Ramirez-Contreras v. Sessions

• Decision Date: 06 February 2017
• Docket Number: No. 14-70452,14-70452
• Citation: 858 F.3d 1298
• Parties: Moises RAMIREZ–CONTRERAS, Petitioner v. Jefferson B. SESSIONS III, Attorney General, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

858 F.3d 1298

Moises RAMIREZ–CONTRERAS, Petitioner

v.Jefferson B. SESSIONS III, Attorney General, Respondent

No. 14-70452

United States Court of Appeals, Ninth Circuit.

Submitted February 6, 2017^* , Pasadena, California

Angelica Navarro Sigala and John R. Alcorn, Law Offices of John R. Alcorn, Irvine, California, for Petitioner–Appellant.

Corey L. Farrell, Attorney; Greg D. Mack, Senior Litigation Counsel; Joyce R. Branda, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent–Appellee.

Before: Mary M. Schroeder, Andre M. Davis,^** and Mary H. Murguia, Circuit Judges.

OPINION

SCHROEDER, Circuit Judge:

We deal once again with the question of whether a crime of conviction supporting an order of removal was a crime of moral turpitude. Such a conviction renders noncitizens statutorily ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(C). In this case, Petitioner Moises Ramirez–Contreras was convicted under California law for fleeing from a police officer. The California statute under which he was convicted is similar to many other statutes in that it criminalizes willful flight while driving in a wanton or reckless manner. It is unusual, however, in that it defines such conduct as including driving while violating traffic laws, some of which would not rise to a level of seriousness to qualify as a crime of moral turpitude. Because the test is whether all of the conduct covered by the statute was turpitudinous, we grant the petition.

The California statute is in two parts, with part (a) providing the elements of the crime and part (b) defining the "willful or wanton disregard" element. It states:

(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine.

(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.

Cal. Vehicle Code § 2800.2

In holding that Petitioner's conviction was a crime of moral turpitude, the Board of Immigration Appeals ("BIA") followed its earlier decision in Matter of Ruiz–Lopez , 25 I. & N. Dec. 551 (B.I.A. 2011), which involved conviction under a Washington statute. That statute provided:

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.

Matter of Ruiz–Lopez , 25 I. & N. Dec. at 551 (citing Wash. Rev. Code § 46.61.024 ).

The Washington statute did not contain the unusual California subsection allowing for conviction on the basis of three traffic violations. Indeed, in our research of other cases in this and other circuits involving statutes criminalizing similar flight conduct, we have found none that contained a provision similar to the California "three violation" definition in subsection (b).

Our court has dealt with the California statute only once, and then in an unpublished, divided, memorandum disposition. Medina–Nunez v. Lynch , 607 Fed.Appx. 701 (9th Cir. 2015). While the majority held that the statute defined a crime of moral turpitude, a lengthy dissenting opinion, focusing on subsection (b), reached a different conclusion. We now find ourselves in agreement with the dissent's conclusion.

BACKGROUND

Petitioner is a native and citizen of Mexico. He first entered the United States in 1998. On July 16, 2000, Petitioner fled from the police while driving a vehicle, for which he was charged with evading while driving recklessly, in violation of California Vehicle Code § 2800.2, along with other crimes. Petitioner pleaded guilty to violating § 2800.2, admitting that he was fleeing in willful or wanton disregard for the safety of others. In March 2001, Petitioner was granted voluntary departure. He reentered the United States the following month and has remained in the country since then.

On May 20, 2011, Petitioner received a Notice to Appear, which alleged that he was removable as an alien who entered the United States without inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner conceded removability but applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b), arguing that removal would cause exceptional and extremely unusual hardship to his United States citizen wife and four citizen children.

In briefing to the Immigration Judge ("IJ"), Petitioner sought cancellation of removal, arguing his conviction under § 2800.2 was not a crime of moral turpitude. On January 9, 2013, the IJ rejected Petitioner's claim, holding that § 2800.2 is categorically a crime involving moral turpitude and that therefore Petitioner was statutorily ineligible for removal under the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2), 1229b(b)(1)(C).

The BIA, in an unpublished decision, dismissed Petitioner's appeal on January 17, 2014, agreeing with the IJ's analysis that § 2800.2 is categorically a crime involving moral turpitude. Petitioner timely petitioned for review.

DISCUSSION

The determination of whether a conviction under a criminal statute is categorically a crime of moral turpitude proceeds in two steps. First, we review the elements of the statute de novo, affording no deference to the BIA's conclusions. Vinh Tan Nguyen v. Holder , 763 F.3d 1022, 1027 (9th Cir. 2014). Next, we ask whether the elements of the statute of conviction fall within the generic federal definition of a crime involving moral turpitude. Id. In doing so, we presume the conviction rested upon nothing more than the least of the acts criminalized. Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013).

At this second step, we give some degree of deference to the BIA's decision, unless the BIA did not support its decision with any reasoning. See Rivera v. Lynch , 816 F.3d 1064, 1071 (9th Cir. 2016). If the BIA relies on a precedential determination in concluding that a crime is one involving moral turpitude, then we apply Chevron deference to the BIA's determination. Id. at 1070–71 (citing Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). If not, then we defer to the BIA's determination only to the extent that it has the power to persuade. Id. at 1071 (citing Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ). Under Skidmore , the persuasiveness of the BIA's decision depends on "the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements." 323 U.S. at 140, 65 S.Ct. 161.

Here, the BIA engaged in extensive analysis of whether California Vehicle Code § 2800.2 qualified as a crime involving moral turpitude, but it did not rely on any directly controlling BIA authority involving a statute like California's. The BIA instead relied on its earlier, published determination in Matter of Ruiz–Lopez , 25 I. & N. Dec. 551, that a Washington state crime for eluding a pursuing police vehicle constituted a categorical crime involving moral turpitude. The Washington statute at issue in Matter of Ruiz–Lopez , though, differed from the California statute in this case. That is because while, like the California provision, it criminalized reckless flight, it contained no definition of recklessness, and more notably, nothing that would have allowed recklessness to be proved through acts that, standing alone, were not themselves necessarily dangerous. See Wash. Rev. Code § 46.61.024. Because the statute in Matter of Ruiz–Lopez materially differs from California Vehicle Code § 2800.2, the BIA's determination in this case is entitled only to Skidmore deference.

The extent of that deference in any particular case depends upon the persuasiveness of the agency's reasoning. See Skidmore , 323 U.S. at 139, 65 S.Ct. 161. In this case, the BIA's reasoning is not persuasive. The BIA did not discuss or even acknowledge the difference between recklessness under Wash. Rev. Code § 46.61.024 and "willful or wanton disregard" under California Vehicle Code § 2800.2(a), as modified by § 2800.2(b). In looking to California law, the BIA relied on People v. Sewell , a California Court of Appeal decision holding that § 2800.2 is an "inherently dangerous felony" despite § 2800.2(b). 80 Cal.App.4th 690, 694–95, 95 Cal.Rptr.2d 600 (2000). Sewell , however, was subsequently overruled by People v. Howard , in which the California Supreme Court held that "subdivision (b) greatly expanded the meaning of [subdivision (a) ] to include conduct that ordinarily would not be considered particularly dangerous." 34 Cal.4th 1129, 23 Cal.Rptr.3d 306, 104 P.3d 107, 113 (2005). The BIA relied on another California Court of Appeal decision, People v. Dewey , which held that § 2800.2 is a crime involving moral turpitude for impeachment purposes under California evidence law. 42 Cal.App.4th 216, 222, 49 Cal.Rptr.2d 537 (1996). Since Dewey concerned California law, the court did not consider the federal definition of a crime involving moral turpitude. See id. at 218, 49 Cal.Rptr.2d 537....