Pedro Cano-Oyarzabal v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-2470

PEDRO CANO-OYARZABAL,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

____________________

Petition for Review of an Order of the Board of Immigration Appeals.

No. A205-153-710.

____________________

ARGUED JANUARY 6, 2014 — DECIDED DECEMBER 22, 2014

____________________

Before EASTERBROOK, WILLIAMS, and TINDER, Circuit Judg-

es.

WILLIAMS, Circuit Judge. Pedro Cano-Oyarzabal petitions

for review of the determination that his Wisconsin convic-

tion for fleeing or eluding a police officer in violation of Wis-

consin Statute § 346.04(3) categorically constituted a crime

involving moral turpitude. In light of the statute’s require-

ment that to be convicted a person must “knowingly” flee or

2 No. 13-2470

attempt to elude an officer after receiving an officer’s signal,

we find the Board’s determination reasonable. Knowingly

fleeing or attempting to elude an officer is an act wrong in

itself and therefore a crime involving moral turpitude. We

decline the petition for review.

I. BACKGROUND

Cano-Oyarzabal, a citizen of Mexico, entered the United

States without authorization in September 2002. He pled

guilty in Wisconsin state court on August 2, 2011 to operat-

ing a vehicle to flee or elude a police officer in violation of

Wisconsin Statute § 346.04(3). About a year later, the De-

partment of Homeland Security served him with a Notice to

Appear in immigration court. It charged him with inadmis-

sibility as a person present in the United States without be-

ing admitted or paroled and as an alien convicted of a crime

involving moral turpitude.

Cano-Oyarzabal conceded removability. He later sought

reconsideration of the immigration judge’s determination

that he is removable as an alien convicted of a crime involv-

ing moral turpitude, and he requested cancellation of re-

moval pursuant to 8 U.S.C. § 1229b(b). The immigration

judge concluded that the Wisconsin conviction was for a

crime involving moral turpitude and so Cano-Oyarzabal

was not eligible for cancellation of removal. The Board of

Immigration Appeals affirmed. Cano-Oyarzabal petitions

our court for review.

II. ANALYSIS

Cano-Oyarzabal petitions us for review of the Board’s

determination that he was convicted of a crime involving

moral turpitude. Because the Board issued its own free-

No. 13-2470 3

standing opinion, rather than adopting or supplementing

the opinion of the immigration judge, our review will be of

the Board’s opinion. Sanchez v. Holder, 757 F.3d 712, 717 (7th

Cir. 2014).

The Immigration and Nationality Act provides that an al-

ien convicted of a “crime involving moral turpitude” is in-

admissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A conviction for

such a crime also makes one ineligible for cancellation of

removal, subject to exceptions not relevant here. 8 U.S.C.

§ 1229b(b)(1)(C). We usually do not have jurisdiction to re-

view the denial of a discretionary grant of relief such as the

cancellation of removal Cano-Oyarzabal seeks. See 8 U.S.C.

§ 1252(a)(2)(B)(i). We have jurisdiction, however, to review

questions of law or constitutional claims raised in a petition

for review, 8 U.S.C. § 1252(a)(2)(D), and whether the Board

properly classified a conviction as a crime involving moral

turpitude is a question of law that we may review. Marin-

Rodriguez v. Holder, 710 F.3d 734, 737 (7th Cir. 2013).

We might have had another jurisdictional issue, because

8 U.S.C. § 1252(a)(2)(C) usually precludes our review of or-

ders of removal against aliens who are removable for having

committed an aggravated felony under 8 U.S.C.

§ 1227(a)(2)(A)(iii). Papazoglou v. Holder, 725 F.3d 790, 792

(7th Cir. 2013). But DHS did not charge Cano-Oyarzabal

with removability as an aggravated felon, so whether a con-

viction under Wisconsin Statute § 346.04(3) constitutes an

aggravated felony is not relevant to our jurisdictional analy-

sis. See Lemus-Rodriguez v. Ashcroft, 350 F.3d 652, 654-55 (7th

Cir. 2003) (stating that the jurisdictional bar in 8 U.S.C.

§ 1252(a)(2)(C) only applies if the alien is removable on ac-

count of a qualifying ground charged by DHS).

4 No. 13-2470

The INA does not define what it means to be a “crime in-

volving moral turpitude.” We have described the Board’s

precedents as distinguishing “between acts that are seen as

ethically wrong without any need for legal prohibition (acts

wrong in themselves, or malum in se), and those that are ethi-

cally neutral and forbidden only by positive enactment (acts

wrong because they are so decreed, or malum prohibitum).”

Ali v. Mukasey, 521 F.3d 737, 740 (7th Cir. 2008). The former

are crimes of moral turpitude, while the latter are not. Id.

Although whether a crime is one involving moral turpitude

is a question of law, we have said “that does not mean our

review … is de novo.” Lagunas-Salgado v. Holder, 584 F.3d

707, 711 (7th Cir. 2009). Rather, we have ruled that our re-

view of the Board’s determination of whether a particular

crime should be classified as a crime of moral turpitude is

deferential in accordance with Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), provided

that the agency uses rulemaking or adjudication to exercise

its discretion. Ali, 521 F.3d at 739; see also Mata-Guerrero v.

Holder, 627 F.3d 256, 259 (7th Cir. 2010). Decisions by a three-

member panel are precedential and clearly entitled to Chev-

ron deference under Ali. Arobelidze v. Holder, 653 F.3d 513,

519 (7th Cir. 2011). Non-precedential decisions that rely on

applicable Board precedent are entitled to Chevron deference

as well, “as the non-precedential disposition is merely ap-

plying reasoning that already carries precedential weight.”

Id. A non-binding Board decision that does not rely on bind-

ing Board precedent, on the other hand, does not receive

Chevron deference and instead is “’entitled to respect’—but

only to the extent that [it has the] power to persuade,” in ac-

cordance with Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944). Arobelidze, 653 F.3d at 519 (quoting Bailey v. Pregis In-

No. 13-2470 5

novative Packaging, Inc., 600 F.3d 748, 751 (7th Cir. 2010) (ad-

ditional citation omitted)).

Cano-Oyarzabal argues that Skidmore rather than Chevron

deference is appropriate here because, he contends, the

Board’s non-binding decision was not based on Board prec-

edent. He acknowledges that the agency’s decision relied on

the precedential Board decision in Matter of Ruiz-Lopez, 25 I.

& N. Dec. 551 (BIA 2011). But because Ruiz-Lopez looked in

part to our decision in Mei v. Ashcroft, 393 F.3d 737 (7th Cir.

2004), Cano-Oyarzabal argues that the Board was really rely-

ing on Seventh Circuit precedent rather than its own prece-

dent, and therefore the agency decision in this case should

not be given full Chevron deference. We disagree. In both its

Ruiz-Lopez decision and its decision here, it is clear that the

Board engaged in substantive analysis and was not simply

affirming without providing reasoning of its own. See Mata-

Guerrero, 627 F.3d at 259. Ruiz-Lopez involved a Washington

state statute, different than the Illinois statute at issue in Mei,

and the decision contains the Board’s substantive analysis

and reasoning as to why the Washington statute was a crime

involving moral turpitude. See 25 I. & N. Dec. at 551. Its de-

cision here also reflects its own independent analysis for de-

termining that Cano-Oyarzabal was convicted of a crime in-

volving moral turpitude. Chevron deference is therefore ap-

propriate. See Ghani v. Holder, 557 F.3d 836, 840 (7th Cir.

2009) (giving Chevron deference and deferring to “plausible

‘agency answer’” as to the proper interpretation of “crime

involving moral turpitude”); see also City of Arlington v.

F.C.C., 133 S. Ct. 1863, 1868 (2013) (deferring to administer-

ing agency’s “reasonable” interpretation of statutory ambi-

guity).

6 No. 13-2470

Matter of Silva-Trevino, 24 I. & N. Dec. 687, 688 (Atty. Gen.

2008), established a “uniform framework for ensuring that

the Act’s moral turpitude provisions are fairly and accurate-

ly applied,” and we have said that Silva-Trevino’s framework

for determining whether a conviction is for a crime involv-

ing moral turpitude is entitled to Chevron deference. Marin-

Rodriguez, 710 F.3d at 738. The first step in the Silva-Trevino

framework is to look at the statute on a categorical basis and

“determine whether there is a ‘realistic probability, not a

theoretical possibility,’ that the State or Federal criminal

statute pursuant to which the alien was convicted would be

applied to reach conduct that does not involve moral turpi-

tude.” Silva-Trevino, 24 I. & N. Dec. at 689-90 (quoting Gonza-

les v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). “If it appears

that the government in question would apply its criminal

statute to reach both turpitudinous and non-turpitudinous

acts—perhaps because the statute is divisible, but also be-

cause the statute could realistically cover a wide range of

conduct—the adjudicator is instructed to proceed to step

two.” Sanchez, 757 F.3d at 717. At step two, the adjudicator

should proceed with a “modified categorical” inquiry by

first examining the record of conviction. Silva-Trevino, 24 I. &

N. Dec. at 690. If the record of conviction does not resolve

the matter, then evidence beyond the formal record of con-

viction may be considered “if necessary and appropriate” to

discern the nature of the underlying conviction. Id.

Here, the Board concluded that a conviction for violating

Wisconsin Statute § 346.04(3) categorically qualified as a

crime of moral turpitude, and as a result that the inquiry

ended at the first step of the Silva-Trevino analysis. The Wis-

consin statute at issue provides:

No. 13-2470 7

No operator of a vehicle, after having received a

visual or audible signal from a traffic officer, or

marked police vehicle, shall knowingly flee or at-

tempt to elude any traffic officer by willful or

wanton disregard of such signal so as to interfere

with or endanger the operation of the police vehi-

cle, or the traffic officer or other vehicles or pedes-

trians, nor shall the operator increase the speed of

the operator’s vehicle or extinguish the lights of

the vehicle in an attempt to elude or flee.

Wis. Stat. § 346.04(3).

So there are three ways a person may violate this provi-

sion: (1) willful disregard of the signal so as to interfere with

or endanger the officer, vehicles, or pedestrians, (2) increas-

ing the speed of the vehicle, or (3) turning off the lights of

the vehicle, but only, and importantly, if it is also proven in

each circumstance that the defendant “knowingly fled or at-

tempted to elude a traffic officer.” State v. Beamon, 830

N.W.2d 681, 691-92 (Wis. 2013). The statute is not a strict lia-

bility offense; knowledge is required. State v. Sterzinger, 649

N.W.2d 677, 680 (Wis. Ct. App. 2002).

The Board reasoned that Wisconsin Statute § 346.04(3)

categorically constituted a crime of moral turpitude for sev-

eral reasons. For one, it looked to its own binding precedent

in Ruiz-Lopez, 25 I. & N. Dec. 551, where it ruled that the

Washington state offense of willfully failing to bring a vehi-

cle to a stop and driving in a manner indicating a wanton or

willful disregard for the lives or property of others while at-

tempting to elude a police vehicle is a crime involving moral

turpitude. See Wash. Rev. Code § 46.61.024 (1997). The Board

reached that conclusion without considering the circum-

8 No. 13-2470

stances of the particular case, instead finding that the offense

categorically constituted a crime involving moral turpitude.

Id.

The Board also supported its conclusion regarding Wis-

consin Statute § 346.04(3) by looking to our decision in Mei,

393 F.3d 737. There we held that a conviction for aggravated

fleeing or attempting to elude a peace officer under Illinois

law qualified as a conviction for a crime involving moral

turpitude. Id. at 742. Mei had been charged with fleeing or

attempting to elude a police officer after being given a signal

to stop, with the aggravating factor that the attempt to elude

was at a rate at least twenty-one miles per hour over the

speed limit. See 625 Ill. Comp. Stat. 5/11-204, 625 Ill. Comp.

Stat. 5/11-204.1(a).

Cano-Oyarzabal contends that Mei is materially distin-

guishable. He argues that the Illinois statute requires a spe-

cific mens rea with regard to endangering the lives of others

and that the conduct punished by the Illinois statute neces-

sarily results in creating the possibility of danger to others

while the Wisconsin statute does not. In finding that Mei’s

conviction was for a crime involving moral turpitude, we

emphasized that the statute “explicitly requires a willful

failure or refusal to obey a police officer’s order to stop.” 393

F.3d at 741. As a result, although we recognized it was pos-

sible for a driver to be speeding without knowing that he has

been signaled by an officer to stop, we said that such con-

duct would not fall within the Illinois statute at issue. Id. We

concluded that “a person who deliberately flees at a high

speed from an officer who, the fleer knows, wants him to

stop, thus deliberately flouting lawful authority and endan-

No. 13-2470 9

gering the officer, other drivers, passengers, and pedestrians,

is deliberately engaged in seriously wrongful behavior.” Id.

Although the Wisconsin statute does not require a specif-

ic miles-per-hour above the speed limit as in Mei, we do not

find the difference dispositive here. That Wisconsin Statute

§ 346.04(3) can only be violated by knowing flight or attempt

to elude is significant. See Beamon, 830 N.W.2d at 691-92; see

also Welch v. United States, 604 F.3d 408, 418 (7th Cir. 2010)

(stating that while a failure to stop could be an unintentional

act, the requirement of “fleeing” in Illinois statute implies

willfulness). As we explained in Mei, when a person inten-

tionally flees from an officer, knowing that the officer wants

him to stop, “he has to know that he is greatly increasing the

risk of an accident (and for the further reason that a fleeing

driver is dividing his attention between the road and his

pursuer).” Mei, 393 F.3d at 742. Increasing one’s speed in an

attempt to elude or flee increases the risk of an accident, as

does turning off the lights when done in an attempt to elude

or flee or willfully disregarding an officer’s signal so as to

interfere with or endanger other persons. See Sykes v. United

States, 131 S. Ct. 2267, 2273 (2011) (“When a perpetrator de-

fies a law enforcement command by fleeing in a car, the de-

termination to elude capture makes a lack of concern for the

safety of property and persons of pedestrians and other

drivers an inherent part of the offense.”). As a result the

Board could reasonably find that violating the Wisconsin

statute involves committing an act that is wrong in itself, or

malum in se. See Ali, 521 F.3d at 740.

In accordance with Silva-Trevino, the Board considered

whether Wisconsin Statute § 346.04(3) would be applied to

reach conduct that did qualify as a crime involving moral

10 No. 13-2470

turpitude. In light of the statutory elements as interpreted by

the Wisconsin Supreme Court, it found no evidence of such

a risk. See Beamon, 830 N.W.2d at 691-92. It also noted that

Cano-Oyarzabal had not pointed to any Wisconsin decisions

that might give us concern, and we have not found any ei-

ther. Cf. State v. Oppermann, 456 N.W.2d 625, 626-27 (Wis. Ct.

App. 1990) (reversing Wisconsin Statute § 346.04(3) convic-

tion upon finding red lights and a siren on a car were alone

insufficient for driver to know he was eluding an officer and

stating “keystone of the fleeing charge is ‘knowingly’ fleeing

an officer”).

The Board’s determination that Wisconsin Statute §

346.04(3) categorically qualifies as a crime involving moral

turpitude is a reasonable one. It is also consistent with deci-

sions our sister circuits have reached when evaluating simi-

lar statutes. See Idowu v. Attorney Gen., 512 Fed. Appx. 222,

225 (3rd Cir. 2013) (unpublished) (agreeing with immigra-

tion judge that New Jersey conviction for knowingly evad-

ing police and in the process creating a risk of death or inju-

ry to a third person is a crime of moral turpitude); Ruiz-Lopez

v. Holder, 682 F.3d 513, 521 (6th Cir. 2012) (“fleeing from a

police vehicle qualifies as the type of societally condemned,

reprehensible conduct that is reasonably encompassed by

the BIA’s general definition of a [crime involving moral tur-

pitude]”); Pulido-Alatorre v. Holder, 381 Fed. Appx. 355, 359

(5th Cir. 2010) (unpublished) (upholding the Board’s deter-

mination that misdemeanor conviction for evading arrest

with a vehicle in violation of Texas Penal Code § 38.04(a) is

crime involving moral turpitude where petitioner pled

guilty to intentionally fleeing from an officer lawfully at-

tempting to detain him and Board found “such conduct re-

No. 13-2470 11

flects an awareness and conscious disregard of a substantial

and unjustifiable risk”).

Our conclusion that it was permissible for the Board to

determine that Cano-Oyarzabal’s conviction was categorical-

ly for a crime involving moral turpitude makes it unneces-

sary for us to consider his argument that recent Supreme

Court decisions in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013),

and Descamps v. United States, 133 S. Ct. 2276 (2013), displace

the Silva-Trevino framework with respect to its use of the

modified categorical approach and the record of conviction.

That is, since we decline to set aside the Board’s decision on

the categorical basis, we do not reach its alternate conclusion

that consideration of Cano-Oyarzabal’s particular circum-

stances also demonstrates that his conviction was for a crime

involving moral turpitude.

III. CONCLUSION

The petition for review is DENIED.