Wei Cong Mei v. John Ashcroft, Attorney General of the United States

Citations: 393 F.3d 737; 2004 U.S. App. LEXIS 27070Docket: 03-1961, 03-2595

Court: Court of Appeals for the Seventh Circuit; December 29, 2004; Federal Appellate Court

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Wei Cong Mei petitioned the United States Court of Appeals for the Seventh Circuit for review of two orders from the Board of Immigration Appeals: one ordering his removal and another denying his motion to reconsider. The primary legal question addressed is the definition of "crimes involving moral turpitude" within immigration law.

Mei, a lawful permanent resident, was convicted in 1998 of unlawful possession of a stolen motor vehicle, resulting in a 30-month probation sentence. In 2001, he was convicted of aggravated fleeing from a police officer, sentenced to one year in prison for speeding significantly over the limit while evading police. Under immigration law, an alien can be removed for a crime involving moral turpitude committed within five or ten years of admission, if punishable by a year or longer.

Mei's conviction for unlawful possession qualifies under these requirements as he admitted it involved moral turpitude and occurred three years post-admission. Despite this, the Board's order focused solely on aggravated fleeing as the basis for removal, which Mei contests as a crime involving moral turpitude. The confusion arises from the Board's potential reliance on earlier rulings and whether it meant to affirm the immigration judge's decision regarding the unlawful possession conviction. The government has emphasized that the Board's determination rested exclusively on the aggravated fleeing charge, requiring the court to assess whether it constitutes a crime involving moral turpitude.

The determination of whether a crime involves moral turpitude may ultimately be the responsibility of the Board of Immigration Appeals (BIA), rather than the courts. Courts generally agree that while the BIA's interpretation of "crime involving moral turpitude" is entitled to Chevron deference, they are divided on whether such deference applies to the BIA's classification of specific crimes under this term. Some circuits support deference (e.g., Knapik, Chanmouny, Cabral), while others oppose it (e.g., Smalley, Rodriguez-Herrera). Since Congress did not define "crime involving moral turpitude" when added to the immigration statute, it is reasonable to conclude that Congress intended for the BIA to define it according to immigration policy. However, the BIA has not developed a specific definition, instead reiterating general criminal-law definitions without tailoring them to immigration contexts. Consequently, granting Chevron deference to the BIA's definition lacks practical significance. The pivotal issue is whether the determination of which crimes involve moral turpitude is one that Congress intended for the BIA, rather than the courts, to resolve. Ultimately, the BIA's decision in this case must be upheld regardless of the level of deference applied to its judgment.

Both parties in the case have limited their analysis of the term "moral turpitude" to immigration law, despite its equal relevance in criminal law and the absence of directly applicable immigration cases. The term, originating in the seventeenth century and used as a basis for excluding aliens since 1891, holds little importance in the federal criminal code. The government attempts to analogize the present case to an immigration case involving drug money concealment, arguing that the defendant's flight from police indicates moral turpitude. However, the defendant had no contraband or evidence of crime when apprehended, challenging the analogy's validity.

To assess whether aggravated fleeing constitutes a crime involving moral turpitude, the approach should include a list of crimes recognized as involving or not involving moral turpitude. Serious, deliberate crimes, such as large-scale tax fraud, are classified as involving moral turpitude, while minor crimes or serious crimes committed without intent do not. No reported cases specifically classify aggravated fleeing in this context, leaving the court to address the issue without precedent.

The excerpt examines the requirement of "evil intent" for classifying crimes as involving moral turpitude, referencing cases such as Hamdan v. INS, which suggest that serious crimes may inherently demonstrate such intent, while trivial offenses may not, regardless of intent. It distinguishes between crimes that are malum in se (inherently wrong) and malum prohibitum (wrong due to being prohibited), noting that the practical application of this distinction is often ambiguous. For example, simple possession of cocaine is classified as a crime involving moral turpitude in South Carolina, while simple possession of marijuana is not. The excerpt highlights inconsistencies in the Board of Immigration Appeals' findings on moral turpitude across various crimes, with references to judicial criticisms of the term's vagueness, as noted in Justice Jackson's dissent in the De George case.

In the context of Mei's offense, it is argued that aggravated fleeing in Illinois functions as a strict liability crime since the statute does not require knowledge of fleeing; however, it is suggested that willfulness is implicit in the aggravated offense due to its definition, which involves fleeing at least 21 miles per hour over the speed limit. The potential for unawareness in fleeing is acknowledged, but the seriousness of the offense implies a degree of culpability.

A person fleeing from law enforcement at high speed, aware that the officer is attempting to stop him, is engaging in serious wrongful behavior that endangers not only the officer but also other road users. This conduct, which demonstrates a deliberate disregard for lawful authority, increases the risk of accidents due to the fleeing driver's divided attention. Consequently, aggravated fleeing is classified as a crime involving moral turpitude. Mei's argument for asylum based on opposition to China's "one-child" policy, claiming potential persecution if returned to China, was undermined by the immigration judge and Board's findings on critical credibility issues. The petition to review the order of removal and the denial of the petition for reconsideration were both denied.