exception because the standard range of sentencing for his offense was from 0 to 60 days under the State of Washington's Sentencing Guidelines, noting that the presumptive sentence is not the maximum sentence possible and that, 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 five years. Accordingly, the Board held that, because the respondent's conviction for a CIMT does not come within the “petty offense” exception, he was convicted of an offense described under INA § 212(a)(2) and is therefore ineligible for cancellation of removal under INA § 240A(b)(1)(C). Accordingly, the appeal was dismissed.

As a side note, the BIA provided a paragraph detailing the proper analysis to use to determine whether a crime involves moral turpitude under Matter of Silva-Treviño, 24 I&N Dec. 687, 688-89 (A.G. 2008). 

The BIA explained,

“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. 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. 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.”

Matter of Ruiz-Lopez, 25 I&N Dec. at 553. Silva-Treviño, the BIA suggests, requires a linear analysis: only use step two (the modified categorical approach) if step one does not answer the question; only use step three (the anything-goes prong) if step two does not answer the question. 

Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465 (B.I.A. April 19, 2011). Board Finds Record of Conviction Clear on Issue Relating to CIMT and Rejects IJ's Use of Third Prong of Matter of Silva-Trevino

The Board of Immigration Appeals (BIA or Board) has followed the Attorney General's precedent decision Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), in holding that evidence outside of an alien's record of conviction may properly be considered in determining whether the alien has been convicted of a crime involving moral turpitude (CIMT) only where the conviction record itself does not conclusively demonstrate whether the alien was convicted of engaging in conduct that constitutes a CIMT. Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465 (B.I.A. April 19, 2011).
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The respondent is a native and citizen of Mexico who unlawfully entered the U.S. In September 1999, the respondent was convicted of assault in Texas based on his guilty plea to the crime. The Department of Homeland Security (DHS) filed a notice to appear in June 2009, charging the respondent with removability based on his unlawful presence in the U.S. At removal proceedings, the respondent conceded removability and applied for cancellation of removal for nonpermanent residents. The immigration judge (IJ) found that the respondent's assault offense involved domestic violence and was therefore a CIMT. The IJ thus concluded that the respondent was ineligible for cancellation of removal because his conviction was for an offense included in INA § 240A(b)(1)(C) [8 USCA § 1229b(b)(1)(C)]. The respondent appealed the IJ's decision, arguing that he was not convicted of assault involving family violence but was, instead, convicted only of simple assault, which is not a CIMT.

Board Member Roger Pauley wrote the opinion for the panel, which also included Board Members Patricia A. Cole and Anne J. Greer. He noted that, in order to resolve the matter, the Board needed to “address an aspect of the Attorney General's decision in Matter of Silva-Trevino” to wit: whether, given the information in the record of conviction, the decision permits an IJ to consider evidence that is outside of the record of conviction to, in this case, determine whether the victim was the respondent's common-law spouse.

The Board began its analysis by noting that cancellation of removal may be granted under § 240A(b)(1)(C) if, among other things, the alien has not been convicted of a CIMT under either INA § 212(a)(2)(A)(i)(I) [8 USCA § 1182(a)(2)(A)(i)(I)] or INA § 237(a)(2)(A)(i) [8 USCA 1227(a)(2)(A)(i)]. With regard to assault convictions, the Board noted that, while simple assault or battery is generally not considered to involve moral turpitude for purposes of immigration laws, an assault or battery that necessarily involves some aggravating factor that indicates the perpetrator's moral depravity does in fact implicate moral turpitude for immigration purposes. Among these aggravating factors is the fact that the victim is the actor's domestic partner.

DHS asserted that the victim in the instant matter was in fact the respondent's common-law wife. To prove this, and in turn prove that the respondent's conviction was for a CIMT, DHS submitted, among other things, a police department report of the incident, which indicated that the respondent was charged with assault pursuant to § 22.01 of the Texas Penal Code and that the victim of the assault was the respondent's common-law wife. The IJ based his decision that the respondent had been convicted of CIMT on this document as well as testimony from the respondent that the victim was his common-law wife. Neither of these pieces of evidence were part of the record of conviction, the Board noted.

The Board then turned to Matter of Silva-Trevino to determine whether consideration of these pieces of evidence was in fact permissible. In that case, the Attorney General “established a new methodology for making determinations regarding crimes involving moral turpitude.” The case marked a departure from previous approaches with regard to this type of evidence, and the Attorney General stated that, “[i]n my view, when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is necessary and appropriate to ensure application of the Act's moral turpitude provisions.” The Board observed that the record of conviction in this matter was silent with regard to the victim's status and further that the “judgment and sentence specifically states, ‘The Court finds that this offense did not involve family violence.”’ The Board found that the record of conviction was thus not unclear about whether the conviction was for domestic assault and thus a CIMT.

The Board found that the IJ erred in examining documents beyond those in the record of conviction. It determined that the Attorney General in Silva-Trevino “adopted a hierarchical or sequential approach to the consideration of evidence in determining whether an alien has been convicted of a crime involving moral turpitude,” to wit:

In short, ... adjudicators should: (1) look first to the statute of conviction under the categorical inquiry ...; (2) if the categorical inquiry does not resolve the question, look to the alien's record of conviction ...; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question. The Board opined that the third stage outlined in Silva-Trevino is only appropriate “where the record of conviction does not itself resolve the issue, that is, where the record does not conclusively demonstrate whether an alien was convicted of engaging in conduct that constitutes a crime involving moral turpitude.” As the record of conviction in this matter did resolve the issue, the IJ was not permitted to rely on evidence beyond the record of conviction, the Board concluded. It remanded the matter with instructions for the IJ to further consider the respondent's application for cancellation of removalTweet.