# 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/9596971

## 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:** Dissent by Berzon
- **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/9596971

## 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Chevron deference regardless of whether the order under review is the precedential decision itself or a subsequent unpublished order that relies upon it”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deference applies “regardless of whether the order under review is the precedential decision itself or a subsequent unpublished order that relies upon it”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- holding that Chevron deference applies to published decisions but Slcid-more deference applies to unpublished decisions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

BERZON, Circuit Judge,
with whom PREGERSON, FISHER, and PAEZ, Circuit Judges,
join, dissenting:
I agree with the majority that Chevron U.S.A. Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), is the correct framework within which to evaluate whether deference is due to the BIAs holding, in a precedential decision, that a conviction under Arizona Revised Statutes § 28-1383(A)(l) constitutes a “crime involving moral turpitude” (“CIMT”) for purposes of 8 U.S.C. § 1227 (a)(2)(A)(ii). I agree, further, that when such a prece-dential holding directly controls the outcome in a subsequent, non-precedential case, we evaluate that holding under the Chevron framework as well. 1
*919 I disagree, however, with the majority’s conclusion in Part III of its opinion that, under Chevron, deference is in fact merited in this case. Although the BIA’s prece-dential decision in Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (B.I.A.1999), directly controls Marmolejo-Campos’s case, Lopez-Meza is the epitome of an unreasonable agency interpretation, to which we need not defer under Chevron.
As the majority explains, Chevron, at what has come to be known as Step Two, instructs us to defer to an agency’s interpretation of ambiguous statutory language so long as that interpretation is “a reasonable policy choice for the agency to make.” Chevron, 467 U.S. at 845 , 104 S.Ct. 2778 . I can imagine few starker examples of unreasonable agency action than Lopez-Meza, the precedential decision dispositive in this case. Drunk driving is not, by itself, a CIMT; nor is driving on a suspended license; nor is a second (or third) drunk driving conviction. Yet under Lopez-Meza, drunk driving only once, while on a suspended license, is a CIMT. This holding is utterly illogical. And beyond defying common sense, Lopez-Meza makes no attempt to square its holding with prior BIA case law forbidding such “undefined synergism[s]” of individually nonturpitudinous offenses. Matter of Short, 20 I. & N. Dec. 136, 139 (B.I.A.1989). I fail to see how we can grant Chevron deference to this latest interpretive whim of an agency that continually refuses to state a coherent definition of, or follow a coherent approach to, the vague CIMT statutory term it is charged with applying. I therefore respectfully dissent.
I.
Unreasonable Interpretations Under Chevron
I begin with some observations concerning the degree of consistent decision-making we demand of an agency before deferring under Chevron to that agency’s interpretation of its governing statute.
I recognize, first, that an agency’s interpretation of an ambiguous statutory term can merit deference even if “the agency has from time to time changed its interpretation of the term.” Chevron, 467 U.S. at 863 , 104 S.Ct. 2778 . So, when an agency articulates an interpretation of its governing statute in the type of decision for which Chevron deference is otherwise appropriate, see United States v. Mead Corp., 533 U.S. 218, 230-34 , 121 S.Ct. 2164 , 150 L.Ed.2d 292 (2001), that “interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863-64 , 104 S.Ct. 2778 . We assume that by leaving gaps in a statute, Congress intended to give the agency charged with filling those gaps the flexibility to adapt its reading in light of changing circumstances and policy priorities, and we apply the Chevron framework with this flexibility in mind. Id. at 843-44 , 104 S.Ct. 2778 .
At the same time, agencies are not free, under Chevron , to generate erratic, irreconcilable interpretations of their governing statutes and then seek judicial deference. Consistency over time and across subjects is a relevant factor at Chevron Step Two, *920 when deciding whether the agency’s current interpretation is “reasonable.” 2 See INS v. Cardoza-Fonseca, 480 U.S. 421 , 446 n. 30, 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987) (observing that the Court would not need to defer to the INS’s interpretation of the term “well-founded fear” at Chevron Step Two because “[a]n agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is entitled to considerably less deference than a consistently held agency view.”) (internal quotation marks omitted). 3
Moreover, when an agency does change its mind, it must provide an adequately reasoned explanation for the change. “Sudden and unexplained change, or change that does not take account of legitimate reliance on prior interpretation, may be arbitrary, capricious [or] an abuse of discretion,” and therefore unworthy of deference. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 , 116 S.Ct. 1730 , 135 L.Ed.2d 25 (1996) (internal quotation marks and citations omitted); see also Brand X, 545 U.S. at 1000, 125 S.Ct. 2688 (“[T]he Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change.”); Rust v. Sullivan, 500 U.S. 173, 186-87 , 111 S.Ct. 1759 , 114 L.Ed.2d 233 (1991) (deferring to the Secretary of Health and Human Services’ interpretation, because “the Secretary amply justified his change of interpretation with a ‘reasoned analysis’”). To satisfy this requirement, the agency must provide not only a reasoned explanation for its current position, but also a reasoned explanation for why the change was warranted or why the new position is preferable.
This last check on agency discretion is particularly important when an agency interprets its governing statute, as the BIA does, primarily through adjudication. The flexibility Chevron accords is meant to give agencies room to “inform! ]” themselves and “[re-]consider” the wisdom of their policies, 467 U.S. at 863-64 , 104 S.Ct. 2778 —not to allow them to proceed entirely ad hoc, capriciously deciding individual cases without any concern for generating a coherent body of interpretation and without pursuing a set of articulable and reconcilable policy goals. That is why, when agencies depart from them prior interpretations, they must offer a reasoned explanation for doing so. This requirement is rooted not only in the APA’s prohibition on arbitrary and capricious action, but in the rule of law itself, for “unreasoned decision-making ... prevents] both consistent application of the [rule] by subordinate agen *921 cy personnel ... and effective review of the [rule] by the courts.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 375 , 118 S.Ct. 818 , 139 L.Ed.2d 797 (1998). See also CBS v. FCC, 454 F.2d 1018 , 1025 (D.C.Cir.1971) (“Without such a requirement [as reasoned decisionmaking], effective judicial review would be impractical if not impossible, and administrative litigants and the public generally would be set adrift on a potential sea of unconscious preference and irrelevant prejudice.”).
II.
Lopez-Meza as an Unreasonable Agency Interpretation
Viewed against these bedrock principles, the BIA’s Lopez-Meza ruling merits no deference from this Court.
Overall, the BIA’s precedential case law regarding the meaning of the phrase “crime involving moral turpitude” (“CIMT”) is a mess of conflicting authority. To the degree that one is able to extract strands of relative coherence from that disarray, however, Lopez-Meza is inconsistent with those strands in two important respects. First, mere knowledge is not a sufficiently culpable mental state to transform a regulatory offense, such as driving without a license or simple driving under the influence (“DUI”), into a CIMT. As discussed in Section II.A, below, when the offense in question is a nonfraud offense, the BIA generally requires some variant of “evil intent” to establish turpitude. When the offense is a mere regulatory offense, however, unrelated to a fraud or sex offense, the BIA will not consider it a CIMT regardless of what mental state the underlying statute specifies as a requirement for conviction. Lopez-Meza breaks with this principle by holding that the “knew or should have known” standard associated with A.R.S. § 28-1383(A)(l) is a sufficiently “evil” mens rea to transform that regulatory offense into a CIMT.
Second, as discussed in Section II.B, the BIA’s case law indicates that if two offenses are not in themselves morally turpi-tudinous, they cannot be “synergis[tically]” combined to create a CIMT. Matter of Short, 20 I. & N. Dec. 136, 139 (B.I.A.1989). By combining two non-CIMTs to create a CIMT, Lopez-Meza is inconsistent with this strand of the agency’s case law as well.
As to neither deviation does Lopez-Meza provide an adequately reasoned justification. In a context in which the agency has ventured precious few attempts at enunciating any generally applicable principles, Lopez-Meza’s deviation from the few principles that do exist is of special significance in undermining any semblance of reasoned decisionmaking. Cf. CBS, 454 F.2d at 1025 (noting that, for due process and public reliance reasons, “judicial vigilance to enforce the rule of law in the administrative process is particularly crucial where, as here, the area under consideration is in a constant state of flux.”).
A. Knowledge or Negligence as a CIMT Mental State
1. The relevance of intent in the BIA’s case law
As the majority observes, the BIA has never offered a comprehensive definition of the term “crime involving moral turpitude” to which we could defer under Chevron . Slip Op. at 909-10 (quoting Galeana-Mendoza v. Gonzales, 465 F.3d 1054 , 1058 n. 9 (9th Cir.2006)). Although the Attorney General recently took a small step toward establishing a general definition in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (2008), by opining that a CIMT “must involve both reprehensible conduct and some degree of scienter,” id. at 689 , the majority rightly treats this definition as ineligible for Chevron deference, because it is too vague to be a meaningful clarifica *922 tion of the notoriously ambiguous statutory term. Slip Op. at 910. 4
In the absence of a meaningful definition of “crimes involving moral turpitude” generally, the Chevron framework is applicable only to the BIA’s holdings in individual cases that particular offenses are, or are not, CIMTs. For example, the BIA has held fraud, “murder, rape, robbery, kidna[p]ping, voluntary manslaughter, some involuntary manslaughter offenses, [certain] aggravated assaults, mayhem, theft offenses, spousal abuse, child abuse, and incest” to be CIMTs. Lopez-Meza, 22 I. & N. Dec. at 1193 (citing no cases); see also Matter of Sanudo, 23 I. & N. Dec. 968, 973 (B.I.A.2006) (assault and battery involving the intentional infliction of serious bodily injury on another); Matter of Logan, 17 I. & N. Dec. 367 (B.I.A.1980) (assault with a deadly weapon); Matter of Leyva, 16 I & N. Dec. 118, 120 (B.I.A.1977) (burglary with intent to commit theft); Matter of Beato, 10 I. & N. Dec. 730, 732 (B.I.A.1964) (rape); Matter of Y-, 3 I. & N. Dec. 544 (1949) (incest). Conversely, the BIA has held that most assaults and batteries, alien smuggling offenses, indecency offenses, and rioting offenses are not CIMTs. See Matter of S—, 9 I. & N. Dec. 688 (B.I.A.1962) (assault and battery); Matter of Tiwari, 19 I. & N. Dec. 875 (B.I.A.1989) (alien smuggling); Matter of Mueller, 11 I. & N. Dec. 268 (B.I.A.1965) (indecency); Matter of O—, 4 I. & N. Dec. 301 (B.I.A.1951) (rioting).
Despite this relative consistency in outcome, it is hard to say that any articulable principle distinguishes the offenses that are CIMTs from those that are not. Instead, the BIA has issued precedential decisions 5 making seemingly definitive pronouncements on both sides of possible lines of demarcation.
For example, the BIA has described the term “crime involving moral turpitude” as *923 a classification aimed primarily at “serious” and “dangerous” crimes. Matter of E-, 2 I. & N. Dec. 134 , 139-40 (B.I.A.1944). Yet, it has also cautioned that “[n]either the seriousness of a criminal offense nor the severity of the sentence imposed therefor is determinative of whether a crime involves moral turpitude.” Matter of Tran, 21 I. & N. Dec. 291, 293 (B.I.A.1996); see also Silva-Trevino, 24 I. & N. Dec. at 705 ; Matter of Serna, 20 I. & N. Dec. 579 (B.I.A.1992).
Similarly, the BIA has declared that the definition of a CIMT is “ ‘an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.’ ” Matter of Fualaau, 21 I. & N. Dec. 475, 477 (B.I.A.1996) (quoting Matter of Franklin, 20 I. & N. Dec. 867, 868 (B.I.A.1994)). Yet, the BIA has designated offenses ranging from the knowing possession of child pornography, 6 to the sale of “a number of packages of oleomargarine labeled as butter, in violation of ... the Food, Drug, and Cosmetic Act [and] ... with intent to defraud,” 7 as “morally reprehensible” conduct, 8 without specifying with any clarity what “the nature of th[ose] act[s]” have in common. Matter of Fualaau, 21 I. & N. Dec. at 477.
Aside from the severity or baseness of the crime at hand, the BIA also often looks to the mental state involved when distinguishing between CIMTs and non-CIMTs — again, with stark inconsistencies across cases. The BIA has stated definitively that “ ‘evil intent’ is a requisite element for a crime involving moral turpitude,” Matter of Khourn, 21 I. & N. Dec. 1041, 1046 (B.I.A.1997), and indeed that “evil or malicious intent is ... the essence of moral turpitude.” Matter of Flores, 17 I. & N. Dec. 225, 227 (B.I.A.1980). Yet, the Board has also held that the “presence or absence of a corrupt or vicious mind is not controlling” in determining whether an offense is a CIMT, Matter of Medina, 15 I. & N. Dec. 611, 614 (B.I.A.1976), and even that certain strict liability offenses may qualify as CIMTs. See Matter of Imber, 16 I. & N. Dec. 256, 258 (B.I.A.1977) (observing that “statutory rape has repeatedly been held to involve moral turpitude, despite the strict liability nature of the crime.”). In fact, at various times and in various contexts, the BIA has held such diverse mental states as “evil intent,” 9 “wil[l]fulness,” 10 “recklessness,” 11 “knowl *924 edge,” 12 and even “forgetfulness” 13 to be necessary or sufficient to support a finding of moral turpitude.
The Attorney General’s recent holding in Silva-Trevino is no improvement on the existing mess. Silva-Trevino holds that “some degree of scienter” is required for a CIMT. 24 I. & N. Dec. at 689 . Yet, the common definition of “scienter” is nothing more than “a degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission.” Blaok’s Law Dictionaey 1081 (7th ed.2000). So Silva-Trevino merely begs the question: What “degree of knowledge” is sufficient to indicate moral turpitude? The Attorney General suggests that “specific intent, deliberateness, willfulness, or recklessness,” id., may be sufficient — a list he later rounds out by adding “knew, or reasonably should have known,” as well. Id. at 707 . Of course, “reasonably should have known” is not a culpable mental state; it is an objective standard of negligence, disregarding the defendant’s actual state of mind. The Attorney General’s concept of “some scienter” therefore includes just about every possible mental state and even one imputed mental state, without providing any indication of which one would be sufficient in what circumstances. Silva-Trevino’& “scienter” standard is thus wholly vacuous.
Lopez-Meza takes note of some of the BIA’s previous conflicting holdings about the relevance of intent in distinguishing CIMT from non-CIMT offenses, but it does not attempt to synthesize or distinguish those eases. Instead, it glibly summarizes the cases by recognizing that “while crimes involving moral turpitude often involve an evil intent, such a specific intent is not a prerequisite to finding that a crime involves moral turpitude.” Lopez-Meza, 22 I. & N. Dec. at 1192 (emphases added). This statement is simply an observation of the obvious, not a reasoned explanation of the BIA’s apparent lack of a coherent line of authority.
More than that, the sentence just quoted misleadingly conflates “evil intent” with “specific intent.” The BIA has generally understood “evil intent” to mean something more than mere knowledge; in some cases, it has specified that “evil intent” involves a degree of depravity above and beyond the specific intent to violate the law. 14 Lopez-Meza^ however, uses the terms “evil” and “specific” intent as though they were interchangeable.
*925 Having thus further muddied the already opaque waters, Lopez-Meza then concludes that the “knew or should have known” standard associated with the driving-on-a-suspended-license portion of the Arizona aggravated DUI offense renders that entire offense a CIMT — even though “knew or should have known” is clearly a less demanding standard than either “evil” or “specific” intent. Specifically, Lopez-Meza reasons that although simple DUI is not a CIMT, aggravated DUI under § 28-1383(A)(1) is a CIMT because, unlike simple DUI, a conviction for aggravated DUI requires that at the time of the offense the driver’s license was “suspended, canceled, revoked ... [,] refused or [restricted due to a prior DUI offense].” A.R.S. § 28-1383(A)(1). The circumstance of having an already suspended or revoked license implies that the driver knows he “should not be driving under any circumstances.” Lopez-Meza, 22 I. & N. Dec. at 1196 . And because “any circumstances” necessarily includes the circumstance of driving while intoxicated, Lopez-Meza reasons, aggravated DUI is a “knowing” violation which carries greater moral opprobrium than simple DUI alone. Id. at 1195-96 .
This logical chain makes little sense. On Lopez-Meza’s theory of imputing knowledge, driving without a license under any circumstances, drunk or not, would amount to driving while “knowing” that one “should not be driving.” There is thus nothing about the mental state involved in aggravated DUI that differentiates it from mere driving on a suspended license— which is not a CIMT. Lopez-Meza nevertheless holds that aggravated DUI is a CIMT “because the aggravated circumstances necessary for a conviction under [A.R.S. § 28-1383(A)(l) ] establish a culpable mental state adequate to support a finding of moral turpitude.” Lopez-Meza, 22 I. & N. Dec. at 1195 . In other words, according to the BIA, the mental state associated with aggravated DUI is sufficient because the mental state associated with aggravated DUI is sufficient.
The majority in today’s case recognizes that Lopez-Meza’s “intent” analysis was mistaken in one respect: The intent standard specified in A.R.S. § 28-1383(A)(l) is divisible, and the “should have known” portion — which Arizona courts understand to be a negligence standard — does not articulate a sufficiently culpable mental state to establish moral turpitude. See Maj. Op. at 912 (citing State v. Hyde, 186 Ariz. 252 , 921 P.2d 655, 678 (1996)). I agree with the majority on this point.
But the majority considers this error to be harmless, because it believes that, with respect to both Campos’s 1997 conviction and his 2002 conviction, judicially noticeable documents establish that Campos did in fact know he was prohibited from driving 15 — and it defers to the BIA’s holding that knowledge, if not negligence, is a suf- *926 fieiently culpable mental state to constitute moral turpitude. Maj. Op. at 914-15. I cannot agree with this conclusion. As I will show, even if we assume that knowledge, as opposed to negligence, has been established by Campos’s conviction, the BIA’s own jurisprudence forecloses the conclusion that mere knowledge could support a finding of moral turpitude in this context.
Although Lopez-Meza provides no discernible reasons of its own for concluding that knowledge is a sufficiently culpable mental state, and despite the principle that “we may not supply a reasoned basis for the agency’s action that the agency itself has not given,” Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668 , 688 (9th Cir.2007) (internal quotation marks omitted), the majority here strives mightily to invent a justification for the BIA’s holding. It does so by citing a hodgepodge of CIMT cases which it claims demonstrate that “[t]he presence or absence of an element in the statute of conviction requiring a culpable mental state consistently has been critical to the BIA’s determination of whether a violation of such statute constitutes a crime involving moral turpitude.” Maj. Op. at 915. That statement, surely, is true, but only by virtue of being contentless. It side-steps the real question — again, what is a sufficiently “culpable mental state?” Crucially, none of the cases the majority cites support the precise proposition advanced in Lopez-Meza: that mere knowledge is a sufficiently culpable mental state to convert a regulatory offense into a CIMT. See Maj. Op. at 915-16 (citing cases). 16 Having re *927 viewed the entire corpus of precedential CIMT decisions issued by the BIA from 1940 to the present, I have found no support for this conclusion.
2. Surveying the BIA’s case law on “regulatory offenses”
As this Court has consistently explained, CIMTs can be understood as belonging to two basic types: (1) offenses involving “fraud,” and (2) offenses involving conduct that is both (a) “inherently base, vile, or depraved” and (b) “contrary to the [accepted] private and social duties man owes to his fellow men or to society in general.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068 (9th Cir.2007) (en banc) (Pregerson, J., writing for the majority); accord Galeana-Mendoza, 465 F.3d at 1058 (9th Cir.2006); Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005). The BIA has never rejected this understanding, see Galeana-Mendoza, 465 F.3d at 1058 n. 9, and it has adopted Navarro-Lopez’s typology in recent non-precedential decisions.
The BIA looks for different levels of mens rea when considering whether offenses in these two categories are CIMTs. For fraud offenses, the mens rea required to establish moral turpitude is more than mere knowledge of the acts committed; it is the specific intent to defraud. 17 For non-fraud offenses involving “base, vile, or depraved” conduct — an ill-defined group which may be further broken down into the subcategories of violent crimes, theft offenses and other crimes against property, sex offenses, drug offenses, and certain offenses against the government — the BIA appears to require a prescribed degree of intent that varies depending upon which subcategory is at issue. As noted above, today’s majority relies on language it finds in a smattering of fraud, theft, and violent crime cases to find Lopez-Meza’s holding “reasonable.” See supra, note 16. In doing so, the majority either misunderstands or ignores the fact that the BIA does not follow a single, generally applicable rule as to “intent” across all subcategories of offenses. (Indeed, one could find support for any proposition if one’s search pool includes all of the BIA’s precedential CIMT opinions over the last seven decades.) The better approach, consequently, is to consider what kind of mental state the BIA has required in cases involving the same type of offenses.
Lopez-Meza does not assert that the Arizona aggravated DUI statute involves a fraud offense. 18 Rather, it views aggravat *928 ed DUI as belonging to the second, non-fraud category of offenses Navarro-Lopez describes. It holds:
We find that a person who drives while under the influence, knowing that he or she is absolutely prohibited from driving, commits a crime so base and so contrary to the currently accepted duties that persons owe to one another and to society in general that it involves moral turpitude.
Lopez-Meza, 22 I. & N. Dec. at 1196 (emphases added). This description clearly puts aggravated DUI in the non-fraud category, which encompasses offenses involving “base, vile, or depraved” conduct in violation of “social duties.” See Navarro-Lopez, 503 F.3d at 1068 .
Generally speaking, offenses in the “base, vile or depraved” category will constitute CIMTs only if the BIA finds that they either inherently involve or specifically require a showing of “evil intent.” 19 What constitutes “evil intent,” in turn, is offense-specific.
Looking in this light at the crime for which Campos was convicted, it is apparent that it involves two component unlawful acts: (1) simple DUI, and (2) driving on a suspended license. Simple DUI, as Lopez-Meza acknowledges, is indisputably a “regulatory offense,” Lopez-Meza, 22 I. & N. Dec. at 1194; accord Matter of Torres-Varela, 23 I. & N. Dec. 78 (B.I.A.2001) (en banc), and so lacks any “evil intent” element. Driving without a valid license, too, can only be described as a regulatory offense, for it involves the lack of permission to do something that would otherwise be permissible. 20 My review of the BIA’s *929 precedential case law over the past seven decades shows that the BIA consistently declines to characterize purely regulatory offenses as CIMTs. In its own words, the BIA has “many times held that the violation of a regulatory, or licensing, or revenue provision of a statute is not a crime involving moral turpitude.” Abreu-Semino, 12 I. & N. Dec. at 776. Evil intent simply is not an essential aspect of such a regulatory violation, even if the violation is a knowing one, and so such violations are not CIMTs.
For example, in Matter of H-, 1 I. & N. Dec. 394 (B.I.A.1943), the BIA held that an alien’s violation of a federal statute requiring liquor retailers to pay a tax to operate their businesses was not a CIMT:
The crime consists ... in merely failing to register, pay a tax, and comply with certain regulations of the Internal Revenue Commissioner.... [We know of] [n]o case ... which holds that the violation of a revenue or licensing statute involves moral turpitude. The fact that the thing may be done, providing a tax is paid to the Government, indicates that the act itself does not involve moral turpitude.
Id. at 395 (quoting United States ex rel. Andreacchi v. Curran, 38 F.2d 498 (S.D.N.Y.1926)) (internal quotation marks omitted). The BIA recognized that the respondent had been convicted of “unlawfully and knowingly carrying on the business of a retail liquor dealer -without having paid the special tax as required.” Id. at 395-96 (emphasis added). Still, the presence of a “knowing! ]” scienter requirement did not matter to the BIA’s analysis; even a knowing failure to conform to a regulatory requirement, apparently, could not demonstrate a sufficiently culpable state of mind to indicate moral turpitude.
Similarly, in Matter of G-, 7 I. & N. Dec. 114 (B.I.A.1956), the BIA held that a conviction for the “possession and transportation of distilled spirits without tax stamps affixed thereto” in violation of “licensing and regulating provisions of the Internal Revenue Code” was not a CIMT, because the “violation of statutes which merely license or regulate and impose criminal liability without regard to evil intent do not involve moral turpitude.” Id. at 115, 118 (emphasis added). Even a knowing violation of the tax statute, then, would not be enough to transform a regulatory offense into a CIMT. Accord Matter of J-, 2 I. & N. Dec. 99 , 104 (B.I.A.1944) (holding that a conviction under a federal statute prohibiting the sale of alcohol to Native Americans was not a CIMT because “[rjegulatory enactments of this nature do not create crimes involving moral turpitude.”); Matter of V-, 1 I. & N. Dec. 293 , 294 (B.I.A.1942) (holding that a conviction under the federal Narcotic Drugs Import and Export Act of 1909, which penalized “knowingly importing or participating in the importation of narcotic drugs,” was not a CIMT because the Act “is a regulatory act and that the violation of it is therefore not a crime involving moral turpitude”); Matter of G-, 1 I. & N. Dec. 59 , 62 (B.I.A.1941) (holding that gambling in violation of New *930 York’s gaming law was a regulatory offense and so not a CIMT).
The lack of a sufficiently evil intent also played the decisive role in Goldeshtein v. INS, 8 F.3d 645 (9th Cir.1993), where this Court held that the regulatory offense of “willfully” structuring financial deposits in order to prevent a bank from filing currency reports in violation of federal law is not a CIMT, because “evil intent” — as opposed to willfulness or knowledge that the conduct is unlawful — is not an element of the crime. Id. at 648 . The BIA recently adopted Goldeshtein as its rule nationwide in Matter of L-V-C-, 22 I. & N. Dec. 594, 603 (B.I.A.1999), holding that a violation of the structuring statute involves “no per se morally reprehensible conduct.”
In short, in a body of case law riddled with inconsistencies, the rule that regulatory offenses are simply not CIMTs — even if committed “knowingly” — appears to be one of the BIA’s more stable principles.
3. Lopez-Meza’s departure from the BIA’s regulatory offense precedents
Lopez-Meza acknowledges that there exists a “general rule” that regulatory offenses do not constitute CIMTs. Lopez-Meza, 22 I. & N. Dec. at 1193. But it departs from this rule, reasoning that
an individual who drives under the influence in violation of ... [A.R.S.] section 28-1383(A)(l) does so with the knowledge that he or she should not be driving under any circumstances. We find that a person who drives while under the influence, knowing that he or she is absolutely prohibited from driving, commits a crime so base and so contrary to the currently accepted duties that persons owe to one another and to society in general that it involves moral turpitude.
Id. at 1195-96.
This purported explanation is a non-explanation — an ipse dixit or “because I said so” edict. One can, perhaps, read into the BIA’s non-explanation the implication that certain offenses are so “base, vile, or depraved” that an evil intent, even if not an explicit requirement for conviction under the statute, is inherent in the act. But the BIA has never given any particularized content to the phrase “base, vile, or depraved” other than to hold that some offenses are and others are not. This is why, as the majority explains, we do not defer to the BIA’s use of general descriptive phrases like “base, vile, or depraved, [and] contrary to ... the duties owed between man and man” — because deferring to a contentless phrase would “ha[ve] no practical significance.” See Maj. Op. at 909-10 (quoting Galeana-Mendoza, 465 F.3d at 1058 n. 9).
Similarly, Lopez-Meza’s purported explanation provides no way to figure out when (or by what logic) an offense is sufficiently “base, vile, and depraved” that evil intent is implicit in the act. 21 What we do know is that the BIA and this Court have *931 in practice limited the concept of “implicitly evil intent” to fraud, 22 sex offenses, 23 and drug trafficking offenses. 24 Lopez-Meza provides no reasons why a regulatory DUI offense belongs in the same camp.
Indeed, to the extent Lopez-Meza can be read to hold that drunk driving on a suspended license is so base, vile, or depraved that evil intent is somehow inherent in the act, I can find no reasons in the BIA’s precedential CIMT cases — or in logic — why that should be so. Certainly, where a nonfraud offense is purely regulatory, it cannot “inherently” exhibit an evil intent. After all, that is the very definition of a crime that is malum prohibitum: But for the statutory prohibition, the act would not be wrongful. 25 If any aspect of Campos’s conduct could be characterized as morally wrongful, it would be driving while intoxicated — not driving on a suspended license. But the BIA has unequivocally acknowledged that driving while intoxicated is not turpitudinous, see Lopez-Meza, 22 I. & N. Dec. at 1194, 26 and so, necessarily, does not inherently demonstrate an evil state of mind.
*932 In fact, the BIA has held that even a third conviction for drunk driving — another variety of “aggravated” DUI under the same Arizona statute at issue here — is not a CIMT. Matter of Torres-Varela, 23 I. & N. Dec. 78 (B.I.A.2001) (en banc). 27 As Judge Nelson cogently argued in her dissent from the panel decision in this case, “it is patently unreasonable to conclude that driving under the influence only once, even with a suspended license, somehow carries with it greater moral opprobrium than driving drunk repeatedly.” Marmolejo-Campos v. Gonzales, 503 F.3d 922, 929 (9th Cir.2007) (D. Nelson, J., dissenting).
Lopez-Meza’s implicit suggestion that the lack of a valid license converts a simple DUI offense, which does not inherently involve an evil intent, into a CIMT that does necessarily involve an evil intent, is simply incoherent. The BIA has identified no basis whatever for treating this variety of aggravated DUI under A.R.S. § 28-1383(A)(1) differently from other regulatory offenses which have been designated as nonturpitudinous. “Because I said so” is not good enough.
B. The BIA’s rule against combining two non-CIMT offenses into a CIMT
In addition, treating aggravated DUI under A.R.S. § 28-1383(A)(l) as a CIMT runs squarely into a second set of BIA precedents: those cases holding that two crimes that are not themselves CIMTs cannot, when committed together, morph into a CIMT.
As I have already noted, simple DUI is not a CIMT. See Lopez-Meza, 22 I. & N. Dec. at 1194. The act of driving without a valid license is not a CIMT either. If evil intent does not inhere in either of the component offenses that make up A.R.S. § 28-1383(A)(l) individually, then such intent could only be found, if anywhere, in the synergy between those two component offenses when they are committed simultaneously. This appears to be where Lopez-Meza ultimately locates it — in bald defiance of the rule it set out in Matter of Short, 20 I. & N. Dec. 136 (B.I.A.1989).
In Matter of Short , the BIA held that assault with intent to commit a felony is not per se a CIMT. Rather, the assault will only fall within the CIMT category if the felony that the perpetrator intended to commit would itself have been so designated. Short explained:
[I]f a simple assault does not involve moral turpitude and the felony intended as a result of that assault also does not involve moral turpitude, then the two crimes combined do not involve moral turpitude. Moral turpitude cannot be viewed to arise from some undefined synergism by which two offenses are combined to create a crime involving moral turpitude, where each crime individually does not involve moral turpitude. There must be some particular criminal activity with which to evaluate whether the nature of that activity involves moral turpitude.
Id. at 139 . In other words, evil intent cannot float about in the ether; it must be grounded in one act or another.
The rule of Short coheres with the BIA’s longstanding insistence that it is the nature of the offense that matters when deciding whether the offense is morally tur-pitudinous, not the circumstances under which the offense occurred or how frequently it has happened. See, e.g., Goldeshtein, 8 F.3d at 649 ; accord L-V-C-, *933 22 I. & N. Dec. at 603. Consistent with the rule that the requisite evil intent must inhere in the crime of conviction, the BIA will impute the intent associated with crime A to crime B only if crime B is done with the purpose of committing crime A.
For example, burglary offenses “may or may not involve moral turpitude, the determinative factor being whether the crime intended to be committed at the time of entry ... involves moral turpitude.” Matter of M-, 2 I. & N. Dec. 721 , 723 (B.I.A.1946). Likewise, malicious trespass, which is not a CIMT by itself, becomes one when the trespass is committed with the intent to commit larceny, which would itself be 2677 a CIMT. Matter of Esfandiary, 16 I. & N. Dec. 659, 661 (B.I.A.1979). Short is a reiteration of this general rule.
Lopez-Meza runs directly into this line of case law by suggesting that the regulatory offense of driving without a license and the regulatory offense of simple DUI, neither of which (even if committed “knowingly”) involves moral turpitude, somehow exhibit moral turpitude when committed at the same time. But the simultaneity of offenses, without more, has never been enough to create moral turpitude out of nothing. As Short held, “[tjhere must be some particular criminal activity” in which moral turpitude inheres, 20 I. & N. Dec. at 139, or else some purposeful link between an attempted CIMT offense and the perfected non-CIMT offense that justifies imputing the mental state associated with the former to the latter. Matter of M-, 2 I. & N. Dec. at 723; Matter of Esfandiary, 16 I. & N. Dec. at 661. Turpitude cannot arise simply out of the “synergism” between two non-turpitudinous offenses, even if committed simultaneously. Matter of Short, 20 I. & N. Dec. at 139. Yet that is precisely what Lopez-Meza does.
Lopez-Meza does lamely attempt to distinguish itself from Short. First, it notes that
[t]he relevant discussion in Matter of Short ... pertained to a simple assault with intent to commit a felony of unproven seriousness. We did not hold in that decision that a combination of acts that are included as elements of a specific offense could never, when added together, build to such a heightened deviance from accepted moral standards as to reach a level of conduct deemed morally turpitudinous. In fact, additional aggravating elements can often transform an offense that otherwise would not be a crime involving moral turpitude into one that is.
Lopez-Meza, 22 I. & N. Dec. at 1196. Tellingly, the BIA cites no authority for its proposition that aggravating elements not themselves demonstrative of evil intent “often” have transformed non-CIMTs into CIMTs. 28
Lopez-Meza then goes on to explain:
*934 The finding of moral turpitude in the crimes in the present case does not arise simply from an amalgamation of distinct separate offenses; rather, it 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.... [W]hen [simple DUI] is committed by an individual who knows that he or she is prohibited from driving, the offense becomes such a deviance from the accepted rules of contemporary morality that it amounts to a crime involving moral turpitude.
Id. But nowhere does the BIA attempt to explain by what logic simple DUI, when committed simultaneously with unlicensed driving, “becomes such a deviance” from moral standards that moral turpitude materializes where there was none before. The BIA claims that this is not the “amalgamation of distinct separate offenses” but the “building together of elements by which the criminalized conduct deviates further and further” from accepted moral standards — but what is “amalgamation,” if not a “building together?” Again, Lo-pez-Meza offers no clue.
Encountering a similarly flimsy explanation in Bush-Quayle '92 Primary Comm. v. FEC, 104 F.3d 448, 454 (D.C.Cir.1997), the D.C. Circuit lamented that “[without adequate elucidation, this court has no way of ascertaining whether cases are indeed distinguishable, whether the [agency] has a principled reason for distinguishing them, or whether the [agency] is refusing to treat like cases alike.” So here. Lopez-Meza’ s explanation of how it differs from Short amounts to “because I said so,” yet the majority considers this a “reasoned explanation” worthy of Chevron deference. Maj. Op. at 916. The majority explains its position by noting that Lopez-Meza, even if “inconsistent” with Short, “does not leave us ‘in doubt as to the reason for the change in direction.’ ” Id. at 916-17 n. 15 (quoting Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir.2007) (en banc)); see also Maj. Op. at 915-16. I cannot agree. Unless we understand that new direction to be “any way the Board wants,” Lopez-Meza provides no explanation for the change in direction, and thus no guidance on how to apply Short’s rule to future cases.
As I see Lopez-Meza, “the [Board] has changed its view of the [continued validity or scope of Short ] without explaining what its new interpretation is.” Cross-Sound Ferry Servs., Inc. v. ICC, 873 F.2d 395, 398 (D.C.Cir.1989). That “is not a permissible exercise of the [Board’s] power under Chevron,” id., and it certainly is not a decision to which this Court should defer.
C. Summary: Lopez-Meza as an Unreasonable Interpretation of the INA
In sum, the BIA offers no reasoned explanation in Lopez-Meza for its deviations from two modest, relatively consistent principles floating in the miasma that is the BIA’s CIMT jurisprudence. We have no “explanation” worthy of the name for why knowledge, rather than evil intent, should be sufficient to transform a regulatory offense into a CIMT. And we have no “explanation” worthy of the name for why the principle that aggregating two non-CIMT offenses cannot yield a CIMT offense, which was enunciated definitively in Matter of Short , does not apply here. Even within an exceptionally tangled field of confused and conflicting case law, Lopez-Meza stands apart, ignoring what few guideposts the BIA has staked out.
I note that the BIA’s own regulations require that, “through precedent decisions, [the Board] shall provide clear and uni *935 form guidance to the Service, the immigration judges, and the general public on the proper interpretation and administration of the Act and its implementing regulations.” 8 C.F.R. § 1003.1 (d)(1). Yet, the BIA’s CIMT precedents are anything but “clear and uniform,” as I hope I have demonstrated.
The BIA’s refusal to abide by its regulatory mandate to provide clear and uniform guidance leaves individual aliens uncertain as to what conduct will put them at risk of deportation — a “drastic sanction,” as we noted in American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501 , 508 n. 4 (9th Cir.1991) (quoting Gastelum-Quinones v. Kennedy, 374 U.S. 469, 479 , 83 S.Ct. 1819 , 10 L.Ed.2d 1013 (1963)). The Supreme Court in Smiley specifically provided that an agency’s indifference to “legitimate reliance on prior interpretation[s]” could make that agency’s new position ineligible for Chevron deference. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 , 116 S.Ct. 1730 , 135 L.Ed.2d 25 (1996) (internal citations and quotation marks omitted); see also Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir.2004) (“The consistent application of [the BIA’s] precedents, like the consistent application of [an agency’s] regulations, serves a critical purpose: the provision of fair notice to those subject to the agency’s decisions.”). 29 The BIA’s failure to abide by its own CIMT precedents, in defiance of its duty under 8 C.F.R. § 1003.1 (d)(1) to “provide clear and uniform guidance to ... the general public,” casually ignores those reliance interests.
Moreover, the BIA’s refusal to provide “clear and uniform guidance” makes our task as a reviewing court immeasurably harder. Without any overarching theory to guide the BIA’s application of the term “crime involving moral turpitude,” how can a court review the Board’s determination that a particular offense falls on one side or another of that nonexistent line? Without any stable theory about what role intent plays in defining moral turpitude, how can a court tell whether a particular decision is “consistent” or “inconsistent” with the agency’s past positions, and, thus, whether it is reasonable under Chevron? See Nicanor-Romero v. Mukasey, 523 F.3d 992, 997 (9th Cir.2008) (noting that “the BIA has provided little concrete guidance” as to the meaning of moral turpitude); Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir.2004) (“Since Congress did not define ‘crime involving moral turpitude’ ... it is reasonable to suppose á la Chevron that Congress contemplated that the agency charged with administering the statute would define the term, and specifically would tailor the definition to the policies embodied in the immigration statutes. The Board of Immigration Appeals has done neither.”). To nonetheless defer to Lopez-Meza, as the majority does today, is to acquiesce in the BIA’s flouting of its interpretive duty and surrender to its continued frustration of effective judicial review.
I would hold that the BIA’s determination in Campos’s case — that, based on Lopez-Meza, Campos’s two aggravated DUI convictions are CIMTs — is not supported by a reasoned explanation, and would re *936 mand to the agency. I therefore respectfully dissent.
. The BIA's holding in a prior precedential decision that a conviction under a given criminal statute is a CIMT will be entitled to *919 Chevron deference in a subsequent case only if the prior holding directly controls the outcome in the subsequent case. We so held in Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir.2006) (''[T]he BIA has never issued a published decision addressing the precise question at issue. Although the BIA's order cited several published BIA decisions, none of them sets forth a binding interpretation of the question at issue.... Therefore, we do not accord Chevron deference to the BIA’s decision in this case.”).
. To be clear, inconsistency in agency interpretations does not mean that the Chevron framework does not apply. Rather, an unexplained inconsistency may be a reason for a court — having found that Chevron is the correct framework to apply to the type of agency interpretation in question, having determined that the relevant statutory language is ambiguous at Chevron Step One, and moving on to apply Chevron Step Two — to find the agency interpretation "unreasonable” and decline to give it deference. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 , 1001 n. 4, 125 S.Ct. 2688 , 162 L.Ed.2d 820 (2005) [hereinafter “Brand X”].
. See also Barnhart v. Walton, 535 U.S. 212, 219-20 , 122 S.Ct. 1265 , 152 L.Ed.2d 330 (2002) (granting Chevron deference because "the Agency's regulations reflect the Agency’s own longstanding interpretation. And this Court will normally accord particular deference to an agency interpretation of ‘longstanding’ duration.”) (internal citations omitted); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 , 113 S.Ct. 2151 , 124 L.Ed.2d 368 (1993) ("[T]he consistency of an agency’s position is a factor in assessing the weight that position is due.”); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 698 , 111 S.Ct. 2524 , 115 L.Ed.2d 604 (1991) ("As a general matter, of course, the case for judicial deference is less compelling with respect to agency positions that are inconsistent with previously held views.”).
. Having offered this capacious definition, which he terms a “rearticulat[ion]” of the standard the BIA has "long applied,” the Attorney General then states his “belie[f¡ [that] the definition in existing Board precedent merits judicial deference under controlling Supreme Court decisions.” Silva-Trevino, 24 I. & N. Dec. at 689 n. 1. Issuing a blanket definition at such an elevated level of generality as to retrospectively encompass virtually every BIA decision that has come before or will come afterward cannot create a rule entitled to Chevron deference if none existed before — and, as we held in Galeana-Mendoza, 465 F.3d at 1058 , none did.
. The BIA issues "precedential” (also called "published”) and "nonprecedential” (also called "unpublished”) decisions. Prece-dential decisions "serve as precedents in all [future] proceedings involving the same issue or issues,” 8 C.F.R. § 1003.1 (g), and, unless "modified or overruled,” are "binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States.” Id. Only decisions issued by three-member panels, by the Board sitting en banc, or more rarely, by the Attorney General or the Secretary of Homeland Security, may be designated as precedential. See id. at §§ 1003.1(e)(6)(ii); 1003.1(g); 103.3(c). In contrast, decisions issued by single Board members — which make up the vast majority of BIA dispositions — are by definition non-precedential.
All decisions designated to serve as precedent are published in bound volumes of the reporter entitled Administrative Decisions Under the Immigration & Nationality Laws of the United States (or "I. & N. Dec.”). Separately, the Executive Office of Immigration Review periodically compiles certain unpublished decisions as so-called "indexed decisions,” which are meant to serve as useful but nonbinding guidance for EOIR staff. See BIA Prac. Man., Ch. 1.4(d) (rev. July 30, 2004), available at http://www.usdoj.gov/eoir/vll/ qapracmanual/pracmanual/chap 1 .pdf. Indexed decisions are, nevertheless, non-prece-dential. Id.
In the discussion that follows, I consider only the BIA's precedential CIMT decisions, as these embody the agency's official interpretations of "the meaning of [the governing] law[].” 8 C.F.R. § 1003.1 (e)(6)(ii).
. Matter of Olquin-Rufino, 23 I. & N. Dec. 896, 897 (B.I.A.2006).
. Matter of P-, 6 I. & N. Dec. 795 , 796 (B.I.A.\1955) (internal quotation marks omitted).
. See Matter of Olquin-Rufino, 23 I. & N. at 898 ("[T]he offense of possession of child pornography is morally reprehensible and intrinsically wrong."); Matter of P-, 6 I. & N. Dec. at 798 ("[T]he offenses for which respondent was convicted ... were inherently wrong and morally reprehensible, not merely prohibited by statute of recent origin.”).
. See Matter of Tiwari, 19 I. & N. Dec. 875, 882-83 (B.I.A.1989) (holding that an alien smuggling offense is not categorically a CIMT because "[vjiolations of the immigration laws, in the absence of 'fraud or evil intent,’ are not ordinarily regarded as involving moral turpitude” and “some persons convicted [of alien smuggling] ... have been motivated by 'love, charity, or kindness,’ or by religious principles [rather than].... an ‘evil intent.'") (internal citations omitted; emphasis added).
.Matter of Alfonzo-Bermudez, 12 I. & N. Dec. 225, 226-27 (B.I.A.1967) (holding that a California conviction for “wil[l]fully and unlawfully offering] to commit a lewd or indecent act with another person” is a CIMT) (emphasis added).
. See Matter of Fualaau, 21 I. & N. Dec. 475, 478 (B.I.A.1996) (explaining that the element of a "reckless state of mind” is enough to make an assault conviction under Hawaii law a CIMT, but only if "the infliction of serious bodily injury” is also an element under the statute) (emphasis added).
. See Matter of Danesh, 19 I. & N. Dec. 669, 673 (B.I.A.1988) (holding that a Texas conviction for aggravated assault on a peace officer is a CIMT because the statute required both "bodily harm to the victim” and "knowledge by the offender that his force is directed to an officer who is performing an official duty”) (emphasis added).
. See Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 145 (B.I.A.2007) (holding that the failure to register as a convicted sex offender under California law is categorically a CIMT, even if California courts allow for convictions for "fail[ure] ... as a result of forgetfulness.”).
. See, e.g., Matter of Solon, 24 I. & N. Dec. 239, 241 (B.I.A.2007) ("Offenses characterized as 'simple assaults' are generally not considered to be crimes involving moral turpitude .... This is so because they require general intent only and may be committed without the evil intent, depraved or vicious motive, or corrupt mind associated with moral turpitude.”) (internal quotation marks and citation omitted; emphasis added); Matter of B-M-, 6 I. & N. Dec. 806 , 808-09 (B.I.A.1955) ("In some penal statutes, the word ‘wi[l]lful’ connotes moral turpitude or evil of mind, but in others it means no more than that the interdicted act is done deliberately and with knowledge. We think th[e latter] clearly is the sense in which the term is used in the statute [here at issue] ... [and] conclude, therefore, that the false statement made by the appellant did not constitute a crime involving moral turpitude.”) (internal citation omitted). Accord Notash v. Gonzales, 427 F.3d 693, 698 (9th Cir.2005) (holding that the Immigration Judge erred in "equat[ing] [willfulness] with evil intent. We have stated ... that the word 'wil[l]fuT means no more than that the forbidden act is done deliberately and with knowledge.... [This] does not establish the evil intent required for a crime *925 of moral turpitude.”) (internal quotation marks, alterations, and citations omitted).
. I disagree, however, with the majority's assertion that judicially noticeable documents establish that Campos’s 1997 conviction was for a "knowing” violation of A.R.S. § 28-1838(A)(1). The majority states that “Campos admitted in [his plea colloquy] that he knew he did not have a valid license.” Maj. Op. at 913 n.12. That is true — at his plea colloquy, in response to the question "And, Mr. Campos, did you have a valid driver’s license at that time in Arizona?,” Campos responded, "I never had one.” But driving under the influence while "knfowing] he did not have a valid license” is not sufficient for a conviction under A.R.S. § 28-1838(A)(l). The Arizona statute instead requires that the defendant knew or should have known that his license to drive was "suspended, canceled, revoked, or refused or while a restriction is placed upon the person's driver’s license [as a result of a prior DUI-related offense].” A.R.S. § 28-1383(A)(1). We cannot infer from the fact of his conviction and his statement in the plea colloquy that Campos knew his license was suspended, canceled, revoked, or refused; if *926 anything, the plea colloquy indicates that he did not know that. This point of disagreement does not matter, however, because I would hold that even a knowing violation of the Arizona statute would not constitute a CIMT.
. Specifically, the majority begins by quoting language concerning "knowing or intentional conduct” from Matter of Perez-Contreras, 20 I. & N. Dec. 615, 618 (B.I.A.1992), see Maj. Op. at 915, but that language is merely dicta. The assault statute at issue in Perez-Contreras lacked a knowledge requirement, id. at 619 , and so the BIA had no occasion to hold that the offense would have qualified as a CIMT had it required knowledge. In any event, later cases concerning violent crimes confirmed that "knowingly” engaging in prohibited conduct is not the test for a finding of moral turpitude. In the violent crimes context, the BIA usually requires more than knowledge — essentially, recklessness plus. See, e.g., Matter of Fualaau, 21 I. & N. Dec. 475, 478 (B.I.A.1996) ("In order for an assault ... to be deemed a crime involving moral turpitude, the element of a reckless state of mind must be coupled with an offense involving the infliction of serious bodily injury.”). Matter of McNaughton, 16 I. & N. Dec. 569, 574 (B.I.A.1978), which the majority cites next, is a fraud case, and is therefore inapposite; a conviction for fraud must require a showing not of knowledge, but of the specific “intent to defraud,” in order to constitute a CIMT. See infra, note 17. The majority then cites Matter of R-, 6 I. & N. Dec. 772 , 773-774 (B.I.A.1955), Matter of M-, 2 I. & N. Dec. 721 , 723 (B.I.A.1946), and Matter of G-, 1 I. & N. Dec. 403 , 404-06 (B.I.A.1943), see Maj. Op. 915, all of which involve theft offenses, for which the requisite mens rea appears to be the specific intent to deprive another permanently of his property. See Matter of Jurado-Delgado, 24 I. & N. Dec. 29, 33-34 (B.I.A.2006) (conviction for retail theft is a CIMT where the statute "requires proof that the person took merchandise offered for sale by a store without paying for it and with the intention of depriving the store owner of the goods” and where it can be presumed that "the taking is with the intention of retaining the merchandise permanently.”); Matter of Salvail, 17 I. & N. Dec. 19, 20 (B.I.A.1979) (possession of stolen property is a CIMT where the statute "specifically requires knowledge of the stolen nature of the goods”). The majority also cites Matter of Abreu-Semino, 12 I. & N. Dec. 775, 777 (B.I.A.1968), and Matter of P-, 6 I. & N. Dec. 795 , 798 (B.I.A.1955), for the proposition that "moral turpitude normally inheres in the intent.” Maj. Op. at 915. This statement is unarguably correct, but it says nothing about what level of intent is sufficient to establish turpitude in what sorts of cases. Notably, *927 none of the cases on which the majority relies involve a regulatory offense — which, as shown below, is the category of offense to which aggravated DUI belongs.
. See, e.g., Matter of Balao, 20 I. & N. Dec. 440, 443 (B.I.A.1992) (conviction for the violation of a statute prohibiting the issuing of worthless checks was not categorically a CIMT, because the statute prohibited only "the 'knowing' issuance of bad checks,” rather than "expressly requiring] intent to defraud as an element of the crime”); Matter of Serna, 20 I. & N. Dec. 579 (B.I.A.1992) (conviction for possession of an altered immigration document with knowledge that it was altered, but without proof of any intent to use it unlawfully, is not a CIMT). But see Matter of Tejwani, 24 I. & N. Dec. 97, 98-99 (B.I.A.2007) (money laundering is a fraud CIMT even without any showing of specific intent, because “[a] person who deliberately takes affirmative steps to conceal or disguise the proceeds of criminal conduct acts in an inherently deceptive manner ... contrary to accepted moral standards.”).
. Indeed, Campos’s offense cannot logically be described as a “fraud” offense, because Campos gave no false information to the motor vehicles authorities to obtain a driver’s license — he simply drove without one. In contrast, the BIA’s fraud cases normally involve affirmative misrepresentations of material facts made for the purposes of personal gain. See Matter of P-, 6 I. & N. Dec. 795 , 798 (B.I.A.1955) (making "false or misleading representations in labeling” in violation of the Food, Drug, and Cosmetic Act is a CIMT); Matter of M-, 1 I. & N. Dec. 619 (B.I.A.1943) (willfully and knowingly making a false state *928 ment on a Selective Service questionnaire for the purpose of evading military service, where that statement is material, is a fraud CIMT). See also Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir.2000) (making false attestations on an employment verification form 1-9 and using a false Social Security number are mala prohibita but not mala in se, and so are not CIMTs).
. See, e.g., Matter of Solon, 24 I. & N. Dec. 239, 241 (B.I.A.2007) (“Offenses characterized as 'simple assaults’ are generally not considered to be crimes involving moral turpitude. This is so because they require general intent only and may be committed without the evil intent, depraved or vicious motive, or corrupt mind associated with moral turpitude.”) (internal citation omitted); Matter of Khourn, 21 I. & N. Dec. 1041, 1045-46 (B.I.A.1997) (possession with the intent to distribute cocaine is a CIMT; the intent to distribute involves "evil intent”); Matter of B-, 5 I & N Dec. 538 , 540-41 (B.I.A.1953) (a simple assault committed “knowingly” upon a prison guard involved no evil intent and so was not a CIMT); Matter of S-C-, 3 I. & N. Dec. 350 , 353 (B.I.A. 1948) (state misprision of felony offense is not a CIMT because "[t]o constitute this offense there must be mere knowledge of the offense, and not [necessarily] an[y] assent or encouragement.... A conviction could be had[, therefore,] ... without evil intent.... [S]ince the statute does not require an evil or corrupt intent, it is concluded that the crime is not one involving moral turpitude.”) (internal quotation marks and citations omitted); Matter of J-, 2 I. & N. Dec. 99 , 102 (B.I.A.1944) ("All crimes violate some laws; all deliberate crimes involve the intent to do so. Congress could not have meant to make the willfulness of the act a test; it added as a condition that it must itself be shamefully immoral.”). See also Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir.2006) (discussing the requirement that a crime involve a showing of " 'willfulness' or 'evil intent' " to be classified as a CIMT, as opposed to "general intent” or "reckless[ness]”); Notash v. Gonzales, 427 F.3d 693, 698 (9th Cir.2005) (an act done deliberately and with knowledge does not necessarily involve "evil intent” for CIMT purposes); Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir.1993) (rejecting the argument that "evil intent exists if a conviction requires proof that a defendant did a forbidden act 'willfully,' ” where "willfully” was defined to mean "deliberately and with knowledge.”).
. Neither Lopez-Meza nor any other prece-dential BIA decision classifies the offense of driving without a valid license as a "regulatory” (or any other kind of) offense. Nor has the BIA ever considered in a precedential *929 decision whether the possession or use of a falsified driver's license is a CIMT. But see Montero-Ubri v. INS, 229 F.3d 319, 321 (1st Cir.2000) (affirming BIA's non-precedential decision that ‘‘using” a falsified driver’s license was a CIMT, because the ‘‘attempt at deceit is inherent in this act”); id. at 320 (stating incorrectly that "[t]he BIA has held [in Sema ] that use of a fraudulent driver’s license is a crime of moral turpitude,” when in fact, Sema involved a falsified immigration document, not a driver's license, and it held that possession of such documents was not a CIMT); Zaitona v. INS, 9 F.3d 432 (6th Cir.1993) (affirming BIA’s nonprecedential decision that knowingly using a false name and date of birth to obtain a driver’s license was a CIMT).
. The answer to this question cannot depend upon the seriousness of the breach or the severity of the harm caused, for the BIA has held that neither factor can compensate for the lack of mens rea otherwise required to transform an offense into a CIMT. See Abreu-Semino, 12 I. & N. Dec. at 777 (holding, in the drug possession context, that “crimes in which evil intent is not an element, no matter how serious the act or harmful the consequences, do not involve moral turpitude.”); Matter of Solon, 24 I. & N. Dec. 239, 242 (B.I.A.2007) (explaining, in the context of assault crimes, that “as the level of conscious behavior decreases, i.e., from intentional to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude. [But] where no conscious behavior is required, there can be no finding of moral turpitude, regardless of the resulting harm.”).
. See Matter of Flores, 17 I. & N. Dec. 225, 230 (B.I.A.1980) ("[T]he crime of uttering or selling false or counterfeit paper relating to registry of aliens with knowledge of their counterfeit nature inherently involves a deliberate deception of the government and an impairment of its lawful functions. Thus, fraudulent conduct is implicit in the statute.”); accord Notash v. Gonzales, 427 F.3d 693, 698 (9th Cir.2005) ("[E]ven if intent to defraud is not explicit in the statutory definition, a [fraud] crime nevertheless may involve moral turpitude if such intent is implicit in the nature of the crime.”) (internal citations, quotation marks, and alterations omitted).
. See Matter of Dingena, 11 I. & N. Dec. 723, 727-28 (B.I.A.1966) (holding that statutory rape is a CIMT, despite the lack of a scienter requirement); but see Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.2007) (holding that statutory rape under Cal.Penal Code § 261.5(d) is not categorically a CIMT). See also Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 146-47 (B.I.A.2007) (holding that a convicted sex offender’s failure to register in violation of Cal.Penal Code § 290(g)(1) was a CIMT, even if the failure was purely inadvertent, because the failure to abide by the registration requirement is so base and depraved that evil intent is inherent in the act). Although Tobar-Lobo involved a regulatory registration requirement, it is best understood as a sex-related offense case, not a regulatory offense case, as it was evidently the underlying sex offense and not the failure to register that the BIA found "reprehensible.” See Plasencia-Ayala v. Mukasey, 516 F.3d 738, 748-49 (9th Cir.2008). At any rate, Tobar-Lobo has been superseded in this Circuit by Plasencia-Ayala. See id. at 746-49 (holding that failure to register as a sex offender under Nev.Rev.Stat. § 179D.550 is not a CIMT, because the statute is “regulatory ... in nature” and “lacks the requisite element of willfulness or evil intent”). Most recently, the Attorney General held that “convictions obtained under statutes that limit convictions to defendants who knew, or reasonably should have known, that their intentional sexual acts were directed at children categorically should be treated as convictions for crimes involving moral turpitude.” Silva-Trevino, 24 I. & N. Dec. at 707.
. See Matter of Khourn, 21 I. & N. Dec. at 1047 (“an evil intent is inherent in the crime of distribution of a controlled substance under 21 U.S.C. § 841 (a)(1).”).
. See Cooley’s Blackstone, Vol. I at 54, 58 (4th ed.) (describing crimes mala in se as crimes "such as murder, theft, and perjury: which contract no additional turpitude from being declared unlawful by the inferior legislature,” whereas crimes mala prohibita "enjoin only positive duties, and forbid only such things as are not mala in se ... without any intermixture of moral guilt.”).
. Accord Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir.2004) (noting that drunk driving "almost certainly does not involve moral turpitude”); Murillo-Salmeron v. INS, 327 F.3d 898, 902 (9th Cir.2003) (“[S]imple DUI convictions ... are not crimes of moral turpitude.”); Franklin v. INS, 72 F.3d 571 , 590 n. 17 (8th Cir.1995) (recognizing that the "violation of regulatory laws such as ... drunk driving” does not involve moral turpitude).
. Torres-Varela involved A.R.S. § 28-697(A)(2), which has since been redesignated as A.R.S. § 28-1383(A)(2) — and which is the neighboring subsection to A.R.S. § 28-1383(A)(1), formerly A.R.S. § 28-697(A)(l), the provision at issue here. See Maj. Op. at 905 n.l. Both subsections are categorized as "aggravated driving” offenses.
. This statement would be supportable, although only qualifiedly so, in the assault context. In assault cases, certain "aggravating factors,” like the use of a deadly weapon, may be sufficient to establish turpitude where simple assault by itself would not. See Matter of Fualaau, 21 I. & N. Dec. at 478; Matter of Sanudo, 23 I. & N. Dec. at 971. The BIA's case law in this area is particularly confused, probably because the term “assault” encompasses such a wide range of state crimes. Moreover, I have found no cases in which an aggravating factor converts a regulatory offense to a CIMT; nor does the BIA in Lopez-Meza provide any reason why the approach used in its assault cases should be imported to the regulatory offense context when it has not been imported into other contexts. Indeed, the BIA established in Torres-Varela that another "aggravating factor” listed under the same Arizona statute at issue here — that is, recidivist DUI, A.R.S. § 28-1383(A)(2) — is not enough to establish moral turpitude. Torres-Varela, 23 I. & N. Dec. at 85-86. And as shown above, in Section II.A, the bulk of the BIA's case law on regulatory offenses holds that no mental state can establish sufficient culpability to transform a regulatory offense into a CIMT.
. See also William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083 , 1151 (2008) (“An agency interpretation that departs from a previously established agency understanding is more likely to be arbitrary in several senses: compared with a longstanding interpretation, a new construction is more likely to unsettle reliance interests ....”) (emphasis in original).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9596971. Public record. Not legal advice.