# Marmolejo-Campos v. Holder

> Court of Appeals for the Ninth Circuit · March 4, 2009 · 558 F.3d 903

URL: https://www.frixlaw.com/law-library/cases/9596969

## Case

- **Full name:** Armando MARMOLEJO-CAMPOS, AKA Campos Ramos Armando, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 4, 2009
- **Citations:** 558 F.3d 903; 2009 U.S. App. LEXIS 4235; 2009 WL 530950
- **Precedential status:** Published
- **Opinion:** Concurring in part by Bybee
- **Judges:** Kozinski, Pregerson, O'Scannlain, Kleinfeld, Silverman, Fisher, Paez, Berzon, Tallman, Clifton, Bybee
- **Cited by:** 238 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9596969

## How later opinions describe it (automated extraction)

- explaining that if the legal principle at issue has been resolved in a precedential BIA decision “we apply Chevron deference regardless of whether the order under review is the precedential decision itself or a subsequent unpublished order that relies upon it”
- concluding that the courts should accord Chevron deference to the Board because we exercise the “authority to ‘give[] ambiguous statutory terms “concrete meaning”’” (alteration in original) (citations omitted)
- explaining that Chevron deference applies “regardless of whether the order under review is the precedential decision itself or a subsequent unpublished order that relies upon it”
- describing drunk driving offenses as strict liability crimes and holding only that aggravated offenses under an Arizona statute, which have additional scienter requirements, can constitute crimes involving moral turpitude
- holding that Chevron deference applies to published decisions but Slcid-more deference applies to unpublished decisions

## Opinion text

BYBEE, Circuit Judge,
concurring in part and dissenting in part:
I agree with the majority that the BIA is entitled to Chevron deference when it issues a precedential decision holding that *918 particular conduct is morally turpitudinous and when it subsequently issues an unpublished order relying upon that precedential decision. As the majority notes, today’s decision clarifies an area of confusion in our case law and harmonizes our approach with that of other circuits who have considered this issue. I am therefore pleased to join Parts I and II of the court’s opinion.
I dissent, however, from Part III of the court’s opinion and from its judgment. As Judge Berzon convincingly demonstrates in her opinion, the BIA’s decision in In re Lopez-Meza, 22 I. & N. Dec. 1188 (B.I.A.1999), cannot be plausibly reconciled with BIA precedent. The BIA has already determined that even a third recidivist conviction for drunk driving does not constitute a crime involving moral turpitude (“CIMT”), see Matter of Torres-Varela, 23 I. & N. Dec. 78 (B.I.A.2001), and the agency has categorically stated that “[mjoral turpitude cannot be viewed to arise from some undefined synergism by which two offenses are combined to create a crime involving moral turpitude.” Matter of Short, 20 I. & N. Dec. 136, 139 (B.I.A.1989). In light of these decisions — as well as the BIA’s consistently expressed view that regulatory offenses do not involve moral turpitude — the BIA’s conclusion that driving under the influence without a valid driver’s license constitutes a CIMT cannot be deemed reasonable.
Of course, an agency is not prohibited from reconsidering the wisdom of past decisions in light of changed circumstances and past experience. Thus, I might well have viewed this case differently if the BIA had issued a well-considered opinion formally overruling either Torres-Varela, Short, or both. However, here the BIA did not take the opportunity to overrule or formally limit its past decisions. Instead, the agency supported its moral turpitude finding by baldly stating “that a person who drives while under the influence, knowing that he or she is absolutely prohibited from driving,” has committed a CIMT. Lopez-Meza, 22 I. & N. Dec. at 1196 . The agency attempted to distinguish Short by noting that Short involved only the question whether simple assault with intent to commit a felony constituted a CIMT, but the BIA did not even attempt to explain how its decision in Lopez-Meza was consistent with the language in Short, quoted above, which broadly precludes the BIA from doing exactly what it did here— combining two non-turpitudinous offenses to create a CIMT. Id. An agency has an obligation of consistent dealing and we cannot, even under Chevron, affirm an agency decision that offers nothing more than a conclusory and disingenuous attempt to distinguish past decisions that clearly mandate a result contrary to the one the agency has reached.
I thus respectfully dissent from the court’s judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9596969. Public record. Not legal advice.