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 …

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