Sergey Zhovtonizhko, a lawful permanent resident from Ukraine, was convicted twice of attempting to elude a police vehicle in violation of Washington Revised Code section 46.61.024. The Department of Homeland Security charged him with removability based on these two convictions, arguing they constituted crimes involving moral turpitude not arising from a single scheme of criminal misconduct. Both the Immigration Judge and the Board of Immigration Appeals (BIA) agreed with the government, relying on a 2011 BIA decision, Matter of Ruiz-Lopez, which had classified a prior version of the Washington statute as a crime involving moral turpitude. That prior version required proof that the driver acted with 'wanton or willful disregard for the lives or property of others.' However, the Washington Legislature amended the statute in 2003, replacing that specific language with a requirement that the vehicle be driven 'in a reckless manner.' The BIA dismissed Zhovtonizhko's appeal without addressing whether this statutory change altered the moral turpitude analysis.
The Ninth Circuit applied the categorical approach to determine if the statute of conviction categorically matches the federal definition of a crime involving moral turpitude. The court first identified the elements of the current statute, noting that while the first element (willfully failing to stop) remained unchanged, the second element had been altered in 2003 from 'wanton or willful disregard' to 'reckless manner.' The court examined Washington case law to determine the meaning of 'reckless manner' under current state law. The Washington Supreme Court has defined operating a vehicle in a 'reckless manner' as doing so in 'a rash or heedless manner, indifferent to the consequences.' Crucially, the Ninth Circuit found that under Washington jurisprudence, this standard is materially different from and lower than the 'willful or wanton' standard. The court cited Washington decisions stating that 'reckless manner' is not the equivalent of 'recklessness' in the context of moral turpitude, and that one can be guilty of eluding police under the current statute without possessing the 'willful or wanton' mental state required for reckless driving. The BIA's reliance on Matter of Ruiz-Lopez was flawed because that decision was based on the pre-2003 statute and a general definition of 'reckless' that did not account for the specific legislative intent to lower the mental state threshold. The court concluded that the BIA's failure to address these substantive changes created a flawed foundation for its categorical analysis.
The case is remanded to the Board of Immigration Appeals to reconsider whether the current version of RCW § 46.61.024 categorically falls within the federal definition of a crime involving moral turpitude. The Ninth Circuit expressed no view on the ultimate question of removability, leaving the BIA to apply the correct mental state standard to the amended statute. This decision limits the BIA's ability to rely on outdated precedent when state statutes have been amended to lower the required mens rea.
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