Ruiz–Lopez v. Holder, 11–3730.

• Citation: 682 F.3d 513
• Decision Date: 19 June 2012
• Docket Number: No. 11–3730.,11–3730.
• Parties: Armando RUIZ–LOPEZ, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

682 F.3d 513

Armando RUIZ–LOPEZ, Petitioner,
v.
Eric H. HOLDER, Jr., Respondent.

No. 11–3730.

United States Court of Appeals,
Sixth Circuit.

June 19, 2012.

[682 F.3d 514]

ON BRIEF:H. Alan Rothenbuecher, Scottenstein Zox & Dunn Co., L.P.A., Cleveland, Ohio, for Petitioner. Jessica Segall, United States Department of Justice, Washington, D.C., for Respondent.

Before: MOORE, ROGERS and GRIFFIN, Circuit Judges.

OPINION
KAREN NELSON MOORE, Circuit Judge.

Petitioner Armando Ruiz–Lopez seeks review of a final order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge's (“IJ”) order of removal. Ruiz–Lopez's removal order was based on the IJ's finding that he was inadmissible under the Immigration and Nationality Act (“INA”) due to a state-court conviction for felony flight, which the IJ and BIA classified as a crime involving moral turpitude (“CIMT”). Because the BIA correctly concluded that the elements of Ruiz–Lopez's crime of conviction meet the BIA's definition of a CIMT, we DENY his petition for review.

[682 F.3d 515]

I. BACKGROUND

Ruiz–Lopez is a native and citizen of Mexico. He entered the United States illegally in 1991, and has remained in the country almost continuously since that time. Ruiz–Lopez is married and has three children. By all accounts, he is “a devoted husband and parent,” “a good businessman,” and a positive force in his community. Administrative Record (“A.R.”) at 126–27 (IJ's Oral Decision at 21–22). In 1997, however, Ruiz–Lopez, who was then living in Washington state, pleaded guilty to one count of felony flight after attempting to elude a police officer who had signaled Ruiz–Lopez to stop. According to a probable-cause affidavit submitted at the time of the incident, officers in a marked police vehicle had signaled Ruiz–Lopez to pull over after observing him traveling at 65 miles per hour in a 30–mile–per–hour speed zone just before 2:00 a.m. The officers activated the siren, but Ruiz–Lopez continued driving at high speed until poor visibility forced him to slow down. Finally, slightly less than a mile from where officers first signaled for him to stop, Ruiz–Lopez turned rapidly into the driveway of his residence, where officers immediately placed him under arrest. Although the statute under which Ruiz–Lopez was convicted carried a maximum term of five years in prison, Ruiz–Lopez, who was a first-time offender, received a sentence of only forty days in prison and twenty-four months of community supervision.

On February 17, 2006, the Immigration and Naturalization Service issued Ruiz–Lopez a Notice to Appear, charging him with removability under two sections of the INA: § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), which permits removal of “an alien present in the United States without being admitted or paroled,” and § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), which permits removal of “an alien who has been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude.” A.R. at 1075 (Notice to Appear). At his removal hearing, Ruiz–Lopez conceded the first ground for removability but challenged the second ground on the basis that his conviction did not constitute a CIMT.

Following briefing on the issue, the IJ concluded that because of the wanton or willful mental state required under the state statute and the resulting inference that Ruiz–Lopez had “disregarded a substantial and unjustifiable risk to the safety of others,” his conviction under § 46.61.024 of the Washington Revised Code in 1997 categorically rose to the level of a CIMT. A.R. at 1032–33 (Mar. 12, 2008 IJ Decision at 2–3). Because the IJ also determined that Ruiz–Lopez had not met the requirements for cancellation of removal and that the circumstances of the case did not warrant a favorable exercise of discretion, the IJ ordered Ruiz–Lopez removed.

Ruiz–Lopez then filed a motion to reconsider, arguing (1) that an offense that required only a reckless mental state cannot constitute a CIMT, and (2) that the disjunctive use of “lives or property” in the state statute implicated non-CIMT offenses, thereby rendering the IJ's use of the categorical approach improper. The IJ rejected both arguments, noting that Washington courts held the wanton or willful mental state to require a higher standard than mere recklessness and that those courts had not differentiated between risk to persons and risk to property, instead broadly interpreting the felony-flight statute to require “a willful or wanton disregard for the safety of others.” A.R. at 977 (Mar. 28, 2008 Order on Mot. to Reconsider at 2) (quoting

[682 F.3d 516]

State v. Brown, 40 Wash.App. 91, 697 P.2d 583, 586 (1985)).

In a published decision on June 30, 2011, the BIA likewise determined that, as a categorical matter, “[t]he 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.” Ruiz–Lopez, 25 I. & N. Dec. 551, 551 (BIA 2011).¹ Specifically, the BIA concluded, “when a person deliberately flouts lawful authority and recklessly endangers the officer, other drivers, passengers, pedestrians, or property, he is ‘engaged in seriously wrongful behavior’ that violates the accepted rules of morality and the duties owed to society.” Id. at 556 (quoting Mei v. Ashcroft, 393 F.3d 737, 742 (7th Cir.2004)). Accordingly, the BIA dismissed Ruiz–Lopez's appeal. Ruiz–Lopez now petitions this court for review of the BIA's final order.

II. LAW AND ANALYSIS A. Jurisdiction

We first address the scope of our jurisdiction in this case. Because the BIA did not adopt the IJ's decision, we review the BIA's decision as the final agency action. Kellermann v. Holder, 592 F.3d 700, 702 (6th Cir.2010). Our review, however, is somewhat circumscribed. As a general matter, we lack jurisdiction to review the removal orders of petitioners deemed removable for having committed a CIMT. Id. We nevertheless have limited jurisdiction to review questions of law and constitutional claims arising from such orders. 8 U.S.C. § 1252(a)(2)(D); Serrato–Soto v. Holder, 570 F.3d 686, 688 (6th Cir.2009). Because the question whether Ruiz–Lopez's conviction for felony flight under § 46.61.024 of the Washington Revised Code is a CIMT is a question of law, we retain jurisdiction to review his claim. Id. If we determine that the BIA properly classified the conviction as a CIMT, however, we have no further jurisdiction to review Ruiz–Lopez's removal order. Jaadan v. Gonzales, 211 Fed.Appx. 422, 426 (6th Cir.2006) (unpublished opinion).

B. Standard of Review

The BIA's construction of ambiguous statutory provisions—such as the term “crime involving moral turpitude”—is generally entitled to Chevron deference. Kellermann, 592 F.3d at 702–03;cf. INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (“[T]he BIA should be accorded Chevron deference as it gives ambiguous statutory terms ‘concrete meaning through a process of case-by-case adjudication[.]’ ”) (quoting INS v. Cardoza–Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). As a result, “we must uphold the BIA's construction [of the definition of a CIMT] unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Kellermann, 592 F.3d at 702 (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). “No deference is given, however, to the BIA's interpretation of a state criminal statute; that issue is reviewed de novo.” Serrato–Soto, 570 F.3d at 688.

At times it may be difficult to apply these principles when the answer to the

[682 F.3d 517]

question of whether a particular crime is a CIMT may require some interpretation of both the criminal statute and the INA term “crime involving moral turpitude.” See, e.g., Kellermann, 592 F.3d at 703 (applying de novo review to the question “whether the elements of a federal [or state] crime fit the BIA's definition of a CIMT”); Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir.2005) (giving de novo review to the question whether “a particular state conviction amounts to an aggravated felony” under the INA “because such a conclusion depends upon interpreting state statutes and federal statutes unrelated to immigration”). There is no such difficulty in this case, however, as our independent analysis below agrees with the BIA's determination, so that we need not determine the precise extent to which Chevron deference would otherwise apply in this case.

C. Felony Flight as a CIMT

Ruiz–Lopez challenges the BIA's determination that felony flight as defined by the Washington statute under which he was convicted categorically constitutes a CIMT. Specifically, Ruiz–Lopez maintains that the possibility of conviction for an offense involving a danger only to property brings non-CIMT offenses within the statute's purview, thereby leading to the conclusion that the BIA erred in failing to use a modified-categorical approach.

The Washington statute under which Ruiz–Lopez was convicted provided:

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.

Wash. Rev.Code § 46.61.024 (1983). As interpreted by the Washington courts,...