Marmolejo-Campos v. Holder, No. 04-76644.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: O'Scannlain
• Citation: 558 F.3d 903
• Parties: Armando MARMOLEJO-CAMPOS, aka Campos Ramos Armando, Petitioner, v. Eric H. HOLDER, Jr., Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Docket Number: No. 04-76644.
• Decision Date: 04 March 2009

558 F.3d 903 Armando MARMOLEJO-CAMPOS, aka Campos Ramos Armando, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General,^* Respondent. No. 04-76644. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 23, 2008. Filed March 4, 2009.

[558 F.3d 904]

Christopher J. Stender, Esq., Stender & Pope, P.C., San Diego, CA, argued the cause, for the petitioner and filed a brief.

Surell Brady, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, argued the cause, for the respondent and filed a brief; Bryan S. Beier, Senior Litigation Counsel, Donald E. Keener, Deputy Director, Office of Immigration Litigation, and Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division, were on the brief; Edward C. Durant, Attorney, Office of Immigration Litigation, also filed a brief; Linda S. Wendtland, Assistant Director, Office of Immigration Litigation, and Peter D. Keisler, Assistant Attorney General, Civil Division, were on the brief.

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

[558 F.3d 905]

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, DIARMUID F. O'SCANNLAIN, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, RAYMOND C. FISHER, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, RICHARD R. CLIFTON, and JAY S. BYBEE, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge BYBEE;

O'SCANNLAIN, Circuit Judge:

We are called upon to decide whether an alien may be removed from the United States for having been convicted of a crime involving moral turpitude as determined under federal immigration law.

I A

Petitioner Armando Marmolejo-Campos, a native and citizen of Mexico, entered the United States without inspection near Nogales, Arizona, sometime in 1983. In 1990, he was convicted of felony theft in violation of Arizona Revised Statutes section 13-1802, and was sentenced to two months imprisonment. Years later, Campos was pulled over while driving in Maricopa County, Arizona, and charged with aggravated driving under the influence ("DUI"), in violation of Arizona Revised Statutes section 28-1383(A)(1).¹ Under that statute, a person is guilty of an aggravated DUI if he "driv[es]" or takes "actual physical control" of a vehicle "while under the influence of intoxicating liquor or drugs" and "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 [a prior DUI-related conviction]." Id.²

In 1997, Campos pled guilty to committing such offense and, in so doing, admitted that he was driving on the day in question, that his blood alcohol content upon arrest was .164, and that he did not have a valid driver's license at the time. Campos was sentenced to four months in prison and three years probation as a result of this conviction.

The Immigration and Naturalization Service ("INS") subsequently placed Campos in removal proceedings, but he successfully petitioned for a waiver of inadmissibility and an adjustment of status to that of a lawful permanent resident, which he received in 2001. One year later, Campos pled guilty to violating Arizona's aggravated DUI statute for a second time, after he was again pulled over in Maricopa County for running a red light while intoxicated. At Campos's plea hearing, he admitted that he ran the red light, that his

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blood alcohol content upon arrest was .233, and that he knew at the time he was driving that his license had been suspended or revoked. Campos was sentenced to two and a half years in prison as a result of this second offense.

B

After his second aggravated DUI conviction, the Department of Homeland Security ("DHS"), the successor to the INS,³ reinstituted removal proceedings against Campos, charging that he was removable under the Immigration and Naturalization Act ("INA") as an alien convicted of "a crime involving moral turpitude" within ten years of admission, see 8 U.S.C. § 1227(a)(2)(A)(i), and as an alien convicted of "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct," see id. § 1227(a)(2)(A)(ii).

Campos filed a motion to terminate the proceedings, arguing that his aggravated DUI convictions were not crimes of moral turpitude. An Immigration Judge ("IJ") held otherwise and ordered him removed to Mexico.⁴

C

The Board of Immigration Appeals ("BIA" or the "Board") affirmed the IJ's decision in an unpublished order signed by a single member of the Board. That order relied on the BIA's en banc precedent, In re Lopez-Meza, 22 I. & N. Dec. 1188 (B.I.A.1999), which held that a violation of Arizona's aggravated DUI statute is a crime involving moral turpitude. In Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir.2003), we considered Lopez-Meza and rejected the Board's interpretation of the Arizona statute. Although we did not opine on the Board's conclusion that the act of driving under the influence with a suspended or otherwise restricted driver's license is a crime involving moral turpitude, we held that the Board misinterpreted Arizona's aggravated DUI statute by failing to acknowledge that it prohibits more than that act alone. Id. at 1118-19. As we explained, section 28-1383(A)(1) can be violated (1) by "driving" while under the influence of intoxicating liquor or drugs with a suspended or otherwise restricted driver's license, or (2) by maintaining "actual physical control" of a vehicle under the same conditions. Id. When a criminal statute has multiple independent prongs, the Board must determine whether any conduct violative of the statute meets the relevant definition of a deportable offense under the INA. Id. at 1118. By failing to assess Arizona's aggravated DUI statute as such, we held that the Board committed an "error of law" and we expressed our doubt that it intended to categorize the second act as a crime of equal severity as the first. Id. at 1119. Still, we did not foreclose the possibility that a conviction under section 28-1383(A)(1) could qualify as a crime of moral turpitude if the record of conviction demonstrated that the offender had been driving at the time of the arrest.

Acknowledging Hernandez-Martinez, the IJ and the BIA in this case looked beyond the statute to the record of Campos's conviction and determined that the transcripts of his 1997 and 2002 plea hearings sufficiently established that both offenses for which he was convicted involved driving while intoxicated. Relying on Lopez-Meza, the BIA concluded that such

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convictions were crimes involving moral turpitude.⁵

D

Campos timely filed a petition for review. A divided panel of our court denied the petition, upholding the Board's determination that a violation of Arizona's aggravated DUI statute that involves actual driving is a crime involving moral turpitude. Marmolejo-Campos v. Gonzales, 503 F.3d 922 (9th Cir.2007), reh'g en banc granted, 519 F.3d 907 (9th Cir.2008). We now consider this question en banc.

II A

We have no jurisdiction to review a final order removing an alien on account of a conviction for a crime involving moral turpitude. 8 U.S.C. § 1252(a)(2)(C). Nevertheless, we have jurisdiction to review the Board's determination that Campos's convictions are, in fact, "crimes involving moral turpitude" as the INA defines that term. See Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000).

B

Before examining the Board's decision, we must determine the standard of our review, an issue which has been squarely raised in this case. The BIA's ultimate determination that a petitioner such as Campos has committed a crime involving moral turpitude requires two separate inquiries. First, the BIA must determine what offense the petitioner has been convicted of committing. This requires the agency to interpret the statute under which the petitioner was convicted and, in certain cases, to examine the record of conviction.⁶ See infra at 911-12. Second, once the Board has identified the petitioner's offense, it must determine whether such conduct is a "crime involving moral turpitude" as defined in the applicable section of the INA. This requires the Board to apply the definition of the term "moral turpitude" and to determine whether the petitioner's conduct meets such definition.

It is well established that we give no deference to the BIA's answer to the first question. The BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes and, thus, has no special administrative competence to interpret the petitioner's statute of conviction. As a consequence, we review the BIA's finding regarding the specific act for which the petitioner was convicted de novo. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005); Goldeshtein

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v. INS, 8 F.3d 645, 647 n. 4 (9th Cir.1993).

The Board's answer to the second question requires a different standard of review. Our precedents, however, have not always been consistent. At times, we have suggested that the BIA's determination that a specific act is a crime of moral turpitude is a finding entitled to deference, although we have not prescribed the precise nature of such deference. See Cerezo v. Mukasey, 512 F.3d 1163, 1166 n. 6 (9th Cir.2008); Hernandez-Martinez, 329 F.3d at 1119. At other times, we have reviewed the determination de novo. See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165 (9th Cir.2006); Cuevas-Gaspar, 430 F.3d at 1018-20; Notash v. Gonzales, 427 F.3d 693, 696 (9th Cir.2005).⁷ And in still other cases, we have suggested that while our review might be deferential in theory, it is de novo in fact. See Nicanor-Romero v. Mukasey, 523 F.3d 992, 997-98 (9th Cir.2008). In light of this uncertainty, we set forth the following principles.

1

When the Board considers whether a certain...