Marmolejo-Campos v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO MARMOLEJO-CAMPOS, aka 
Campos Ramos Armando,
No. 04-76644
Petitioner,
v.  Agency No.
A71-616-204
ALBERTO R. GONZALES, Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 20, 2007—San Francisco, California
Filed September 12, 2007
Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Cormac J. Carney,* District Judge.
Opinion by Judge Callahan;
Dissent by Judge D.W. Nelson
*The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
12315
MARMOLEJO-CAMPOS v. GONZALES 12317
COUNSEL
Christopher J. Stender, Stender & Pope, P.C., Phoenix, Ari-
zona, for petitioner Armando Marmolejo-Campos.
Arthur L. Rabin (argued), Edward C. Durant, Peter D. Keis-
ler, Linda Wendtland, Office of Immigration Litigation, U.S.
Department of Justice, Washington, DC, for respondent
Alberto R. Gonzales.
12318 MARMOLEJO-CAMPOS v. GONZALES
OPINION
CALLAHAN, Circuit Judge:
Petitioner Armando Marmolejo-Campos (“Campos”), a
native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) order of removal.
We deny the petition.
FACTS
Campos arrived in the United States in April of 1983. In
1990, Campos was convicted of felony theft. Campos was
convicted of violating what was then Arizona Revised Stat-
utes § 28-697(A)(1),1 aggravated driving under the influence
(“DUI”), in April of 1997. At his change of plea hearing,
Campos admitted that he was driving on that day, that his
blood alcohol content was .164, and also that he did not have
a valid license to drive. After his aggravated DUI conviction,
in 2001 Campos obtained a waiver of inadmissibility and
adjusted his status to lawful permanent resident.
On June 25, 2002, Campos pleaded guilty to another aggra-
vated DUI. In his plea colloquy, Campos admitted running a
red light, with a blood alcohol content of .233, and that he
knew he was not licensed to drive at the time. Campos was
sentenced to two and a half years in prison for his 2002 aggra-
vated DUI conviction.
The Department of Homeland Security (“DHS”) filed a
Notice to Appear with the Immigration Court, charging Cam-
1
Arizona Revised Statutes § 28-697 was renumbered to § 28-1383 in
1996. 1996 Ariz. Sess. Laws, ch. 76, §§ 3, 25 as amended by 1997 Ariz.
Sess. Laws ch. 1, § 108 (effective Oct. 1, 1997); 1997 Ariz. Sess. Laws
ch. 220, § 82. All further references to Arizona’s aggravated driving under
the influence statute will use the current numbering.
MARMOLEJO-CAMPOS v. GONZALES 12319
pos with removability under Immigration and Naturalization
Act (“INA”) §§ 237(a)(2)(A)(i)2 and (ii),3 for being an alien
convicted of a crime involving moral turpitude and being an
alien convicted of two or more crimes involving moral turpi-
tude not arising out of a single scheme of criminal conduct.
Campos filed a motion to terminate proceedings, arguing that
his aggravated DUI convictions were not crimes of moral tur-
pitude after this court’s decision in Hernandez-Martinez v.
Ashcroft, 329 F.3d 1117 (9th Cir. 2003). The IJ rejected Cam-
pos’ argument, concluding that Hernandez-Martinez simply
held that Arizona Revised Statutes § 28-1383 was divisible,
and that the BIA erred in not examining the underlying con-
duct to make sure that the alien was not convicted of an
aggravated DUI without actually driving a vehicle. Based
upon Campos’ three convictions for crimes involving moral
turpitude, the IJ ordered Campos removed to Mexico. The
BIA dismissed Campos’ subsequent appeal, concluding that
Hernandez-Martinez did not overrule the BIA’s prior holding
in Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999),
that a conviction for aggravated driving under the influence
under Arizona Revised Statutes § 28-1383(A)(1) was a crime
of moral turpitude.
2
INA § 237(a)(2)(A)(i), as codified at 8 U.S.C. § 1227(a)(2)(A)(i),
states:
Any alien who—
(I) is convicted of a crime involving moral turpitude committed
within five years (or 10 years in the case of an alien provided
lawful permanent resident status under section 1255(j) of this
title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or
longer may be imposed, is deportable.
3
INA § 237(a)(2)(A)(ii), as codified at 8 U.S.C. § 1227(a)(2)(A)(ii),
provides that:
Any alien who at any time after admission is convicted of two or
more crimes involving moral turpitude, not arising out of a single
scheme of criminal misconduct, regardless of whether confined
therefor and regardless of whether the convictions were in a sin-
gle trial, is deportable.
12320 MARMOLEJO-CAMPOS v. GONZALES
STANDARD OF REVIEW
We have jurisdiction to review the petition under 8 U.S.C.
§ 1252 as amended by § 106(a) of the REAL ID Act of 2005.
See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir. 2005).
Although we have no jurisdiction to review “any final order
of removal against an alien who is removable by reason of
having committed a criminal offense,” including a crime of
moral turpitude, 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A),
we are not barred from hearing the constitutional claims or
questions of law raised in Campos’ petition. 8 U.S.C.
§ 1252(a)(2)(D). Whether an Arizona aggravated DUI for
driving on a suspended or revoked license is a crime involv-
ing moral turpitude is a question of law that we review de
novo. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017
(9th Cir. 2005). “In conducting this de novo review, however,
we show considerable deference to the BIA’s interpretation.”
United States v. Esparza-Ponce, 193 F.3d 1133, 1136 n. 5
(9th Cir. 1999).
DISCUSSION
[1] The courts have defined moral turpitude as an “act of
baseness or depravity contrary to accepted moral standards.”
Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406 (9th Cir.
1969). “[I]t is the combination of the base or depraved act and
the willfulness of the action that makes the crime one of
moral turpitude.” Grageda v. INS, 12 F.3d 919, 922 (9th Cir.
1993). “A crime involving the willful commission of a base
or depraved act is a crime involving moral turpitude, whether
or not the statute requires proof of evil intent.” Gonzalez-
Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994).
[2] “We determine whether a conviction qualifies as one
involving moral turpitude by applying the categorical and
modified categorical approaches.” Galeana-Mendoza v. Gon-
zales, 465 F.3d 1054, 1057 (9th Cir. 2006). Arizona Revised
Statutes § 28-1383(A)(1) states in pertinent part:
MARMOLEJO-CAMPOS v. GONZALES 12321
A. A person is guilty of aggravated driving or
actual physical control while under the influence of
intoxicating liquor or drugs if the person does any of
the following:
1. Commits a violation of § 28-1381 [(driving
under the influence)], § 28-1382 [(driving under the
extreme influence)] or this section while the person’s
driver license or privilege to drive is suspended, can-
celed, revoked or refused . . . .
Ariz. Rev. Stat. § 28-1383(A)(1).
[3] The BIA concluded that a violation of § 28-1383(A)(1)
was a crime involving moral turpitude in Matter of Lopez-
Meza, 22 I. & N. Dec. 1188, 1194-96 (1999). In reaching its
conclusion, the BIA reasoned that although a simple DUI did
not involve moral turpitude, “when that crime 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. at 1196.
The BIA concluded that a violation of § 28-1383(A)(2), a
DUI aggravated by multiple DUI convictions within five years4
was not a crime involving moral turpitude in In re Torres-
Varela, 23 I. & N. Dec. 78, 83-85 (2001).5 In its opinion, the
4
The statute was amended in 2006 to expand the time period to seven
years. 2006 Ariz. Leg. Sess. ch. 395, § 5 (effective September 21, 2006).
5
We cannot comment on the wisdom or consistency of distinguishing
§ 28-1383(A)(2) and § 28-1383(A)(1) as crimes of moral turpitude
because the Constitution “limits our role to resolving the ‘[c]ases’ and
‘[c]ontroversies’ before us” therefore “we decide only the case at hand.”
Hein v. Freedom from Religion Found., Inc., ___ U.S. ___, 127 S. Ct.
2553, 2572 (2007). As a result, we are bound to review the BIA’s applica-
tion of its decision in Lopez-Meza, and nothing more. See Lopez-Molina
v. Ashcroft, 368 F.3d 1206, 1210-11 (9th Cir. 2004) (following precedent
concerning statute at issue and refusing to apply precedent concerning a
different, related statute not at issue in the case).
12322 MARMOLEJO-CAMPOS v. GONZALES
BIA specifically distinguished Lopez-Meza, however, and
reaffirmed its holding that a violation of § 28-1383(A)(1)
involved a culpable mental state. Id. at 85-86. The BIA noted
that, “[t]he aggravating factor rendering the DUI conviction a
crime involving moral turpitude in Matter of Lopez-Meza was
the culpable mental state.” Id. at 85.
[4] In Hernandez-Martinez v. Ashcroft, we held that “the
statute under which Hernandez was convicted [§ 28-
1383(A)(1)] is divisible and its range does not include only
crimes of moral turpitude.” 329 F.3d 1117, 1118 (9th Cir.
2003). We found that the BIA erred by failing to apply the
modified categorical approach to determine if the alien in that
case was driving or merely in control of a stationary vehicle.
Id. Specifically, we stated that “[t]he Board’s error of law was
not to treat the statute as divisible.” Id. at 1119. We also noted
that although we defer to the BIA’s interpretation of “crimes
involving moral turpitude,” we did not believe that the BIA
intended to conclude that being in control of a parked car
while intoxicated and with a suspended or revoked license
was a crime of moral turpitude. Id. at 1118-19. We did not,
however, overrule Lopez-Meza or reject its reasoning for
actual driving while intoxicated.
[5] Giving due deference to the BIA’s decision in Lopez-
Meza, we conclude that a violation of Arizona Revised Stat-
utes § 28-1383(A)(1) for aggravated DUI involving actual
driving is a crime involving moral turpitude. See Fisher v.
INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (citing Chev-
ron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984)). Driving while intoxicated is despicable,
and when coupled with the knowledge that one has been spe-
cifically forbidden to drive, it becomes “an act of baseness,
violence or depravity in the private and social duties which a
[person] shows to [a] fellowman or to society in general, con-
trary to the accepted and customary rule of right and duty.”
Jordan v. De George, 341 U.S. 223, 235 n.7 (1951) (citing
Bouvier’s Law Dictionary, Rawles Third Revision, p. 2247).
MARMOLEJO-CAMPOS v. GONZALES 12323
The crime reflects a willful disregard for the law and a reck-
less indifference to the safety of others.
[6] A conviction under § 28-1383(A)(1) is not a mere com-
bination of two simple and independent regulatory offenses.
Driving drunk with knowledge that one does not have a valid
license to drive is one “innately reprehensible act” (United
States v. Barner, 195 F. Supp. 103, 108 (N.D. Cal. 1961))
involving two criminal offenses perpetrated at the same time
with one willful and recklessly indifferent mental state. See
Matter of Medina, 15 I. & N. Dec. 611, 613 (BIA 1976)
(holding that criminally reckless conduct can constitute a
crime of moral turpitude). One who commits the crime creates
a substantial risk of harm or death to others, thereby breach-
ing accepted rules of morality and duties owed to society.
Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004) (reckless
conduct endangering the safety of others can be a crime of
moral turpitude); Reitz v. Mealy, 314 U.S. 33, 36 (1941) (not-
ing the dangers posed by negligent drivers and the necessity
of licensing laws as “a form of protection against damage to
the public”), overruled on other grounds by Perez v. Camp-
bell, 402 U.S. 637, 652 (1971).
[7] Campos’ convictions under Arizona Revised Statutes
§ 28-1383(A)(1) were crimes involving moral turpitude under
INA § 237(A)(2)(a)(ii).
DENIED.
D.W. NELSON, Senior Circuit Judge, Dissenting:
In this appeal, we are tasked with answering a straightfor-
ward question: Does the act of driving while intoxicated,
which is not a crime involving moral turpitude, somehow
become morally turpitudinous when coupled with the act of
driving without a license, which also is not a crime involving
12324 MARMOLEJO-CAMPOS v. GONZALES
moral turpitude? The majority states that precedent and
administrative deference require us to answer this question in
the affirmative, but I respectfully disagree.
I.
As a preliminary matter, “moral turpitude” is a vague and
nebulous standard, Matter of Flores, 17 I. & N. Dec. 225, 227
(BIA 1980), whose definition has never been fully settled,
Jordan v. De George, 341 U.S. 223, 229 (1951). Conse-
quently, it requires agency and judicial construction to give it
meaning. See Fernandez-Ruiz v. Gonzales, 468 F.3d 1159,
1165 n.4 (9th Cir. 2006) (“Congress did not see fit to state
what meaning it attributes to the phrase ‘crime involving
moral turpitude[.]’ The legislative history leaves no doubt,
however, that Congress left [it] to future administrative and
judicial interpretation.” (internal citation and quotation omit-
ted)).
Fortunately, certain crimes already have been determined to
be crimes involving moral turpitude (“CIMTs”), while others
have been found to fall outside that classification. For exam-
ple, the Supreme Court observed that “fraud has consistently
been regarded” as a morally turpitudinous offense. Jordan,
341 U.S. at 229. In addition, several crimes involving acts of
baseness or depravity—such as “murder, rape, robbery, kid-
naping, voluntary manslaughter, some involuntary man-
slaughter offenses, aggravated assaults, mayhem, theft
offenses, spousal abuse, child abuse, and incest”—have been
found to be turpitudinous even absent the element of fraud.
Matter of Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA
1999).
On the other hand, burglary, assault and battery, malicious
mischief, alien smuggling, assault with a deadly weapon,
indecency, rioting, and money laundering have all been found
not to involve moral turpitude. See Cuevas-Gaspar v. Gon-
zales, 430 F.3d 1013, 1018 (9th Cir. 2005) (burglary); Matter
MARMOLEJO-CAMPOS v. GONZALES 12325
of S, 9 I. & N. Dec. 688 (BIA 1962) (assault and battery);
Rodriguez-Herrera v. INS, 52 F.3d 238, 239-40 (9th Cir.
1995) (malicious mischief); Matter of Tiwari, 19 I & N. Dec.
875 (BIA 1989) (alien smuggling); Carr v. INS, 86 F.3d 949,
950-51 (9th Cir. 1996) (assault with a deadly weapon); Matter
of Mueller, 11 I. & N. Dec. 268 (BIA 1965) (indecency); Mat-
ter of O-, 4 I. & N. Dec. 301 (BIA 1951) (rioting);
Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993) (money laun-
dering).
Notably, both this court and the BIA have determined that
the act of driving while intoxicated is not a crime involving
moral turpitude. Indeed, in Lopez-Meza—the BIA decision
relied upon extensively by the majority—the Board
explained:
We are aware of no case law specifically addressing
the question whether simple DUI is a crime involv-
ing moral turpitude in the immigration context. The
absence of such law suggests a long historical accep-
tance that a simple DUI offense does not inherently
involve moral turpitude, and we are not persuaded to
conclude otherwise. We find that the offense of driv-
ing under the influence under Arizona law does not,
without more, reflect conduct that is necessarily
morally reprehensible or that indicates such a level
of depravity or baseness that it involves moral turpi-
tude.
22 I. & N. Dec. at 1194.
Moreover, in Murillo-Salmeron v. INS, 327 F.3d 898, 902
(9th Cir. 2003), we noted with approval the BIA’s reasoning
in Lopez-Meza regarding simple DUIs. We also acknowl-
edged “that simple DUI convictions, even if repeated, are not
crimes of moral turpitude,” citing another, more recent BIA
decision, Matter of Torres-Varela, 23 I. & N. Dec. 78 (BIA
2001) (en banc). Murillo-Salmeron, 327 F.3d at 902. Further-
12326 MARMOLEJO-CAMPOS v. GONZALES
more, several other courts have reached the same conclusion.
See, e.g., Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004)
(stating that drunk driving “almost certainly does not involve
moral turpitude”); Franklin v. INS, 72 F.3d 571, 590 n.17 (8th
Cir. 1995) (recognizing that the “violation of regulatory laws
such as gambling or drunk driving” does not involve moral
turpitude); In re Kelley, 801 P.2d 1126, 1130 (Cal. 1990)
(finding that a conviction for driving under the influence is
not a crime involving moral turpitude); State v. Thompson,
674 P.2d 895, 899 (Ariz. Ct. App. 1983) (finding that driving
while intoxicated is only a regulatory offense).
II.
Thus, it is well settled that driving while intoxicated is not
a morally turpitudinous act. Nonetheless, the majority con-
cludes that Campos’s act of drunk driving was transformed
into a turpitudinous offense because he was not legally
licensed to drive. In reaching this conclusion, the majority
relies primarily on two cases—the BIA’s decision in Lopez-
Meza and our decision in Hernandez-Martinez v. Ashcroft,
329 F.3d 1117 (9th Cir. 2003). These decisions not only fail
to support the majority’s conclusion, but they counsel pre-
cisely the opposite finding.
A. The BIA’s reasoning in Lopez-Meza is specious,
inconsistent with established precedent, and owed
no deference in this court.
In Lopez-Meza, as noted above, the BIA recognized that
driving under the influence (i.e., a “simple DUI”) is not a
crime of moral turpitude. 22 I. & N. Dec. at 1194. The BIA
went on to conclude, however, that a conviction for a DUI
does involve moral turpitude if the defendant had a sus-
pended, canceled, revoked, or refused license at the time of
the offense (i.e., an “aggravated DUI”). Id. at 1194-95. The
Board concluded that a distinction could be made along moral
grounds between a simple DUI and an aggravated DUI
MARMOLEJO-CAMPOS v. GONZALES 12327
because the latter requires the driver to know that he is not
supposed to drive. The Board stated:
A conviction for aggravated DUI under . . . section
28-1383(A)(1) requires a showing that the offender
was “knowingly” driving with a suspended, can-
celed, revoked, or refused license. Thus, in order for
a motorist to be convicted [of this crime], the state
must prove that the defendant knew or should have
known that his license was suspended. Conse-
quently, aside from the culpability that is often, but
not inherently, present in a simple DUI offense, an
individual who drives under the influence in viola-
tion of . . . section 28-1383(A)(1) 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 (internal citations omitted). In this appeal, the
majority relies in large part on the BIA’s decision, stating that
“the knowledge that one has been specifically forbidden to
drive” is enough to transform a simple DUI into a turpitudi-
nous offense. Maj. Op. at 12322.
However, we should not follow the reasoning in Lopez-
Meza because distinguishing simple DUIs from aggravated
DUIs along moral grounds is neither legally sustainable nor
logically sound. First, if any aspect of Campos’s offense
approached the “base, vile, or depraved” standard, it was his
decision to drive drunk—not his decision to drive without a
license. But, as noted above, drunk driving has already been
determined by the BIA and acknowledged by this circuit to be
non-turpitudinous. See Murillo-Salmeron, 327 F.3d at 902. In
fact, it is clear that even driving drunk three times is not turpi-
12328 MARMOLEJO-CAMPOS v. GONZALES
tudinous conduct, see id.; Torres-Varela, 23 I. & N. Dec. 78,
and it is patently unreasonable to conclude that driving under
the influence only once, even with a suspended license, some-
how carries with it greater moral opprobrium than driving
drunk repeatedly.
Put differently, if being convicted on three separate occa-
sions for driving under the influence does not so offend “the
moral law . . . [such] that the offender is brought to public dis-
grace, is no longer generally respected, or is deprived of
social recognition,” Jordan, 341 U.S. at 237 n.9 (citation
omitted), doing so only once surely cannot meet this standard.
Indeed, the BIA’s ratio decendi in Lopez-Meza was that a
simple DUI is a “marginal crime” that “toes the line” of moral
turpitude, and driving with a suspended license is just enough
to ‘push’ the offense over that line. 22 I. & N. at 1196. How-
ever, if this were the correct way to conceptualize moral turpi-
tude, committing a second and third DUI would surely give
more of a ‘push’ toward turpitude than would driving with a
suspended license, as the latter clearly does less to affront
moral sensibilities—if it affronts them at all—than driving
drunk. To be sure, driving without a license, on its own, is a
quintessential example of a regulatory, non-turpitudinous
offense. See Benitez v. Dunevant, 7 P.3d 99 (Ariz. 2000) (stat-
ing that the specific act of driving with a suspended license,
even when that license has been suspended because of a pre-
vious DUI conviction, is not a crime involving moral turpi-
tude).
Second, it is sophistical to distinguish driving drunk with
a suspended license from driving drunk multiple times on the
theory that the former offense requires a showing that the
offender “knew” he was not supposed to drive. See Lopez-
Meza, 22 I. & N. at 1196; Maj. Op. at 12322. Surely, any indi-
vidual who drives drunk knows that he is not supposed to do
so, and this is especially true if that individual has been con-
victed several times for that offense. If “willful disregard for
the law and a reckless indifference to the safety of others” is
MARMOLEJO-CAMPOS v. GONZALES 12329
the standard we are to apply in determining moral turpitude,
as the majority suggests, see Maj. Op. at 12323, getting
behind the wheel while intoxicated on multiple occasions cer-
tainly demonstrates greater disregard and indifference than
doing so only once without a license. What is more, if
whether crimes were turpitudinous depended on whether the
offenders knew they were violating the law, then virtually all
offenses could be CIMTs. The Arizona Supreme Court’s rea-
soning in Benitez, cited supra, is illustrative:
[T]he offense [of driving on a suspended license], in
one sense, does question [the defendant’s] honesty
because he did something he was expressly required
by law not to do. But this is true of virtually all crim-
inal offenses . . . . Moral turpitude is implicated
when behavior is morally repugnant to society. It is
not implicated when the offense merely involves
poor judgment, lack of self-control, or disrespect for
the law involving less serious crimes.
7 P.3d at 104.
Third, Lopez-Meza and the majority opinion run afoul of
the well-established and logical rule that a finding of moral
turpitude cannot be manufactured by combining two offenses
that are not morally turpitudinous. The BIA recognized this
principle in Matter of Short, 20 I. & N. Dec. 136 (BIA 1989),
stating unequivocally that “[m]oral turpitude cannot be
viewed to arise from some undefined synergism by which two
offenses are combined to create a crime involving moral tur-
pitude, 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. Of course, this rule
makes sense, for moral turpitude is a characteristic inherent
in or intrinsic to an act. See Galeana-Mendoza v. Gonzales,
465 F.3d 1054, 1058 (9th Cir. 2006) (stating that to determine
whether an offense is one of moral turpitude, “we consider the
12330 MARMOLEJO-CAMPOS v. GONZALES
intrinsic or inherent nature of the crime”); Matter of Esfandi-
ary, 16 I. & N. Dec. 659, 660 (BIA 1979) (“In order to deter-
mine whether a crime involves moral turpitude, we must look
to the nature of the crime itself.”). Consequently, moral turpi-
tude cannot be created by ‘aggregation.’
Judge Rosenberg, dissenting from the BIA’s decision in
Lopez-Meza, artfully highlighted the folly in the Board’s
approach, explaining that the Board attempted to “bootstrap
the intent requirement attached to the regulatory offense of
unlawful driving to create a DUI offense that involves moral
turpitude.” 22 I. & N. at 1203. I agree whole-heartedly with
Judge Rosenberg, as this type of “undefined synergism” is
neither a lawful nor logical method for determining whether
conduct is morally turpitudinous. Id. Additionally, neither the
majority opinion nor the government can provide even a sin-
gle example of a crime involving moral turpitude created by
combining two non-turpitudinous offenses. And in Torres-
Varela, cited supra, which was decided after Lopez-Meza, the
Board reaffirmed its holding in Smart, concluding that “multi-
ple convictions for the same DUI offense, which individually
is not a crime involving moral turpitude, do not, by them-
selves, aggregate into a conviction for a crime involving
moral turpitude.” 23 I. & N. Dec. at 86. In fact, this principle
was the primary basis for the Board’s decision. See id. (citing
Short, 20 I. & N. Dec. 136). This is significant because this
principle is in direct conflict with the BIA’s reasoning in
Lopez-Meza and the majority’s reasoning here.
In sum, it is illogical and unreasonable to conclude that
because Campos knew he was not supposed to drive his con-
duct was morally turpitudinous. Even if we generally defer to
the BIA’s interpretation of what constitutes a crime involving
moral turpitude under INA § 237(a)(2)(A), “we are not obli-
gated to accept an interpretation that is contrary to the plain
and sensible meaning of the statute.” Randhawa v. Ashcroft,
298 F.3d 1148, 1151 (9th Cir. 2002). As heretofore explained,
I believe the BIA’s decision in Lopez-Meza is logically
MARMOLEJO-CAMPOS v. GONZALES 12331
unfounded and contrary to well-established law; therefore, no
deference is owed. Moreover, even if this were a close
question—which I do not believe it to be—because moral tur-
pitude is a “nebulous concept,” and there is a “longstanding
principle of construing any lingering ambiguities in deporta-
tion statutes in favor of the alien,” INS v. Cardoza-Fonseca,
480 U.S. 421, 446 n.30 (1987), this canon of construction
counsels us to find that driving under the influence with a sus-
pended license is not an act of moral turpitude. See also Her-
nandez v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003)
(explaining that, in the immigration context, “doubts are to be
resolved in favor of the alien”).
B. Our holding in Hernandez-Martinez does not
support the conclusion that Campos’s conduct
involved “moral turpitude.”
In addition to invoking the BIA’s reasoning in Lopez-Meza,
the majority also relies on our holding in Hernandez-Martinez
v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003). Maj. Op. at 12322.
This reliance is misplaced.
In Hernandez-Martinez, the defendant was convicted for
aggravated DUI under the same Arizona statute at issue here.
After being found removable by an immigration judge, the
BIA affirmed and determined that a conviction under the stat-
ute was categorically a crime involving moral turpitude. We
reversed, however, finding that an individual could be con-
victed under the statute without committing a turpitudinous
offense. Id. at 1119. Because the immigration judge did not
conduct a modified categorical inquiry by evaluating the peti-
tioner’s specific conduct in light of the “moral turpitude”
standard, we granted the petition. Id.
The majority states that Hernandez-Martinez should be
interpreted as preserving the rule put forth in Lopez-Meza:
that driving drunk with a suspended license is a crime involv-
ing moral turpitude. Maj. Op. at 12322. To support this asser-
12332 MARMOLEJO-CAMPOS v. GONZALES
tion, the majority cites the following language from
Hernandez-Martinez:
The statute is divisible. One may be convicted under
it for sitting in one’s own car in one’s own driveway
with the key in the ignition and a bottle of beer in
one’s hand. We defer to the Board in interpreting
terms in the immigration law. But we find it difficult
to believe that our society holds conduct in one’s
own backyard to be “inherently base, vile or
depraved and contrary to the accepted rules of
morality” . . . . Drunken driving is despicable. Hav-
ing physical control of a car while drinking is not.
Id. at 1118-19.
To be sure, by distinguishing the act of driving drunk from
the act of “drinking in one’s own car in one’s own driveway,”
and by stating that driving drunk is “despicable,” the above
language, if read in isolation, suggests that Campos’s conduct
may have been morally turpitudinous. However, there are at
least three reasons why Hernandez-Martinez does not counsel
that conclusion.
First, it warrants repeating that the holding in Hernandez-
Martinez was relatively narrow: we held that a conviction
under Arizona’s aggravated DUI statute does not categori-
cally constitute a crime involving moral turpitude. In reaching
this conclusion, we needed only to provide a single example
of non-turpitudinous conduct that violates the statute—the act
of sitting in one’s car with a suspended license while drunk
is the example we put forth. See id.; cf. Li v. Ashcroft, 389
F.3d 892, 895-96 (9th Cir. 2004) (noting that a court’s “cate-
gorical comparison” is over as soon as it determines that the
defendant “could have been convicted under the statute for
conduct that would not satisfy the generic crime”). Notably,
we did not endeavor in Hernandez-Martinez to explain what
does constitute moral turpitude, nor was that question prop-
MARMOLEJO-CAMPOS v. GONZALES 12333
erly before us. Indeed, even if we read the statement that “the
statute is divisible” to suggest that driving drunk without a
license involves moral turpitude, that question “was not pre-
sented for review, was not given reasoned consideration, and
was unnecessary for the decision, [therefore] it is not binding
precedent.” Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1203
(9th Cir. 2006) (citing Barapind v. Enomoto, 400 F.3d 744,
750-51 (9th Cir. 2005) (en banc) (per curiam)); see also Best
Life Assurance Co. of Ca. v. Comm’r, 281 F.3d 828, 834 (9th
Cir. 2002) (defining dictum as “a statement made during the
course of delivering a judicial opinion, but one that is unnec-
essary to the decision in the case and therefore not preceden-
tial” (internal quotation marks and citation omitted)).
Second, although we found in Hernandez-Martinez that the
aggravated DUI statute is divisible, our statement that driving
drunk is “despicable” cannot be interpreted to mean that
doing so is morally turpitudinous, for such an interpretation
would conflict directly with established precedent. See
Murillo-Salmeron, 327 F.3d at 902. Moreover, while the
statement may suggest that greater moral culpability inheres
in driving drunk than merely sitting in one’s car while intoxi-
cated, it does not suggest that a DUI necessarily involves “in-
herently base, vile, or depraved” conduct. In other words, we
held in Hernandez-Martinez that driving a vehicle, as opposed
to merely sitting in one, is a necessary condition for a finding
of moral turpitude under the statute, yet the majority errone-
ously interprets that condition to be sufficient for such a find-
ing. There is no basis in Hernandez-Martinez for that
conclusion; in fact, there is no analysis whatsoever in our
decision regarding what counts as conduct involving “moral
turpitude,” which is not surprising, given the narrow question
that was before us. In this vein, if read in context, it is evident
that the statement was little more than a “rhetorical flourish”
—it was “certainly not intended to be a statement of law,
binding on future panels.” Cetacean Community v. Bush, 386
F.3d 1169, 1174 (9th Cir. 2004).
12334 MARMOLEJO-CAMPOS v. GONZALES
Third, and most significantly, Judge Wardlaw’s concur-
rence in Hernandez-Martinez makes it clear that the panel’s
holding does not support the rule that driving on a suspended
license while intoxicated is turpitudinous. In fact, Judge
Wardlaw expressly stated that the panel’s decision did not
stand for that principle, seemingly anticipating the majority
opinion in this case. Hernandez-Martinez, 329 F.3d at 1119.
She opined:
I write to clarify that the offense of Driving Under
the Influence (“DUI”) with a suspended license, as
defined by Arizona Revised Statute § 28-697(A)(1),
is not a deportable crime of moral turpitude as a mat-
ter of either Ninth Circuit or BIA caselaw. The
source of confusion may very well be the BIA’s
schizophrenic law on the subject. Compare Matter of
Lopez-Meza . . . with Matter of Torres-Varel[ ]a
....
Nothing in either the federal or the Arizona statutes
suggests that the regulatory offense of DUI becomes
an inherently base, vile and deportable crime of
moral turpitude simply because the offender’s driv-
er’s license has been suspended. The BIA’s own
case law casts substantial doubt on its anomalous
holding to the contrary: according to the en banc
BIA, even a three-time DUI offender has not com-
mitted a crime of moral turpitude. Applying the anal-
ysis in Torres-Varel[ ]a to this case makes clear that
. . . § 28-697(A)(1) should not be construed any dif-
ferently [than] § 28-697(A)(2). Neither subsection
describes a crime of moral turpitude.
Id. (internal citations and quotations omitted). Obviously, for
the same reasons the majority opinion is not binding on our
decision in the instant case, Judge Wardlaw’s concurrence is
similarly non-binding. Nonetheless, her concurrence makes
clear that our decision in Hernandez-Martinez was limited to
MARMOLEJO-CAMPOS v. GONZALES 12335
the narrow categorical question before the panel, and, more
importantly, it summarizes the reasons why the majority’s
conclusion is erroneous.
III.
In sum, while I certainly recognize that driving while intox-
icated can have serious and harmful consequences, I am
unable to concur in an opinion that contravenes well-
established law and is belied by logic. For the foregoing rea-
sons, I respectfully dissent.