In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-2653

FREDY ARNOLDO SANCHEZ,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals

____________________

ARGUED FEBRUARY 24, 2014 — DECIDED JULY 9, 2014

____________________

Before FLAUM and ROVNER, Circuit Judges, and KENDALL,

District Judge.∗

FLAUM, Circuit Judge. Fredy Arnoldo Sanchez seeks review of a Board of Immigration Appeals decision dismissing 

his appeal of the immigration judge’s order of removal. The 

Board determined that Sanchez was ineligible for cancella-

 ∗ Of the Northern District of Illinois, sitting by designation.
2 No. 13-2653

tion of removal because he failed to prove that he had not 

been convicted of a crime involving moral turpitude. Because the Board did not properly conduct the three-step inquiry prescribed in Matter of Silva-Trevino, 24 I. & N. Dec. 687 

(A.G. 2008), we grant Sanchez’s petition and remand for further proceedings. 

I. Background

Fredy Arnoldo Sanchez, a citizen and native of El Salvador, entered the United States without inspection in 1989. 

Sanchez is now forty-seven, is married to a lawful permanent resident, and has four children, all of whom are U.S.

citizens. He lives in Indianapolis, Indiana. 

In either 1989 or 1994 (the parties dispute this, but it does 

not matter for this appeal), Sanchez filed an application for 

asylum and withholding of removal. In 2002, he filed an additional application for special rule cancellation of removal 

under § 203 of the Nicaraguan Adjustment and Central 

American Relief Act (NACARA), Pub. L. No. 105-100, 111 

Stat. 2160, as amended by Pub. L. No. 105-139, 111 Stat. 2644 

(1997). After an interview, the Department of Homeland Security referred Sanchez’s applications to an immigration 

judge (IJ). He was charged with removability under 

§ 212(a)(6)(A)(i) of the Immigration and Nationality Act 

(INA), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the 

United States without admission or parole.

Sanchez conceded his removability during his initial appearance before the IJ in August 2006. At his next hearing, in 

December 2007, Sanchez submitted a renewed application 

for NACARA special rule cancellation of removal along with 

an application for cancellation of removal under INA 
No. 13-2653 3

§ 240A(b), 8 U.S.C. § 1229b(b), based on exceptional hardship to his U.S. citizen children. While his removal proceedings were pending, the government submitted evidence that 

Sanchez was not eligible for NACARA relief because he had 

assisted in the persecution of others while serving in the El 

Salvador military. Sanchez asked for a continuance to respond to the government’s allegations. 

At Sanchez’s next hearing, in August 2009, a new issue 

arose. Sanchez told the IJ that he had been arrested in Indiana in September 2008 “for leaving the scene of an accident 

where serious bodily injury occurred.” Apparently hearing 

this information for the first time, the government argued

that Sanchez’s conduct constituted a crime involving moral 

turpitude. An alien convicted of a crime involving moral 

turpitude (a CIMT, for short) is statutorily ineligible for cancellation of removal under either the INA or NACARA, subject to exceptions not at issue here. See 8 U.S.C. 

§ 1182(a)(2)(A)(i) (“any alien convicted of, or who admits 

having committed, or who admits committing acts that constitute the essential elements of ... a crime involving moral 

turpitude” is inadmissible, subject to exceptions); id.

§ 1101(f)(3) (a person cannot show good moral character if 

she has been convicted of a crime of moral turpitude during 

the relevant period); id. § 1229b(b)(1)(C) (the Attorney General may cancel the removal of a nonpermanent resident

who “has not been convicted of an offense under section 

1182(a)(2)”). The INA does not define the term. However, 

the Board of Immigration Appeals and our circuit have described a CIMT as “conduct that shocks the public conscience as being ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed 

between persons or to society in general.’” Lagunas-Salgado v. 
4 No. 13-2653

Holder, 584 F.3d 707, 710 (7th Cir. 2009) (quoting In re Solon, 

24 I. & N. Dec. 239, 240 (B.I.A. 2007)).

The IJ continued the proceedings again to allow Sanchez 

to provide more information about his Indiana arrest. 

Sanchez then submitted a “case chronology printout” (a 

docket sheet) from the Criminal Division of the Marion Superior Court. The printout states that in October 2009, 

Sanchez pleaded guilty to one count of a violation of Ind. 

Code § 9-26-1-8, “Failure to stop and remain at scene of accident resulting in injury or death.” That provision holds that 

“[a] person who knowingly or intentionally fails to stop or 

comply with section 1(1) or 1(2) of this chapter after causing 

injury to a person commits ... a Class D felony if ... the accident involves serious bodily injury to a person.” The referenced section, Ind. Code § 9-26-1-1, “Duties of driver of vehicle involved in accident resulting in injury, death, or entrapment,” provides: 

Except as provided in section 1.5 of this chapter[1], the driver of a motor vehicle involved in 

an accident that results in the injury or death of 

a person or the entrapment of a person in a vehicle shall do the following:

(1) Immediately stop the driver’s motor vehicle at the scene of the accident or as close to 

the accident as possible in a manner that does 

not obstruct traffic more than is necessary.

 1 Ind. Code § 9-26-1-1.5 concerns the responsibilities of a passenger when 

the driver is physically incapacitated. 
No. 13-2653 5

(2) Immediately return to and remain at the 

scene of the accident until the driver does the 

following:

(A) Gives the driver’s name and address 

and the registration number of the motor vehicle the driver was driving.

(B) Upon request, exhibits the driver’s 

license of the driver to the following:

(i) The person struck.

(ii) The driver or occupant of or person attending each vehicle involved in the accident.

(C) Subject to section 1.5(a) of this chapter, determines the need for and renders reasonable assistance to each person injured or entrapped in the accident, including the removal 

of, or the making of arrangements for the removal of:

(i) each injured person from the scene of the accident to a physician or hospital for 

medical treatment; and

(ii) each entrapped person from the 

vehicle in which the person is entrapped.

(3) Subject to section 1.5(b) of this chapter, 

immediately give notice of the accident by the 

quickest means of communication to one (1) of 

the following:

(A) The local police department, if the 

accident occurs within a municipality.
6 No. 13-2653

(B) The office of the county sheriff or the 

nearest state police post, if the accident occurs 

outside a municipality.

The case printout indicates that Sanchez was charged with a 

Class D felony because the incident involved serious bodily 

injury, although the Marion Superior Court ultimately entered the conviction as a misdemeanor.2 The court gave 

Sanchez a sentence of 365 days in jail with 363 days suspended. He received 363 days of probation.

Sanchez also submitted his plea agreement to the immigration court. It states that he agreed to plead guilty to 

“Count I Failure to Stop After Accident Resulting In Serious 

Bodily Injury Class D Felony.” In addition, Sanchez provided a personal affidavit explaining the circumstances surrounding the accident. It recounts that Sanchez was driving 

at night on a road without any lights, that it was raining 

heavily, and that there was a lot of fog. He “heard a noise, 

which was an impact on [his] car.” Unsure whether he could 

stop safely in traffic, and believing that he had merely hit “a 

post or a small object,” Sanchez continued driving. The affidavit states that he only became aware that he had hit a person when police officers arrived at his residence the next day 

and told him.

During the final hearing, in September 2011, the IJ examined the documents and questioned Sanchez. The IJ then 

orally denied his applications for cancellation of removal, 

 2 This was done pursuant to Ind. Code § 35-50-2-7(c), which holds that 

“if a person has committed a Class D felony ... the court may enter 

judgment of conviction of a Class A misdemeanor and sentence accordingly.”
No. 13-2653 7

followed by a written order. Defining a CIMT as a crime 

“viewed as a reprehensible act” and having “some requirement of mens rea,” the IJ reasoned that because “the record 

reflects that the respondent pled guilty to knowingly or intentionally failing to stop [after] causing injury to a person,”

Sanchez’s offense was a CIMT “under the categorical approach.” The IJ ordered Sanchez’s removal to El Salvador.

Sanchez appealed the IJ’s decision to the Board of Immigration Appeals. The Board began its analysis by emphasizing that under 8 C.F.R. § 1240.8(d), “[t]he respondent has the 

burden of establishing that he is eligible for any requested 

benefit,” and “[i]f the evidence indicates that one or more of 

the grounds for mandatory denial of the application for relief may apply, the respondent shall have the burden of 

proving by a preponderance of the evidence that such 

grounds do not apply.” The Board then stated that it

“agree[d] with the Immigration Judge that the respondent 

did not meet his burden of proving ... that his criminal conviction is not a CIMT.”

The Board explained its reasoning in three sentences. In 

the first, it acknowledged Sanchez’s argument, made in his 

briefing, that “there is a realistic probability that the statute 

has been applied to offenses that both are and are not 

CIMT[s].” But the Board next concluded that “the respondent has not established that he was not convicted under a 

portion of the statute that does not qualify as a CIMT,” because “[a]side from the ‘case chronology’ printout from the 

Indiana court, there is no other evidence regarding his conviction.” Accordingly, the Board dismissed Sanchez’s appeal.
8 No. 13-2653

II. Discussion

The classification of a crime as one of moral turpitude is a 

question of law that we have jurisdiction to review. 8 U.S.C. 

§ 1252(a)(2)(D). The parties agree that because the Board issued its own free-standing opinion, “rather than adopting or 

merely supplementing the opinion of the IJ,” we review the 

Board’s opinion. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 

2007). Because the Board is explicating an undefined term in 

a statute that the agency is entrusted to administer, under 

certain circumstances we would defer to its determination 

pursuant to Chevron. Mata-Guerrero v. Holder, 627 F.3d 256, 

259 (7th Cir. 2010). But where—as here—we are reviewing a 

non-precedential Board decision, issued by a single member, 

which does not rely on agency precedent, the Board’s CIMT 

determination can receive only Skidmore deference. Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir. 2011). This means 

that the Board’s decision is “entitled to respect—but only to 

the extent that it has the power to persuade.” Id. (quotation 

marks and brackets omitted).

Here, the Board’s decision lacks persuasive power because the Board did not use the proper analytical methodology. For this reason, we vacate its decision and remand. 

In Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), 

the Attorney General established a three-step framework for 

immigration judges and the Board to use to determine 

whether an alien’s conviction qualifies as a CIMT.3 At the 

 3 The Attorney General’s decision in Silva-Trevino describes the inquiry 

as being comprised of two “stages”: an initial stage where the adjudicator evaluates the statute on a categorical basis, and a second stage in 

which the adjudicator first examines the record of conviction and then, if 

necessary, considers additional evidence. See 24 I. & N. Dec. at 698–99, 
No. 13-2653 9

first step, the adjudicator is to evaluate the criminal statute 

on a categorical basis and “determine whether there is a ‘realistic probability, not a theoretical possibility,’ that the State 

or Federal criminal statute pursuant to which the alien was 

convicted would be applied to reach conduct that does not 

involve moral turpitude.” Id. at 689–90 (quoting Gonzales v. 

Duenas-Alvarez, 549 U.S. 183, 193 (2007)). If it appears that 

the government in question would apply its criminal statute 

to reach both turpitudinous and non-turpitudinous acts—

perhaps because the statute is divisible, but also because the 

statute could realistically cover a wide range of conduct—

the adjudicator is instructed to proceed to step two. At this 

point, the adjudicator should examine the alien’s record of 

conviction—including the charging document, the judgment

of conviction, jury instructions, a signed guilty plea, or a 

plea transcript—to determine which part of the statute the 

alien’s conviction falls under (in the case of a divisible statute), or whether the alien’s conduct otherwise “evidences a 

crime that in fact involved moral turpitude.” Id. at 690.

The record of conviction may also fail to resolve the matter. If that’s the case, Silva-Trevino instructs the adjudicator to 

proceed to a third step and consider evidence beyond the 

record of conviction “if doing so is necessary and appropriate to ensure proper application of the [INA]’s moral turpitude provisions.” Id. at 699. As the Attorney General explained, expanding the CIMT inquiry beyond the formal 

record of conviction “result[s] in more accurate determinations of who falls within the scope” of the INA’s moral turpi-

 

703 n.4. However, our court and others have described the analysis as 

comprising three steps. See, e.g., Mata-Guerrero, 627 F.3d at 260; OlivasMotta v. Holder, 746 F.3d 907, 910–11 (9th Cir. 2013).
10 No. 13-2653

tude provisions, and “better accord[s] with the statute’s demands for individualized adjudications.” Id. at 702. The Attorney General also reasoned that the alternative—limiting

the inquiry to the wording of the criminal statute and whatever information the government happens to include in its 

charging documents and other records—“would be in tension with the goals of the immigration act” and “would also 

unfairly apply immigration penalties to aliens whose individual crimes did not, in actuality, involve moral turpitude.” 

Mata-Guerrero, 627 F.3d at 261 (citing Silva-Trevino, 24 I. & N. 

Dec. at 700). “In other words, the ultimate purpose of [the 

CIMT] analysis is to look at the actual crime committed by 

the individual alien.” Id.

The individualized inquiry mandated by Silva-Trevino is 

consistent with our circuit’s precedent. See Ali v. Mukasey, 

521 F.3d 737, 743 (7th Cir. 2008) (deferring to Matter of Babaisakov, 24 I. & N. Dec. 306 (B.I.A. 2007), and holding that 

“when deciding how to classify convictions under criteria 

that go beyond the criminal charge—such as ... whether the 

crime is one of ‘moral turpitude’, the agency has the discretion to consider evidence beyond the charging papers and 

judgment of conviction”). Accordingly, we have deferred to 

the Attorney General’s decision. Mata-Guerrero, 627 F.3d at 

260; see also Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th 

Cir. 2013). The Attorney General’s determination of this issue of law is therefore controlling, see 8 U.S.C. § 1103(a)(1), 

and “there is no longer any question regarding which methodology should be used to determine whether a crime is or 
No. 13-2653 11

is not a crime of moral turpitude.” Mata-Guerrero, 627 F.3d at 

260.4

The Board cited Silva-Trevino in passing. But it did not 

properly employ its methodology. Nowhere in its discussion 

does the Board state a conclusion—required at SilvaTrevino’s first step—that some portion of the conduct described in Ind. Code §§ 9-26-1-8 and 9-26-1-1 categorically 

qualifies as a CIMT. Similarly, the Board did not state what 

conclusion, if any, it drew from Sanchez’s record of conviction; it merely mentioned (incorrectly) that Sanchez’s case 

chronology printout was the only evidence of his conviction. 

Given the Board’s ultimate conclusion, it could be that the 

Board found the case chronology printout inconclusive. But 

if that was the case, then the Board should have proceeded 

to the third Silva-Trevino step and decided whether it was 

“necessary or appropriate,” in order to “resolve accurately 

the moral turpitude question,” to consider evidence beyond 

the docket sheet—for instance, by considering Sanchez’s affidavit, or else remanding to the IJ to hear additional evidence. Silva-Trevino, 24 I. & N. Dec. at 704.

 

4 We note that several of our sister circuits have rejected the Silva-Trevino

methodology as contrary to the unambiguous language in the INA. See 

Silva-Trevino v. Holder, 742 F.3d 197, 200 (5th Cir. 2014); Olivas-Motta, 746 

F.3d at 916; Prudencio v. Holder, 669 F.3d 472, 482 (4th Cir. 2012); Fajardo v. 

Attorney Gen., 659 F.3d 1303, 1309–10 (11th Cir. 2011); Jean-Louis v. Attorney Gen., 582 F.3d 462, 473 (3d Cir. 2009). But see Bobadilla v. Holder, 679 

F.3d 1052, 1057 (8th Cir. 2012) (deferring to Silva-Trevino). In his opening 

brief, Sanchez asked us to reconsider Ali and Mata-Guerrero and join 

those circuits in holding that the IJ and the Board are confined to the record of conviction in determining whether an alien has been convicted of 

a CIMT. However, Sanchez abandoned this request in his reply brief, 

and we will not revisit our deference to Silva-Trevino in this case.
12 No. 13-2653

True, the IJ and the Board retain substantial discretion in 

making the decision to consider evidence outside the formal 

record of conviction. Mata-Guerrero v. Holder, 639 F.3d 276, 

277 (7th Cir. 2011). However, the adjudicator must still exercise that discretion: The Board should have explained its determination that additional evidence was not necessary or

appropriate to resolve the moral turpitude question, if that 

was indeed what the Board thought. See Silva-Trevino, 24 I. & 

N. Dec. at 704. But if anything, the Board’s reasoning suggests that additional evidence was necessary.

Rather than reaching conclusions at each step of the Silva-Trevino analysis, the Board’s decision rests on a burdenof-proof rationale. Under 8 C.F.R. § 1240.8(d), the alien has 

the burden to establish her eligibility for any form of relief 

from removal. And “[i]f the evidence indicates that one or 

more of the grounds for mandatory denial of the application 

for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds 

do not apply.” 8 C.F.R. § 1240.8(d).5 The Board appears to 

have reasoned that because Sanchez had the burden to show 

that he had not been convicted of a CIMT, and because the 

record of conviction did not shed light on the matter, 

Sanchez lost by default. 

However, the Board improperly applied 8 C.F.R. 

§ 1240.8(d) to the inquiry at issue. The Attorney General has 

 5 Congress embraced 8 C.F.R. § 1240.8(d)’s standard in § 101(d) of the 

REAL ID Act, Pub. L. No. 109-13, 119 Stat. 304 (2005), codified at 8 U.S.C. 

§ 1229a(c)(4). The parties do not dispute that because Sanchez filed his 

application for NACARA special rule cancellation of removal in 2002—

before the REAL ID Act’s passage—8 U.S.C. § 1229a(c)(4) does not apply 

in his proceedings.
No. 13-2653 13

instructed that in inadmissibility cases like Sanchez’s, “[i]t 

would be the alien’s burden, in the first stage of the inquiry, 

to show that the criminal statute under which he had been 

convicted has actually been applied to conduct that did not 

involve moral turpitude.” Silva-Trevino, 24 I. & N. Dec. at 703 

n.4. We may assume (without deciding) that at least some 

portion of Ind. Code § 9-26-1-8 could amount to a CIMT, as 

willfully leaving the scene of an accident—knowing that

someone has been hurt—“is intrinsically wrong” and “reflects an intentional attempt to evade responsibility.” GarciaMaldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007).

But in his brief to the Board, Sanchez presented case law 

establishing that drivers can be convicted under Ind. Code 

§ 9-26-1-8 for violating any of the duties listed in § 9-26-1-1, 

not just for committing a hit-and-run. See Barton v. State, 936 

N.E.2d 842, 848–49 (Ind. Ct. App. 2010); Barber v. State, 863 

N.E.2d 1199, 1205–06 (Ind. Ct. App. 2007). Sanchez also presented cases in which Indiana courts upheld convictions under § 9-26-1-8 where the driver mistakenly thought the authorities had his identifying information, see Barton, 936 

N.E.2d at 854; where the driver called 911 and left her vehicle at the scene but did not stay at the scene herself, see Nield 

v. State, 677 N.E.2d 79, 80–81 (Ind. Ct. App. 1997); and where 

the driver, having called 911, returned to the scene after 

fourteen minutes, see Fleming v. State, No. 64A03-0703-CR134, 2008 WL 113910, at *1 (Ind. Ct. App. Jan. 11, 2008). This 

showing should be sufficient to carry Sanchez’s burden of 

demonstrating that the statute has a realistic probability of 

being applied to conduct that is not morally turpitudinous—

or, put another way, that moral turpitude does not “necessarily inhere[] in the cases that have a ‘realistic probability’
14 No. 13-2653

of being prosecuted.” Silva-Trevino, 24 I. & N. Dec. at 705. In

any event, the Board did not find to the contrary. 

Instead, the Board moved straight to the second SilvaTrevino step and found that Sanchez “did not meet his burden of proving ... that his criminal conviction is not a CIMT” 

because he “has not established that he was not convicted 

under a portion of the statute that does not qualify.” Again, 

it seems that the Board reached this conclusion because it 

found the case chronology printout inconclusive regarding 

Sanchez’s charge. But if the record of conviction does not answer the question, it does not follow that the alien has failed 

to carry his burden and the inquiry is over. It only means 

that the adjudicator should exercise its discretion to consider

additional evidence (or else explain why it declined to do 

so). Only if the matter is still inconclusive after that step—

perhaps because the evidence is closely balanced, or the adjudicator finds that the alien’s account lacks credibility—will 

the burden of proof come into play. But just because Sanchez 

may ultimately lose in the event of a tie does not mean that 

the Board can end the inquiry early.6

 

6 For this reason, our understanding of 8 C.F.R. § 1240.8(d)’s operation is 

consistent with our sister circuits’ decisions in Young v. Holder, 697 F.3d 

976, 988–90 (9th Cir. 2012) (en banc), Salem v. Holder, 647 F.3d 111, 115–16 

(4th Cir. 2011), and Garcia v. Holder, 584 F.3d 1288, 1290 (10th Cir. 2009), 

which all held that an alien could not satisfy his burden to demonstrate 

eligibility for relief by presenting an inconclusive record of conviction.

In Young and Salem, the aliens were seeking cancellation of removal, and

the government argued that they had been convicted of aggravated felonies. (Like a CIMT, an aggravated felony renders an alien ineligible for 

cancellation of removal. 8 U.S.C. §§ 1229b(a)(3), 1229b(b)(1)(c).) However, when determining whether a particular crime is an aggravated felony, the Ninth Circuit conducts a categorical analysis of the statute and, if 
No. 13-2653 15

Because the Board did not properly apply the SilvaTrevino framework, we grant Sanchez’s petition and remand 

for further proceedings. See Mata-Guerrero, 627 F.3d at 257

(granting alien’s petition for review “[b]ecause the Attorney 

General’s determination of the appropriate methodology is 

controlling, and because the Board did not use that methodology in Mata-Guerrero’s case”). We do not reach the question whether any portion of Ind. Code § 9-26-1-8 categorically qualifies as a CIMT. But the Board should consider this 

threshold issue more thoroughly on remand.

As noted above, both the Board and our court have described CIMTs as involving conduct that is “inherently base, 

vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in 

general.” We have described the distinction between CIMTs 

and other crimes as one between “acts that are seen as ethi-

 

necessary, a “modified categorical” analysis of the record of conviction; 

the court’s methodology does not call for the equivalent of Silva-Trevino’s 

third step. Young, 697 F.3d at 982–84. And although the Fourth Circuit, in 

Salem, reserved the question of whether it was appropriate to move past 

the modified categorical stage in the relief-from-removal context, the 

alien in that case did not attempt to present evidence outside the record 

of conviction—so the Fourth Circuit’s analysis was effectively at an end. 

647 F.3d at 119. The Tenth Circuit’s Garcia decision, like ours, arose in the 

CIMT context. But the Tenth Circuit has not embraced Silva-Trevino’s 

third step. See Efagene v. Holder, 642 F.3d 918, 926 n.5 (10th Cir. 2011) (declining to address whether the Silva-Trevino framework is a reasonable 

interpretation of the INA); Dzerekey v. Holder, No. 13-9570, 2014 WL 

1509207, at *4 n.6 (10th Cir. Apr. 18, 2014) (the circuit has still neither 

adopted nor rejected Silva-Trevino). Thus, we, the Fourth, the Ninth, and 

the Tenth Circuits all agree that if the analysis has run its course and the 

answer is still unclear, the alien loses by default. In our case, however, 

the Board did not go through the full analysis.
16 No. 13-2653

cally wrong without any need for legal prohibition (acts 

wrong in themselves, or malum in se), and those that are ethically neutral and forbidden only by positive enactment (acts 

wrong because they are so decreed, or malum prohibitum).” 

Ali, 521 F.3d at 740. But we have also emphasized that it is “a 

question of the offender’s evil intent or corruption of the 

mind.” Lagunas-Salgado, 584 F.3d at 710 (quotation marks 

omitted).

Sanchez argues that Ind. Code § 9-26-1-1 prescribes a 

laundry list of duties required of a driver who is involved in 

a serious accident, some of which amount to technical offenses that are merely malum prohibitum. Cf. Cerezo v. 

Mukasey, 512 F.3d 1163, 1167 (9th Cir. 2008) (examining an

analogous California statute and noting that “[t]he failure to 

provide a vehicle registration number [when the driver stops 

and provides other identification] is not base, vile and depraved; nor does it necessarily evince any willfulness or evil 

intent, a requisite element of crimes of moral turpitude”).

Though not conceding the point, the government responds 

that, at the very least, the portion of § 9-26-1-8 criminalizing

“knowingly or intentionally fail[ing] to stop ... after causing 

injury” categorically qualifies as a CIMT.

That blanket assertion, however, is debatable. Although 

the statute includes a mens rea of “knowingly or intentionally,” Indiana courts have held that a driver can be convicted 

under § 9-26-1-8 absent actual knowledge that an accident 

occurred or that a person was injured. See, e.g., Micinski v. 

State, 487 N.E.2d 150, 153 (Ind. 1986) (construing similar 

predecessor statute); State v. Gradison, 758 N.E.2d 1008, 1011 

(Ind. Ct. App. 2001). The Indiana courts instead reason that

“[w]here conditions were such that the driver should have 
No. 13-2653 17

known that an accident occurred or should have reasonably anticipated that the accident resulted in injury to a person, the 

requisite proof of knowledge is present.” Gradison, 758 

N.E.2d at 1011 (emphasis added).

Sanchez argues that this “reasonably should have 

known” standard is the equivalent of negligence—and further, that negligence is not the equivalent of “evil intent or 

corruption of the mind” under Board and judicial precedent.

See, e.g., Matter of Perez-Contreras, 20 I. & N. Dec. 615, 619

(B.I.A. 1992) (“Since there was no intent required for conviction, nor any conscious disregard of a substantial and unjustifiable risk, we find no moral turpitude inherent in the statute.”); Partyka v. Attorney Gen., 417 F.3d 408, 414–16 (3d Cir. 

2005) (aggravated assault of a law enforcement officer not a 

CIMT if committed negligently); Silva-Trevino, 24 I. & N. 

Dec. at 706 n.5 (discussing with approval judicial precedents 

describing CIMTs as crimes involving “reprehensible conduct that is committed intentionally or with some other form 

of scienter such as willfulness or recklessness”). The upshot 

of all this is that even if it’s established that Sanchez was 

convicted for “knowingly ... failing to stop” (as his plea 

agreement indicates), this conviction is not necessarily a 

CIMT. If so, further inquiry into the circumstances of 

Sanchez’s offense—in particular, whether he actually knew 

that he hit a person—could be “necessary or appropriate to 

resolve accurately the moral turpitude question.” As the 

Board did not address this argument in dismissing Sanchez’s 

appeal, we ask it to consider the matter on remand.7

 7 It is possible—though not clear—that the Board was adopting the IJ’s 

analysis on this issue. If so, we also find the IJ’s reasoning lacking. The IJ 

described a CIMT as a crime that has “some requirement of mens rea.” 
18 No. 13-2653

III. Conclusion

We therefore GRANT the petition for review and REMAND 

the case to the Board of Immigration Appeals for further 

proceedings consistent with this opinion.

 

That description is overinclusive, as “some requirement of mens rea” is 

broader than evil intent or reckless disregard for others. The IJ further 

explained that “[w]here a conviction occurs as a result of reckless conduct, the [Board] has generally held that it only constitutes a crime involving moral turpitude where serious bodily injury results.” Even assuming that is an accurate summary of the Board’s precedent, it may be 

the case that Indiana courts will convict under Ind. Code § 9-26-1-8 absent a showing of the defendant’s recklessness.