Flight from peace officer with wanton disregard for safety; can be proved by 3 traffic violations
Aggravated Felony (AF)
Should not be AF as COV so can take 1 yr,1Penuliar v. Mukasey, 528 F.3d 603 (9th Cir 2008). Recklessness is not sufficient for a COV. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-30 (9th Cir. 2006) (en banc). A prior decision held that 2800.2 is a COV because of the high degree of recklessness, but it relied on a case that was specifically overturned by Fernandez-Ruiz. See United States v. Campos-Fuerte, 357 F.3d 956, 960 (9th Cir. Cal. 2004), relying on U.S. v. Ceron-Sanchez, 222 F.3d 1169, 1171 (9th Cir. 2000), overturned by Fernandez-Ruiz, supra.
Even if the government were to succeed in persuading courts to rule that a crime of violence definition should be newly interpreted to include recklessness (see discussion of the Voisine case at endnote to Pen C § 207, above), recklessness under § 2800.2 includes simple violation of three traffic offenses in the course of committing the offense, and the statute is indivisible between that and traditional recklessness. See next note. but best practice always is 364 or less on any single count. If possible, plead specifically to three traffic violations per 2800.2(b)
Crime Involving Moral Turpitude (CIMT)
Ninth Circuit held not a CIMT due to three traffic violations alternative.2Ramirez-Contreras v. Sessions, 858 F.3d 1298 (9th Cir 2017). The Ninth Circuit noted that evading a police officer coupled with recklessness defined as “willful and wanton disregard,” standing alone, would suggest an intent sufficient to render § 2800.2 a CIMT, referencing Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011) (holding that a Washington statute with those elements is a CIMT). However, because § 2800.2(b) defines willful and wanton disregard for this purpose as including simply violating three traffic laws, which can involve relatively innocuous and non-dangerous conduct, the court distinguished § 2800.2 from the statute considered in Matter of Ruiz-Lopez and held that (1) the minimum conduct to commit § 2800.2 is not a CIMT, and (2) § 2800.2 is not divisible between violation of three traffic laws and other conduct amounting to recklessness. Therefore no § 2800.2 conviction is a CIMT for any purpose, even if the ROC identifies conduct other than the three traffic violations. If possible, plead specifically to three traffic violations per 2800.2(b)
Other Removal Grounds
No other removal ground.
Advice and Comments
Wanton disregard for safety can be demonstrated by three traffic violations, per 2800.2(b). That conduct is neither a COV nor a CIMT. The Ninth Cir held that 2800.2 is not divisible between this and other wanton disregard. This is good, because in 2020 the Supreme Court will consider whether recklessness can be a COV. See discussion of Borden v. US at PC 207.
Therefore, while it is not legally necessary, the best practice to prevent mistakes in imm proceedings is to state in the ROC that guilt was based on the three violations.