U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 leesburg Pzke. Suite 2000

Falls Church. Virgmza 22041

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Ramirez, Carlos OHS/ICE Office of Chief Counsel - LOS
Law Office of Noemi G. Ramirez 606 S. Olive Street, 8th Floor
1295 W. Sunset Blvd. Los Angeles, CA 90014
Los Angeles, CA 90026

Name: A -M , F A -992

Date of this notice: 1/26/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

DcnttL cl1/VL)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John
Pauley, Roger
Kendall-Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: F-A-M-, AXXX XXX 992 (BIA Jan. 26, 2017)
 ,

I u.s. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 992 -Los Angeles, CA Date: JAN 2 6 2017

In re: F A - a.k.a.

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Carlos Ramirez, Esquire

APPLICATION: Cancellation of removal

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated July 18, 2016, pretermitting his application for cancellation of removal under
section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229b(b)(l). The appeal
will be sustained and the record will be remanded for further proceedings.

We review the findings of fact made by the Immigration Judge, including the question of
credibility, under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review
questions of law, discretion, and judgment under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii).

The Immigration Judge pretermitted the respondent's application for cancellation of removal,
1
finding that the respondent's three convictions under California Vehicle Code 14601.2(a),
driving with a suspended or revoked license for having driven under the influence (DUI), were
for "crimes involving moral turpitude," rendering him ineligible for that form of relief. The
respondent challenges this finding on appeal.

The statute does not define "crime involving moral turpitude." The Board has held that this
term involves "conduct that shocks the public conscience as being inherently base, vile, or
depraved, contrary to the rules of morality and the duties owed between man and man, either
one's fellow man or society in general." Matter ofPerez-Contreras, 20 l&N Dec. 615, 618 (BIA
1992); see also Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988). As a general matter, a
finding of moral turpitude requires that a perpetrator have committed [a] reprehensible act with
some form of scienter." Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009), citing
Matter of Silva-Trevino, 24 l&N Dec. 687, 688, 706 (A.G. 2008), vacated by 26 l&N Dec. 550
(A.G. 2015). The Board has also accepted that a "regulatory offense" i.e., act that is prohibited

The dates of conviction were May 27, 2003; August 3, 2010; and July 13, 2011 (l.J. at 2).
The respondent was also convicted on August 13, 2003, under California Vehicle Code
23152(b), but this was a separate offense unrelated to the above three convictions.

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 992

by law but not inherently vile or wrong, does not constitute a crime involving moral turpitude.
Matter ofL-V-C-, 22 I&N Dec. 594 (BIA 1999).

As noted by the Immigration Judge, the respondent's statute of conviction, Cal. Veh. Code
14601.2(a), provided as follows:

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A person shall not drive a motor vehicle at any time when that person's
driving privilege is suspended or revoked for a conviction of a violation of section
23145 or 23153 if the person so driving has knowledge of the suspension or
revocation.

The Immigration Judge concluded that the statute of conviction requires "knowledge" as the
scienter as well as an aggravating factor, making the violation a crime involving moral turpitude
(l.J. at 3-5). The Immigration Judge also relied on Marmolejo-Campos v. Holder, supra, and
Matter ofLopez-Meza, 22 I&N Dec. 1195 (BIA 1999).

However, these two cases involved a different type of offense, aggravated DUI, which
required: (1) driving a vehicle while under the influence of intoxicating liquor or drugs and (2)
while the license or privilege to drive is suspended, cancelled, etc. as a result of a prior
DUI-related offense. Marmolejo-Campos v. Holder, supra, at 912; Matter of Lopez-Mesa, supra,
at 1189-91. Therefore, the statute involved in these cases required an additional element not
present in the respondent's statute of conviction, i.e., that the offender be driving under the
influence at the time of the offense.

As noted by the United States Court of Appeals for the Ninth Circuit, the Board has accepted
that a simple DUI offense, which does not require culpable mental state such as intent or
knowledge, is not a crime involving moral turpitude. Marmolejo-Campos v. Holder, supra,
at 913; Matter of Lopez-Meza, supra, at 1194. In Matter of To"es-Varela, 23 I&N Dec. 78
(BIA 2001), the Board held that the offense of aggravated DUI under a different statute, i.e., DUI
with two or more prior DUI convictions, was not a crime involving moral turpitude. This was
because the statute did not require a culpable mental state, but merely required an aggregation of
simple DUI convictions which did not individually constitute crime involving moral turpitude.
Matter of Torres-Varela, supra, at 85-86. In contrast, the aggravated DUI statute involved in
Marmolejo-Campos v. Holder, supra, and Matter of Lopez-Meza, supra, included a scienter
element, i.e., that the offender have the knowledge that his or her license was suspended,
canceled, or revoked. Matter ofLopez-Meza, supra, at 1195. The Immigration Judge found that
the respondent's statute of conviction similarly required his knowledge that his license was
suspended or revoked, causing it to fall within the scope of crime involving moral turpitude (l.J.
at 5).

Despite this similarity, as noted above the respondent's statute of conviction did not require
driving while under the influence of a substance, but merely driving, while his license was
suspended. Unlike driving under influence, driving with a suspended license does not inherently
create a danger of serious harm to self and others, and is not inherently vile or wrong; rather, it is
in the nature of a regulatory offense. Where an act is only statutorily prohibited, rather than
inherently wrong, the act generally will not involve moral turpitude. Cuevas-Gaspar v. Gonzales,
430 F.3d 1013, 1018 (9th Cir. 2005), abrogated on another issue by Holder v. Martinez

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 992

Gutierrez, 132 S.Ct. 2011 (2012); Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir.2000)
(noting difference between malum prohibitum, an act only statutorily prohibited, and malum in
se, an act inherently wrong); Matter ofL-V-C-, 22 I&N Dec. 594 (BIA 1999).

The Immigration Judge found that the respondent's offense was not merely in the nature of a
regulatory offense as his driving privileges had been revoked because society has determined

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that the respondent was not safe or fit to drive on the streets, and yet the respondent knowingly
and deliberately decided to continue to drive and disregard the law (l.J. at 4-5). This analysis,
however, essentially aggregates the respondent's prior DUI offense and the offense at issue of
driving with a suspended license, an approach disavowed in Matter of Torres-Varela, supra, at
85-86.

Based on the above, we find that a violation of California Vehicle Code 1460 l .2(a) is not
categorically a crime involving moral turpitude. Accordingly, the respondent is not disqualified
from cancellation of removal based on these offenses. The Immigration Judge did not make
findings on other elements of the respondent's eligibility for relief. Therefore, we will remand
the record to the Immigration Judge for further proceedings to determine the respondent's
eligibility for cancellation of removal. Accordingly, the following orders shall be entered.

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with this order, and for the entry of a new decision.

Cite as: F-A-M-, AXXX XXX 992 (BIA Jan. 26, 2017)