FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO ALEXIS LEPE MORAN,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 18-73167

Agency No.

A206-279-913

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 28, 2020

San Francisco, California

Filed June 2, 2020

Before: J. Clifford Wallace, Ronald Lee Gilman,*

and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

* The Honorable Ronald Lee Gilman, United States CircuitJudge for

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 LEPE MORAN V. BARR

SUMMARY**

Immigration 

DenyingRoberto Alexis Lepe Moran’s petition for review

of a Board of Immigration Appeals’ decision, the panel held

that the BIA permissibly held that Petitioner’s conviction for

felony vehicular flight from a pursuing police car while

driving against traffic, in violation of California Vehicle Code

section 2800.4, is categorically a crime involving moral

turpitude that made him removable.

The panel described the two-step process for determining

whether an offense is a crime involving moral turpitude: the

court reviews the elements of the statute de novo and then

asks whether those elements fall within the generic federal

definition of a crime involving moral turpitude. 

At the first step, the panel observed that California

Vehicle Code section 2800.4 requires that the defendant,

while operating a motor vehicle and with intent to evade,

willfully flee or attempt to elude a pursuing peace officer and

that, during that flight, the defendant willfully drive his or her

vehicle on a highway in a direction opposite traffic. 

At the second step, the panel explained that the court

defers, to some extent, to the BIA’s conclusion that a crime

involves moral turpitude, but the panel concluded that it need

not decide the appropriate level of deference because, even

affording only minimal deference, the BIA’s interpretation

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
LEPE MORAN V. BARR 3

was correct. In agreeing with the BIA, the panel explained

that the category of non-fraudulent crimes involving moral

turpitude includes some crimes that seriously endanger

others, even if no actual injury occurs. The panel further

explained that the greater 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. Comparing

section 2800.4 to relevant precedent, the panel concluded that

willfully driving in the wrong direction while fleeing a

pursuing police officer inherently creates a risk of harm to

others that is substantial enough for the statute categorically

to meet the definition of a crime involving moral turpitude. 

The panel also rejected Petitioner’s contention that the

risk of harm to others is insufficient in light of the least of the

acts criminalized here. The panel noted that, in theory,

section 2800.4 could apply to a driver who willfully flees

from police at ten miles per hour and drives on the wrong side

of the road for just five feet. However, the panel concluded

that a highly unlikely theoretical possibility was not enough

to remove the statute from the morally turpitudinous realm

because: 1) even a short, slow-speed trip in the wrong

direction during flight creates substantial risk of harm to

others; and 2) a theoretical possibility is insufficient as a

matter of law; rather, there must be a “realistic probability”

that the state would apply the statute to conduct that falls

outside the definition of the generic crime, and the panel

concluded that there was no such realistic probability here. 

COUNSEL

Victoria Ayeni (argued) and Nicholas J. Hunt, Certified Law

Students; Leah Spero, Gary A. Watt, and Stephen R.
4 LEPE MORAN V. BARR

Tollafield, Supervising Counsel; Hastings Appellate Project,

San Francisco, California; for Petitioner.

Tim Ramnitz (argued), Attorney; Russell J.E. Verby, Senior

Litigation Counsel; Joseph P. Hunt, Assistant Attorney

General; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

OPINION

GRABER, Circuit Judge:

Petitioner Roberto Alexis Lepe Moran, a native and

citizen of Mexico, seeks review of a final decision of the

Board of Immigration Appeals (“BIA”) holding that

Petitioner is removable by reason of his conviction of a crime

involving moral turpitude. We have jurisdiction over this

timely petition for review, 8 U.S.C. § 1252(b), and we deny

the petition.

Petitioner was admitted to the United States in 2014 as a

nonimmigrant. In 2016, he pleaded guilty in California state

court to two crimes arising out of the same incident: 

violations of California Vehicle Code section 2800.4 (felony

vehicular flight from a pursuing police car while driving

against traffic) and California Vehicle Code section

20001(b)(1) (felony hit-and-run resulting in injury to another

person). He was sentenced to two concurrent sixteen-month

terms of imprisonment.

Immigration authorities then issued Petitioner a notice to

appear that charged him with being removable. After a
LEPE MORAN V. BARR 5

hearing at which he was represented by counsel, an

immigration judge ruled that California Vehicle Code section

2800.41is categorically “a crime involving moral turpitude”

within the meaning of 8 U.S.C. § 1227(a)(2)(A)(i). 

Accordingly, the immigration judge held that Petitioner is

removable because of his conviction. The BIA agreed with

those conclusions and dismissed Petitioner’s appeal. The

agency also denied Petitioner’s requests for asylum,

withholding of removal, and protection under the Convention

Against Torture.

Before us, Petitioner challenges only the ruling that

California Vehicle Code section 2800.4 is categorically a

crime involving moral turpitude. To review that

determination, we follow a two-step process:

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

1 California Vehicle Code section 2800.4 provides for a criminal

penalty

[w]henever a person willfully flees or attempts to elude

a pursuing peace officer in violation of Section 2800.1,

and the person operating the pursued vehicle willfully

drives that vehicle on a highway in a direction opposite

to that in which the traffic lawfully moves upon that

highway. . . .
6 LEPE MORAN V. BARR

least of the acts criminalized. Moncrieffe v.

Holder, 569 U.S. 184 (2013).

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

2017).

At the first step, we and the parties agree on the elements

of the crime. California Vehicle Code section 2800.4 defines

an aggravated version of the crime defined by California

Vehicle Code section 2800.1. Section 2800.1 requires that

the defendant, “while operating a motor vehicle and with the

intent to evade,” “willfully” flee or attempt to elude a

pursuing peace officer. Section 2800.4 requires both that the

defendant willfully flee or attempt to elude a pursuing peace

officer in violation of section 2800.1 and that, during that

flight, the defendant “willfully” drive his or her “vehicle on

a highway in a direction opposite to that in which the traffic

lawfully moves upon that highway.” “Willfully” here means

intentionally or “on purpose.” Jud. Council of Cal. Crim.

Jury Instr. 2182 (2019). And a “highway,” for purposes of

the California Vehicle Code, includes any publicly

maintained street. Cal. Veh. Code § 360.

At the second step, we defer, to some extent, to the BIA’s

conclusion that a crime involves moral turpitude. RamirezContreras, 858 F.3d at 1302. Because the BIA’s decision

here is unpublished, we afford only the deference described

in Skidmore v. Swift & Co., 323 U.S. 134 (1944). RamirezContreras, 858 F.3d at 1302–03. The extent of the deference

that we grant therefore depends on the thoroughness,

consistency, and persuasiveness of the BIA’s reasoning. Id.

at 1303. Petitioner asserts that we owe only “minimal

deference,” id., to the BIA because its analysis consisted of

just a single sentence, followed by citations to cases that
LEPE MORAN V. BARR 7

Petitioner contends are not controlling. We need not decide

what level of deference we should grant because, even

affording only minimal deference, we conclude that the

BIA’s interpretation is correct. See Fugow v. Barr, 943 F.3d

456 (9th Cir. 2019) (per curiam) (addressing a moralturpitude question without mentioning deference to the BIA).

“In comparing the elements of [section 2800.4] 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.” RamirezContreras, 858 F.3d at 1304 (citations and internal quotation

marks omitted). Fraudulent crimes always involve moral

turpitude. Non-fraudulent crimes, such as violations of

section 2800.4, also can fit the category of moral turpitude. 

Qualifying non-fraudulent crimes “almost always involve an

intent to injure someone, an actual injury, or a protected class

of victims.” Id. (citation and internal quotation marks

omitted). But the non-fraudulent category also includes some

crimes that seriously endanger others, even if no actual injury

occurs. See, e.g., Fugow, 943 F.3d at 459 (holding that

unlawful imprisonment under Hawaii law is a crime

involving moral turpitude, even though no actual injury need

occur). We consider the actus reus and the mens rea “in

concert to determine whether the behavior they describe is

sufficiently culpable to be labeled morally turpitudinous.” 

Castrijon-Garcia v. Holder, 704 F.3d 1205, 1214 (9th Cir.

2013) (citation and internal quotation marks omitted).

With respect to the actus reus, an additional element can

transform a crime that does not involve moral turpitude into

one that does. For example, in Altayar v. Barr, 947 F.3d 544

(9th Cir. 2020), we held that assault with a “deadly weapon

or dangerous instrument” involves moral turpitude even
8 LEPE MORAN V. BARR

though simple assault does not. We reasoned that the extra

element “necessarily makes the offense more serious, more

dangerous, and therefore more blameworthy than a simple

assault.” Id. at 552; see also Matter of Lopez-Meza, 22 I. &

N. Dec. 1188, 1196 (BIA 1999) (holding that an aggravated

driving-under-the-influence (“DUI”) offense involves moral

turpitude, even though simple DUI does not).

With respect to the mens rea, the greater 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. Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir.

2014). In Leal, we held that felony endangerment under

Arizona law is a crime involving moral turpitude, even

though the mens rea is only recklessness, because of the level

of risk (actual and substantial) and the severity of the

potential harm (imminent death). Id. at 1144. Conversely,

we held in Fugow that unlawful imprisonment under Hawaii

law is a crime involving moral turpitude because of a high

mens rea (knowingly), even though the harm risked (serious

bodily injury) was less than the potential harm identified in

Leal. Fugow, 943 F.3d at 459.

Here, section 2800.4 requires willfulness—an elevated

mens rea—with respect to both fleeing a pursuing peace

officer and driving in the wrong direction during flight. We

agree with the BIA that willfully driving in the wrong

direction while willfully fleeing a pursuing police officer

inherently creates a risk of harm to others that is substantial

enough for the statute categorically to meet the definition of

a crime involving moral turpitude.

Our reasoning in Ramirez-Contreras supports that

conclusion, even though Ramirez-Contreras held that a
LEPE MORAN V. BARR 9

different section of the California Vehicle Code was not a

crime involving moral turpitude. The law at issue there,

California Vehicle Code section 2800.2, defines a different

aggravated version of section 2800.1: fleeing or attempting

to elude a pursuing peace officer at a time when the driver has

“three or more violations that are assigned a traffic violation

point count.” Ramirez-Contreras, 858 F.3d at 1301. Those

traffic infractions expressly include “relatively innocuous

sorts of conduct,” such as driving one’s car without proper

registration and driving a car that is out of compliance with

air pollution standards. Id. at 1304.

We acknowledged “the seriousness of any flight from

police.” Id. at 1306. And we recognized that other courts

have held that statutes criminalizing intentional flight from

police plus an aggravating element constitute crimes

involving moral turpitude: Mei v. Ashcroft, 393 F.3d 737 (7th

Cir. 2004) (fleeing from police while going 21 or more miles

per hour over the speed limit); Cano-Oyarzabal v. Holder,

774 F.3d 914 (7th Cir. 2014) (fleeing from police while

interfering with the officer, vehicles, or pedestrians; speeding

up; or turning headlights off); and Ruiz-Lopez v. Holder,

682 F.3d 513 (6th Cir. 2012) (fleeing from police while

driving “in a manner indicating a wanton or willful disregard

for the lives or property of others”). Id. at 1304–05.

We did not suggest that any of those cases was wrongly

decided. Rather, we distinguished them on two grounds: 

“The statutes in those cases penalized willful conduct that

increased the risk of harm to others.” Id. at 1305 (emphases

added). But the aggravating conduct that could give rise to a

violation of California Vehicle Code section 2800.2 (such as

driving one’s car without proper registration or failing to

meet air pollution standards) need not be willful, and such
10 LEPE MORAN V. BARR

conduct does not increase the risk of harm that arises from

fleeing. Id. at 1306.

By contrast, a violation of section 2800.4 requires

willfully driving in the wrong direction; negligence, or even

recklessness, does not suffice. And driving in the wrong

direction inherently increases the risk of harm to others

during the flight from police.2

As to this final point, Petitioner argues that the risk of

harm to others is insufficient when we consider, as we must,

the least of the acts criminalized. Moncrieffe, 569 U.S.

at 190–91. We disagree. In theory, section 2800.4 could

apply to a driver who willfully flees from police at ten miles

per hour and who, during that slow flight, willfully drives on

2 Petitioner argues that the legislative history supports his view that

section 2800.4 does not involve moral turpitude. Quoting selectively from

a bill analysis, Petitioner reasons as follows. Many law enforcement

agencies had implemented policies that require officers to end a pursuit

when the pursued person drives the wrong direction, and the legislature

enacted section 2800.4 in part to deter drivers from evading capture by

driving the wrong direction. Vehicles: Police Pursuits, Sen. Public Safety

Comm., Bill Analysis on Sen. Bill No. 1735, 2005–2006 Reg. Sess. (April

25, 2006). According to Petitioner, a simple evasion technique does not

implicate moral turpitude. We emphatically disagree with Petitioner’s

reasoning. Putting aside that law enforcement agencies almost certainly

enacted the no-pursuit policy because of the dangerousness of driving the

wrong direction during flight, the same bill analysis describes driving the

wrong direction as “a dangerous tactic, risking the lives of innocent

drivers and bystanders,” and akin to “firing a loaded gun down a crowded

sidewalk.” Id. The legislative history thus confirms the common-sense

notion that driving the wrong direction during flight from police is

inherently dangerous.
LEPE MORAN V. BARR 11

the wrong side of a wide street for just five feet. But a highly

unlikely theoretical possibility is not enough to remove

section 2800.4 from the morally turpitudinous realm, for two

reasons.

First, even a short, slow-speed trip in the wrong direction

during flight creates a substantial risk of harm. Drivers,

pedestrians, and others do not expect vehicles to travel in the

wrong direction. Oncoming drivers, for example, could

swerve dangerously to avoid a collision. Similarly, because

the pursued driver is distracted by actively fleeing a pursuing

officer, the driver will be less capable of responding alertly to

other traffic. Driving in the wrong direction during flight,

like speeding up even slightly or turning off headlights,

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. When the Supreme Court directed us to consider the

least of the acts criminalized, it specifically cautioned that

“our focus on the minimum conduct criminalized by the state

statute is not an invitation to apply ‘legal imagination’ to the

state offense; there must be ‘a realistic probability, not a

theoretical possibility, that the State would apply its statute to

conduct that falls outside the generic definition of a crime.’” 

Moncrieffe, 569 U.S. at 191 (quoting Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007)). We see no realistic

probability that California would apply this statute to conduct

that falls outside the generic definition of a crime involving

moral turpitude. See, e.g., Castrijon-Garcia, 704 F.3d at

1215 (applying Duenas-Alvarez to analyze whether a crime

involves moral turpitude).
12 LEPE MORAN V. BARR

Petitioner directs us to two California cases applying

section 2800.4, but both involved incredibly dangerous

conduct. In People v. Canela, 168 Cal. Rptr. 3d 858 (Cal. Ct.

App. 2014), the defendant sped up, ran stop signs and red

lights, and hit a pedestrian, severely injuring him. See id. at

862–64 (holding that California courts consider the entire

flight in determining the harm caused by the crime). In

People v. Scarborough, No. A147529, 2018 WL 3046120

(Cal. Ct. App. June 20, 2018) (unpublished), the defendant

drove the wrong way, in reverse, at a high rate of speed in a

residential neighborhood and, later, jumped out of the car

while it 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 argue that his own

case illustrates an application of the statute to innocuous

conduct. Indeed, given his simultaneous conviction for

felony hit-and-run resulting in injury to another person, we

infer to the contrary.

3 Petitioner bears the burden of identifying a case in which the state

court has “appl[ied] the statute in the special (nongeneric) manner for

which he argues.” Duenas-Alvarez, 549 U.S. at 193. Nonetheless, we

have independently reviewedCalifornia cases involving convictions under

Section 2800.4 and found none that describes non-dangerous conduct. 

See, e.g., People v. Sweet, No. A156082, 2020 WL 2092428, *1 (Cal. Ct.

App. May 1, 2020) (unpublished) (recounting that the defendant “ran stop

signs, drove on the wrong side of the street toward oncoming traffic,

swerved to avoid collisions, violated speed restrictions, skidded in an

intersection, and appeared to side-swipe both a school bus and another

vehicle”); People v. Stephens, No. D074146, 2019 WL 1292708, *1 (Cal.

Ct. App. March 21, 2019) (noting that an officer chased a truck “through

several stop signs and red lights at speeds up to 60 miles per hour,” and

that, “[a]fter several minutes, the truck veered into a residential

neighborhood, continuing to violate traffic signs and at one point driving

40 miles per hour down the wrong side of the road and almost colliding

with another vehicle”).
LEPE MORAN V. BARR 13

We conclude, then, that the BIA permissibly held that a

violation of California Vehicle Code section 2800.4 is

categorically a crime involving moral turpitude.

Petition DENIED.