Armando Marmolejo-Campos, was convicted of the crime of aggravated driving under the influence under the laws of Arizona. Under the Arizona statute one is guilty of aggravated driving under the influence if one

“driv[es]” or takes “actual physical control” of a vehicle
“while under the influence of intoxicating liquor or drugs”
and “while the person’s driver license or privilege to drive is
suspended, canceled, revoked or refused or while a restriction
is placed on the person’s driver license or privilege to drive
as a result of [a prior DUI-related conviction].

Marmolejo-Campos has a prior conviction for theft, a crime of moral turpitude and a prior conviction for an aggravated DUI. He appealed the determination that the aggravated DUI’s were crimes of moral turpitude.

The Board of Immigration Appeals (BIA) turned down his appeal, finding the crime to be one of moral turpitude. While the decision of the BIA is not published it is based on its decision in In re Lopez-Meza in which the BIA ruled that an aggravated DUI requires a sufficient scienter element, specifically that it requires that the defendant knew his license was suspended. He appealed to the Ninth Circuit. Under the immigration law two crimes of moral turpitude can result in deportation. The Ninth Circuit Court of Appeals denied his appeal in Marmolejo-Campos v. Holder

The first question before the Ninth Circuit, applying Chevron U.S. A. v. Natural Res. Def. Council, Inc., was what degree of deference to give to the BIA ruling. Finding that Congress authorized the BIA to make determinations as to which crimes are crimes of moral turpitude and that the BIA interpretation of the act is reasonable, the Ninth Circuit deferred to the BIA’s decision and found that the aggravated DUI is a crime of moral turpitude.

As the dissent points out, there are a number of problems with this finding. The Ninth Circuit does not have to defer to the BIA if the BIA’s decision is not reasonable. Neither a standard DUI nor driving on a suspended license is a crime of moral turpitude. So why is an aggravated DUI which involves the same behavior as driving without a license and driving under the influence a crime of moral turpitude. Prior BIA decisions have held that two crimes which are not crimes of moral turpitude cannot be combined to result in a crime of moral turpitude and no clear reason is given by the BIA to change the rule.

A crime of moral turpitude under BIA decisions is a crime that
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.” In another case the attorney general under whose auspices the BIA operates defined a crime of moral turpitude as one that “ requires that a perpetrator have committed [a] reprehensible act with some form of scienter.” The Ninth Circuit has divided crimes of moral turpitude into two groups–those involving fraud and those involving “grave acts of baseness or depravity.”
An aggravated DUI is apparently in the second class. This puts it in the same group with murder, rape, robbery, kidnapping, voluntary manslaughter, some cases of involuntary manslaughter, certain aggravated assaults, mayhem, theft, spousal abuse, child abuse and, incest. In any case crimes of moral turpitude are malum per se. Both driving under the influence and driving on a suspended license are regulatory crimes which, under BIA precedent, are malum prohibitum and therefore cannot meet the definition of a crime of moral turpitude.