Eliceo Hernandez-Martinez v. John Ashcroft, Attorney General

329 F.3d 1117 Eliceo HERNANDEZ-MARTINEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-70048. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 12, 2003. Filed May 27, 2003. Judy Flanagan, Phoenix, AZ, for the petitioner. Anh-Thu P. Mai, Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. INS No. Acx-uau-rww. Before NOONAN, TASHIMA, and WARDLAW, Circuit Judges. Opinion by Judge NOONAN. Concurring opinion by Judge WARDLAW. OPINION NOONAN, Circuit Judge: 1 Eliceo Hernandez-Martinez (Hernandez) petitions for review of the decision of the Board of Immigration Appeals (the Board) holding him to be convicted of a crime of moral turpitude by virtue of his conviction under Arizona law of aggravated driving under the influence. We hold that the statute under which Hernandez was convicted is divisible and its range does not include only crimes of moral turpitude. Accordingly, we grant Hernandez's petition. FACTS AND PROCEEDINGS 2 Hernandez, a native of Mexico, entered the United States in 1981 without inspection. On June 15, 1998, he was convicted of aggravated driving…

Opinion by Judge NOONAN. Concurring opinion by Judge WARDLAW.

OPINION

Eliceo Hernandez-Martinez (Hernandez) petitions for review of the decision of the Board of Immigration Appeals (the Board) holding him to be convicted of a crime of moral turpitude by virtue of his conviction under Arizona law of aggravated driving under the influence. We hold *1118 that the statute under which Hernandez was convicted is divisible and its range does not include only crimes of moral turpitude. Accordingly, we grant Hernandez’s petition.

FACTS AND PROCEEDINGS

Hernandez, a native of Mexico, entered the United States in 1981 without inspection. On June 15, 1998, he was convicted of aggravated driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or drugs (aggravated DUI) in violation of Arizona Revised Statutes §§ 28 — 692(A)(1) and 28-697(A)(l). 1 In August 1998, the Immigration and Naturalization Service (the INS) charged him as an alien who had committed a crime involving moral turpitude. An immigration judge upheld the charge.

Hernandez appealed to the Board. On December 19, 2001, the Board ruled “that our decision in Matter of Lopez-Meza,…

concurring:

I am pleased to concur in the judgment. I write to clarify that the offense of Driving Under the Influence (“DUI”) with a suspended license, as defined by Arizona Revised Statute § 28-697(A)(l), is not a deportable crime of moral turpitude as a matter of either Ninth Circuit or BIA caselaw. The source of confusion may very well be the BIA’s schizophrenic law on the subject. Compare Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (B.I.A. 1999) (holding that a DUI with a suspended license is a crime of moral turpitude), with Matter of Torres-Varella, 23 I. & N. Dec. 78 (B.I.A.2001) (en banc) (holding that DUI with two prior DUI offenses is not a crime of moral turpitude).

Whether a state statute defines a de-portable crime involving moral turpitude is a legal issue we review de novo. See Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000); Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir.1993); see also Torres-Varella, 23 I. & N. Dec. at 82-84 (recognizing that a “crime involving moral turpitude” is a matter of federal law subject to judicial interpretation, and looking to Ninth Circuit case law when analyzing a conviction within its jurisdiction). Even if we were to defer to the…