### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 2653
F REDY A RNOLDO S ANCHEZ , Petitioner ,

v.
E RIC H. H OLDER , J R

. , Attorney General of the United States, Respondent

.

____________________
Petition for Review of an Order of the Board of Immigration Appeals

____________________
A RGUED F EBRUARY 24, 2014

— D ECIDED J ULY 9, 2014

____________________

Before F LAUM and R OVNER , Circuit Judges , and K ENDALL , District Judge

. ∗
F LAUM , Circuit Judge

. Fredy Arnoldo Sanchez seeks r eview 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 cancell a-

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

- 2653

tion of removal beca use he failed to prove that he had not been convicted of a crime involving moral turpitude. B ecause the Board did not properly conduct the three

- step i nquiry prescribed in Matter of Silva

- Trevino , 24 I. & N. Dec. 687 ( A.G. 2008) , we grant Sanchez’s petition and remand for fu rther proceedings.
I. Background Fredy Arnoldo Sanchez, a citizen and native of El Salv ador, entered the United States without inspection in 1989. Sanchez is now forty

- seven, is married to a lawful perm anent 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 t his, but it does not matter for this appeal), Sanchez filed an application for asylum and withholding of removal. In 2002, he filed an a dditional 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 inte rview , the Department of Homeland S ecurity referred Sanchez’s applications to an immigration judge (IJ) . H e was charged with removability under § 212(a)(6)(A)(i) of the Immigr ation and Na tionality Act ( INA) , 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without admission or pa role

. Sanchez conceded his removability during his initial a ppearance before the IJ in August 2006 . At his next hearing , in December 2007 , Sanchez submitted a renewed application for NACARA special rule cancellation of re moval along with an application for cancellation of removal under INANo. 13

- 2653 3

§ 240A(b), 8 U.S.C. § 1229 b (b), based on exceptional har dship to his U.S. citizen children. W hile his removal procee ding s w ere pending, the government submitted evidenc e 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 r espond to the government’s allegations. At Sanchez’s next hearing, in Aug ust 2009, a new issue arose. Sanchez told the IJ that he had been arrested in Ind iana i n Sep tember 2008 “for leaving the scene of an accident where serious bodily injury occurred.” Apparently hearing this information for the first time, the government argu ed 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 ca ncellation of removal under either the INA or NACARA , su bject to exceptions not at issue here

. See 8 U.S.C. § 1182(a)(2)(A)(i) (“any alien convict ed of, or who admits having committed, or who admits committing acts that co nstitute the essential elements of ... a crime involving moral turpitude” is inadmissible, subject to exception s); id. § 1101(f)(3) (a person cannot show good moral character if

s he has been convicted of a crime of moral turpitude during the relevant period ); id. § 1229b(b)(1)(C) (the Attorney Ge neral may cancel the removal of a nonpermanent resident who “ has not b een convicted of an offense under section 1182(a)(2)”)

. T he INA does not define the term. However, the Board of Immigra tion Appeals and our circuit have d escribed a CIMT as “ conduct that shocks the public co nscience as being ‘ inherently base, vile, or depr aved, and co ntrary 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 continue d 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 S uperi or 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 acc ident 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 felo ny if ... the acc ident involves serious bodily injury to a person .” The refe renced section, Ind. Code § 9

- 26

- 1

- 1, “Duties of driver of v ehicle involved in accident resulting in injury, death, or e ntrapment,” provides: Except as provided in section 1.5 of this cha pter [ 1 ], t he driver of a motor vehicle involved in an accident that results in the injury or death of a person or the e n trapment of a p erson in a v ehicle shall do the follo w ing: (1) Immediately stop the driver’ s motor v ehicle 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 a nd 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 veh icle the driver was driving. (B) Up on request, exhibits the driver’ s license of the driver t o the following: (i) The person struck. (ii) The driver or occupant of or pe rson attending each vehicle involved in the a ccident. (C) Subject to section 1.5(a) of this cha pter, determines the need for and renders re asonable assistance to each perso n injured or e ntrapped in the accident, including the removal of, or the making of arrangements for the r emoval of: (i) each injured person from the sc ene of the accident to a physician or hospital for medical treatment; and (ii) each entrapped perso n 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 accid ent 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 involv ed serious bod ily injury, although the Marion Superior Court ultimately e ntered the conviction as a misdemeanor. 2 T he court gave Sanchez a sentence of 365 days in jail with 363 days su spended

. He received 363 days of probation

. Sanchez also submitted his plea agreement to the imm igration 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 provi ded a personal affidavit explaining the circumstances su rrounding the accident

. It re counts 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 i n traffic, and believing that he had merely hit “a post or a small object,” Sanchez continued driving. The aff idavit states that he only became aware that he had hit a pe rson when police officers arrived at his residence the next day and told him. During t he final hearing, in September 2011, the IJ exa mined the documents and question ed Sanchez

. T he IJ then orally denied his applications for cancellation of removal ,

2 This was done pur suant to Ind. Code § 35

- 50

- 2

- 7(c ), which holds that “if a person has committed a Class D felony

... the court may enter jud g ment of conviction of a Class A misdemeanor and sentence accor dingly.”No. 13

- 2653 7

followed by a written order

. Defining a CIMT as a crime “viewed as a reprehensible act” and having “some requir ement of mens rea , ” t he IJ reasoned that because “the record reflects that the respondent pled guilty to knowingly or i ntentionally failing to stop [after] causing injury to a person, ” Sanchez’s o ffense was a CIMT “ under the categorical a pproach.” T he IJ ordered Sanchez’s removal to El Salvador. Sanchez appealed the IJ ’ s decision to the Board of Imm igration Appeals

. T he Board began its analysis by emphasi zing that under 8 C.F.R. § 1240.8 (d) , “[t] he respondent has the burden of establishin g that he is eligible for any requ ested benefit,” and “[i] f the evidence indicates that one or more of the grounds for mandatory denial of the application for r elief 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 co nviction 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 t he Board next concluded that “the respon dent has not established that he was not convicted under a portion of the statute that does not qualify as a CIMT,” b ecause “[a]side from the ‘case chronology’ printout from the Indiana court, there is no other evidence regarding his co nvi c tion.” Accordingly, t he B oard dismissed Sanchez’s a ppeal

.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 i ssued 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). Beca use the Board is explicating an undefined term in a statute th at the agency is entrusted to administer, under certain circumstances we would defer to its determination pursuant to Chevron

. Ma ta

- 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. Arobel idze v. Holder , 65 3 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 b ecause the Board did not use the proper analytical methodo logy . 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 a n alien’s conviction qualifies as a CIMT. 3 At the

3 T he Attorney General’s decision in Silva

- Trevino describes the i n quiry as being comprised of two “ stages”: an initial stage where the a d judic ator evaluates the statute on a categorical basis, and a second st age 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 ‘r ealistic probability, not a theoretical possibility,’ that the S tate 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 govern ment 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 adju dicator is instructed to proceed to step two . At this point, the adjudicator should ex amine the alien’s record of conviction

— including the charging document, the judgment of conviction , jury instructions, a signed gui lty plea, or a plea transcript

— to determine which part of the statute the alien’s conviction falls under (in the case of a divisible sta tute) , or whether the alien’s conduct otherwise “evidences a crime that in fact involved moral turpitude.” Id. at 690.

T he record of conviction may also fail to resolve the ma tter

. 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 appropr iate to ensure proper application of the [INA] ’s moral turp itude provisions.” Id. at 699. As t he Attorney General e xplained , expanding the CIMT inquiry beyond the formal record of conviction “result[s] in more accurate determin ations of who falls within the scope ” of the INA’s moral turp i-

703 n.4. However, our court and others have describe d the analysis as comprising three steps. See, e. g. , Mata

- Guerrero , 627 F.3d at 260; Olivas

Motta v. Holder , 746 F.3d 907, 910

– 11 (9th Cir. 2013)

.10 No. 13

- 2653

tude provisions, and “better accord[s] with t he statute’s d emands for individualized adjudications.” Id. at 702. The A ttorney General also reasoned that the alternative

— lim iting the inquiry to the wording of the criminal statute and wha tever information the government happen s to in clude in its chargi ng documents and other records

— “ would be in te nsion with the goals of the immigration act ” and “ would also unfairly apply immigration penalties to aliens whose ind ividual crimes did not, in actuality, involve moral turpitude.” Ma ta

- Guerrero , 627 F.3d at 26 1 (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 B abaisakov , 24 I. & N. Dec. 306 (B.I.A. 2007) , and holding that “w hen deciding how to classify convictions under criteria that go bey ond the crimin al charge

— such as ... w hether the crime is one of ‘moral turpitude’, the agency has the discr etion to consider evidence beyond the charging papers and judgment of con viction ”)

. 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). T he Attorney General’s de termination of this i ssue of law is therefore control ling, s ee 8 U.S.C. § 1103(a)(1) , and “ t here is no longer any question regarding which met hodology should be used to determine whether a crime is orNo. 13

- 2653 11

is not a crime of moral turpitude.” Ma ta

- Guerrero , 627 F.3d at 260. 4
The Board cited Silva

- Trevino in pass ing. But it did not properly employ its methodolo gy. N owhere in its discussion does the Boar d state a conclusion

— required at Silva

Trevino ’s first step

— that some portion of the conduct d escribed 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 convi ction; 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 turpi tude question , ” to consider evidence beyond the docket sh eet

— for instance, by considering Sanchez’s a ffidavit, or else remanding to the IJ to hear additional ev idence. 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); Oli vas

- 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. Atto rney Gen. , 582 F.3d 462, 473 (3d Cir. 2009). But see Bob a dilla 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 re cord of conviction in determining whether an alien has been convicted of a CIMT. However, Sanchez abandoned this r e quest 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 outsi de the formal record of conviction

. Mata

- Guerrero v. Holder , 639 F.3d 276, 277 (7th Cir. 2011). However, t he adjudicator must still exe rcise that discreti on : T he Board should have explained its d etermination that addit ional evidence was not necessary or appropri ate to resolve the moral turpitude question , if that was indeed what the Board thought

. See Silva

- Trevino , 24 I. & N. Dec. at 704

. But i f anything , the Board ’s reasoning su ggests that additional evidence was necessary

. Rather than reaching conclus ions at each step of the Si lva

- Trevino analysis , the Board’s decision rests on a burden

of

- 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 indica tes that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of pro ving by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8 (d)

. 5 The Board appears to hav e 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 im properly 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 b een 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 le ast some portion of Ind. Code § 9

- 26

- 1

- 8 could amount to a CIMT, as willfully l eaving the scene of an accide nt

— knowing that someone has been hurt

— “is intrinsically wrong” and “r eflects an intentional attempt to evade responsibility.” Garcia

Maldonado v. Gonzales , 491 F.3d 284, 290 (5th Cir. 2007). But in his brief to the Board, Sanchez presented case law establi shing 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, 84 8

– 4 9 (Ind. Ct. App. 2010); Barber v. State , 863 N.E.2d 1199, 1205

– 06 (Ind. Ct. App. 2007). Sanchez also pr esented cases in which Indiana courts upheld convictions u nder § 9

- 26

- 1

- 8 where the driver mistakenly thought the a uthorities had his identifying information, see Barton , 936 N.E.2 d at 854; where the driver call ed 911 and left her veh icle 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

- CR

134, 2008 WL 1 13910, 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 re alistic probability of being applied to conduct that is not morally turpitudinous

— or, put another way , that moral turpitude does not “ nece ssarily 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 Silva

Trevino step and found that Sanchez “did not meet his bu rden of proving

... that h is criminal conviction is not a CIMT” because he “ has not established that he was not convicted under a portion of the sta tute that does not qualify.” Again, it seems that t he Board reached this conclusion because it found the case chronology printout inconclusive regarding Sanchez’s charge . But if the record of conviction does not a nswer 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 a fter that step

— perhaps because the evidence is closely balanced , or the a djudicator 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 oper a tion is consistent with our sister circuits’ decisions in Young v. Holder , 697 F.3d 97 6, 988

– 90 (9th Cir. 2012) (en banc), Salem v. Holder , 647 F.3d 111, 1 15

– 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 demo n strate eligibili ty for relief by presenting an inconclusive record of convi c tion.
In Young and Salem , the aliens were seeking cancellation of removal, and the g overnment argued that they had been convicted of aggravated fel onies. (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).) Ho w e ver, when determining whether a particular crime is an aggravated fe l ony, the Ninth Circuit conducts a categorical analysis of the statute and, ifNo. 13

- 2653 15

Because the Board did not properly apply the Silva

Trevino framework, we grant Sanchez’s petition and remand for further proceedings

. See Mata

- Guerrero , 627 F.3 d 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 metho dolo gy in Mata

- Guerrero’s case”). We do not reach the que stion whether any portion of Ind. Code § 9

- 26

- 1

- 8 categorica lly qualifies as a CIMT

. But t he Board should consider this threshold issue more thoroughly on remand.
As noted above , both the Board and our court have d escribed CIMT s as involving conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of m orality 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 eth i-

necessary, a “modified categorical” analysis of the record of con vi c tion; the court’ s methodology does not call for the equivalent of Silva

- Trevino ’s third st ep. 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 co n text, the alien in that case did not attempt to present evidence outside the record of conviction

— so the Fourth Circuit’s analysi s 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) (d ecli ning to address whether the Silva

- Trevino framework is a re a sonable 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 w ithout any need for legal prohibition (acts wrong in themselves, or malum in se ) , and those that are eth ically neutral and forbidden only by positive enactment (acts wrong because they are so decreed, or malum prohibitu m ).” 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 pre scribes a laundry list of duties required of a driver who is in volved in a serious accident, some of which amount to technical o ffenses that are merely malum prohibitum. Cf. Cerezo v. Mukasey , 512 F.3d 1163, 1167 (9th Cir. 2008) (examining a n analogous California statute and noting that “[ t]he fai lure to provide a vehicle registration number [when the driver stops and provides other identification] is not base, vile and d epraved; nor does it necessarily evince any willfulness or evil intent, a requisite element of crimes of moral turpi tude ”). Thoug h not conceding the point, the government responds that, at the very least, the portion of § 9

- 26

- 1

- 8 criminalizing “knowingly or intentional ly fail [ ing ] to stop ... after causing injury ” categorically qualifies as a CIMT.

T hat blanket assertion, however, is debatable. Although the statute includes a mens rea of “knowingly or intentiona lly,” 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. , Mic inski v. State , 487 N.E.2d 150, 1 53 (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 haveNo. 13

- 2653 17

known that an accident occurred or should have reasonably a nticipated 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 negli gence

— and fu rther, that negligence is not the equivalent of “evil i ntent 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 convi ction, nor any conscious disregard of a substantial and unju stifiable risk, we find no moral turpitude inherent in the sta tute.”); Partyka v. Attorney Gen. , 417 F.3d 408, 414

– 16 (3d Cir. 2005) ( aggravate d 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 co nduct 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 neces sarily 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 G RANT the petition for review and R EMAND the case to the Board of Immigration Appeals for further proceedings consistent with this op inion

.

T ha t description is overinclusive, as “some requirement of me ns 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 co nduct , the [ Board ] has generally held that it only constitutes a crime i nvolving moral turpitude where serious bodily injury results.” Even a ssuming that is an accurate summary of the Board’s precedent , it may be the case that Indiana courts will convict under Ind. Code § 9

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- 8 a bsent a showing o f the defendant’s recklessnes s.