Cano-Oyarzabal v. Holder
| Decision Date | 22 December 2014 |
| Docket Number | No. 13–2470.,13–2470. |
| Citation | 774 F.3d 914 |
| Parties | Pedro CANO–OYARZABAL, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Matthew Scott Kriezelman, Kriezelman Burton & Associates, Chicago, IL, for Petitioner.
David V. Bernal, Yedidya Cohen, Oil, Department of Justice, Washington, DC, for Respondent.
Before EASTERBROOK, WILLIAMS, and TINDER, Circuit Judges.
Pedro Cano–Oyarzabal petitions for review of the determination that his Wisconsin conviction for fleeing or eluding a police officer in violation of Wisconsin Statute § 346.04(3) categorically constituted a crime involving moral turpitude. In light of the statute's requirement that to be convicted a person must “knowingly” flee or attempt to elude an officer after receiving an officer's signal, we find the Board's determination reasonable. Knowingly fleeing or attempting to elude an officer is an act wrong in itself and therefore a crime involving moral turpitude. We decline the petition for review.
Cano–Oyarzabal, a citizen of Mexico, entered the United States without authorization in September 2002. He pled guilty in Wisconsin state court on August 2, 2011 to operating a vehicle to flee or elude a police officer in violation of Wisconsin Statute § 346.04(3). About a year later, the Department of Homeland Security served him with a Notice to Appear in immigration court. It charged him with inadmissibility as a person present in the United States without being admitted or paroled and as an alien convicted of a crime involving moral turpitude.
Cano–Oyarzabal conceded removability. He later sought reconsideration of the immigration judge's determination that he is removable as an alien convicted of a crime involving moral turpitude, and he requested cancellation of removal pursuant to 8 U.S.C. § 1229b(b). The immigration judge concluded that the Wisconsin conviction was for a crime involving moral turpitude and so Cano–Oyarzabal was not eligible for cancellation of removal. The Board of Immigration Appeals affirmed. Cano–Oyarzabal petitions our court for review.
Cano–Oyarzabal petitions us for review of the Board's determination that he was convicted of a crime involving moral turpitude. Because the Board issued its own free-standing opinion, rather than adopting or supplementing the opinion of the immigration judge, our review will be of the Board's opinion. Sanchez v. Holder, 757 F.3d 712, 717 (7th Cir.2014).
The Immigration and Nationality Act provides that an alien convicted of a “crime involving moral turpitude” is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A conviction for such a crime also makes one ineligible for cancellation of removal, subject to exceptions not relevant here. 8 U.S.C. § 1229b(b)(1)(C). We usually do not have jurisdiction to review the denial of a discretionary grant of relief such as the cancellation of removal Cano–Oyarzabal seeks. See8 U.S.C. § 1252(a)(2)(B)(i). We have jurisdiction, however, to review questions of law or constitutional claims raised in a petition for review, 8 U.S.C. § 1252(a)(2)(D), and whether the Board properly classified a conviction as a crime involving moral turpitude is a question of law that we may review. Marin–Rodriguez v. Holder, 710 F.3d 734, 737 (7th Cir.2013).
We might have had another jurisdictional issue, because 8 U.S.C. § 1252(a)(2)(C) usually precludes our review of orders of removal against aliens who are removable for having committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Papazoglou v. Holder, 725 F.3d 790, 792 (7th Cir.2013). But DHS did not charge Cano–Oyarzabal with removability as an aggravated felon, so whether a conviction under Wisconsin Statute § 346.04(3) constitutes an aggravated felony is not relevant to our jurisdictional analysis. See Lemus–Rodriguez v. Ashcroft, 350 F.3d 652, 654–55 (7th Cir.2003) ().
The INA does not define what it means to be a “crime involving moral turpitude.” We have described the Board's precedents as distinguishing “between acts that are seen as ethically wrong without any need for legal prohibition (acts wrong in themselves, or malum in se ), and those that are ethically neutral and forbidden only by positive enactment (acts wrong because they are so decreed, or malum prohibitum ).” Ali v. Mukasey, 521 F.3d 737, 740 (7th Cir.2008). The former are crimes of moral turpitude, while the latter are not. Id. Although whether a crime is one involving moral turpitude is a question of law, we have said “that does not mean our review ... is de novo.” Lagunas–Salgado v. Holder, 584 F.3d 707, 711 (7th Cir.2009). Rather, we have ruled that our review of the Board's determination of whether a particular crime should be classified as a crime of moral turpitude is deferential in accordance with Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), provided that the agency uses rulemaking or adjudication to exercise its discretion. Ali, 521 F.3d at 739; see also Mata–Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir.2010). Decisions by a three-member panel are precedential and clearly entitled to Chevron deference under Ali. Arobelidze v. Holder, 653 F.3d 513, 519 (7th Cir.2011). Non-precedential decisions that rely on applicable Board precedent are entitled to Chevron deference as well, “as the non-precedential disposition is merely applying reasoning that already carries precedential weight.” Id. A non-binding Board decision that does not rely on binding Board precedent, on the other hand, does not receive Chevron deference and instead is “ ‘entitled to respect’—but only to the extent that [it has the] power to persuade,” in accordance with Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Arobelidze, 653 F.3d at 519 ().
Cano–Oyarzabal argues that Skidmore rather than Chevron deference is appropriate here because, he contends, the Board's non-binding decision was not based on Board precedent. He acknowledges that the agency's decision relied on the precedential Board decision in Matter of Ruiz–Lopez, 25 I. & N. Dec. 551 (BIA 2011). But because Ruiz–Lopez looked in part to our decision in Mei v. Ashcroft, 393 F.3d 737 (7th Cir.2004), Cano–Oyarzabal argues that the Board was really relying on Seventh Circuit precedent rather than its own precedent, and therefore the agency decision in this case should not be given full Chevron deference. We disagree. In both its Ruiz–Lopez decision and its decision here, it is clear that the Board engagedin substantive analysis and was not simply affirming without providing reasoning of its own. See Mata–Guerrero, 627 F.3d at 259. Ruiz–Lopez involved a Washington state statute, different than the Illinois statute at issue in Mei, and the decision contains the Board's substantive analysis and reasoning as to why the Washington statute was a crime involving moral turpitude. See25 I. & N. Dec. at 551. Its decision here also reflects its own independent analysis for determining that Cano–Oyarzabal was convicted of a crime involving moral turpitude. Chevron deference is therefore appropriate. See Ghani v. Holder, 557 F.3d 836, 840 (7th Cir.2009) (); see also City of Arlington v. F.C.C., ––– U.S. ––––, 133 S.Ct. 1863, 1868, ––– L.Ed.2d –––– (2013) ().
Matter of Silva–Trevino, 24 I. & N. Dec. 687, 688 (Atty.Gen.2008), established a “uniform framework for ensuring that the Act's moral turpitude provisions are fairly and accurately applied,” and we have said that Silva–Trevino's framework for determining whether a conviction is for a crime involving moral turpitude is entitled to Chevron deference. Marin–Rodriguez, 710 F.3d at 738. The first step in the Silva–Trevino framework is to look at the statute on a categorical basis and “determine whether there is a ‘realistic probability, not a theoretical possibility,’ that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude.” Silva–Trevino, 24 I. & N. Dec. at 689–90 (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). “If it appears that the government in question would apply its criminal statute to reach both turpitudinous and non-turpitudinous acts—perhaps because the statute is divisible, but also because the statute could realistically cover a wide range of conduct—the adjudicator is instructed to proceed to step two.” Sanchez, 757 F.3d at 717. At step two, the adjudicator should proceed with a “modified categorical” inquiry by first examining the record of conviction. Silva–Trevino, 24 I. & N. Dec. at 690. If the record of conviction does not resolve the matter, then evidence beyond the formal record of conviction may be considered “if necessary and appropriate” to discern the nature of the underlying conviction. Id.
Here, the Board concluded that a conviction for violating Wisconsin Statute § 346.04(3) categorically qualified as a crime of moral turpitude, and as a result that the inquiry ended at the first step of the Silva–Trevino analysis. The Wisconsin statute at issue provides:
No operator of a vehicle, after having received a visual or audible signal from a traffic officer, or marked police vehicle, shall knowingly flee or attempt to elude any traffic officer by willful or wanton...
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