Marmolejo-Campos v. Gonzales

• Decision Date: 12 September 2007
• Docket Number: No. 04-76644.,04-76644.
• Citation: 503 F.3d 922
• Parties: Armando MARMOLEJO-CAMPOS, aka Campos Ramos Armando, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

503 F.3d 922

Armando MARMOLEJO-CAMPOS, aka Campos Ramos Armando, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-76644.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 20, 2007.

Filed September 12, 2007.

Christopher J. Stender, Stender & Pope, P.C., Phoenix, AZ, for petitioner Armando Marmolejo-Campos.

Arthur L. Rabin (argued), Edward C. Durant, Peter D. Keisler, Linda Wendtland, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for respondent Alberto R. Gonzales.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A71-616-204.

Before: D.W. NELSON and CONSUELO M. CALLAHAN, Circuit Judges, and CORMAC J. CARNEY,^* District Judge.

Opinion by Judge CALLAHAN; Dissent by Judge D.W. NELSON.

CALLAHAN, Circuit Judge:

Petitioner Armando Marmolejo-Campos ("Campos"), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's ("IJ") order of removal. We deny the petition.

FACTS

Campos arrived in the United States in April of 1983. In 1990, Campos was convicted of felony theft. Campos was convicted of violating what was then Arizona Revised Statutes § 28-697(A)(1),¹ aggravated driving under the influence ("DUI"), in April of 1997. At his change of plea hearing, Campos admitted that he was driving on that day, that his blood alcohol content was .164, and also that he did not have a valid license to drive. After his aggravated DUI conviction, in 2001 Campos obtained a waiver of inadmissibility and adjusted his status to lawful permanent resident.

On June 25, 2002, Campos pleaded guilty to another aggravated DUI. In his plea colloquy, Campos admitted running a red light, with a blood alcohol content of .233, and that he knew he was not licensed to drive at the time. Campos was sentenced to two and a half years in prison for his 2002 aggravated DUI conviction.

The Department of Homeland Security ("DHS") filed a Notice to Appear with the Immigration Court, charging Campos with removability under Immigration and Naturalization Act ("INA") §§ 237(a)(2)(A)(i)² and (ii),³ for being an alien convicted of a crime involving moral turpitude and being an alien convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal conduct. Campos filed a motion to terminate proceedings, arguing that his aggravated DUI convictions were not crimes of moral turpitude after this court's decision in Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir.2003). The IJ rejected Campos' argument, concluding that Hernandez-Martinez simply held that Arizona Revised Statutes § 28-1383 was divisible, and that the BIA erred in not examining the underlying conduct to make sure that the alien was not convicted of an aggravated DUI without actually driving a vehicle. Based upon Campos' three convictions for crimes involving moral turpitude, the IJ ordered Campos removed to Mexico. The BIA dismissed Campos' subsequent appeal, concluding that Hernandez-Martinez did not overrule the BIA's prior holding in Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999), that a conviction for aggravated driving under the influence under Arizona Revised Statutes § 28-1383(A)(1) was a crime of moral turpitude.

STANDARD OF REVIEW

We have jurisdiction to review the petition under 8 U.S.C. § 1252 as amended by § 106(a) of the REAL ID Act of 2005. See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir.2005). Although we have no jurisdiction to review "any final order of removal against an alien who is removable by reason of having committed a criminal offense," including a crime of moral turpitude, 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A), we are not barred from hearing the constitutional claims or questions of law raised in Campos' petition. 8 U.S.C. § 1252(a)(2)(D). Whether an Arizona aggravated DUI for driving on a suspended or revoked license is a crime involving moral turpitude is a question of law that we review de novo. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005). "In conducting this de novo review, however, we show considerable deference to the BIA's interpretation." United States v. Esparza-Ponce, 193 F.3d 1133, 1136 n. 5 (9th Cir.1999).

DISCUSSION

The courts have defined moral turpitude as an "act of baseness or depravity contrary to accepted moral standards." Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406 (9th Cir.1969). "[I]t is the combination of the base or depraved act and the willfulness of the action that makes the crime one of moral turpitude." Grageda v. INS, 12 F.3d 919, 922 (9th Cir.1993). "A crime involving the willful commission of a base or depraved act is a crime involving moral turpitude, whether or not the statute requires proof of evil intent." Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994).

"We determine whether a conviction qualifies as one involving moral turpitude by applying the categorical and modified categorical approaches." Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1057 (9th Cir.2006). Arizona Revised Statutes § 28-1383(A)(1) states in pertinent part:

A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:

1. Commits a violation of § 28-1381 [(driving under the influence)], § 28-1382[(driving under the extreme influence)] or this section while the person's driver license or privilege to drive is suspended, canceled, revoked or refused....

Ariz.Rev.Stat. § 28-1383(A)(1).

The BIA concluded that a violation of § 28-1383(A)(1) was a crime involving moral turpitude in Matter of Lopez-Meza, 22 I. & N. Dec. 1188, 1194-96 (1999). In reaching its conclusion, the BIA reasoned that although a simple DUI did not involve moral turpitude, "when that crime is committed by an individual who knows that he or she is prohibited from driving, the offense becomes such a deviance from the accepted rules of contemporary morality that it amounts to a crime involving moral turpitude." Id. at 1196.

The BIA concluded that a violation of § 28-1383(A)(2), a DUI aggravated by multiple DUI convictions within five years⁴ was not a crime involving moral turpitude in In re Torres-Varela, 23 I. & N. Dec. 78, 83-85 (2001).⁵ In its opinion the BIA specifically distinguished Lopez-Meza, however, and reaffirmed its holding that a violation of § 28-1383(A)(1) involved a culpable mental state. Id. at 85-86. The BIA noted that, "[t]he aggravating factor rendering the DUI conviction a crime involving moral turpitude in Matter of Lopez-Meza was the culpable mental state." Id. at 85.

In Hernandez-Martinez v. Ashcroft, we held that "the statute under which Hernandez was convicted [§ 28-1383(A)(1)] is divisible and its range does not include only crimes of moral turpitude." 329 F.3d 1117, 1118 (9th Cir.2003). We found that the BIA erred by failing to apply the modified categorical approach to determine if the alien in that case was driving or merely in control of a stationary vehicle. Id. Specifically, we stated that "[t]he Board's error of law was not to treat the statute as divisible." Id. at 1119. We also noted that although we defer to the BIA's interpretation of "crimes involving moral turpitude," we did not believe that the BIA intended to conclude that being in control of a parked car while intoxicated and with a suspended or revoked license was a crime of moral turpitude. Id. at 1118-19. We did not, however, overrule Lopez-Meza or reject its reasoning for actual driving while intoxicated.

Giving due deference to the BIA's decision in Lopez-Meza, we conclude that a violation of Arizona Revised Statutes § 28-1383(A)(1) for aggravated DUI involving actual driving is a crime involving moral turpitude. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc) (citing 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)). Driving while intoxicated is despicable, and when coupled with the knowledge that one has been specifically forbidden to drive, it becomes "an act of baseness, violence or depravity in the private and social duties which a [person] shows to [a] fellowman or to society in general, contrary to the accepted and customary rule of right and duty." Jordan v. De George, 341 U.S. 223, 235 n. 7, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (citing Bouvier's Law Dictionary, Rawles Third Revision, p. 2247). The crime reflects a willful disregard for the law and a reckless indifference to the safety of others.

A conviction under § 28-1383(A)(1) is not a mere combination of two simple and independent regulatory offenses. Driving drunk with knowledge that one does not have a valid license to drive is one "innately reprehensible act" (United States v. Barner, 195 F.Supp. 103, 108 (N.D.Cal. 1961)) involving two criminal offenses perpetrated at the same time with one willful and recklessly indifferent mental state. See Matter of Medina, 15 I. & N. Dec. 611, 613 (BIA 1976) (holding that criminally reckless conduct can constitute a crime of moral turpitude). One who commits the crime creates a substantial risk of harm or death to others, thereby breaching accepted rules of morality and duties owed to society. Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir.2004) (reckless conduct endangering the safety of others can be a crime of moral turpitude); Reitz v. Mealey, 314 U.S. 33, 36, 62 S.Ct. 24, 86 L.Ed. 21 (1941) (noting the dangers posed by negligent drivers and the necessity of licensing laws as "a form of protection against damage to the public"), overruled on other grounds by Perez v. Campbell, 402 U.S. 637, 652, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971).

Campos' convictions under Arizona Revised Statutes § 28-1383(A)(1) were crimes involving moral turpitude under INA § 237(A)(2)(a)(ii).

DENIED.

* The Honorable Cormac J....