Jose Canales Granados v. Merrick Garland ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-2028
JOSE NEFTALY CANALES GRANADOS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: September 23, 2021 Decided: November 4, 2021
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Petition for review denied by published opinion. Judge Wilkinson wrote the opinion in
which Judge Niemeyer and Judge Agee joined.
ARGUED: Samantha Hsieh, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR)
COALITION, Washington, D.C., for Petitioner. Allison Frayer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian
Boynton, Acting Assistant Attorney General, Jessica A. Dawgert, Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
WILKINSON, Circuit Judge:
Jose Neftaly Canales Granados, a citizen of El Salvador, challenges an order of
removal based on his conviction for two crimes involving moral turpitude (CIMTs). At
issue is whether the phrase “crime involving moral turpitude” is either unconstitutionally
vague or violative of the nondelegation doctrine, and whether Virginia’s felony eluding
statute, Va. Code § 46.2-817(B), qualifies as such an offense. For the reasons that follow,
we conclude that the CIMT definition does not violate the Constitution and that Virginia
felony eluding constitutes a CIMT.
I.
Canales Granados was born in El Salvador but was admitted to the United States as
a lawful permanent resident in March 2001. In 2018, he was convicted of a series of
criminal offenses, which he attributes to a multi-year struggle with substance abuse. On
February 5, 2018, he pleaded guilty to Virginia petit larceny, and on July 31, 2018, he
pleaded guilty to Virginia felony eluding, felony hit and run, and driving under the
influence. For the latter three convictions, he was sentenced to 15 years and 60 days in
prison. All but five days of the sentence were suspended, and he was instead sentenced to
a residential addiction treatment program.
Following his criminal detention, Immigration & Customs Enforcement transferred
Canales Granados to the Farmville Detention Facility in Virginia. The Department of
Homeland Security issued him a Notice to Appear. The Notice charged him with
removability under 8 U.S.C. § 1227(a)(2)(A)(ii) because he was an alien convicted of two
2
or more CIMTs not arising out of a single scheme of criminal misconduct. The crimes at
issue were his Virginia petit larceny, felony eluding, and felony hit-and-run convictions.
Canales Granados moved to terminate the removal proceedings. While he conceded
that his petit larceny conviction was a CIMT, he contended that neither Virginia felony hit
and run nor Virginia felony eluding qualified. On July 31, 2019, the immigration judge (IJ)
denied his motion. The IJ agreed with Canales Granados that the hit and run conviction
was not a CIMT. However, the IJ determined that felony eluding was. That conviction,
when combined with Canales Granados’ petit larceny conviction, gave him two CIMTs,
rendering him removable. He appealed to the BIA, which upheld the IJ’s determination.
Canales Granados timely petitioned this court for review of the BIA’s decision, and
we granted a stay of removal pending our review.
II.
We first address Canales Granados’ contention that the CIMT definition is
unconstitutionally vague. It is unremarkable to note that utter precision in statutory
language is impossible. A law is therefore only unconstitutionally vague in contravention
of the Due Process Clause if it “fails to give ordinary people fair notice of the conduct it
punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United
States, 576 U.S. 591, 595 (2015). The CIMT definition clears this constitutional hurdle.
The statute at issue, 8 U.S.C. § 1227(a)(2)(A)(ii), provides that aliens convicted of
two or more “crimes involving moral turpitude” not arising from a single scheme are
deportable. CIMTs have “two essential elements: a culpable mental state and reprehensible
conduct.” Sotnikau v. Lynch, 846 F.3d 731, 736 (4th Cir. 2017). A culpable mental state
3
requires criminal recklessness, while reprehensible conduct must “independently violate[]
a moral norm” and “shock[] the public conscience as being inherently base, vile, or
depraved.” Id. at 735–36. Of course, individuals concerned by this definition can avoid any
vagueness problem by ensuring their conduct remains squarely on the right side of the legal
line. Because the CIMT definition provides “ordinary people fair notice of the conduct it”
encompasses, both the Supreme Court and Fourth Circuit have made clear that the CIMT
definition passes constitutional muster.
In Jordan v. De George, 341 U.S. 223, 231 n.15 (1951), the Supreme Court held
that “[t]he phrase ‘crime involving moral turpitude’ presents no greater uncertainty or
difficulty than language found in many other statutes repeatedly sanctioned by [this]
Court.” The Court upheld a deportation warrant based on two fraud convictions,
concluding that the CIMT definition provided “sufficiently definite warning as to the
proscribed conduct when measured by common understanding and practices.” Id. at 231–
32. And in Boggala v. Sessions, 866 F.3d 563, 564 (4th Cir. 2017), this court read De
George to uphold an order of removal based upon a conviction for soliciting a child by
computer to commit a sex act. We found “no reason to depart” from De George’s “general
pronouncement” sanctioning the CIMT definition. Id. at 570.
De George and Boggala were not, as Canales Granados argues, implicitly overruled
by Johnson v. United States, 576 U.S. 591 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204(2018). The latter two cases found specific provisions seeking to define violent crimes—
the residual clauses—unconstitutionally vague. See 18 U.S.C. § 924(e)(2)(B)(ii) (defining
“violent felony” to include felonies involving “conduct that presents a serious potential risk
4
of physical injury to another”); 18 U.S.C. § 16(b) (defining “crime of violence” as a felony
that “by its nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.”). And those
holdings were specific to the residual clauses, which required judges to depart from the
categorical approach, “imagine” an “idealized ordinary case of the crime,” estimate the risk
of injury posed by that hypothetical crime, and then determine whether that risk was
sufficient to be termed a “violent felony.” Johnson, 576 U.S. at 597–98, 604. Three factors
dictated the unconstitutional vagueness of the residual clauses: First, the “grave
uncertainty” inherent in departing from the categorical approach and estimating the risk
posed by a crime’s “ordinary case.” Dimaya, 138 S. Ct. at 1213–14. Second, the
fundamental uncertainty in determining what level of imagined risk was sufficient to render
a crime violent. Id. And finally, the “repeated attempts and repeated failures to craft a
principled and objective standard out of the residual clause.” Johnson, 576 U.S. at 598.
In contrast to the residual clauses, the CIMT definition relies on the categorical
approach. Nunez-Vasquez v. Barr, 965 F.3d 272, 281 (4th Cir. 2020). That approach
examines the elements of an offense and the least culpable conduct necessary to sustain a
conviction. Id. at 281–82. It therefore does not require imagining the “ordinary case” of an
offense. Likewise, it does not involve determining what level of imagined risk is sufficient.
See Dimaya, 138 S. Ct. at 1215 (“[W]e do not doubt the constitutionality of applying [a]
substantial risk [standard] to real-world conduct.” (internal quotation marks omitted)).
Finally, Boggala found no “evidence of unworkability surrounding [the CIMT definition]
comparable to” the “repeated attempts and repeated failures to craft a principled and
5
objective standard” out of the residual clause. 866 F.3d at 570 (quoting Johnson, 576 U.S.
at 598). The application of the categorical approach to define CIMTs thus avoids the
aspects of the residual clauses that rendered them unconstitutionally vague in Johnson and
Dimaya.
Underscoring this point, Johnson and Dimaya did not strike down the elements (or
force) clauses of the violent felony definitions, which likewise rely on the categorical
approach. See 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” to include crimes that
have “as an element the use, attempted use, or threatened use of physical force against the
person of another”); 18 U.S.C. § 16(a) (defining “crime of violence” as an “offense that
has as an element the use, attempted use, or threatened use of physical force against the
person or property of another”). Only one year after Dimaya, the Supreme Court applied
the categorical approach to hold that Florida robbery constitutes a “violent felony” under
the still-very-much-constitutional elements clause. Stokeling v. United States, 139 S. Ct.
544 (2019). If application of the categorical approach renders the elements clause definition
of “violent felony” sufficiently concrete to overcome a vagueness challenge, it does the
same for the CIMT definition. There is thus no indication that De George, which explicitly
recognized the constitutionality of the CIMT definition, was implicitly overruled by
Johnson or Dimaya. The CIMT definition provides sufficient notice to overcome a
vagueness challenge and we remain bound by De George and Boggala.
III.
Canales Granados next argues that the statutory phrase “crime involving moral
turpitude” impermissibly delegates a legislative function to the executive branch, violating
6
the nondelegation doctrine. He is right to point out that the nondelegation and void for
vagueness doctrines may be “two sides of the same coin.” Appellant’s Br. at 34 (citing
Gundy v. United States, 139 S. Ct. 2116, 2142 (2019) (Gorsuch, J., dissenting)). However,
as with his previous constitutional argument, this argument is also foreclosed by Supreme
Court precedent.
“The nondelegation doctrine bars Congress from transferring its legislative power
to another branch of Government.” Gundy v. United States, 139 S. Ct. 2116, 2121 (2019).
However, the Supreme Court has held that “[a] statutory delegation is constitutional as
long as Congress lay[s] down by legislative act an intelligible principle to which the person
or body authorized to [exercise the delegated authority] is directed to conform.” Id. at 2123(citation and internal quotation marks omitted). The question of whether Congress has
provided this intelligible principle is one of statutory interpretation, considering a statute’s
purpose, background, and text. Id. “Only after a court has determined a challenged statute’s
meaning can it decide whether the law sufficiently guides executive discretion to accord
with Article I.” Id. The requirement of an intelligible principle is not an exacting standard.
The Supreme Court has only twice invalidated statutes on nondelegation grounds, and only
where “Congress had failed to articulate any policy or standard.” See id. at 2129 (quoting
Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989)).
The CIMT statute satisfies the intelligible principle test. We have interpreted the
phrase “moral turpitude” to require “two essential elements: a culpable mental state and
reprehensible conduct.” Sotnikau, 846 F.3d at 736. And to repeat: a culpable mental state
requires at least criminal recklessness, while reprehensible conduct must “independently
7
violate[] a moral norm” and “shock[] the public conscience as being inherently base, vile,
or depraved.” Id. at 735–36.
It is not the case, then, that Congress has “failed to articulate any policy or standard”
here. Gundy, 139 S. Ct. at 2129. In fact, the CIMT definition is clearer and more definite
than many statutes sustained over the years. The Supreme Court has upheld delegations to
regulate in the “public interest,” to set “fair and equitable” prices and “just and reasonable”
rates, and to issue air quality standards “requisite to protect the public health.” Id.(collecting cases). And we have similarly approved broad delegations. See United States v.
Moriello, 980 F.3d 924, 932–33 (4th Cir. 2020) (upholding authority to make rules “for the
protection and administration of property owned or occupied by the Federal Government
and persons on the property”); United States v. Arch Trading Co., 987 F.2d 1087, 1092–
94 (4th Cir. 1993) (upholding presidential authority under IEEPA to declare a “national
emergency” in the face of threats to “to the national security, foreign policy or economy of
the United States”).
Because the meaning of “moral turpitude” is at least as clear as past acceptable
delegations, we hold that Congress has sufficiently articulated an intelligible principle
circumscribing executive discretion.
IV.
The third question presented by this appeal is whether Virginia felony eluding
constitutes a CIMT. In analyzing whether an offense is a CIMT, courts “apply the
categorical approach, which looks to the elements of the crime rather than the particular
conduct underlying the conviction.” Nunez-Vasquez, 965 F.3d at 281. Once again, a CIMT
8
has “two essential elements: a culpable mental state and reprehensible conduct.” Id. at 282.
We conclude that Virginia felony eluding satisfies both elements.
A.
We begin with the culpable mental state requirement. For a crime to qualify as a
CIMT, a mens rea of at least recklessness is required. * Sotnikau, 846 F.3d at 736.
The Virginia felony eluding statute reads:
Any person who, having received a visible or audible signal from any law-
enforcement officer to bring his motor vehicle to a stop, drives such motor
vehicle in a willful and wanton disregard of such signal so as to interfere with
or endanger the operation of the law-enforcement vehicle or endanger a
person is guilty of a Class 6 felony. It shall be an affirmative defense to a
charge of a violation of this subsection if the defendant shows he reasonably
believed he was being pursued by a person other than a law-enforcement
officer.
Va. Code Ann. § 46.2-817(B). The statute’s text therefore indicates that it contains two
elements: (1) the defendant received a visible or audible signal from a law enforcement
officer to bring his motor vehicle to a stop; and (2) the defendant drove his motor vehicle
in a willful and wanton disregard of such signal so as to interfere with or endanger the
operation of the law enforcement vehicle or a person. See Graves v. Commonwealth, 780
S.E.2d 904, 906 (Va. Ct. App. 2016). These elements satisfy the mental state requirement
for a crime to qualify as a CIMT.
*
Borden v. United States, 141 S. Ct. 1817, 1825 (2021), which held that a mens rea of
recklessness does not satisfy the standard for a “violent felony,” is not germane to this well-
settled precedent. Borden relied on the specific language of the elements clause definition
of “violent felony,” 18 U.S.C. § 924(e)(2)(B)(i), which focused on the “use of physical
force against the person of another.” The Court made clear that “a difference in text” would
“yield[] a difference in meaning.” Borden, 141 S. Ct. at 1833 (internal quotations omitted).
9
1.
Virginia felony eluding’s statutory “willful and wanton” mens rea requires at least
recklessness, and thus satisfies the CIMT culpability prong. Under Virginia law, “willful”
means “knowing or intentional, rather than accidental,” and “done without justifiable
excuse, without ground for believing the conduct is lawful, or with a bad purpose.”
Commonwealth v. Duncan, 593 S.E.2d 210, 214 (Va. 2004). “Wanton” means “manifesting
arrogant recklessness.” Forbes v. Commonwealth, 498 S.E.2d 457, 459 (Va. Ct. App.
1998). Because the phrase “willful and wanton” imparts a mens rea of at least recklessness,
it is sufficient to meet the CIMT culpability prong. See Nunez-Vasquez, 965 F.3d at 282–
83 (determining that a statute could not qualify as a CIMT since it only required criminal
negligence, rather than purpose or recklessness). Indeed, Canales Granados concedes as
much. That concession is a wise one. Where it is clear both that a mens rea in a statute is
at least that of recklessness, and the turpitudinous character of the statute is obviously in
evidence, a statute constitutes a CIMT.
Here, of course, the mens rea is well above that of recklessness. Canales Granados
contends, however, that the willful and wanton mens rea applies only to part of the statute’s
second element. This approach seeks to divvy up the statute into constituent parts at the
expense of the whole of the conduct at issue. That is to say, the willful and wanton flight
of a motor vehicle in a manner that endangers people or interferes with law enforcement
vehicles. We decline to engage in the minute parsing of the statute that petitioner suggests.
The only two words referencing mens rea in this provision are “willful” and “wanton.” We
are not at liberty to excise them from the Virginia statute. Indeed, to limit or dilute them
10
would not only deprive criminal defendants of protections that the mens rea has accorded
them. It would also weaken the underlying purpose of federal immigration law.
Moreover, Canales Granados’ argument also fails even on its own terms. To commit
felony eluding, an offender must drive his motor vehicle “in a willful and wanton disregard
of [a law enforcement] signal so as to interfere with or endanger the operation of the law-
enforcement vehicle or endanger a person.” Va. Code Ann. § 46.2-817(B). Canales
Granados argues that the willful and wanton mens rea applies to disregarding a law
enforcement signal, but not to the interfering or endangering language. We reject this
interpretation. The statute is best read to require both: (i) willful and wanton disregard of a
law enforcement officer’s signal and (ii) willful and wanton interference with a law
enforcement vehicle or endangerment of a person.
The statutory language, taken on its own, suggests as much. The specified “willful
and wanton” mens rea is presumed to apply to “all the subsequently listed elements of the
crime.” United States v. Washington, 743 F.3d 938, 942 (4th Cir. 2014) (quoting Flores-
Figueroa v. United States, 556 U.S. 646, 650 (2009)). In fact, the phrase “so as to”
explicitly links the “willful and wanton” mens rea with the interfering-or-endangering
language it immediately precedes. In this context, the phrase “so as to” is best read as an
idiomatic expression connecting an action (driving in willful and wanton disregard of a law
enforcement signal) with its intended effect (willfully and wantonly interfering or
endangering). See Christine Ammer, The American Heritage Dictionary of Idioms (1997)
(defining “so as to” as “[i]n order to”). Under this natural reading, the willful and wanton
11
mens rea applies both to disregarding a law enforcement signal and to interfering with a
law enforcement vehicle or endangering any person.
This interpretation of “so as to” is bolstered by other courts’ interpretations of the
same phrase in similar contexts. Courts regularly read “so as to” language to require a
culpable mental state. Blomstrom v. Tripp, 402 P.3d 831, 845 (Wash. 2017) (holding that
“so as to injure or abuse” “suggests deliberate action undertaken in order to cause harm”);
State v. Fierro, 804 P.2d 72, 82 (Ariz. 1990) (interpreting “so as to injure or abuse” to
require “intent to injure or abuse”); State v. Sterzinger, 649 N.W.2d 677, 680–83 (Wis. Ct.
App. 2002) (interpreting “so as to interfere with or endanger the operation of the police
vehicle” to require “purpose” rather than “result” of interference or endangerment); State
v. Mack, 12 S.W.3d 349, 352 (Mo. Ct. App. 2000) (equating “so as to injure or abuse” with
“intent to harm”); Brimberry v. State, 774 S.W.2d 773, 775–76 (Tex. Ct. App. 1989)
(interpreting “so as to injure, damage or abuse” to require “intent,” not “result”);
Commonwealth v. Moll, 543 A.2d 1221, 1223 (Pa. Super. Ct. 1988) (interpreting
“intentionally or recklessly tamper[ing] with tangible property of another so as to endanger
person or property” to carry with it mens rea and thus require an “intent to place person or
property in danger”).
The function of “so as to” as language linking a specified mens rea to the result is
bolstered by Virginia precedent on a different statute. The Virginia Supreme Court has
interpreted the “so as to” phrase to import mens rea in Virginia’s reckless driving statute.
See Va. Code § 46.2-852. That court interpreted language prohibiting driving “recklessly
or at a speed or in a manner so as to endanger the life, limb, or property of any person” to
12
require more than the mere result of endangerment. Id. (emphasis added); Commonwealth
v. Cady, No. 201204, slip op. at 1–2 (Va. Oct. 28, 2021). Instead, the court viewed “so as
to” as linking language that applied the mens rea to the result of endangerment. Id.
(requiring “‘disregard by the driver of a motor vehicle for the consequences of his act and
an indifference to the safety of life, limb, or property’ of others” (quoting Powers v.
Commonwealth, 177 S.E.2d 628, 630 (Va. 1970))). While we would not presume to transfer
the reading of Va. Code § 46.2-852 to the interpretation of the felony eluding statute before
us in this case, we do note that the text of the Virginia felony eluding statute gives us every
reason to apply the general presumption that a specified mens rea applies to each element
of the statute. Flores-Figueroa, 556 U.S. at 650. Interfering or endangering therefore
carries a willful and wanton mens rea sufficient to render the crime a CIMT.
2.
Next, Canales Granados cites the statutory affirmative defense available where “the
defendant shows he reasonably believed he was being pursued by a person other than a
law-enforcement officer.” Va. Code Ann. § 46.2-817(B). Canales Granados claims that this
defense demonstrates that ignoring the law enforcement signal requires a mens rea of only
negligence.
We reject his argument because affirmative defenses are not considered under the
categorical approach. The Supreme Court has made clear that courts may look only to the
elements of the statute in implementing the categorical approach, not affirmative defenses.
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016); Descamps v. United States, 570
U.S. 254, 261 (2013); see also Quito v. Barr, 948 F.3d 83, 92–93 (2d Cir. 2020); United
13
States v. Escalante, 933 F.3d 395, 399–400 (5th Cir. 2019); United States v. Velasquez-
Bosque, 601 F.3d 955, 963 (9th Cir. 2010).
And even if the affirmative defense were considered, it does not demonstrate that
the statute can be violated through mere negligence. In the case of felony eluding, the
affirmative defense is extraneous. It merely serves to underscore the willful and wanton
mens rea required. A Virginia driver who does not stop at the direction of someone who is
not objectively recognizable as a police officer has not committed felony eluding because
he has not driven in “willful and wanton disregard of [a law enforcement] signal.” Va.
Code § 46.2-817(B). Only if he knew or “manifest[ed] arrogant recklessness,” Forbes, 498
S.E.2d at 459, toward whether the individual signaling him to stop was an officer can he
have willfully and wantonly disregarded a law enforcement signal. This requirement of a
culpable state of mind is simply underscored by the affirmative defense.
Our approach to a judicially created affirmative defense in United States v. Martin,
753 F.3d 485, 493–94 (4th Cir. 2014), does not suggest a different result. Maryland fourth-
degree burglary has no statutory mens rea, so Maryland courts created an affirmative
defense requiring negligence. Id. Because binding state court precedent determined the
crime could be committed with a negligent mens rea, this court found it did not qualify as
a “crime of violence.” Id. Here, however, there is a statutory mens rea: willful and wanton.
And no Virginia court has held that the statutory affirmative defense lowers that bar.
A violation of Virginia felony eluding requires willful and wanton disregard of a
law enforcement signal and willful and wanton interference or endangerment. Because
14
both aspects require a sufficiently culpable mens rea, there can be no doubt Virginia felony
eluding meets the culpability prong to be considered a CIMT.
B.
Next, we turn to the reprehensible conduct requirement. For a crime to involve
sufficiently reprehensible conduct to constitute a CIMT, it must “independently violate[] a
moral norm” and “shock[] the public conscience as being inherently base, vile, or
depraved.” Nunez-Vasquez, 965 F.3d at 282. Since vehicular flight from law enforcement
has been consistently found to involve sufficient risk and danger to be morally
reprehensible, we conclude that Virginia felony eluding requires reprehensible conduct.
As the Supreme Court has noted, “[w]hen a perpetrator defies a law enforcement
command by fleeing in a car, the determination to elude capture makes a lack of concern
for the safety of property and persons of pedestrians and other drivers an inherent part of
the offense.” Sykes v. United States, 564 U.S. 1, 8 (2011). For the same reason, the Seventh
Circuit concluded that Wisconsin’s eluding statute was sufficiently turpitudinous because
a defendant who intentionally flees from an officer “has to know that he is greatly
increasing the risk of an accident.” Cano-Oyarzabal v. Holder, 774 F.3d 914, 918 (7th Cir.
2014).
Canales Granados nevertheless argues that Virginia felony eluding does not require
turpitudinous conduct because “conduct that raises the specter of endangerment,” Tucker
v. Commonwealth, 564 S.E.2d 144, 146 (Va. Ct. App. 2002), or conduct that endangers
only the defendant, Phelps v. Commonwealth, 654 S.E.2d 926, 927 (Va. 2008), is sufficient
for conviction. Raising the “specter of endangerment,” is, however, sufficient to render a
15
crime morally reprehensible. Congress explicitly recognized the inherent danger of
automotive flight by expressly deeming high-speed flight from an immigration checkpoint,
18 U.S.C § 758, a deportable offense. 8 U.S.C. § 1227(a)(2)(A)(iv). High-speed flight
requires only flight in excess of the legal speed limit for conviction. 18 U.S.C § 758. The
inherent risk associated with speeding is thus sufficient for deportation on its own—
without any evidence the defendant actually interfered with or endangered anyone. Where,
as here, actual endangerment or interference is required, the reprehensible nature of the
conduct becomes indisputable. And that distinguishes this case from a case like Nunez-
Vasquez, where we held that Virginia’s hit-and-run statute did not qualify as a CIMT. 965
F.3d at 283. An individual could violate that statute merely by getting into an accident and
failing to report his name, address, or other piece of identifying information, even if he
remained at the scene of the accident. Id. Conduct such as that is simply different in kind
from ignoring a signal from law enforcement and fleeing from the police.
Finally, Canales Granados argues that interference with “the operation of the law-
enforcement vehicle” is akin to Virginia obstruction of justice, which this court held does
not meet the CIMT conduct prong. See Ramirez v. Sessions, 887 F.3d 693, 704–06 (4th
Cir. 2018). That comparison fails. There is a fundamental difference between vehicular
flight from an officer and obstruction of justice. Flight carries with it an intrinsic element
of risk and danger, see United States v. Hudson, 673 F.3d 263, 268 (4th Cir. 2012), while
obstruction can be carried out with no risk of harm—and even from the safety of a
defendant’s home. Virginia courts have, for example, upheld obstruction convictions for
actions as minor as demanding police officers leave a defendant’s yard or refusing to roll
16
down a car window. See Ramirez, 887 F.3d at 705 (collecting cases). Comparing this
relatively innocuous conduct to the danger inherent in vehicular flight is untenable.
Ramirez, in fact, supports the conclusion that interfering with a law enforcement
vehicle through automotive flight is sufficiently turpitudinous. In Ramirez, the court
rejected the argument that “any intent to obstruct, impair, or pervert the lawful operations
of government necessarily involves moral turpitude.” Id. at 705 (internal quotation marks
omitted). The court instead required an “aggravating element that pushes a mere violation
of the law into the territory of moral depravity.” Id. at 704. The risk inherent in vehicular
flight is the exact aggravating factor that elevates the interference involved with felony
eluding above mere obstruction.
America is a welcoming country, but Congress has made plain that its hospitality is
strained when people commit the sort of offense at issue in this case. The Virginia felony
eluding statute clearly satisfies both the culpable mental state and reprehensible conduct
prongs of a CIMT. We accordingly deny the petition.
DENIED
17