Zhovtonizhko v. Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGEY NIKO ZHOVTONIZHKO, No. 21-584
Agency No.
Petitioner,
A071-161-176
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2023
Seattle, Washington
Filed June 7, 2023
Before: Jay S. Bybee and Danielle J. Forrest, Circuit
Judges, and Richard G. Seeborg, District Judge.*
Opinion by Judge Bybee
*
The Honorable Richard Seeborg, Chief United States District Judge for
the Northern District of California, sitting by designation.
2 ZHOVTONIZHKO V. GARLAND
SUMMARY**
Immigration
Granting Sergey Zhovtonizhko’s petition for review of a
decision of the Board of Immigration Appeals that
concluded that Zhovtonizhko’s convictions for attempting to
elude a police vehicle, under Wash. Rev. Code (RCW)
§ 46.61.024, were crimes involving moral turpitude, the
panel concluded that the BIA failed to address substantive
changes the Washington Legislature made to the statute and
subsequent Washington case law interpreting the revised
statute, and remanded.
Zhovtonizhko, a lawful permanent resident, was
convicted of attempting to elude police in violation of RCW
§ 46.61.024 in 2016 and 2018. An Immigration Judge and
the BIA concluded that RCW § 46.61.024 is categorically a
crime involving moral turpitude, and found Zhovtonizhko
removable for having been convicted of two crimes
involving moral turpitude not arising out of a single scheme
of criminal misconduct. The BIA relied on Matter of Ruiz-
Lopez, 25 I. & N. Dec. 551 (BIA 2011), which held that a
prior version of RCW § 46.61.024 was categorically a crime
involving moral turpitude.
Applying the categorical approach, the panel identified
the elements of statute of conviction. As relevant here, the
version of the statute at issue in Matter of Ruiz-Lopez
required driving with “wanton or willful disregard for the
lives or property of others.” However, in 2003, the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ZHOVTONIZHKO V. GARLAND 3
Washington Legislature altered that element: the current
version requires proof that the vehicle was driven “in a
reckless manner.” The panel explained that, although the
term “reckless manner” is not defined by statute, the
Washington Supreme Court has held that operating a motor
vehicle in a “reckless manner” means operating it in “a rash
or heedless manner, indifferent to the consequences.”
The parties disagreed whether operating a vehicle in “a
rash or heedless manner, indifferent to the consequences,” is
materially different from knowingly operating a vehicle with
a “wanton or willful disregard for the lives or property of
others.” The panel concluded that the terms are materially
different under Washington law, explaining that the
Washington Supreme Court has concluded that “reckless
manner” cannot be defined as “willful or wanton disregard
for the safety of persons or property,” and the Washington
Court of Appeals has explained that it is well settled that
driving in a “reckless manner” is a lower mental state than
the “willful or wanton” mental state for “reckless
driving.” The panel explained that, in some circumstances,
“reckless” may be the equivalent of “willful or wanton,” but
under current Washington law, “reckless manner” is not the
equivalent of “recklessness,” and “reckless manner” is the
required mens rea in Zhovtonizhko’s statute of conviction.
Thus, the panel concluded that the BIA’s perfunctory
construction of the crime’s elements necessarily created a
flawed foundation for its subsequent categorical
analysis. The panel remanded to the BIA to reconsider
whether the current iteration of RCW § 46.61.024
categorically falls within the federal definition of a crime
involving moral turpitude. The panel expressed no view on
that question.
4 ZHOVTONIZHKO V. GARLAND
COUNSEL
Christopher P. Stanislowski (argued), Northwest Immigrant
Rights Project, Tacoma, Washington; Leila Kang,
Northwest Immigrant Rights Project, Seattle, Washington;
for Petitioner.
Gregory D. Mack (argued), Senior Litigation Counsel; Sarah
L. Martin, Trial Attorney; Sabatino F. Leo, Assistant
Director; Brian Boynton, Acting Assistant Attorney
General, Civil Division; Office of Immigration Litigation,
United States Department of Justice; Washington, D.C.; for
Respondent.
ZHOVTONIZHKO V. GARLAND 5
OPINION
BYBEE, Circuit Judge:
Petitioner Sergey Zhovtonizhko seeks review of the
Board of Immigration Appeals’ (BIA) decision finding him
removable for having been convicted of crimes involving
moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii). The BIA
concluded that his two convictions under Wash. Rev. Code.
(RCW) § 46.61.024 for attempting to elude a police vehicle,
were categorically crimes involving moral turpitude. The
BIA relied on Matter of Ruiz-Lopez, 25 I. & N. Dec. 551(BIA 2011), which held that a prior version of RCW §
46.61.024 was categorically a crime involving moral
turpitude. However, the BIA failed to address the
substantive changes the Washington Legislature made to
RCW § 46.61.024 in 2003 and subsequent Washington case
law interpreting the revised statute. We grant the petition
and remand to the BIA to consider whether the statute of
conviction, as revised, is categorically a crime involving
moral turpitude.
I. BACKGROUND
Sergey Zhovtonizhko, a citizen and national of Ukraine,
immigrated with his family to the United States in 1992. He
is a lawful permanent resident and has lived in Washington
since he arrived as a refugee. In June 2016 and November
2018, Zhovtonizhko was convicted of attempting to elude
police in violation of RCW § 46.61.024. The facts
underlying these convictions are not relevant for our
purposes. In June 2019, the Department of Homeland
Security charged him as removable under 8 U.S.C.
§ 1227(a)(2)(A)(ii) for having been convicted of two crimes
involving moral turpitude not arising out of a single scheme
6 ZHOVTONIZHKO V. GARLAND
of criminal misconduct. Zhovtonizhko filed a motion to
terminate his removal proceedings, arguing that his
convictions were not crimes involving moral turpitude. The
Immigration Judge (IJ) held that RCW § 46.61.024 is
categorically a crime involving moral turpitude, denied
Zhovtonizhko’s motion to terminate, and found him
removable as charged.1 Zhovtonizhko timely appealed to
the BIA.
The BIA dismissed Zhovtonizhko’s appeal based on
Matter of Ruiz-Lopez, 25 I. & N. Dec. 551 (BIA 2011). In
Matter of Ruiz-Lopez, the BIA held that a conviction under
a prior version of RCW § 46.61.024 was categorically a
crime involving moral turpitude. The prior version of the
statute, promulgated in 1983, provided in part:
Any driver of a motor vehicle who willfully
fails or refuses to immediately bring to a stop
and who drives his vehicle in a manner
indicating a wanton or willful disregard for
the lives or property of others while
attempting to elude a pursuing police vehicle,
after being given visual or audible signal to
bring the vehicle to a stop, shall be guilty of
a class C felony.
RCW § 46.61.024 (1983) (emphasis added).
1
At a subsequent hearing, Zhovtonizhko applied for cancellation of
removal for certain permanent residents under 8 U.S.C. § 1229b(a). The
IJ denied the application on discretionary grounds. On appeal, the BIA
agreed with the IJ’s denial cancellation of removal on discretionary
grounds. Zhovtonizhko does not seek review of the agency’s
discretionary denial of his application for cancellation of removal.
ZHOVTONIZHKO V. GARLAND 7
In 2003, the Washington Legislature amended the
statute. The Legislature removed the language requiring
“wanton or willful disregard for the lives or property of
others,” and replaced it with the requirement that an
individual drive “in a reckless manner.” The BIA
acknowledged that there had been a change in the statute, but
concluded that it made no difference because Matter of Ruiz-
Lopez had reasoned that “‘willful,’ ‘wanton,’ or ‘reckless’
may be used interchangeably.” See 25 I. & N. Dec. at 555.
The BIA held that “recklessness is a sufficiently culpable
mental state for moral turpitude purposes.”
Zhovtonizhko filed a timely petition for review.
II. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction over Zhovtonizhko’s appeal
under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction to
review final orders of removal under 8 U.S.C. § 1252(a).
We review de novo whether a state conviction is a removable
offense. Walcott v. Garland, 21 F.4th 590, 593 (9th Cir.
2021).
III. DISCUSSION
Under the Immigration and Nationality Act (INA), a
non-citizen may be removed from the country if he has been
“convicted of two or more crimes involving moral turpitude,
not arising out of a single scheme of criminal misconduct.”
8 U.S.C. § 1227(a)(2)(A)(ii). To determine whether a
conviction qualifies as a crime involving moral turpitude, we
apply the categorical approach set forth in Taylor v. United
States, 495 U.S. 575 (1990). “The first step is to identify the
elements of the statute of conviction.” Castrijon-Garcia v.
Holder, 704 F.3d 1205, 1208 (9th Cir. 2013), overruled on
other grounds by Ceron v. Holder, 747 F.3d 773 (9th Cir.
8 ZHOVTONIZHKO V. GARLAND
2014) (en banc). At this step, we review the elements of the
statute de novo because “[t]he BIA has no special expertise
by virtue of its statutory responsibilities in construing state
or federal criminal statutes and, thus, has no special
administrative competence to interpret the petitioner’s
statute of conviction.” Marmolejo-Campos v. Holder, 558
F.3d 903, 907 (9th Cir. 2009); see also Barbosa v. Barr, 926
F.3d 1053, 1057 (9th Cir. 2019) (as amended). “The second
step is to compare the elements of the statute of conviction
to the generic definition of a crime of moral turpitude and
decide whether the conviction meets that definition.”
Castrijon-Garcia, 704 F.3d at 1208. At this step, we “give
some degree of deference to the BIA’s decision.” Ramirez-
Contreras v. Sessions, 858 F.3d 1298, 1302 (9th Cir. 2017).
Zhovtonizhko was convicted under Washington’s
attempt to elude statute, RCW § 46.61.024(1). Both at the
time of his conviction and currently, it provides:
Any driver of a motor vehicle who willfully
fails or refuses to immediately bring his or
her vehicle to a stop and who drives his or her
vehicle in a reckless manner while attempting
to elude a pursuing police vehicle, after being
given a visual or audible signal to bring the
vehicle to a stop, shall be guilty of a class C
felony.
RCW § 46.61.024(1). Accordingly, the crime requires two
elements, each with a different mens rea: (1) willfully failing
or refusing to immediately stop for a police vehicle after
being signaled to do so, and (2) driving in a reckless manner
while attempting to elude the pursuing vehicle.
ZHOVTONIZHKO V. GARLAND 9
The first element—willfully failing to stop—is the same
as in the 1983 version of the statute. The Washington
Revised Code provides that willfulness “is satisfied if a
person acts knowingly . . . .” RCW § 9A.08.010(4).
Accordingly, “[i]n the context of the eluding statute, . . .
[w]illfullness . . . is identical with knowledge.” State v.
Flora, 249 P.3d 188, 191 (Wash. Ct. App. 2011) (quoting
State v. Mather, 626 P.2d 44, 46 (Wash. 1981)). The parties
do not dispute this element.
Washington altered the second element when it revised
the statute in 2003. Instead of requiring proof of “a wanton
or willful disregard for the lives or property of others,” the
current version of RCW § 46.61.024 requires proof that the
vehicle was driven “in a reckless manner.” Although the
term “reckless manner” is not defined in RCW § 46.61.024
or elsewhere in the Washington Motor Vehicle Code, the
Washington Supreme Court has held that operating a motor
vehicle in a reckless manner means operating it in “a rash or
heedless manner, indifferent to the consequences.” State v.
Roggenkamp, 106 P.3d 196, 199–200 (Wash. 2005) (en
banc); see also State v. Ratliff, 164 P.3d 516, 518 (Wash. Ct.
App. 2007).
The parties disagree whether operating a vehicle in “a
rash or heedless manner, indifferent to the consequences,” is
materially different from knowingly operating a vehicle with
a “wanton or willful disregard for the lives or property of
others.” The BIA said that it was “unable to discern” a
difference between the two formulations. We conclude that
under Washington law the terms are materially different. In
Roggenkamp, the Washington Supreme Court carefully
dissected the terms “in a reckless manner” and “reckless
driving” and found that, although “reckless” functions as an
adjective in both terms, the terms must be read as a whole,
10 ZHOVTONIZHKO V. GARLAND
and they are “each terms of art.” 106 P.3d at 200.2 Using
various interpretive canons, the Court concluded that
“‘reckless manner’ . . . [cannot] be defined as ‘willful or
wanton disregard for the safety of persons or property,’”
which is the standard required to prove reckless driving. Id.
at 203; see also id. at 202, 204.
Following Roggenkamp, Washington courts have held
that the 2003 change in the eluding police statute reduced the
mental state necessary to prove the crime. See, e.g., State v.
Ridgley, 174 P.3d 105, 110 (Wash. Ct. App. 2007) (“[T]he
term ‘reckless manner’ contemplate[s] a lesser mental state
than that of the ‘willful or wanton’ standard.”). In Ratliff,
the Washington Court of Appeals explained that “[p]rior to
2003 the [eluding police] statute required a showing of
willful or wanton disregard for the lives or property of
others. But the legislature replaced that language with
‘reckless manner’ in 2003. By doing so, it clearly intended
to remove the willful and wanton standard from this statute.”
164 P.3d at 518. And in State v. Hunley, 253 P.3d 448(Wash. Ct. App. 2011), the Washington Court of Appeals
summarized the state of the law, explaining that it is now
“well settled” in Washington that driving “in a reckless
manner” is “a lower mental state than the ‘willful or wanton’
mental state for reckless driving.” Id. at 452. The
implications are important:
Because one can drive ‘in a reckless manner’
without ‘willful or wanton disregard for the
safety of persons or property,’ one can be
2
Roggenkamp did not involve eluding police under RCW § 46.61.024,
but vehicular homicide, RCW § 46.61.520, and vehicular assault, RCW
§ 46.61.522, both of which include the term “reckless manner.”
ZHOVTONIZHKO V. GARLAND 11
guilty of attempting to elude a police vehicle
without being guilty of reckless driving.
Consequently, reckless driving is not a lesser
included offense in attempting to elude a
police vehicle . . . .
Id.
The BIA did not consider any of the implications of
Washington’s change in § 46.61.024. Rather, the BIA
simply equated “reckless manner” with “recklessness” and
cited Matter of Ruiz-Lopez for the proposition that
“recklessness” combined with “reprehensible conduct”
could constitute a crime involving moral turpitude. See 25
I. & N. Dec. at 553. In Matter of Ruiz-Lopez, the BIA
quoted a 1985 decision from the Washington Court of
Appeals that defined “reckless” as “willful” or “wanton”
behavior:
The usual meaning assigned to “willful,”
“wanton,” or “reckless,” according to taste as
to the word used, is that the actor has
intentionally done an act of an unreasonable
character in disregard of a known or obvious
risk that was so great as to make it highly
probable that harm would follow, and which
thus is usually accompanied by a conscious
indifference to the consequences.
Id. at 555 (quoting State v. Brown, 697 P.2d 583, 586 (Wash.
Ct. App. 1985)). In light of subsequent Washington
decisions refining its jurisprudence, the statement from
Brown is too general to support the BIA’s proposition. In
some circumstances, “reckless” may be the equivalent of
12 ZHOVTONIZHKO V. GARLAND
“willful or wanton,” but under current Washington law,
“reckless manner” is not the equivalent of “recklessness,”
and “reckless manner” is the required mens rea in
Zhovtonizhko’s statute of conviction. The BIA erred in
relying on Matter of Ruiz-Lopez without considering the
material changes to the mens rea requirements in RCW
§ 46.61.024 and the Washington courts’ reading of those
changes. Although “not every change in state law
necessarily undermines our precedent or BIA precedent[,]
. . . ‘intent [is] a crucial element in determining whether a
crime involves moral turpitude.’” Ceron, 747 F.3d at 781(second alteration in original).
The BIA’s perfunctory construction of the crime’s
elements necessarily created a flawed foundation for its
subsequent categorical analysis. Having established that
“reckless manner” has a distinct definition in Washington
law, we remand to the BIA to reconsider whether the current
iteration of RCW § 46.61.024 categorically falls within the
federal definition of a crime involving moral turpitude. We
express no view on that question.
IV. CONCLUSION
For the foregoing reasons, we grant the petition and
remand for further proceedings consistent with this decision.
GRANTED and REMANDED.