F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O B E R T O A L E X I S L E P E M O R A N , P etitioner
,

v

.

W I L L I A M P. B A R

R , Attorney

General, Respondent. N o. 18-73167

Ag ency No. A206-279-913

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted April 28, 2020 San F rancisco, California

F iled J une 2, 2020

B efore: J . Clifford W allace, Ronald L ee Gilman, * and Susan P. Graber, Circuit J udg es.

Opinion by

J udg e Graber

* T h e H o n orab le Ro n ald L ee Gilm an , Un ited States Circu i t J u dg e f or th e U.S. Co u rt o f

A p p eals f o r th e Six th

Circu i t, sittin g b y

d esig n atio n

.L E P E M O R A N V

. B A R R 2

SUMMARY * *

Im m igration

Deny ing Roberto Alex is L epe Moran’s pet i t i o n f o r r eview of a B oard of I

mmig ration Appeals’ decision, the panel held that the B I A permissibly held that Petitioner’s conviction for felony vehicular flig ht from a pursuing police car while driving ag ainst tra ffic, in violation o f California Vehicle Code section 2800.4, is cat e g orically a crime involving moral turpitude that made him removable.

The panel described the two-step p r ocess for d etermining whether an offense is a crime involving moral turpitude: the
court reviews the elements of the statute de novo and then

a s ks whether those e lements f all within the g eneric fed e ra l definition of a crime involving moral turpitude.

At the first step , t he panel observed that California Vehicle Code section 2800.4 requires that the d e fend ant, while operating a motor vehicle and with intent t o e vade, willfully flee or attempt to elude a pursuing peace officer a nd that, during that flig ht, the defendant willfully drive his or her vehicle on a hig h way

in a direction opposite traffic.

At the second step, the panel e x plained that the court defers, t o s o m e e x tent, to the B I A’s c onclusion that a crime involves moral turpitude, b u t the panel concluded that it need
not decide the a p p r o priate level of d eference because, even affording only minimal deference, t h e B I A’s interpretation

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L E P E M O R A N V

. B A R R 3

was correct. I n ag reeing with the B I A, the panel ex p lained that the c ateg ory of n on-fraudulent crimes involving moral turpitude includes some crimes that serious l y endang er others, even if no actual in jury occurs. The panel f urther

ex p lained that the g reater 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. Co m p aring section 2800.4 to relevant precedent, the panel concluded that willfully d r iving in the wrong direction w hile fleeing a pursuing police o f

ficer inherent l y c r e ates a risk of harm to others that is substantial enoug h for the statute categ orically to meet the definition of a crime involving moral turpitude.

The panel also rejected P e titioner’s contention that the risk o f harm to others is insufficient in lig ht of the least of the
acts criminaliz ed here. T he panel n o ted that, in theory

, section 2 800.4 could apply to a driver wh o w i l lfully flees from police at ten miles per hour and drives on the wrong side of the r oad for just five feet. However, the panel co n c l uded that a hig hly unlikely theoretical p ossibility was n ot enoug h
to remove the statute f

rom the morall y t u r

p itudinous realm because: 1 ) ev e n a s hort, slow-speed trip in the wrong direction during flig ht create s s u bstantial risk of harm to others; and 2) a th e o r e tical possibility is insufficient as a matter of law; rather, there must be a “realistic probability ” that the sta t e wo u ld apply the statute to conduct that f alls outside the definition of the g e neric crime, and the panel concluded that there was no such realistic probability here.

COUNSEL

Victoria Ay eni (arg

ued) and Nicholas J

. Hunt, Certified L aw Students; L eah Sper o , G ary A. W att, a nd Stephen R.L E P E M O R A N V

. B A R R 4

Tollafield, Supervising Counsel; Hasting s Appellate Project, San F rancisco, California; for Petitioner.

Tim Ramnitz (arg

u e d ), Attorney ; Russell J .E. Verby , Senior L itig ation Counsel; J oseph P. Hunt, Assistant Attorney General; Office of I mmig ration L itig ation, Civil Div ision, United States Department of J ustice, Washing ton, D.C.; for Respondent.

OP INION

GRAB ER, Circuit J udg e:

Petitioner Roberto Alex is L epe Moran, a native a nd citiz en of Mex ico, seeks review o f a final decisi o n of the B oard of I mmig ration Appea l s (“B I A”) holding that Petitioner is removable by reason of his conviction of a crime involving moral turpitude. W e have jurisdicti o n o v er this timely petition for r eview, 8 U.S.C. § 1252(b)

, a n d we deny the petition.

Petitioner w as admitted to the United States in 2014 as a nonimmig rant. I n 2016, he pleaded g uilty in California state court to t wo crimes arising out of the same incident: violations of California Vehicle Code section 2800.4 (felony

v e h icular flig ht from a pursuing police car w hile dri v i n g ag ainst traff

i c) and California Vehicle Code section 20001(b)(1) (felony hit-and-run r esulting in injury to another person). He was sentenced to two concurrent six teen-month terms of imprisonment.

I mmig r a tion authorities then issued Petitioner a notice to appear that charg e d him with being removable. Afte r aL E P E M O R A N V

. B A R R 5

hearing a t which h e w as represented by counsel, an immig ration judg e ruled that California Vehicle Code section 2800.4 1 is categ orically “a crime involving moral turpitude” within the m e a n ing of 8 U.S.C. § 1227(a)(2)(A)(i). A ccording ly

, the immig r ation judg e held that Petition e r i s removable b ecause o f his c o n v i c t ion. The B I A ag reed with those conclusions and dism i s s ed Petitioner’s appeal. The
ag ency also denied Petitioner’s requests for asy lum, withholding of removal, and p rotection under the Convention Ag ainst Torture.

B e fore us, Petitioner challeng e s only the ru ling that California V ehicle Code section 2800.4 is categ orically a crime involving moral tu r pitude. To review that determination, we follow a two-step process:

F irst, w e review the elements o f the statute de
novo, affording no d eference to the B I A ’s conclusions. V

inh Tan Nguyen v. Holder

, 763 F. 3 d 1022, 1027 ( 9th Cir. 2014). N e x t,

we a sk whether the elements of the statute of conviction fall within the ge neric federal definition of a crime involving moral turpitude. Id. I n doing s o, we presume the conviction rested upon nothing more than the

1 Calif orn ia Veh icle C o d e secti o n 2 8 0 0 .4 p ro v id es f o r a crim in al
p en alty

[w ]h en ev er a p erso n w i llf u lly f lees o r attem

p ts to elu d e

a p u rsu in g p eace of

f icer in v io l atio n of Sectio n 2 8 0 0 .1
, an d t h e p erso n op era t i ng th e p u rsu ed v eh icle w illf

u lly d riv es th at v eh icle o n a h ig h w ay in a d irectio n op p osite
to th at in w

h ich th e traf

f ic law f u lly m o v e s u p o n th at h ig h w ay

. . . .L E P E M O R A N V

. B A R R 6

least of the acts c r iminaliz ed. Moncrieffe v. Holder , 569 U.S. 184 (2013).

Ramirez-Contreras v. Sessions
, 858 F .3d 1298, 1302 (9th Cir. 2017).

At the first step, w e and the parties ag ree on the elements of the crime. California V ehicle Code section 2800.4 defines

an ag g ravated version o f the crime defined by California Vehicle Code section 2800.1. Section 2 800.1 req u ires that the defendant, “while operating a motor vehicle and w ith the intent to e vade,” “ w i l l f ully ” flee or attempt to elude a pursuing peace officer. Section 2800.4 requires both that the defendant willfully

flee or a ttempt to elude a pursuing peace officer in violation of section 2800.1 a nd that, during that flig ht, the defendant “willf u l l y ” drive his or her “vehicle on

a hig hway in a direction opposite to that in which the traffic lawfully moves upon that hig hway .” “W illfully ” here means intentionally or “on purpose.” J ud. Co uncil of Cal. Crim. J ury I nstr. 2182 (2019). And a “hig hway ,” for purposes o f the California Vehicle Code, includes any publicly maintained street. Cal. Veh. Code § 360.

At the second step, w e d efer, to some ex tent, to the B I A ’s conclusion that a crime i n v o l ves moral turpitude. RamirezContreras
, 858 F .3d at 1302. B e cause the B I A’s decision here is unpublished, we afford only the deference described in Skidmore v. Swift & Co.
, 3 2 3 U.S. 134 (1944). RamirezContreras
, 858 F .3d a t 1302–03. The ex tent of the deference that w e g r ant therefore depe n d s o n the thoroug h ness, consistency

, and persuasiveness of the B I A’s re asoning

. Id.
at 1303. Petitioner asserts t h a t we owe only “minimal deference,” id.

, t o the B I A because its analy sis consisted o f j u s t a sing le sentence, followed by citations to cases t h atL E P E M O R A N V

. B A R R 7

Petitioner contends are not controlling

. W e need not decide what le v e l of d eference we should g rant because, even affording only minimal d eference, w e conclu d e t h at the B I A’s interpretation is correct. See Fugow v

. Barr
, 943 F .3d 456 (9th Cir. 2019) (per curiam) ( addressing a moralturpitude q

uestion without mentioning deference to the B I A).

“I n comp aring the elements of [ section 2800.4] to the
g eneric federal d ef

i nition of a crime involving moral turpitude, w e l o o k to see if the crime is vile, base, o r depraved and violates accepted moral standards. ” R amirezContreras
, 858 F .3d at 1304 (citations and internal quotation marks omitted). F raudulent crimes alway s involve moral turpitude. Non-fraudulent crimes, such as violations o f section 2800.4, also c an fit the categ ory of moral turpitude. Qualify ing non-fraudulent crimes “almost alway s involve an intent to injure someone, an actual injury

, or a protected class of victims.” Id. (citation and inte rnal quotation marks omitted). B ut the non-fraudulent categ ory also includes some crimes that seriously endang er others, even if no actual injury

occurs. S

ee, e.g. , Fugow
, 9 43 F .3d at 459 ( holding that unlawf u l imprisonment u nder Hawaii law is a crime involving moral turpitude, even thoug h no actual injury need occur). W e consider the actus reus and the mens r ea “ i n concert to determine whether the b e h a v ior they describe is sufficiently culpable t o b e labeled morally turpitudinous.” Castrijon-Garcia v

. H

older

, 704 F .3d 1205, 121 4 ( 9th Cir. 2013) (citation and internal quotation marks omitted).

W ith respect to the actus reu s, an additional element can transform a crime that does not involve moral turpitude into

one that does. F or ex ample, in Altayar v. Barr
, 947 F .3d 544 ( 9 t h C i r

. 2020), we held that assault with a “deadly weapon

or dang erous instrument” involves moral turp i t ude evenL E P E M O R A N V

. B A R R 8

thoug h simple assault does not. W e r e a soned that the ex tra element “necessarily m a kes the offense more serious, more dang erous, and th er e f

o re more blameworthy than a simple assault.” Id. at 552; see also Matter of Lopez-Meza
, 22 I

. & N. Dec. 1188, 1196 (B I A 1 9 9 9 ) (holding that an ag g ravated driving -under-the-influence (“DUI ”) offense involves moral turpitude, even thoug h simple DUIdoes not).

W ith respect to the mens rea, the g reater the r e q u i site
state of mind, the less serious the resulting harm has to b e in order f o r the crime to be classified as one involving moral turpitude. Leal v. Holder

, 771 F .3d 1140, 1146 (9th Cir. 2014). I n L e a l

, w e held that felony endang erment under Ariz ona law i s a crime involving moral turpitude, even thoug h the mens rea is only recklessness, because of the level of r isk ( actual and substantia l ) and the severity o f the potential harm (imminent death). Id. at 1144. C onversely

, we h e ld in Fugow that unlawful imprisonment under Hawaii law is a crime involving moral turpitud e because of a hig h

mens rea (knowing ly

) , even thoug h the harm risked (serious bodily injury) was less than the potenti a l harm identified in Leal

. Fugow , 943 F .3d at 459.

Here, section 2800.4 requires willfulness—an e l evated

mens rea—with respect to both fleei n g a pursuing peace officer and driving in the wrong direction during flig ht. W e

a g ree with the B I A that willfully d riving in the w r o n g direction while willfully fleeing a pursuing police officer inherently creates a risk o f harm to others that is substantial
enoug h for the statute categ orically to meet the definition o f a crime involving moral turpitude.

O u r reasoning in Ramirez-Contreras supports that conclusion, even thoug h Ramire z -Contreras held that aL E P E M O R A N V

. B A R R 9

different section of the California Vehicle Code was not a crime involving moral t u r p i tude. The law at issue there, California Vehicle Code section 2 8 0 0 .2, defines a different
ag g r avated version of section 2 800.1: fleeing or attempting
to elude a pursuing peace officer at a time when the driver has “three or more violations that a r e assig n e d a traffic violation point count.” Ramirez-Contreras
, 858 F .3d at 1301. Those traffic infracti o ns ex pressly include “relatively innocuous
sorts of cond u c t , ” such a s driving one’s car without proper reg istration a

nd driving a car that is out of compliance w ith air pollution standards. I

d. at 1304.

W e acknowledg ed “the seriousness of a ny flig ht from
p o l i ce.” Id. at 1306. And we recog niz ed that other cour t s have held that statut es criminaliz ing intentional flig ht from police p lus a

n ag g ravating element constitute crimes involving moral turpitude: Mei v. Ashcroft

, 393 F .3d 737 (7th Cir. 2004) (fleeing from police while g oing 21 or more miles
per hour over the speed limit); Cano-Oyarzabal v. H older

, 774 F .3d 914 (7th Cir. 2014) (fleeing from poli c e w h i l e interfering with the officer, vehicles, or pedestrians; speeding
up; o r turning headlig hts off); and R uiz- L o p e z v. H older

, 682 F .3 d 5 1 3 ( 6 th Cir. 2012) (fleeing from police while driving “in a manner indicating a wanton or willful d isreg ard for the lives or property

of others”). Id. at 1304–05.

W e did not sug g est that any of those cases was wr o n gl y decided. Rather, we disting uish e d t h e m on two g rounds: “The statutes in those cases penaliz ed willful conduct that increased the risk of harm to o thers .” Id. at 1 305 ( emphases added). B ut the a g g ravating conduct that could g ive rise to a violation of California Vehicle Code section 2800.2 (such a s d r i v i ng one’s car w ithout proper reg istration or failing to meet air pollution standards) n eed not be willful, and s u c hL E P E M O R A N V

. B A R R 10

conduct does not increase the risk of h ar m that arises from fleeing

. Id. at 1306.

B y contrast, a violation o f section 2 800.4 requires willfully driving in the wrong d i rection; neg lig e nce, o r even recklessness, does not su f fice. And driving in the wrong direction inherently incre a s e s t he risk of harm to others during the flig h t from police. 2

As to this final point, Petitioner arg ues that t h e ri s k o f harm to others is insufficient when w e consider, as we must, the least of the acts criminaliz e d

. Moncrieffe

, 569 U.S.
at 190–91. W e disag r ee. I n theory

, section 2800.4 could apply to a driver who willfully flees from police at ten miles
per hour and who, during that slow f lig ht, willfully drives on

2 P etitio n er arg u es th at th e leg islativ e h isto ry su p p o rts h is v iew th at sectio n 2 8 00 .4 d o es n o t in v olv e m o ral tu rp itu d e. Q u o tin g selectiv ely f ro m

a b ill an aly sis, P etitio n er reaso n s as f o llo w s

. Man y law en f

o r c em en t ag en cies h ad im

p lem en ted po licies th at req u ire o f f icers to en d a p u rsu i t

w h en th e pu rsu ed p erso n d riv es th e w ro n g d irectio n , an d th e l eg islatu re

en acted sectio n 2 8 0 0 .4 in p art t o d e t e r d riv ers f ro m ev ad in g cap tu re b y d riv in g th e w

ro n g d i rectio n

. Veh icles: P o lice P u rsu its, Sen

. P u b lic Saf ety Co m m ., B ill A n aly sis o n Sen

. Bill No

. 17 3 5
, 2 0 0 5

– 2 0 0 6 Reg

. Sess. (A p ril 2 5
, 2 0 0 6). A cco rd in g to P etitio n er, a sim p le ev asio n

tech n iq u e d oes n o t im p licate m o ral t

u rp itu d e. W e em

p h atically d isag r e e w i th Petitio n er’ s

reaso n i n g

. P u ttin g asid e th at law en f o rcem en t ag en cies alm o st certain ly

en acted th e n o

- p u rsu it p o licy b ecau se o f th e d an g ero u sn ess of d riv i n g th e

w ro n g d i rectio n d u rin g f

lig h t, th e sam e b i ll an aly sis d escrib es d riv in g th e

w ro n g d irectio n as “ a d an g ero u s tactic, risk in g th e liv es o f in n o cen t d riv ers an d b y stan d ers,” an d ak in to “ f irin g a lo ad ed g u n d o w

n a cro w ded sid ew alk .” Id

. T h e leg islativ e h isto ry th u s co n f irm s th e co m

m o n -s en s e

n o tio n th at d riv in g th e w r o n g d i rectio n d u rin g f lig h t f ro m p olice is in h eren tly d an g ero u s.L E P E M O R A N V

. B A R R 11

the wrong side of a wide street for just five feet. B ut a hig hly unlikely theoretical possibility is n ot enou gh to remove section 2 800.4 from the morally turpitudinous realm, for two

reasons.

F irst, even a short, slow-speed trip in the wrong direction during flig h t creat e s a substantial risk of harm. Drivers, pedestrians, and others do not ex pect vehicles to travel in the
wrong direction. Oncoming driv er s , for ex ample, could

swerve dang erously to avoid a c o l lision. Similarly

, because the pursued driver is distracted by actively fleeing a pursuing officer, the driver will b e less capable of responding alertly to other traffic. Driving in the wron g direction during flig ht, like speeding up even slig h tly or t u r n ing off headlig hts, 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. W hen the Supreme Court directed us to consider the least of the acts criminaliz ed, it specifically cautio ned that “our focus on the minimum conduct criminaliz ed by the state statute is not an invitation to apply ‘leg al imag ination’ to the
state offense; there must b e ‘ a realistic probability

, not a theoretical possibility

, that the State would apply its statute to conduct that falls outside the g eneric definition of a crime.’” Monc r i ef f e , 569 U.S. a t 191 ( quoting Gonzales v. DuenasAlvarez

, 5 49 U .S. 183, 193 ( 2007)). W e see n o realistic probability that California would apply this statute to conduct that falls outside the g eneric defi n i t i o n of a crime involving moral turpitude. See, e.g. , Ca s t r ijon-Garcia
, 7 04 F

. 3d at 1215 ( apply ing Duen a s -Alvarez to a naly z e whether a crime involves moral turpitude).L E P E M O R A N V

. B A R R 12

Petitioner directs us to two C alifornia cases a pply ing section 2800.4, but both involved in c redibly dang erous conduct. I n P eople v. Canela

, 168 Cal. Rptr. 3d 858 ( Cal. Ct. App. 2014), the defenda n t sped up, ran stop sig ns and red lig hts, and hit a pedestrian, severely injuring him. See id. at 862–64 ( h olding that California courts consider the e n tire fli g h t in determining the harm caused by the crime). I n People v. S

c arborough

, No. A147529, 2018 W L 3046120 (Cal. Ct. A pp. J une 20, 2 018) (unpublished), the defendant d r ove the wrong way , in reverse, a t a hig h rate of speed i n a residential n eig hborhood a n d

, later, jumped o ut of the c ar whil e i t 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 ar gu e t hat his o wn

case illustrates a

n application of the statute to inno c u ous conduct. I ndeed, g iven his s i multaneous conviction for f elony hit-and-run resulting in injury to another person, w e infer to the contrary

.

3 P etitio n er b ears th e b u rd en o f i d en t if y in g a case in w h ich th e state

co u rt h as “ ap p l[ied ] t

h e s tatu te in th e sp ecial (n o n g en eric) m an n er f or

w h ich h e arg u es.” Du en a s-Alva rez , 5 4 9 U.S. at 1 9 3

. No n eth eless, w e h av e in d ep en d en t ly rev iew e d C a l i f o r n ia cases i n v o lv in g co n v ictio n s u n der Sectio n 2 80 0 .4 an d f

o u n d n o n e th at describ es n o n

- da n g e ro u s co n d u ct. S ee, e.g

. , Peo

p le v. S weet , No

. A 1 5 6 08 2, 20 2 0 W L 2 0 9 2 4 2 8
, * 1 (Cal. Ct. A p p. May 1, 2 0 2 0 ) (u

n p u b lish ed ) (reco u n tin g th at th e d ef en d an t “ ran sto p sig n s, dro v e o n t h e w

ro n g sid e of t

h e street to w ard o n co m in g t raf f ic,

sw erv ed to av o i d co llisio n s, v io lated sp eed restrictio n s, s k i d d e d in an in te r se c t io n , an d ap p eared to sid e- sw ip e b oth a sch o o l b u s an d an o th er

v eh icle”); Peo

p le v. S tep h en s , No

. D 0 7 4 1 4 6
, 2 0 1 9 W L 1 2 92 7 0 8
, * 1 (Cal. Ct. A p p

. March 2 1
, 2 0 1 9 ) (n o tin g th at an o f f icer ch ased a t

ru ck “ t h ro u g h

sev eral s to p sig n s an d red li g ht s a t s p eed s u p to 6 0 m iles p er h o u r,” an d th at, “ [a]f

ter sev eral m in

u tes, t h e t ru c k v eered in to a resid en tial

n eig h b o rh o o d, co n tin

u i n g to v io l ate traf

f i c sig n s an d at on e p o i n t d riv in g 4 0 m iles p er h ou r d o w n t h e w ro n g sid e o f th e ro ad an d alm o st co llid in g

w ith an o th er v eh icle”).L E P E M O R A N V

. B A R R 13

W e conc l u d e , then, that the B I A permissibly held that a violation o f California Vehicle Code s e c tion 2800.4 is categ orically

a crime involving moral turpitude.

P etition DENIED.