RUIZ-LOPEZ

Cite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720

Matter of Armando RUIZ-LOPEZ, Respondent

Decided June 30, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(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).

FOR RESPONDENT: H. Alan Rothenbuecher, Esquire, Cleveland, Ohio

FOR THE DEPARTMENT OF HOMELAND SECURITY: G. Michael Wick, Assistant

Chief Counsel

BEFORE: Board Panel: FILPPU, PAULEY, and WENDTLAND, Board Members.

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.

1

The Immigration Judge’s decision incorporated a March 12, 2008, decision in which the

question of the respondent’s removability was addressed.

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I. FACTUAL AND PROCEDURAL HISTORY

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.

II. ANALYSIS

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, without

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Cite as 25 I&N Dec. 551 (BIA 2011) Interim Decision #3720

any 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) (involving damage

to railway telegraph property), and Matter of B–, 2 I&N Dec. 867 (C.O., BIA

1947) (involving willful damage to mail boxes and other property). 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) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967 (2005)). 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.”

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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. (citing Matter

of Medina, 15 I&N Dec. 611, 613 (BIA 1976), aff’d sub nom. Medina-Luna

v. INS, 547 F.2d 1171 (7th Cir. 1977) (finding that aggravated assault under

Illinois law was a crime involving moral turpitude where the statutory

“definition of recklessness require[d] an actual awareness of the risk created

by the criminal violator’s actions” and “a willingness to commit the act

in disregard of the perceived risk”)). 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 (noting that the reasoning of our decisions reflects that “at least

in the context of assault crimes, a finding of moral turpitude involves

an assessment of both the state of mind and the level of harm required

to complete the offense”). 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 must be shown to have occurred in the proper sequence. State

v. Duffy, 936 P.2d 444, 446-47 (Wash. Ct. App. 1997). The first element is that

a uniformed police officer whose vehicle is appropriately marked must give

the driver of a motor vehicle a visual or audible signal to bring the vehicle

to a stop. Next, the driver must willfully fail or refuse to immediately bring his

vehicle to a stop—the willful failure to do so implies knowledge that a signal

has been given. Finally, while attempting to elude a pursuing police vehicle,

the driver must drive his vehicle in a manner indicating a wanton or willful

disregard for the lives or property of others.

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Construing this third element of the offense, the Supreme Court

of Washington stated that “[t]he statute is absolutely clear that at the very least

the manner in which one drives must indicate wanton and willful disregard”

and concluded that this “crime of felony flight” “[o]bviously . . . does contain

culpable mental elements.” State v. Sherman, 653 P.2d 612, 615-16 (Wash.

1982) (en banc). In State v. Mather, 626 P.2d 44, 47 (Wash. Ct. App. 1981),

the court observed that section 46.61.024 is a “resisting arrest” statute, which,

in punishing conduct that indicates a wanton or willful disregard for the life

and property of others, “punishes unreasonable conduct in resisting law

enforcement activities.” Regarding the phrase “wanton or willful disregard,”

it has been noted that

[t]he usual meaning assigned to “willful,” “wanton,” or “reckless,” according to taste

as to the word used, is that the actor has intentionally done an act of an unreasonable

character in disregard of a known or obvious risk that was so great as to make

it highly probable that harm would follow, and which thus is usually accompanied

by a conscious indifference to the consequences.

State v. Brown, 697 P.2d 583, 586 (Wash. Ct. App. 1985) (quoting W. Prosser

& W. Keeton, Torts § 34, at 213 (5th ed. 1984)) (emphasis added).

In Mei v. Ashcroft, 393 F.3d at 742, the United States Court of Appeals for

the Seventh Circuit held that the Illinois offense of aggravated fleeing from

a police officer is a crime involving moral turpitude. The offense involved the

willful failure to obey a police officer’s order to stop, with the aggravating

circumstance that the offender was driving at 21 or more miles per hour above

the speed limit. The court stated 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 endangering the officer, other

drivers, passengers, and pedestrians, is deliberately engaged in seriously

wrongful behavior.” Id. As the court pointed out, while the driver may not

want to endanger anyone, he has to know that he is greatly increasing the risk

of an accident as a consequence of his deliberate and improper decision

to ignore a lawful order of the police. Id. Thus, the court implicitly held that

reckless disregard of a substantial risk of an injury-causing accident sufficed

to justify a finding of moral turpitude.

Although Mei v. Ashcroft did not involve an offense containing an element

of willful disregard for lives or property, the Seventh Circuit cited to a case

that did. People v. Dewey, 49 Cal. Rptr. 2d 537, 541 (Cal. Ct. App. 1996),

held that California’s felony offense of fleeing or attempting to elude

a pursuing peace officer by driving in willful or wanton disregard for

the safety of persons or property was a crime involving moral turpitude.

In so holding, the court cited to a decision rejecting the assertion that the

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offense could not involve moral turpitude because an individual eluding

a police officer might only be acting with the requisite disregard for the safety

of property.

We find little distinction between the respondent’s offense and those

considered in Mei v. Ashcroft and People v. Dewey, both of which held that the

crime involved moral turpitude. The respondent’s conduct was similar to that

involved in those cases, in that he willfully failed or refused to immediately

bring his vehicle to a stop after a uniformed police officer in an appropriately

marked vehicle gave him a signal to stop his motor vehicle and, while

attempting to elude the pursuing police vehicle, drove his vehicle in a manner

indicating a wanton and/or willful disregard for the risk of injury to another

person or to property. Assuming arguendo that there is a “realistic probability”

of prosecution under the Washington statute where the offense of attempting

to elude a pursuing police vehicle was committed with a reckless disregard

for only property, we find that moral turpitude necessarily inheres in such

a crime, given the combination of circumstances involved. See Matter

of Silva-Trevino, 24 I&N Dec. at 689-90, 696-98.

“The finding of moral turpitude . . . results from a building together

of elements by which the criminalized conduct deviates further and further

from the private and social duties that persons owe to one another and

to society in general.” Matter of Lopez-Meza, 22 I&N Dec. 1188, 1196 (BIA

1999). To violate the Washington statute, an individual must recklessly

endanger the person or property of others in the course of impeding law

enforcement activity by willfully disobeying a police officer’s directive

to stop. We conclude that when a person deliberately flouts lawful authority

and recklessly endangers the officer, other drivers, passengers, pedestrians,

or property, he or she is “engaged in seriously wrongful behavior” that violates

the accepted rules of morality and the duties owed to society.2 Mei v. Ashcroft,

393 F.3d at 742; cf. Matter of Lopez-Meza, 22 I&N Dec. at 1196 (holding that

moral turpitude inhered in the offense of aggravated driving under the

influence, which involved the combination of driving under the influence

of intoxicating liquor or drugs and knowingly driving on a suspended,

2

The respondent has cited Matter of M–, 2 I&N Dec. at 691, for the proposition that the

willful disregard for the safety of property (versus that of lives) does not involve moral

turpitude. We noted in that case that the statute did not require a “vicious or corrupt intent”

and that “[t]he mere doing of anything which is likely to cause danger to valuable property,

regardless of the actor’s intent, is punishable.” Id. Stating that the offense was “somewhat

comparable to driving an automobile in a negligent manner,” we concluded that it was not

a crime involving moral turpitude. Id. Thus, in finding a lack of turpitude, we relied on the

absence of a scienter requirement, rather than the fact that the wanton disregard related to the

safety of property. We employed a similar analysis in Matter of B–, 2 I&N Dec. at 868-69,

on which the respondent also relies.

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canceled, revoked, or refused license); Matter of S–, 3 I&N Dec. 617 (C.O.,

BIA 1949) (holding that an offense involved moral turpitude when it required

proof that the defendant willfully (defined by Canadian law as being reckless

as to whether an event happened or not), and without legal justification,

committed an act while knowing it would probably cause a fire). See

generally Sykes v. United States, No. 09-11311, 2011 WL 2224437, at *6

(U.S. June 9, 2011) (“Confrontation with police is the expected result of

vehicle flight. It places property and persons at serious risk of injury.”).

We also find that the respondent is not eligible for the “petty offense”

exception under section 212(a)(2)(A)(ii)(II) of the Act, because the maximum

penalty for the crime of which he was convicted is 5 years of imprisonment.3

He asserts that the standard range of sentencing for his offense was from

0 to 60 days under the State of Washington’s Sentencing Guidelines.

However, the presumptive sentence is not the maximum sentence possible.

Although the respondent was only sentenced to a term of imprisonment

of 40 days, the judgment and sentence stated that the maximum term

of imprisonment for the crime to which he pled guilty was 5 years.

Consequently, we conclude that the “petty offense” exception is inapplicable

and that the respondent is inadmissible, and therefore removable, under section

212(a)(2)(A)(i)(I) of the Act.

To qualify for some form of relief or protection from removal, the

respondent bears the burden of demonstrating his eligibility. Section

240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A) (2006). Because his

conviction for a crime involving moral turpitude does not come within the

“petty offense” exception, he has been convicted of an offense described under

section 212(a)(2) of the Act and is therefore ineligible for cancellation

of removal under section 240A(b)(1)(C) of the Act.4 In view of our

conclusions that the respondent is removable and ineligible for relief, we need

not address the remaining arguments presented on appeal. Accordingly, the

appeal will be dismissed.5

3

The statute provides that the “petty offense” exception applies where “the maximum

penalty possible for the crime of which the alien was convicted . . . did not exceed

imprisonment for one year and . . . the alien was not sentenced to a term of imprisonment in

excess of 6 months.”

4

The respondent also appears to be ineligible for cancellation of removal on the basis that

his offense constitutes a crime involving moral turpitude described under section

237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006), given that the maximum term

of imprisonment for the offense is at least 1 year. See Matter of Pedroza, 25 I&N Dec. 312

(BIA 2010); Matter of Cortez, 25 I&N Dec. 301 (BIA 2010).

5

The respondent also had taken issue with the manner in which the Immigration Judge

conducted his removal proceedings, arguing that this resulted in a denial of due process. He

(continued...)

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ORDER: The appeal is dismissed.

(...continued)

asserted that the Immigration Judge assumed the role of prosecutor by interrogating the

respondent about his criminal record, tax compliance, and other matters during the course

of direct examination, thereby interrupting the questioning of the respondent by his attorney.

However, we need not reach the merits of the respondent’s allegations, because he has

suffered no prejudice as a result of the timing of the Immigration Judge’s questions. Given

our conclusion that the respondent is removable because of his conviction for a crime

involving moral turpitude, he is ineligible for cancellation of removal as a matter of law.

Consequently, the outcome of his proceedings could not have been affected in any material

way by the Immigration Judge’s method of conducting questioning. Likewise, the

respondent has not suffered prejudice from any other determinations made by the

Immigration Judge that he now contests.

558