FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO ALEXIS LEPE MORAN, No. 18-73167 Petitioner, Agency No. v. A206-279-913 WILLIAM P. BARR, Attorney General, Respondent. 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 Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 LEPE MORAN V. BARR SUMMARY** Immigration Denying Roberto 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 ...
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