Conviction under Washington's Felony Flight is CIMT - BIA

Washington state conviction for felony flight, which is the root cause for Petitioner's attempt to evade a police officer who had signaled him to stop, constituted a "crime involving moral turpitude". (Ruiz-Lopez v. Holder, 6/19/12).

 Few Important points as noted in this case. For the complete judgement copy. See http://www.ca6.uscourts.gov/opinions.pdf/12a0182p-06.pdf

• Following briefing on the issue, the IJ concluded that because of the wanton or willful mental state required under the state statute and the resulting inference that Ruiz-Lopez had “disregarded a substantial and unjustifiable risk to the safety of others,” his conviction under § 46.61.024 of the Washington Revised Code in 1997 categorically rose to the level of a CIMT.

•  Ruiz-Lopez then filed a motion to reconsider, arguing (1) that an offense that required only a reckless mental state cannot constitute a CIMT, and (2) that the disjunctive use of “lives or property” in the state statute implicated non-CIMT offenses, thereby rendering the IJ’s use of the categorical approach improper. The IJ rejected both arguments, noting that Washington courts held the wanton or willful mental state to require a higher standard than mere recklessness and that those courts had not differentiated between risk to persons and risk to property, instead broadly interpreting the felony-flight statute to require “a willful or wanton disregard for the safety of others.”

• In a published decision on June 30, 2011, the BIA likewise determined that, as a categorical matter, “[t]he offense of driving a vehicle in a manner indicating a wanton or willful disregard for the lives or property of others while attempting to elude a pursuing police vehicle in violation of section 46.61.024 of the Revised Code of Washington is a crime involving moral turpitude.” Ruiz-Lopez, 25 I. & N. Dec. 551, 551 (BIA 2011).1 Specifically, the BIA concluded, “when a person deliberately flouts lawful authority and recklessly endangers the officer, other drivers, passengers, pedestrians, or property, he is ‘engaged in seriously wrongful behavior’ that violates the accepted rules of morality and the duties owed to society.” Id. at 556 (quoting Mei v. Ashcroft, 393 F.3d 737, 742 (7th Cir. 2004)). Accordingly, the BIA dismissed Ruiz-Lopez’s appeal. Ruiz-Lopez now petitions this court for review of the BIA’s final order.

•  At times it may be difficult to apply these principles when the answer to the question of whether a particular crime is a CIMT may require some interpretation of both the criminal statute and the INA term “crime involving moral turpitude.” See, e.g.,Kellermann, 592 F.3d at 703 (applying de novo review to the question “whether the elements of a federal [or state] crime fit the BIA’s definition of a CIMT”); Patel v.Ashcroft, 401 F.3d 400, 407 (6th Cir. 2005) (giving de novo review to the questionwhether “a particular state conviction amounts to an aggravated felony” under the INA “because such a conclusion depends upon interpreting state statutes and federal statutes unrelated to immigration”). There is no such difficulty in this case, however, as our independent analysis below agrees with the BIA’s determination, so that we need not determine the precise extent to which Chevron deference would otherwise apply in this case.

• the BIA recently clarified that “[a] finding of moral turpitude under the [INA] requires that a perpetrator have committed the reprehensible act with some form of scienter”; thus, “‘where knowledge is a necessary element of a crime under a particular criminal statute, moral turpitude inheres in that crime’” if the crime also involves some sort of reprehensible conduct. Silva-Trevino, 24 I. & N. Dec. 687, 706 & n.5 (BIA 2008) (quoting Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000)); see also Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992) (“Where knowing or intentional conduct is an element of the offense, we have foundmoral turpitude to be present.”).

•  For instance, the BIA has determined that a simple DUI offense, though contrary to societal standards, is not a CIMT, but aggravated DUI, in which a person drives under the influence with knowledge that he or she also lacks a valid driver’s license, is a CIMT. Lopez-Meza, 22 I. & N. Dec. at 1195–96. In drawing this distinction, the BIA reasoned that the additional mental culpability present when driving both under the influence and with knowledge that driving is prohibited renders the aggravated form of the 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 1196.

•  Based on these agency and judicial precedents, the BIA was not remiss in concluding that, given the nature of the felony-flight statute under which Ruiz-Lopez was convicted, “moral turpitude necessarily inheres in such a crime, given the combination of circumstances involved.” Ruiz-Lopez, 25 I. & N. Dec. at 556. Indeed, both elements of the BIA’s two-pronged definition of a CIMT set forth in Silva-Trevinoare present here. See Silva-Trevino, 24 I. & N. Dec. at 706 & n.5 (defining a CIMT as involving both scienter and reprehensible conduct). The element of “wanton or willful disregard” clearly fulfills the requisite scienter component, and cases such as Mei and Pulido-Alatorre show that 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 CIMT. The BIA therefore properly concluded that Ruiz-Lopez’s conviction under § 46.61.024 of the Washington Revised Code was sufficient as a categorical matter to constitute a crime involving moral turpitude.