Thursday, March 5, 2009
Panel Upholds Alien’s Removal Over Drunk Driving
By KENNETH OFGANG, Staff Writer
Drunk driving may be treated as a crime of moral turpitude for purposes of the alien removal statutes, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 6-5 en banc decision, the court upheld the Bureau of Immigration Appeals’ ruling that a Mexican national convicted twice of aggravated drunk driving under Arizona law—which defines the crime as driving or taking “actual physical control” of a vehicle while under the influence and while one’s license is suspended or revoked, or is restricted because of a prior DUI conviction—be removed from the United States.
Armando Marmolejo-Campos, who entered the United States illegally in 1983 but obtained an adjustment of status and legal residency in 2001, was convicted of felony theft in 1990 and of aggravated drunk driving in 1997 and again in 2002. The last conviction resulted in a 30-month prison term.
Following that conviction, the Department of Homeland Security initiated removal proceedings, charging that he had been convicted of a crime involving moral turpitude within 10 years of admission—a charge the department later withdrew—and that he had been convicted of two or more separate crimes of moral turpitude.
An immigration judge found that each of the aggravated DUI offenses involved moral turpitude and ordered removal. In affirming, a single member the BIA cited the board’s 1990 en banc decision in In re Lopez-Mesa, holding that aggravated DUI as defined in Arizona is a crime of moral turpitude.
A later Ninth Circuit decision held that aggravated DUI was not categorically a crime of moral turpitude, because it could be committed without actually driving a vehicle, but did not foreclose the possibility that the crime could be treated as one of moral turpitude, using the “modified categorical approach,” when it involves actual driving and not just taking physical control of a vehicle.
In Campos’ case, the IJ determined, based on plea transcripts, that the offenses involved actual driving.
Campos’ petition for review was denied by a divided three-judge panel, and then yesterday by the en banc panel.
Judge Diarmuid F. O’Scannlain said the BIA’s interpretation of what constitutes “moral turpitude” was reasonable in Campos’ case. While DUI is not normally a crime of moral turpitude, the judge said, the additional requirement that the defendant know that he is prohibited from driving makes the offense “morally turpitudinous,” the judge said.
While the issue “is one upon is one upon which reasonable minds can differ,” O’Scannlain wrote, “...Congress left the choice between reasonable interpretations of the INA to the Attorney General and, by his delegation, to the BIA.”
The opinion was joined by Chief Judge Alex Kozinski and Judges Andrew J. Kleinfeld, Barry G. Silverman, Richard C. Tallman, and Richard R. Clifton.
Judge Marsha Berzon dissented, arguing that deference to the BIA was unwarranted because “Lopez-Mesa is the epitome of an unreasonable agency interpretation, to which we need not defer....” She referred to the 1990 ruling as “this latest interpretive whim of an agency that continually refuses to state a coherent definition of, or follow a coherent approach to, the vague [crime involving moral turpitude] statutory term it is charged with applying.”
The BIA’s ruling is “wholly illogical,” Berzon said, when read together with rulings that third-offense drunk driving and driving with a suspended license are not crimes of moral turpitude.
Judges Harry Pregerson, Raymond C. Fisher, and Richard A. Paez joined in Berzon’s dissent. Judge Jay S. Bybee wrote separately, largely agreeing with Berzon but suggesting that he might have joined the majority had the BIA formally overruled the seemingly inconsistent precedents cited in Berzon’s opinion.
The case is Marmolejo-Campos v. Holder, 04-76644.
Copyright 2009, Metropolitan News Company