Jose Medina-Nunez v. Loretta E. Lynch

MEMORANDUM **

Petitioner Jose Juan Medina-Nunez petitions for review of the Board of Immigration Appeals’ (“BIA”) determination that he is removable under 8 U.S.C. § 1227 (a)(2)(A)(i) because he committed a crime involving moral turpitude. For the reasons below, we deny the petition.

The BIA properly held that Petitioner’s felony conviction under California Vehicle Code section 2800.2(a) for “eludfing] a pursuing peace officer ... [while driving a vehicle] in a willful or wanton disregard for the safety of persons or property” categorically constituted a crime involving moral turpitude. In In re Ruiz-Lopez, 25 I. & N. Dec. 551 (B.I.A.2011), petition for re-. view denied,, 682 F.3d 513 (6th Cir.2012), the BIA held that the Washington crime, eluding a pursuing police vehicle, Wash. Rev.Code § 46.61.024, is categorically a crime involving moral turpitude. “[W]hen 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.” In re Ruiz-Lopez, 25 I. & N. Dec. at 556 (internal…

dissenting:

I respectfully dissent.

The majority’s opinion, I believe, overextends the category of crimes that constitute expressions of so called “moral turpitude,” particularly in light of our recent examination of this phrase in Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir.2015), a decision handed down subsequent to the briefing in this case.

As a threshold matter, I disagree that the BIA conclusion that Petitioner’s violation of § 2800.2 did fall into the category of “moral turpitude” is entitled to deference, either under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), or Skidmore v. Swift & Co., 323 U.S. 134 , 65 S.Ct. 161 , 89 L.Ed. 124 (1944). Even if deference were proper, which it is not, two considerations satisfy me that the agency’s interpretation is so unreasonable that it would be unsustainable. Cf. Hemandez-Gonzalez, 778 F.3d at 807 (rejecting BIA conclusion regarding “moral turpitude” even while applying Chevron deference).

First, the BIA opinion never actually looked at the substance of the California statute itself. Very significantly, it entirely disregarded § 2800.2(b), which…

FILED

NOT FOR PUBLICATION JUN 08 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE JUAN MEDINA-NUNEZ, No. 14-70657

Petitioner, B.I.A. No. A070-736-545

v.

MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted April 13, 2015 San Francisco, California

Before: KOZINSKI and GRABER, Circuit Judges, and PONSOR,** Senior District Judge.

Petitioner Jose Juan Medina-Nunez petitions for review of the Board of

Immigration Appeals’ ("BIA") determination that he is removable under 8 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Michael A. Ponsor, Senior United States District Judge for the District of Massachusetts, sitting by designation. § 1227(a)(2)(A)(i) because he committed a crime involving moral turpitude. For

the reasons below, we deny the petition.

The BIA properly held that Petitioner’s felony conviction under…