In re Ruiz-Lopez
| Decision Date | 30 June 2011 |
| Docket Number | Interim Decision #3720 |
| Parties | Matter of Armando RUIZ-LOPEZ, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
Executive Office for Immigration Review
(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 section 46.61.024 of the Revised Code of Washington is a crime involving moral turpitude.
(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 section 212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006).
WENDTLAND, Board Member:
In a decision dated December 8, 2008, an Immigration Judge found the respondent removable based on his inadmissibility under sections 212(a)(2)(A)(i)(I) and (6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) and (6)(A)(i) (2006), as an alien who was convicted of a crime involving moral turpitude and who was present in the United States without having been admitted or paroled.1 The Immigration Judge further determined that the respondent's conviction rendered him statutorily ineligible for cancellation of removal under section 240A(b) of the Act, 8 U.S.C. § 1229b(b) (2006). The respondent has appealed from the Immigration Judge's decision. The appeal will be dismissed.
The respondent is a native and citizen of Mexico who entered the United States without having been admitted or paroled. On December 29, 1997, he was convicted of attempting to elude a pursuing police vehicle in violation of section 46.61.024 of the Revised Code of Washington, for which he was sentenced to 40 days in confinement. Subsequently, the Department of Homeland Security ("DHS") charged that the respondent was inadmissible because he was convicted of a crime involving moral turpitude and was present in the United States without having been admitted or paroled. The Immigration Judge sustained both charges and, finding the respondent ineligible for cancellation of removal, ordered him removed from the United States.
At the time of the respondent's conviction in 1997, section 46.61.024 of the Revised Code of Washington provided, in pertinent part, as follows:
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.
On appeal the respondent argues that his conviction was not for a crime involving moral turpitude. Relying on our decision in Matter of Khourn, 21 I&N Dec. 1041, 1046 (1997), he notes that an evil intent is required for a finding of moral turpitude. Although "a wanton or wilful disregard for the lives or property of others" must be established for a conviction under the Washington statute, the respondent contends that no showing of evil intent is necessary. Conceding that his attempt to elude a police officer was a "wilful" act, the respondent claims that 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). Moreover, he asserts that "wanton disregard" equates to recklessness, which, under Matter of Fualaau, 21 I&N Dec. 475 (1996), must be coupled with the infliction of serious bodily injury for a finding of moral turpitude.
According to the respondent, a person can be convicted under section 46.61.024 based on a showing of wanton disregard for only property, withoutany serious bodily harm. He asserts that such reckless harm to property has not been considered to be morally turpitudinous conduct under our decisions in Matter of M-, 2 I&N Dec. 686 (C.O., BIA 1946) (), and Matter of B-, 2 I&N Dec. 867 (C.O., BIA 1947) (). Thus, the respondent concludes that the offense of attempting to elude a pursuing police vehicle under the Washington statute is not categorically a crime involving moral turpitude. Finally, he avers that even if he has been convicted of a crime involving moral turpitude, the "petty offense" exception under section 212(a)(2)(A)(ii)(II) of the Act applies, and he remains eligible for cancellation of removal under section 240A(b).
We first note that the Attorney General has provided a framework for determining whether a particular offense constitutes a crime involving moral turpitude. See Matter of Silva-Trevino, 24 I&N Dec. 687, 688-89, 696 (A.G. 2008) ). 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. Id. at 689-90, 696-98. 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. Id. at 690, 698-99. 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. Id. at 690, 699-701.
We have long 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. See, e.g., Matter of Solon, 24 I&N Dec. 239, 240 (BIA 2007); Matter of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001). Moral turpitude is conduct that is per se morally reprehensible and intrinsically wrong or malum in se. See Matter of Fualaau, 21 I&N Dec. at 477; Matter of Franklin, 20 I&N Dec. 867 (BIA 1994), aff'd, 72 F.3d 571 (8th Cir. 1995); Matter of Serna, 20 I&N Dec. 579, 582 (BIA 1992). Where knowing or intentional conduct is an element of a morally reprehensible offense, we have found moral turpitude to be present. See, e.g., Matter of Danesh, 19 I&N Dec. 669, 673 (BIA 1988).
With regard to mens rea, the Attorney General has concluded that moral turpitude inheres in "reprehensible conduct that is committed intentionally or with some other form of scienter such as willfulness or recklessness."Matter of Silva-Trevino, 24 I&N Dec. at 706 n.5. Quoting Partyka v. Attorney General of the U.S., 417 F.3d 408, 414 (3d Cir. 2005), the Attorney General noted that "moral turpitude inheres in the commission of certain crimes 'even if one acts not with intent, but with recklessness.'" Id. (). Thus, judicial and administrative precedents have recognized that "reckless disregard" can constitute the requisite "evil intent" for a crime involving moral turpitude under at least some circumstances.
The respondent cites to Matter of Fualaau, 21 I&N Dec. at 478, in support of his argument 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. However, in Matter of Medina, 15 I&N Dec. at 613-14, which involved aggravated assault, we 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. In addition, when we have held that a "recklessness" mens rea required either serious bodily injury or some other aggravating factor to establish moral turpitude, it was in the specific context of assault offenses. See, e.g., Matter of Solon, 24 I&N Dec. at 242 (). The respondent's offense did not involve assault, so we find his argument in this regard to be unpersuasive. Moreover, we note 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 (BIA 2007) (citing Matter of Serna, 20 I&N Dec. at 581).
To support a conviction for the offense of attempting to elude a pursuing police officer under section 46.61.024 of the Revised Code of Washington, three elements...
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