The BIA recently held that a Washington conviction for attempting to elude a pursuing police vehicle involves moral turpitude. Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011) (Filppu, Pauley, and Wendtland, Board Members). Board Member Wendtland wrote the panel’s decision.
This case involved an individual who entered the United States without inspection and was convicted of attempting to elude a pursuing police vehicle in violation of Wash. Rev. Code § 46.61.024. An IJ found that this conviction rendered him ineligible for Cancellation of Removal. See INA § 240A(b)(1)(C) (precluding eligibility for Cancellation if convicted of an offense that falls within INA § 212(a)(2), of which crimes involving moral turpitude is one type of offense).
According to the BIA, the Washington statute provides:
Any driver of a motor vehicle who wilfully fails or refuses to immediately bringhis vehicle to a stop and who drives his vehicle in a manner indicating a wantonor wilful disregard for the lives or property of others while attempting to eludea pursuing police vehicle, after being given a visual or audible signal to bring thevehicle to a stop, shall be guilty of a class C felony. The signal given by the policeofficer may be by hand, voice, emergency light, or siren. The officer giving sucha signal shall be in uniform and his vehicle shall be appropriately marked showingit to be an official police vehicle.
Matter of Ruiz-Lopez, 25 I&N Dec. at 552 (quoting Wash. Rev. Code § 46.61.024).
Ruiz-López “[c]onced[ed] that his attempt to elude a police officer was a ‘wilful’ act” as defined by the state statute, but “claim[ed] that it was not committed with the evil intent generally associated with other crimes found to involve moral turpitude….” Matter of Ruiz-Lopez, 25 I&N Dec. at 552.
To Board explained that the Washington offense consists of three elements:
“The first element is that a uniformed police officer whose vehicle is appropriately marked must give the driver of a motor vehicle a visual or audible signal to bring the vehicle to a stop. Next, the driver must willfully fail or refuse to immediately bring his vehicle to a stop—the willful failure to do so implies knowledge that a signal has been given. Finally, while attempting to elude a pursuing police vehicle, the driver must drive his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others.”
Matter of Ruiz-Lopez, 25 I&N Dec. at 554. Because of Ruiz-López’s concessions, only the third element was contested in this case.
After reviewing decisions of Washington state courts interpreting the state offense, the BIA concluded that, for a conviction to occur, “‘[t]he statute is absolutely clear that at the very least the manner in which one drives must indicate wanton and willful disregard.’” Matter of Ruiz-Lopez, 25 I&N Dec. at 555 (quoting State v. Sherman, 653 P.2d 612, 615-16 (Wash. 1982)).
In a later paragraph the BIA expounded on its reasoning by explaining, “We conclude that when a person deliberately flouts lawful authority and recklessly endangers the officer, other drivers, passengers, pedestrians, or property, he or she is ‘engaged in seriously wrongful behavior’ that violates the accepted rules of morality and the duties owed to society.’” Matter of Ruiz-Lopez, 25 I&N Dec. at 556 (quoting Mei v. Ashcroft, 393 F.3d 737, 742 (7th Cir. 2004)). As such, the Board “f[ou]nd that moral turpitude necessarily inheres in such a crime, given the combination of circumstances involved.” Matter of Ruiz-Lopez, 25 I&N Dec. at 556.
As a side note, the BIA provided a paragraph detailing the proper analysis to use to determine whether a crime involves moral turpitude under Matter of Silva-Treviño, 24 I&N Dec. 687, 688-89 (A.G. 2008). The BIA explained,
“Pursuant to Matter of Silva-Trevino, the first stage of the analysis employs a categorical approach, under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a ‘realistic probability’ of being prosecuted under that statute. If the issue cannot be resolved under the categorical approach, the second stage involves a modified categorical inquiry, which requires inspection of specific documents comprising the alien’s record of conviction to discern the nature of the underlying conviction. Finally, if the record of conviction is inconclusive, the Attorney General has held that because moral turpitude is not an element of an offense, evidence beyond the record of conviction may be considered when evaluating whether an alien’s crime involved moral turpitude.”
Matter of Ruiz-Lopez, 25 I&N Dec. at 553. Silva-Treviño, the BIA suggests, requires a linear analysis: only use step two (the modified categorical approach) if step one does not answer the question; only use step three (the anything-goes prong) if step two does not answer the question.
I say that this explanation is a side note because the BIA did not employ steps two or three here. It decided this case relying solely on step one: the categorical approach. It could easily have left out an explanation of Silva-Treviño and reached the same conclusion. That it chose to include this paragraph suggests to me that it was trying to clear up confusion about when an IJ should proceed to steps two and three.