Moises Ramirez-Contreras v. Jefferson Sessions , 858 F.3d 1298 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOISES RAMIREZ-CONTRERAS, No. 14-70452
Petitioner,
Agency No.
v. A077-301-159
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2017*
Pasadena, California
Filed June 8, 2017
Before: Mary M. Schroeder, Andre M. Davis,**
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Schroeder
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Andre M. Davis, United States Circuit Judge for the
U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
2 RAMIREZ-CONTRERAS V. SESSIONS
SUMMARY***
Immigration
The panel granted Ramirez-Contreras’s petition for
review of the Board of Immigration Appeals’ decision
concluding that his conviction for fleeing from a police
officer under California Vehicle Code § 2800.2 is
categorically a crime involving moral turpitude that rendered
him statutorily ineligible for cancellation of removal.
In holding that Ramirez-Contreras’s conviction is not a
crime of moral turpitude, the panel accorded minimal
deference to the BIA’s decision due to flaws in its reasoning.
Applying the categorical approach, the panel viewed the
least of the acts criminalized under California Vehicle Code
§ 2800.2, and concluded that an individual can be convicted
under subsection (b) for eluding police while committing
three traffic violations that cannot be characterized as “vile or
depraved.” Therefore, the panel held that California Vehicle
Code § 2800.2 is not a crime of moral turpitude because the
conduct criminalized does not necessarily create the risk of
harm that characterizes a crime of moral turpitude.
The panel also held that the modified categorical
approach does not apply because the elements of California
Vehicle Code § 2800.2 are clearly indivisible.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RAMIREZ-CONTRERAS V. SESSIONS 3
COUNSEL
Angelica Navarro Sigala and John R. Alcorn, Law Offices of
John R. Alcorn, Irvine, California, for Petitioner-Appellant.
Corey L. Farrell, Attorney; Greg D. Mack, Senior Litigation
Counsel; Joyce R. Branda, Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent-Appellee.
OPINION
SCHROEDER, Circuit Judge:
We deal once again with the question of whether a crime
of conviction supporting an order of removal was a crime of
moral turpitude. Such a conviction renders noncitizens
statutorily ineligible for cancellation of removal. 8 U.S.C.
§ 1229b(b)(1)(C). In this case, Petitioner Moises Ramirez-
Contreras was convicted under California law for fleeing
from a police officer. The California statute under which he
was convicted is similar to many other statutes in that it
criminalizes willful flight while driving in a wanton or
reckless manner. It is unusual, however, in that it defines
such conduct as including driving while violating traffic laws,
some of which would not rise to a level of seriousness to
qualify as a crime of moral turpitude. Because the test is
whether all of the conduct covered by the statute was
turpetudinous, we grant the petition.
The California statute is in two parts, with part (a)
providing the elements of the crime and part (b) defining the
“willful or wanton disregard” element. It states:
4 RAMIREZ-CONTRERAS V. SESSIONS
(a) If a person flees or attempts to elude a
pursuing peace officer in violation of Section
2800.1 and the pursued vehicle is driven in a
willful or wanton disregard for the safety of
persons or property, the person driving the
vehicle, upon conviction, shall be punished by
imprisonment in the state prison, or by
confinement in the county jail for not less
than six months nor more than one year. The
court may also impose a fine of not less than
one thousand dollars ($1,000) nor more than
ten thousand dollars ($10,000), or may impose
both that imprisonment or confinement and
fine.
(b) For purposes of this section, a willful or
wanton disregard for the safety of persons or
property includes, but is not limited to,
driving while fleeing or attempting to elude a
pursuing peace officer during which time
either three or more violations that are
assigned a traffic violation point count under
Section 12810 occur, or damage to property
occurs.
Cal. Vehicle Code § 2800.2In holding that Petitioner’s conviction was a crime of
moral turpitude, the Board of Immigration Appeals (“BIA”)
followed its earlier decision in Matter of Ruiz-Lopez, 25 I. &
N. Dec. 551 (B.I.A. 2011), which involved conviction under
a Washington statute. That statute provided:
RAMIREZ-CONTRERAS V. SESSIONS 5
Any driver of a motor vehicle who wilfully
fails or refuses to immediately bring his
vehicle to a stop and who drives his vehicle in
a manner indicating a wanton or wilful
disregard for the lives or property of others
while attempting to elude a pursuing police
vehicle, after being given a visual or audible
signal to bring the vehicle to a stop, shall be
guilty of a class C felony.
Matter of Ruiz-Lopez, 25 I. & N. Dec. at 551 (citing Wash.
Rev. Code § 46.61.024).
The Washington statute did not contain the unusual
California subsection allowing for conviction on the basis of
three traffic violations. Indeed, in our research of other cases
in this and other circuits involving statutes criminalizing
similar flight conduct, we have found none that contained a
provision similar to the California “three violation” definition
in subsection (b).
Our court has dealt with the California statute only once,
and then in an unpublished, divided, memorandum
disposition. Medina-Nunez v. Lynch, 607 F. App’x 701 (9th
Cir. 2015). While the majority held that the statute defined
a crime of moral turpitude, a lengthy dissenting opinion,
focusing on subsection (b), reached a different conclusion.
We now find ourselves in agreement with the dissent’s
conclusion.
BACKGROUND
Petitioner is a native and citizen of Mexico. He first
entered the United States in 1998. On July 16, 2000,
6 RAMIREZ-CONTRERAS V. SESSIONS
Petitioner fled from the police while driving a vehicle, for
which he was charged with evading while driving recklessly,
in violation of California Vehicle Code § 2800.2, along with
other crimes. Petitioner pleaded guilty to violating § 2800.2,
admitting that he was fleeing in willful or wanton disregard
for the safety of others. In March 2001, Petitioner was
granted voluntary departure. He reentered the United States
the following month and has remained in the country since
then.
On May 20, 2011, Petitioner received a Notice to Appear,
which alleged that he was removable as an alien who entered
the United States without inspection. See 8 U.S.C.
§ 1182(a)(6)(A)(i). Petitioner conceded removability but
applied for cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b), arguing that removal would cause exceptional
and extremely unusual hardship to his United States citizen
wife and four citizen children.
In briefing to the Immigration Judge (“IJ”), Petitioner
sought cancellation of removal, arguing his conviction under
§ 2800.2 was not a crime of moral turpitude. On January 9,
2013, the IJ rejected Petitioner’s claim, holding that § 2800.2
is categorically a crime involving moral turpitude and that
therefore Petitioner was statutorily ineligible for removal
under the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(2), 1229b(b)(1)(C).
The BIA, in an unpublished decision, dismissed
Petitioner’s appeal on January 17, 2014, agreeing with the
IJ’s analysis that § 2800.2 is categorically a crime involving
moral turpitude. Petitioner timely petitioned for review.
RAMIREZ-CONTRERAS V. SESSIONS 7
DISCUSSION
The determination of whether a conviction under a
criminal statute is categorically a crime of moral turpitude
proceeds in two steps. 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 least of the acts criminalized. Moncrieffe v. Holder,
133 S. Ct. 1678, 1684 (2013).
At this second step, we give some degree of deference to
the BIA’s decision, unless the BIA did not support its
decision with any reasoning. See Rivera v. Lynch, 816 F.3d
1064, 1071 (9th Cir. 2016). If the BIA relies on a
precedential determination in concluding that a crime is one
involving moral turpitude, then we apply Chevron deference
to the BIA’s determination. Id. at 1070–71 (citing Chevron
U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837(1984)). If not, then we defer to the BIA’s determination
only to the extent that it has the power to persuade. Id. at
1071 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)). Under Skidmore, the persuasiveness of the BIA’s
decision depends on “the thoroughness evident in its
consideration, the validity of its reasoning, [and] its
consistency with earlier and later pronouncements.” 323 U.S.
at 140.
Here, the BIA engaged in extensive analysis of whether
California Vehicle Code § 2800.2 qualified as a crime
involving moral turpitude, but it did not rely on any directly
8 RAMIREZ-CONTRERAS V. SESSIONS
controlling BIA authority involving a statute like
California’s. The BIA instead relied on its earlier, published
determination in Matter of Ruiz-Lopez, 25 I. & N. Dec. 551,
that a Washington state crime for eluding a pursuing police
vehicle constituted a categorical crime involving moral
turpitude. The Washington statute at issue in Matter of Ruiz-
Lopez, though, differed from the California statute in this
case. That is because while, like the California provision, it
criminalized reckless flight, it contained no definition of
recklessness, and more notably, nothing that would have
allowed recklessness to be proved through acts that, standing
alone, were not themselves necessarily dangerous. See Wash.
Rev. Code § 46.61.024. Because the statute in Matter of
Ruiz-Lopez materially differs from California Vehicle Code
§ 2800.2, the BIA’s determination in this case is entitled only
to Skidmore deference.
The extent of that deference in any particular case
depends upon the persuasiveness of the agency’s reasoning.
See Skidmore, 323 U.S. at 139. In this case, the BIA’s
reasoning is not persuasive. The BIA did not discuss or even
acknowledge the difference between recklessness under
Wash. Rev. Code § 46.61.024 and “willful or wanton
disregard” under California Vehicle Code § 2800.2(a), as
modified by § 2800.2(b). In looking to California law, the
BIA relied on People v. Sewell, a California Court of Appeal
decision holding that § 2800.2 is an “inherently dangerous
felony” despite § 2800.2(b). 80 Cal. App. 4th 690, 694–95
(2000). Sewell, however, was subsequently overruled by
People v. Howard, in which the California Supreme Court
held that “subdivision (b) greatly expanded the meaning of
[subdivision (a)] to include conduct that ordinarily would not
be considered particularly dangerous.” 104 P.3d 107, 113
(Cal. 2005). The BIA relied on another California Court of
RAMIREZ-CONTRERAS V. SESSIONS 9
Appeal decision, People v. Dewey, which held that § 2800.2
is a crime involving moral turpitude for impeachment
purposes under California evidence law. 42 Cal. App. 4th
216, 222 (1996). Since Dewey concerned California law, the
court did not consider the federal definition of a crime
involving moral turpitude. See id. at 218. Lastly, the BIA
relied on a series of decisions holding that vehicular flight is
a crime of violence. See Sykes v. United States, 564 U.S. 1,
16 (2011) overruled by Johnson v. United States, 135 S. Ct.
2551 (2015); United States v. Petite, 703 F.3d 1290, 1301
(11th Cir. 2013); United States v. Hudson, 673 F.3d 263, 267
(4th Cir. 2012); United States v. Young, 580 F.3d 373, 378–81
(6th Cir. 2009). A crime of violence, however, is not
necessarily the same as a crime involving moral turpitude.
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1216 (9th Cir.
2013) (“It is not the case that every categorical crime of
violence is also categorically a crime involving moral
turpitude.”). Given these flaws in the BIA’s analysis, we
accord minimal deference to its determination that § 2800.2
constitutes a categorical crime involving moral turpitude.
In comparing the elements of § 2800.2 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.’” Almanza-Arenas v.
Lynch, 815 F.3d 469, 476 (9th Cir. 2016) (en banc) (quoting
Ceron v. Holder, 747 F.3d 773, 779 (9th Cir. 2014) (en
banc)); see also Navarro-Lopez v. Gonzales, 503 F.3d 1063,
1068 (9th Cir. 2007) (noting that federal courts have
consistently used this articulation to define crimes involving
moral turpitude). Fraud is the prototypical crime of moral
turpitude, and the touchstone is intent to harm. See Turijan
v. Holder, 744 F.3d 617, 621 n.2 (9th Cir. 2014). Thus, we
have said that “[n]on-fraudulent [crimes involving moral
10 RAMIREZ-CONTRERAS V. SESSIONS
turpitude] will almost always involve an intent to injure
someone, an actual injury, or a protected class of victims.”
Id. at 621. In Leal v. Holder, involving driving while
intoxicated, we deferred to the BIA’s determination that
Arizona’s felony endangerment law was a crime involving
moral turpitude, even though the crime required only reckless
conduct, because the crime created a substantial danger to
others. 771 F.3d 1140, 1146 (9th Cir. 2014). Observing that
the level of harm was a “substantial, actual risk of imminent
death to another person,” we held that the creation of such a
substantial risk made the crime, in terms of our case law,
sufficiently “base, vile, and depraved,” so as to make it a
crime involving moral turpitude. Id.The statute we deal with here, § 2800.2, lays out its
elements in subsection (a). The subsection requires being
pursued by a police officer, knowingly “flee[ing] or
attempt[ing] to elude” the officer, and driving “in a willful or
wanton disregard for the safety of persons or property.” Cal.
Vehicle Code § 2800.2(a). The “willful or wanton disregard”
element, standing alone, would suggest an “intent to injure
someone” sufficient to render § 2800.2(a) a categorical crime
involving moral turpitude. See Turijan, 744 F.3d at 621. It
appears to be similar to the Washington statute upon which
the BIA relied.
Subsection (b), however, puts a different gloss on the
meaning of subsection (a). It provides, in relevant part, that
“willful or wanton disregard” can include fleeing a police
officer while committing “three or more violations that are
assigned a traffic violation point count under Section 12810.”
Cal. Vehicle Code § 2800.2(b). Under § 12810 of the vehicle
code, the “willful or wanton disregard” element can
presumably be met by some relatively innocuous sorts of
RAMIREZ-CONTRERAS V. SESSIONS 11
conduct. Examples include: driving one’s own vehicle
without the proper vehicle registration, Cal. Vehicle Code
§ 40001(b)(1); driving one’s vehicle that is not in compliance
with State Air Resources Board requirements, Cal. Vehicle
Code § 40001(b)(5); knowingly driving on a suspended
license that was revoked because of prior negligent driving,
Cal. Vehicle Code § 14601(a); and failing to stop after an
accident involving only property damage, Cal. Veh. Code
§ 20002(a). Although fleeing police while committing three
of these violations would be a serious offense, we have never
held that merely serious conduct rises to the level of moral
turpitude; instead, we have required conduct posing “a
substantial, actual risk of imminent death to another person.”
Leal, 771 F.3d at 1146. The statute at issue here criminalizes
a swath of conduct that simply does not rise to that level.
There are decisions in other circuits that have concluded
that statutes criminalizing dangerous flight are categorically
crimes involving moral turpitude. Yet those statutes differ
from § 2800.2 in that they require conscious flight in an
especially dangerous manner. In Mei v. Ashcroft, for
example, the Seventh Circuit concluded that fleeing from
police while going twenty-one or more miles over the speed
limit was a crime of moral turpitude because “a person who
deliberately flees at a high speed from an officer who, the
fleer knows, wants him to stop, thus deliberately flouting
lawful authority and endangering the officer, other drivers,
passengers, and pedestrians, is deliberately engaged in
seriously wrongful behavior.” 393 F.3d 737, 742 (7th Cir.
2004). Ten years later, the Seventh Circuit relied on Mei to
find that a Wisconsin flight statute constituted a crime
involving moral turpitude when the statute criminalized flight
involving dangerous speeding or driving with headlights off.
“[I]ncreasing one’s speed in an attempt to elude or flee
12 RAMIREZ-CONTRERAS V. SESSIONS
increases the risk of an accident, as does turning off the lights
when done in an attempt to elude or flee or willfully
disregarding an officer’s signal so as to interfere with or
endanger other persons.” Cano-Oyarzabal v. Holder,
774 F.3d 914, 918 (7th Cir. 2014). The Sixth Circuit,
interpreting the Washington statute on which the BIA relied,
similarly found that the flight statute constituted a categorical
crime involving moral turpitude when the statute penalized
dangerous conduct society condemns. See Ruiz-Lopez v.
Holder, 682 F.3d 513, 521 (6th Cir. 2012) (“The element of
‘wanton or willful disregard’ clearly fulfills the requisite
scienter component, and . . . intentionally fleeing from a
police vehicle qualifies as the type of societally condemned,
reprehensible conduct that is reasonably encompassed by the
BIA’s general definition of a [crime involving moral
turpitude].”).
The statutes in those cases penalized willful conduct that
increased the risk of harm to others. Subsection (b) of
§ 2800.2, by contrast, expressly allows for a finding of
“willful or wanton disregard” even where the perpetrator did
not flee in an especially dangerous manner.
This is the very difference that divided the majority and
dissent in our lone decision addressing whether California
Vehicle Code § 2800.2 is categorically a crime involving
moral turpitude. See Medina-Nunez, 607 F. App’x 701. As
an unpublished decision, Medina-Nunez is not precedential,
see 9th Cir. R. 36-3(a), and thus the decision does not bind us.
The majority did not extensively discuss subsection (b) and
instead focused on subsection (a). Medina-Nunez, 607 F.
App’x at 702–03. The dissent focused on subsection (b) and
concluded that “the less serious manifestations of conduct
covered by § 2800.2(b) involve nothing like the level of
RAMIREZ-CONTRERAS V. SESSIONS 13
potential risk that we and other courts have recognized as
involving ‘moral turpitude.’” Id. at 704 (Ponsor, J.,
dissenting).
In addressing the issue for the first time in a precedential
opinion, we must first look to the analysis required under
Supreme Court precedent. Under the categorical approach
we look to the least of the acts criminalized under the entirety
of the statute. Moncrieffe, 133 S. Ct. at 1684. We next
identify the elements of the crime of conviction and compare
them with the definition our court has established for a
“crime of moral turpitude.” Almanza-Arenas, 815 F.3d at
476. This is conduct we consider to be “vile, base, or
depraved” and to “violate[] accepted moral standards.” Id.
(internal quotation marks omitted). Viewing the least of the
acts criminalized, we see in subsection (b) that an individual
can be convicted of violating § 2800.2 on the basis of eluding
police while committing three traffic violations that cannot be
characterized as “vile or depraved.” We must therefore
conclude that the conduct criminalized does not necessarily
create the risk of harm that characterizes crimes of moral
turpitude, even though subsection (a) standing alone would
appear to contain elements of a dangerous crime.
In reaching this conclusion, we do not let the seriousness
of any flight from police obscure our analysis of what
is morally turpitudinous. However, “[o]nly truly
unconscionable conduct surpasses the threshold of moral
turpitude,” and so the crime must be “more than serious.”
Robles-Urrea v. Holder, 678 F.3d 702, 708, 710 (9th Cir.
2012). Morally turpitudinous crimes “typically involve rather
grave acts of baseness or depravity such as murder, rape, and
incest.” Id. at 708 (internal quotation marks and citation
omitted). The Medina-Nunez dissent noted that our court has
14 RAMIREZ-CONTRERAS V. SESSIONS
held that many serious crimes nonetheless fell short of moral
turpitude’s extreme threshold. 607 F. App’x at 705–06. Such
crimes include: commission of a felony “for the benefit of, at
the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in
any criminal conduct by gang members,” Hernandez-
Gonzalez v. Holder, 778 F.3d 793, 797 (9th Cir. 2015);
simple kidnapping, Castrijon-Garcia v. Holder, 704 F.3d
1205, 1214 (9th Cir. 2013); misprision of a felony, Robles-
Urrea, 678 F.3d at 711; and misdemeanor false
imprisonment, Saavedra-Figueroa v. Holder, 625 F.3d 621,
626 (9th Cir. 2010). More recently, we have concluded that
witness tampering is not categorically a crime involving
moral turpitude, Escobar v. Lynch, 846 F.3d 1019, 1027 (9th
Cir. 2017); nor is identity theft, Linares-Gonzalez v. Lynch,
823 F.3d 508, 516 (9th Cir. 2016). We cannot say that
eluding police while committing three non-dangerous traffic
violations is any more unconscionable than these crimes.
Accordingly, we hold that § 2800.2 is not categorically a
crime of moral turpitude.
That conclusion is not necessarily determinative of the
issue of moral turpitude, because in some situations we may
look beyond the statutory terms to the actual conduct
underlying the conviction. We do this if the statute is
divisible. Lopez-Valencia v. Lynch, 798 F.3d 863, 867–68
(9th Cir. 2015). A statute is divisible if it provides “multiple,
alternative elements, and so effectively creates several
different crimes.” Descamps v. United States, 133 S. Ct.
2276, 2285 (2013) (alteration and internal quotation marks
omitted). If divisible, we move to the “modified categorical
approach,” in which we “examine certain documents from the
defendant’s record of conviction to determine what elements
RAMIREZ-CONTRERAS V. SESSIONS 15
of the divisible statute he was convicted of violating.” Lopez-
Valencia, 798 F3d at 868.
In this case we do not apply the modified categorical
approach because the elements of § 2800.2 are clearly
indivisible. One must (1) be pursued by a police officer;
(2) willfully flee from the pursuit; and (3) do so in a manner
evidencing willful or wanton disregard for the safety of
others. Subsection (b) provides the means of meeting one
element, but does not establish an additional, divisible
element. We test our analysis of the statutory elements by
looking to California jury instructions. See Almanza-Arenas,
815 F.3d at 479 (verifying interpretation of elements by
whether it is consistent with California jury instruction as to
offense). California jury instructions for this offense require
the state to prove (1) pursuit by a police officer; (2) the
defendant was driving the vehicle with the intent to flee,
elude, or evade the officer; and (3) the defendant drove
willfully or wantonly in disregard for the safety of persons or
property. Judicial Council of Cal. Criminal Jury Instruction
2181. Our analysis is fully consistent with the instruction.
Because § 2800.2 has a “single, indivisible set of elements
with different means of committing one crime, . . . it is
indivisible and we end our inquiry.” See Almanza-Arenas,
815 F.3d at 476 (internal quotations omitted).
California’s Vehicle Code § 2800.2 is not categorically a
crime of moral turpitude, and thus, Petitioner is not statutorily
ineligible for cancellation of removal.
Petition GRANTED.