In re Lopez-Meza
| Decision Date | 21 December 1999 |
| Docket Number | Interim Decision #3423 |
| Parties | In re Jose Luis LOPEZ-MEZA, Respondent File A92 026 109 - Florence |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated November 16, 1998, an Immigration Judge found that the Immigration and Naturalization Service had not met its burden of demonstrating that the respondent was removable as charged under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (Supp. II 1996), and ordered the removal proceedings terminated. The Service has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of Mexico who adjusted his status to that of a lawful permanent resident on September 20, 1989, under section 245A of the Act, 8 U.S.C. § 1255a (1988). On June 19, 1998, the respondent was convicted in Arizona of aggravated driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or drugs ("DUI"), in violation of sections 28-692(A)(1) and 28-697(A)(1) of the Arizona Revised Statutes, for an offense that occurred on January 29, 1997. The respondent was also convicted on June 19, 1998, of aggravated DUI, in violation of sections 28-1381(A)(1) and 28-1383(A)(1) of the Arizona Revised Statutes, for a separate offense that occurred on March 1, 1998.1 The respondent received a sentence of 4 months' incarceration for each offense, to be served concurrently, followed by 5 years' probation.2
The Immigration Judge found that the respondent's aggravated DUI convictions were not for crimes involving moral turpitude. Without specifically addressing the fact that each conviction was for aggravated DUI, the Immigration Judge determined that the Service had not established that "driving under the influence of intoxicating liquor is, in fact, a crime involving base or vile conduct or moral turpitude as classically defined." Consequently, the Immigration Judge concluded that the charge of removability could not be sustained, and he terminated the removal proceedings. The Service appeals from that decision, arguing that a conviction for aggravated DUI is a conviction for a crime involving moral turpitude.
The issue raised in this case is whether the respondent's two convictions for aggravated DUI, in violation of sections 28-697(A)(1) and 28-1383(A)(1) of the Arizona Revised Statutes, are convictions for crimes involving moral turpitude within the scope of section 237(a)(2)(A)(ii) of the Act.
The respondent's first aggravated DUI conviction was in violation of sections 28-692(A)(1) and 28-697(A)(1) of the Arizona Revised Statutes. At the time he committed the offense, section 28-692(A)(1) provided as follows:
It is unlawful for any person to drive or be in actual physical control of any vehicle within this state under any of the following circumstances:
1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.
Ariz. Rev. Stat. Ann. § 28-692(A)(1) (1997). Section 28-697(A) provided as follows:
A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does either of the following:
1. Commits a violation of § 28-692 [] or this section while the person's driver's license or privilege to drive is suspended, cancelled, revoked or refused, or the person's driver's license or privilege to drive is restricted as a result of violating § 28-692 or under § 28-694 [].
2. Commits a third or subsequent violation of § 28-692 or this section or is convicted of a violation of § 28-692 or this section and has previously been convicted of any combination of convictions of § 28-692 or this section or acts in another state, a court of the United States or a tribal court which if committed in this state would be a violation of § 28-692 or this section within a period of sixty months. For the purposes of this paragraph, an order of a juvenile court adjudicating the person delinquent is equivalent to a conviction.
3. Commits a violation of § 28-692 while a person under fifteen years of age is in the vehicle.
Ariz. Rev. Stat. Ann. § 28-697(A)(1)-(3) (1997).
The respondent's second conviction for aggravated DUI was in violation of sections 28-1381(A)(1) and 28-1383(A)(1) of the Arizona Revised Statutes. Section 28-1381(A)(1) provides as follows:
It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.
Ariz. Rev. Stat. Ann. § 28-1381(A)(1) (1998). Section 28-1383(A) provides as follows:
A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does either of the following:
1. Commits a violation of § 28-1381 [] or this section while the person's driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive as a result of violating § 28-1381 or under § 28-1385 [].
2. Within a period of sixty months commits a third or subsequent violation of § 28-1381 or this section or is convicted of a violation of § 28-1381 or this section and has previously been convicted of any combination of convictions of § 28-1381 or this section or acts in another state, a court of the United States or a tribal court that if committed in this state would be a violation of § 28-1381 or this section. For the purposes of this paragraph and § 28-1382, an order of a juvenile court adjudicating the person delinquent is equivalent to a conviction.
3. Commits a violation of § 28-1381 while a person under fifteen years of age is in the vehicle.
Ariz. Rev. Stat. Ann. § 28-1383(A)(1)-(3) (1998).
The issue presented in this case involves the meaning and scope of the phrase "crime involving moral turpitude" in section 237(a)(2)(A)(ii) of the Act. "Moral turpitude" is a term that has deep roots in the law.3 Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997). While this term has been the subject of interpretation for many years, its precise meaning and scope have never been fully settled. Nearly 50 years ago, the phrase "crime involving moral turpitude" was challenged as being unconstitutionally vague, but a divided Supreme Court found that its meaning was sufficiently definite to withstand constitutional scrutiny, in part because, even at that time, the phrase had been part of the immigration laws for more than 60 years. Jordan v. De George, 341 U.S. 223, 229-32 (1951). The Court noted that "difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness." Id. at 231.4 Subsequent to the Supreme Court's decision in Jordan, both the courts and this Board have referred to moral turpitude as a "nebulous concept" with ample room for differing definitions of the term. Franklin v. INS, 72 F.3d 571, 573 (8th Cir. 1995), aff'g Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); see also Matter of Perez-Contreras, 20 I&N Dec. 615, 617-20 (BIA 1992), and cases cited therein.
It is clear, however, that the meaning of this phrase is a matter of federal law and that any analysis of whether a crime involves moral turpitude necessarily will entail agency and judicial construction.5 We have 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. Matter of L-V-C-, Interim Decision 3382 (BIA 1999); Matter of Danesh, 19 I&N Dec. 669 (BIA 1988); see also Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995); Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993) (). Under this standard, the nature of a crime is measured against contemporary moral standards and may be susceptible to change based on the prevailing views in society. See generally United States v. Francioso, 164 F.2d 163 (2d Cir. 1947); Ng Sui Wing v. United States, 46 F.2d 755 (7th Cir. 1931);...
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