Roberto Lepe Moran v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO ALEXIS LEPE MORAN, No. 18-73167
Petitioner,
Agency No.
v. A206-279-913
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 28, 2020
San Francisco, California
Filed June 2, 2020
Before: J. Clifford Wallace, Ronald Lee Gilman,*
and Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
*
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 LEPE MORAN V. BARR
SUMMARY**
Immigration
Denying Roberto Alexis Lepe Moran’s petition for review
of a Board of Immigration Appeals’ decision, the panel held
that the BIA permissibly held that Petitioner’s conviction for
felony vehicular flight from a pursuing police car while
driving against traffic, in violation of California Vehicle Code
section 2800.4, is categorically a crime involving moral
turpitude that made him removable.
The panel described the two-step process for determining
whether an offense is a crime involving moral turpitude: the
court reviews the elements of the statute de novo and then
asks whether those elements fall within the generic federal
definition of a crime involving moral turpitude.
At the first step, the panel observed that California
Vehicle Code section 2800.4 requires that the defendant,
while operating a motor vehicle and with intent to evade,
willfully flee or attempt to elude a pursuing peace officer and
that, during that flight, the defendant willfully drive his or her
vehicle on a highway in a direction opposite traffic.
At the second step, the panel explained that the court
defers, to some extent, to the BIA’s conclusion that a crime
involves moral turpitude, but the panel concluded that it need
not decide the appropriate level of deference because, even
affording only minimal deference, the BIA’s interpretation
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LEPE MORAN V. BARR 3
was correct. In agreeing with the BIA, the panel explained
that the category of non-fraudulent crimes involving moral
turpitude includes some crimes that seriously endanger
others, even if no actual injury occurs. The panel further
explained that the greater the requisite state of mind, the less
serious the resulting harm has to be in order for the crime to
be classified as one involving moral turpitude. Comparing
section 2800.4 to relevant precedent, the panel concluded that
willfully driving in the wrong direction while fleeing a
pursuing police officer inherently creates a risk of harm to
others that is substantial enough for the statute categorically
to meet the definition of a crime involving moral turpitude.
The panel also rejected Petitioner’s contention that the
risk of harm to others is insufficient in light of the least of the
acts criminalized here. The panel noted that, in theory,
section 2800.4 could apply to a driver who willfully flees
from police at ten miles per hour and drives on the wrong side
of the road for just five feet. However, the panel concluded
that a highly unlikely theoretical possibility was not enough
to remove the statute from the morally turpitudinous realm
because: 1) even a short, slow-speed trip in the wrong
direction during flight creates substantial risk of harm to
others; and 2) a theoretical possibility is insufficient as a
matter of law; rather, there must be a “realistic probability”
that the state would apply the statute to conduct that falls
outside the definition of the generic crime, and the panel
concluded that there was no such realistic probability here.
COUNSEL
Victoria Ayeni (argued) and Nicholas J. Hunt, Certified Law
Students; Leah Spero, Gary A. Watt, and Stephen R.
4 LEPE MORAN V. BARR
Tollafield, Supervising Counsel; Hastings Appellate Project,
San Francisco, California; for Petitioner.
Tim Ramnitz (argued), Attorney; Russell J.E. Verby, Senior
Litigation Counsel; Joseph P. Hunt, Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
GRABER, Circuit Judge:
Petitioner Roberto Alexis Lepe Moran, a native and
citizen of Mexico, seeks review of a final decision of the
Board of Immigration Appeals (“BIA”) holding that
Petitioner is removable by reason of his conviction of a crime
involving moral turpitude. We have jurisdiction over this
timely petition for review, 8 U.S.C. § 1252(b), and we deny
the petition.
Petitioner was admitted to the United States in 2014 as a
nonimmigrant. In 2016, he pleaded guilty in California state
court to two crimes arising out of the same incident:
violations of California Vehicle Code section 2800.4 (felony
vehicular flight from a pursuing police car while driving
against traffic) and California Vehicle Code section
20001(b)(1) (felony hit-and-run resulting in injury to another
person). He was sentenced to two concurrent sixteen-month
terms of imprisonment.
Immigration authorities then issued Petitioner a notice to
appear that charged him with being removable. After a
LEPE MORAN V. BARR 5
hearing at which he was represented by counsel, an
immigration judge ruled that California Vehicle Code section
2800.41 is categorically “a crime involving moral turpitude”
within the meaning of 8 U.S.C. § 1227(a)(2)(A)(i).
Accordingly, the immigration judge held that Petitioner is
removable because of his conviction. The BIA agreed with
those conclusions and dismissed Petitioner’s appeal. The
agency also denied Petitioner’s requests for asylum,
withholding of removal, and protection under the Convention
Against Torture.
Before us, Petitioner challenges only the ruling that
California Vehicle Code section 2800.4 is categorically a
crime involving moral turpitude. To review that
determination, we follow a two-step process:
First, we review the elements of the statute de
novo, affording no deference to the BIA’s
conclusions. Vinh Tan Nguyen v. Holder,
763 F.3d 1022, 1027 (9th Cir. 2014). Next,
we ask whether the elements of the statute of
conviction fall within the generic federal
definition of a crime involving moral
turpitude. Id. In doing so, we presume the
conviction rested upon nothing more than the
1
California Vehicle Code section 2800.4 provides for a criminal
penalty
[w]henever a person willfully flees or attempts to elude
a pursuing peace officer in violation of Section 2800.1,
and the person operating the pursued vehicle willfully
drives that vehicle on a highway in a direction opposite
to that in which the traffic lawfully moves upon that
highway. . . .
6 LEPE MORAN V. BARR
least of the acts criminalized. Moncrieffe v.
Holder, 569 U.S. 184 (2013).
Ramirez-Contreras v. Sessions, 858 F.3d 1298, 1302 (9th Cir.
2017).
At the first step, we and the parties agree on the elements
of the crime. California Vehicle Code section 2800.4 defines
an aggravated version of the crime defined by California
Vehicle Code section 2800.1. Section 2800.1 requires that
the defendant, “while operating a motor vehicle and with the
intent to evade,” “willfully” flee or attempt to elude a
pursuing peace officer. Section 2800.4 requires both that the
defendant willfully flee or attempt to elude a pursuing peace
officer in violation of section 2800.1 and that, during that
flight, the defendant “willfully” drive his or her “vehicle on
a highway in a direction opposite to that in which the traffic
lawfully moves upon that highway.” “Willfully” here means
intentionally or “on purpose.” Jud. Council of Cal. Crim.
Jury Instr. 2182 (2019). And a “highway,” for purposes of
the California Vehicle Code, includes any publicly
maintained street. Cal. Veh. Code § 360.
At the second step, we defer, to some extent, to the BIA’s
conclusion that a crime involves moral turpitude. Ramirez-
Contreras, 858 F.3d at 1302. Because the BIA’s decision
here is unpublished, we afford only the deference described
in Skidmore v. Swift & Co., 323 U.S. 134 (1944). Ramirez-
Contreras, 858 F.3d at 1302–03. The extent of the deference
that we grant therefore depends on the thoroughness,
consistency, and persuasiveness of the BIA’s reasoning. Id.
at 1303. Petitioner asserts that we owe only “minimal
deference,” id., to the BIA because its analysis consisted of
just a single sentence, followed by citations to cases that
LEPE MORAN V. BARR 7
Petitioner contends are not controlling. We need not decide
what level of deference we should grant because, even
affording only minimal deference, we conclude that the
BIA’s interpretation is correct. See Fugow v. Barr, 943 F.3d
456 (9th Cir. 2019) (per curiam) (addressing a moral-
turpitude question without mentioning deference to the BIA).
“In comparing the elements of [section 2800.4] to the
generic federal definition of a crime involving moral
turpitude, we look to see if the crime is vile, base, or
depraved and violates accepted moral standards.” Ramirez-
Contreras, 858 F.3d at 1304 (citations and internal quotation
marks omitted). Fraudulent crimes always involve moral
turpitude. Non-fraudulent crimes, such as violations of
section 2800.4, also can fit the category of moral turpitude.
Qualifying non-fraudulent crimes “almost always involve an
intent to injure someone, an actual injury, or a protected class
of victims.” Id. (citation and internal quotation marks
omitted). But the non-fraudulent category also includes some
crimes that seriously endanger others, even if no actual injury
occurs. See, e.g., Fugow, 943 F.3d at 459 (holding that
unlawful imprisonment under Hawaii law is a crime
involving moral turpitude, even though no actual injury need
occur). We consider the actus reus and the mens rea “in
concert to determine whether the behavior they describe is
sufficiently culpable to be labeled morally turpitudinous.”
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1214 (9th Cir.
2013) (citation and internal quotation marks omitted).
With respect to the actus reus, an additional element can
transform a crime that does not involve moral turpitude into
one that does. For example, in Altayar v. Barr, 947 F.3d 544
(9th Cir. 2020), we held that assault with a “deadly weapon
or dangerous instrument” involves moral turpitude even
8 LEPE MORAN V. BARR
though simple assault does not. We reasoned that the extra
element “necessarily makes the offense more serious, more
dangerous, and therefore more blameworthy than a simple
assault.” Id. at 552; see also Matter of Lopez-Meza, 22 I. &
N. Dec. 1188, 1196 (BIA 1999) (holding that an aggravated
driving-under-the-influence (“DUI”) offense involves moral
turpitude, even though simple DUI does not).
With respect to the mens rea, the greater the requisite
state of mind, the less serious the resulting harm has to be in
order for the crime to be classified as one involving moral
turpitude. Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir.
2014). In Leal, we held that felony endangerment under
Arizona law is a crime involving moral turpitude, even
though the mens rea is only recklessness, because of the level
of risk (actual and substantial) and the severity of the
potential harm (imminent death). Id. at 1144. Conversely,
we held in Fugow that unlawful imprisonment under Hawaii
law is a crime involving moral turpitude because of a high
mens rea (knowingly), even though the harm risked (serious
bodily injury) was less than the potential harm identified in
Leal. Fugow, 943 F.3d at 459.
Here, section 2800.4 requires willfulness—an elevated
mens rea—with respect to both fleeing a pursuing peace
officer and driving in the wrong direction during flight. We
agree with the BIA that willfully driving in the wrong
direction while willfully fleeing a pursuing police officer
inherently creates a risk of harm to others that is substantial
enough for the statute categorically to meet the definition of
a crime involving moral turpitude.
Our reasoning in Ramirez-Contreras supports that
conclusion, even though Ramirez-Contreras held that a
LEPE MORAN V. BARR 9
different section of the California Vehicle Code was not a
crime involving moral turpitude. The law at issue there,
California Vehicle Code section 2800.2, defines a different
aggravated version of section 2800.1: fleeing or attempting
to elude a pursuing peace officer at a time when the driver has
“three or more violations that are assigned a traffic violation
point count.” Ramirez-Contreras, 858 F.3d at 1301. Those
traffic infractions expressly include “relatively innocuous
sorts of conduct,” such as driving one’s car without proper
registration and driving a car that is out of compliance with
air pollution standards. Id. at 1304.
We acknowledged “the seriousness of any flight from
police.” Id. at 1306. And we recognized that other courts
have held that statutes criminalizing intentional flight from
police plus an aggravating element constitute crimes
involving moral turpitude: Mei v. Ashcroft, 393 F.3d 737 (7th
Cir. 2004) (fleeing from police while going 21 or more miles
per hour over the speed limit); Cano-Oyarzabal v. Holder,
774 F.3d 914 (7th Cir. 2014) (fleeing from police while
interfering with the officer, vehicles, or pedestrians; speeding
up; or turning headlights off); and Ruiz-Lopez v. Holder,
682 F.3d 513 (6th Cir. 2012) (fleeing from police while
driving “in a manner indicating a wanton or willful disregard
for the lives or property of others”). Id. at 1304–05.
We did not suggest that any of those cases was wrongly
decided. Rather, we distinguished them on two grounds:
“The statutes in those cases penalized willful conduct that
increased the risk of harm to others.” Id. at 1305 (emphases
added). But the aggravating conduct that could give rise to a
violation of California Vehicle Code section 2800.2 (such as
driving one’s car without proper registration or failing to
meet air pollution standards) need not be willful, and such
10 LEPE MORAN V. BARR
conduct does not increase the risk of harm that arises from
fleeing. Id. at 1306.
By contrast, a violation of section 2800.4 requires
willfully driving in the wrong direction; negligence, or even
recklessness, does not suffice. And driving in the wrong
direction inherently increases the risk of harm to others
during the flight from police.2
As to this final point, Petitioner argues that the risk of
harm to others is insufficient when we consider, as we must,
the least of the acts criminalized. Moncrieffe, 569 U.S.
at 190–91. We disagree. In theory, section 2800.4 could
apply to a driver who willfully flees from police at ten miles
per hour and who, during that slow flight, willfully drives on
2
Petitioner argues that the legislative history supports his view that
section 2800.4 does not involve moral turpitude. Quoting selectively from
a bill analysis, Petitioner reasons as follows. Many law enforcement
agencies had implemented policies that require officers to end a pursuit
when the pursued person drives the wrong direction, and the legislature
enacted section 2800.4 in part to deter drivers from evading capture by
driving the wrong direction. Vehicles: Police Pursuits, Sen. Public Safety
Comm., Bill Analysis on Sen. Bill No. 1735, 2005–2006 Reg. Sess. (April
25, 2006). According to Petitioner, a simple evasion technique does not
implicate moral turpitude. We emphatically disagree with Petitioner’s
reasoning. Putting aside that law enforcement agencies almost certainly
enacted the no-pursuit policy because of the dangerousness of driving the
wrong direction during flight, the same bill analysis describes driving the
wrong direction as “a dangerous tactic, risking the lives of innocent
drivers and bystanders,” and akin to “firing a loaded gun down a crowded
sidewalk.” Id. The legislative history thus confirms the common-sense
notion that driving the wrong direction during flight from police is
inherently dangerous.
LEPE MORAN V. BARR 11
the wrong side of a wide street for just five feet. But a highly
unlikely theoretical possibility is not enough to remove
section 2800.4 from the morally turpitudinous realm, for two
reasons.
First, even a short, slow-speed trip in the wrong direction
during flight creates a substantial risk of harm. Drivers,
pedestrians, and others do not expect vehicles to travel in the
wrong direction. Oncoming drivers, for example, could
swerve dangerously to avoid a collision. Similarly, because
the pursued driver is distracted by actively fleeing a pursuing
officer, the driver will be less capable of responding alertly to
other traffic. Driving in the wrong direction during flight,
like speeding up even slightly or turning off headlights,
Cano-Oyarzabal, 774 F.3d at 917–18, inherently creates a
substantial risk of harm.
Second, a theoretical possibility is insufficient as a matter
of law. When the Supreme Court directed us to consider the
least of the acts criminalized, it specifically cautioned that
“our focus on the minimum conduct criminalized by the state
statute is not an invitation to apply ‘legal imagination’ to the
state offense; there must be ‘a realistic probability, not a
theoretical possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a crime.’”
Moncrieffe, 569 U.S. at 191 (quoting Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007)). We see no realistic
probability that California would apply this statute to conduct
that falls outside the generic definition of a crime involving
moral turpitude. See, e.g., Castrijon-Garcia, 704 F.3d at
1215 (applying Duenas-Alvarez to analyze whether a crime
involves moral turpitude).
12 LEPE MORAN V. BARR
Petitioner directs us to two California cases applying
section 2800.4, but both involved incredibly dangerous
conduct. In People v. Canela, 168 Cal. Rptr. 3d 858 (Cal. Ct.
App. 2014), the defendant sped up, ran stop signs and red
lights, and hit a pedestrian, severely injuring him. See id. at
862–64 (holding that California courts consider the entire
flight in determining the harm caused by the crime). In
People v. Scarborough, No. A147529, 2018 WL 3046120
(Cal. Ct. App. June 20, 2018) (unpublished), the defendant
drove the wrong way, in reverse, at a high rate of speed in a
residential neighborhood and, later, jumped out of the car
while it was moving, causing the unoccupied car to veer off
the road into bushes near an elementary school, shortly after
school let out.3 And Petitioner does not argue that his own
case illustrates an application of the statute to innocuous
conduct. Indeed, given his simultaneous conviction for
felony hit-and-run resulting in injury to another person, we
infer to the contrary.
3
Petitioner bears the burden of identifying a case in which the state
court has “appl[ied] the statute in the special (nongeneric) manner for
which he argues.” Duenas-Alvarez, 549 U.S. at 193. Nonetheless, we
have independently reviewed California cases involving convictions under
Section 2800.4 and found none that describes non-dangerous conduct.
See, e.g., People v. Sweet, No. A156082, 2020 WL 2092428, *1 (Cal. Ct.
App. May 1, 2020) (unpublished) (recounting that the defendant “ran stop
signs, drove on the wrong side of the street toward oncoming traffic,
swerved to avoid collisions, violated speed restrictions, skidded in an
intersection, and appeared to side-swipe both a school bus and another
vehicle”); People v. Stephens, No. D074146, 2019 WL 1292708, *1 (Cal.
Ct. App. March 21, 2019) (noting that an officer chased a truck “through
several stop signs and red lights at speeds up to 60 miles per hour,” and
that, “[a]fter several minutes, the truck veered into a residential
neighborhood, continuing to violate traffic signs and at one point driving
40 miles per hour down the wrong side of the road and almost colliding
with another vehicle”).
LEPE MORAN V. BARR 13
We conclude, then, that the BIA permissibly held that a
violation of California Vehicle Code section 2800.4 is
categorically a crime involving moral turpitude.
Petition DENIED.