PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2028

JOSE NEFTALY CANALES GRANADOS,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: September 23, 2021 Decided: November 4, 2021

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Petition for review denied by published opinion. Judge Wilkinson wrote the opinion in which Judge Niemeyer and Judge Agee joined.

ARGUED: Samantha Hsieh, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Allison Frayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian Boynton, Acting Assistant Attorney General, Jessica A. Dawgert, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. WILKINSON, Circuit Judge:

Jose Neftaly Canales Granados, a citizen of El Salvador, challenges an order of

removal based on his conviction for two crimes involving moral turpitude (CIMTs). At

issue is whether the phrase “crime involving moral turpitude” is either unconstitutionally

vague or violative of the nondelegation doctrine, and whether Virginia’s felony eluding

statute, Va. Code § 46.2-817(B), qualifies as such an offense. For the reasons that follow,

we conclude that the CIMT definition does not violate the Constitution and that Virginia

felony eluding constitutes a CIMT.

I.

Canales Granados was born in El Salvador but was admitted to the United States as

a lawful permanent resident in March 2001. In 2018, he was convicted of a series of

criminal offenses, which he attributes to a multi-year struggle with substance abuse. On

February 5, 2018, he pleaded guilty to Virginia petit larceny, and on July 31, 2018, he

pleaded guilty to Virginia felony eluding, felony hit and run, and driving under the

influence. For the latter three convictions, he was sentenced to 15 years and 60 days in

prison. All but five days of the sentence were suspended, and he was instead sentenced to

a residential addiction treatment program.

Following his criminal detention, Immigration & Customs Enforcement transferred

Canales Granados to the Farmville Detention Facility in Virginia. The Department of

Homeland Security issued him a Notice to Appear. The Notice charged him with

removability under

(a)(2)(A)(ii) because he was an alien convicted of two

2 or more CIMTs not arising out of a single scheme of criminal misconduct. The crimes at

issue were his Virginia petit larceny, felony eluding, and felony hit-and-run convictions.

Canales Granados moved to terminate the removal proceedings. While he conceded

that his petit larceny conviction was a CIMT, he contended that neither Virginia felony hit

and run nor Virginia felony eluding qualified. On July 31, 2019, the immigration judge (IJ)

denied his motion. The IJ agreed with Canales Granados that the hit and run conviction

was not a CIMT. However, the IJ determined that felony eluding was. That conviction,

when combined with Canales Granados’ petit larceny conviction, gave him two CIMTs,

rendering him removable. He appealed to the BIA, which upheld the IJ’s determination.

Canales Granados timely petitioned this court for review of the BIA’s decision, and

we granted a stay of removal pending our review.

II.

We first address Canales Granados’ contention that the CIMT definition is

unconstitutionally vague. It is unremarkable to note that utter precision in statutory

language is impossible. A law is therefore only unconstitutionally vague in contravention

of the Due Process Clause if it “fails to give ordinary people fair notice of the conduct it

punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United

States,

(2015). The CIMT definition clears this constitutional hurdle.

The statute at issue,

(a)(2)(A)(ii), provides that aliens convicted of

two or more “crimes involving moral turpitude” not arising from a single scheme are

deportable. CIMTs have “two essential elements: a culpable mental state and reprehensible

conduct.” Sotnikau v. Lynch,

(4th Cir. 2017). A culpable mental state

3 requires criminal recklessness, while reprehensible conduct must “independently violate[]

a moral norm” and “shock[] the public conscience as being inherently base, vile, or

depraved.”

at 735–36. Of course, individuals concerned by this definition can avoid any

vagueness problem by ensuring their conduct remains squarely on the right side of the legal

line. Because the CIMT definition provides “ordinary people fair notice of the conduct it”

encompasses, both the Supreme Court and Fourth Circuit have made clear that the CIMT

definition passes constitutional muster.

In Jordan v. De George,

, 231 n.15 (1951), the Supreme Court held

that “[t]he phrase ‘crime involving moral turpitude’ presents no greater uncertainty or

difficulty than language found in many other statutes repeatedly sanctioned by [this]

Court.” The Court upheld a deportation warrant based on two fraud convictions,

concluding that the CIMT definition provided “sufficiently definite warning as to the

proscribed conduct when measured by common understanding and practices.”

at 231–

32. And in Boggala v. Sessions,

(4th Cir. 2017), this court read De

George to uphold an order of removal based upon a conviction for soliciting a child by

computer to commit a sex act. We found “no reason to depart” from De George’s “general

pronouncement” sanctioning the CIMT definition.

.

De George and Boggala were not, as Canales Granados argues, implicitly overruled

by Johnson v. United States,

(2015), and Sessions v. Dimaya,

(2018). The latter two cases found specific provisions seeking to define violent crimes—

the residual clauses—unconstitutionally vague. See

(e)(2)(B)(ii) (defining

“violent felony” to include felonies involving “conduct that presents a serious potential risk

4 of physical injury to another”);

(b) (defining “crime of violence” as a felony

that “by its nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.”). And those

holdings were specific to the residual clauses, which required judges to depart from the

categorical approach, “imagine” an “idealized ordinary case of the crime,” estimate the risk

of injury posed by that hypothetical crime, and then determine whether that risk was

sufficient to be termed a “violent felony.” Johnson, 576 U.S. at 597–98, 604. Three factors

dictated the unconstitutional vagueness of the residual clauses: First, the “grave

uncertainty” inherent in departing from the categorical approach and estimating the risk

posed by a crime’s “ordinary case.” Dimaya, 138 S. Ct. at 1213–14. Second, the

fundamental uncertainty in determining what level of imagined risk was sufficient to render

a crime violent.

And finally, the “repeated attempts and repeated failures to craft a

principled and objective standard out of the residual clause.” Johnson,

.

In contrast to the residual clauses, the CIMT definition relies on the categorical

approach. Nunez-Vasquez v. Barr,

(4th Cir. 2020). That approach

examines the elements of an offense and the least culpable conduct necessary to sustain a

conviction.

at 281–82. It therefore does not require imagining the “ordinary case” of an

offense. Likewise, it does not involve determining what level of imagined risk is sufficient.

See Dimaya, 138 S. Ct. at 1215 (“[W]e do not doubt the constitutionality of applying [a]

substantial risk [standard] to real-world conduct.” (internal quotation marks omitted)).

Finally, Boggala found no “evidence of unworkability surrounding [the CIMT definition]

comparable to” the “repeated attempts and repeated failures to craft a principled and

5 objective standard” out of the residual clause.

(quoting Johnson,

). The application of the categorical approach to define CIMTs thus avoids the

aspects of the residual clauses that rendered them unconstitutionally vague in Johnson and

Dimaya.

Underscoring this point, Johnson and Dimaya did not strike down the elements (or

force) clauses of the violent felony definitions, which likewise rely on the categorical

approach. See

(e)(2)(B)(i) (defining “violent felony” to include crimes that

have “as an element the use, attempted use, or threatened use of physical force against the

person of another”);

(a) (defining “crime of violence” as an “offense that

has as an element the use, attempted use, or threatened use of physical force against the

person or property of another”). Only one year after Dimaya, the Supreme Court applied

the categorical approach to hold that Florida robbery constitutes a “violent felony” under

the still-very-much-constitutional elements clause. Stokeling v. United States,

(2019). If application of the categorical approach renders the elements clause definition

of “violent felony” sufficiently concrete to overcome a vagueness challenge, it does the

same for the CIMT definition. There is thus no indication that De George, which explicitly

recognized the constitutionality of the CIMT definition, was implicitly overruled by

Johnson or Dimaya. The CIMT definition provides sufficient notice to overcome a

vagueness challenge and we remain bound by De George and Boggala.

III.

Canales Granados next argues that the statutory phrase “crime involving moral

turpitude” impermissibly delegates a legislative function to the executive branch, violating

6 the nondelegation doctrine. He is right to point out that the nondelegation and void for

vagueness doctrines may be “two sides of the same coin.” Appellant’s Br. at 34 (citing

Gundy v. United States,

(2019) (Gorsuch, J., dissenting)). However,

as with his previous constitutional argument, this argument is also foreclosed by Supreme

Court precedent.

“The nondelegation doctrine bars Congress from transferring its legislative power

to another branch of Government.” Gundy v. United States,

(2019).

However, the Supreme Court has held that “[a] statutory delegation is constitutional as

long as Congress lay[s] down by legislative act an intelligible principle to which the person

or body authorized to [exercise the delegated authority] is directed to conform.”

(citation and internal quotation marks omitted). The question of whether Congress has

provided this intelligible principle is one of statutory interpretation, considering a statute’s

purpose, background, and text.

“Only after a court has determined a challenged statute’s

meaning can it decide whether the law sufficiently guides executive discretion to accord

with Article I.”

The requirement of an intelligible principle is not an exacting standard.

The Supreme Court has only twice invalidated statutes on nondelegation grounds, and only

where “Congress had failed to articulate any policy or standard.” See

at 2129 (quoting

Mistretta v. United States,

, 373 n.7 (1989)).

The CIMT statute satisfies the intelligible principle test. We have interpreted the

phrase “moral turpitude” to require “two essential elements: a culpable mental state and

reprehensible conduct.” Sotnikau,

. And to repeat: a culpable mental state

requires at least criminal recklessness, while reprehensible conduct must “independently

7 violate[] a moral norm” and “shock[] the public conscience as being inherently base, vile,

or depraved.”

at 735–36.

It is not the case, then, that Congress has “failed to articulate any policy or standard”

here. Gundy,

. In fact, the CIMT definition is clearer and more definite

than many statutes sustained over the years. The Supreme Court has upheld delegations to

regulate in the “public interest,” to set “fair and equitable” prices and “just and reasonable”

rates, and to issue air quality standards “requisite to protect the public health.”

(collecting cases). And we have similarly approved broad delegations. See United States v.

Moriello,

, 932–33 (4th Cir. 2020) (upholding authority to make rules “for the

protection and administration of property owned or occupied by the Federal Government

and persons on the property”); United States v. Arch Trading Co.,

, 1092–

94 (4th Cir. 1993) (upholding presidential authority under IEEPA to declare a “national

emergency” in the face of threats to “to the national security, foreign policy or economy of

the United States”).

Because the meaning of “moral turpitude” is at least as clear as past acceptable

delegations, we hold that Congress has sufficiently articulated an intelligible principle

circumscribing executive discretion.

IV.

The third question presented by this appeal is whether Virginia felony eluding

constitutes a CIMT. In analyzing whether an offense is a CIMT, courts “apply the

categorical approach, which looks to the elements of the crime rather than the particular

conduct underlying the conviction.” Nunez-Vasquez,

. Once again, a CIMT

8 has “two essential elements: a culpable mental state and reprehensible conduct.”

.

We conclude that Virginia felony eluding satisfies both elements.

A.

We begin with the culpable mental state requirement. For a crime to qualify as a

CIMT, a mens rea of at least recklessness is required. * Sotnikau,

.

The Virginia felony eluding statute reads:

Any person who, having received a visible or audible signal from any law- enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal so as to interfere with or endanger the operation of the law-enforcement vehicle or endanger a person is guilty of a Class 6 felony. It shall be an affirmative defense to a charge of a violation of this subsection if the defendant shows he reasonably believed he was being pursued by a person other than a law-enforcement officer.

(B). The statute’s text therefore indicates that it contains two

elements: (1) the defendant received a visible or audible signal from a law enforcement

officer to bring his motor vehicle to a stop; and (2) the defendant drove his motor vehicle

in a willful and wanton disregard of such signal so as to interfere with or endanger the

operation of the law enforcement vehicle or a person. See Graves v. Commonwealth,

(Va. Ct. App. 2016). These elements satisfy the mental state requirement

for a crime to qualify as a CIMT.

* Borden v. United States,

(2021), which held that a mens rea of recklessness does not satisfy the standard for a “violent felony,” is not germane to this well- settled precedent. Borden relied on the specific language of the elements clause definition of “violent felony,”

(e)(2)(B)(i), which focused on the “use of physical force against the person of another.” The Court made clear that “a difference in text” would “yield[] a difference in meaning.” Borden,

(internal quotations omitted). 9 1.

Virginia felony eluding’s statutory “willful and wanton” mens rea requires at least

recklessness, and thus satisfies the CIMT culpability prong. Under Virginia law, “willful”

means “knowing or intentional, rather than accidental,” and “done without justifiable

excuse, without ground for believing the conduct is lawful, or with a bad purpose.”

Commonwealth v. Duncan,

(Va. 2004). “Wanton” means “manifesting

arrogant recklessness.” Forbes v. Commonwealth,

(Va. Ct. App.

1998). Because the phrase “willful and wanton” imparts a mens rea of at least recklessness,

it is sufficient to meet the CIMT culpability prong. See Nunez-Vasquez, 965 F.3d at 282–

83 (determining that a statute could not qualify as a CIMT since it only required criminal

negligence, rather than purpose or recklessness). Indeed, Canales Granados concedes as

much. That concession is a wise one. Where it is clear both that a mens rea in a statute is

at least that of recklessness, and the turpitudinous character of the statute is obviously in

evidence, a statute constitutes a CIMT.

Here, of course, the mens rea is well above that of recklessness. Canales Granados

contends, however, that the willful and wanton mens rea applies only to part of the statute’s

second element. This approach seeks to divvy up the statute into constituent parts at the

expense of the whole of the conduct at issue. That is to say, the willful and wanton flight

of a motor vehicle in a manner that endangers people or interferes with law enforcement

vehicles. We decline to engage in the minute parsing of the statute that petitioner suggests.

The only two words referencing mens rea in this provision are “willful” and “wanton.” We

are not at liberty to excise them from the Virginia statute. Indeed, to limit or dilute them

10 would not only deprive criminal defendants of protections that the mens rea has accorded

them. It would also weaken the underlying purpose of federal immigration law.

Moreover, Canales Granados’ argument also fails even on its own terms. To commit

felony eluding, an offender must drive his motor vehicle “in a willful and wanton disregard

of [a law enforcement] signal so as to interfere with or endanger the operation of the law-

enforcement vehicle or endanger a person.”

(B). Canales

Granados argues that the willful and wanton mens rea applies to disregarding a law

enforcement signal, but not to the interfering or endangering language. We reject this

interpretation. The statute is best read to require both: (i) willful and wanton disregard of a

law enforcement officer’s signal and (ii) willful and wanton interference with a law

enforcement vehicle or endangerment of a person.

The statutory language, taken on its own, suggests as much. The specified “willful

and wanton” mens rea is presumed to apply to “all the subsequently listed elements of the

crime.” United States v. Washington,

(4th Cir. 2014) (quoting Flores-

Figueroa v. United States,

(2009)). In fact, the phrase “so as to”

explicitly links the “willful and wanton” mens rea with the interfering-or-endangering

language it immediately precedes. In this context, the phrase “so as to” is best read as an

idiomatic expression connecting an action (driving in willful and wanton disregard of a law

enforcement signal) with its intended effect (willfully and wantonly interfering or

endangering). See Christine Ammer, The American Heritage Dictionary of Idioms (1997)

(defining “so as to” as “[i]n order to”). Under this natural reading, the willful and wanton

11 mens rea applies both to disregarding a law enforcement signal and to interfering with a

law enforcement vehicle or endangering any person.

This interpretation of “so as to” is bolstered by other courts’ interpretations of the

same phrase in similar contexts. Courts regularly read “so as to” language to require a

culpable mental state. Blomstrom v. Tripp,

, 845 (Wash. 2017) (holding that

“so as to injure or abuse” “suggests deliberate action undertaken in order to cause harm”);

State v. Fierro,

(Ariz. 1990) (interpreting “so as to injure or abuse” to

require “intent to injure or abuse”); State v. Sterzinger,

, 680–83 (Wis. Ct.

App. 2002) (interpreting “so as to interfere with or endanger the operation of the police

vehicle” to require “purpose” rather than “result” of interference or endangerment); State

v. Mack,

(Mo. Ct. App. 2000) (equating “so as to injure or abuse” with

“intent to harm”); Brimberry v. State,

, 775–76 (Tex. Ct. App. 1989)

(interpreting “so as to injure, damage or abuse” to require “intent,” not “result”);

Commonwealth v. Moll,

(Pa. Super. Ct. 1988) (interpreting

“intentionally or recklessly tamper[ing] with tangible property of another so as to endanger

person or property” to carry with it mens rea and thus require an “intent to place person or

property in danger”).

The function of “so as to” as language linking a specified mens rea to the result is

bolstered by Virginia precedent on a different statute. The Virginia Supreme Court has

interpreted the “so as to” phrase to import mens rea in Virginia’s reckless driving statute.

See Va. Code § 46.2-852. That court interpreted language prohibiting driving “recklessly

or at a speed or in a manner so as to endanger the life, limb, or property of any person” to

12 require more than the mere result of endangerment. Id. (emphasis added); Commonwealth

v. Cady, No. 201204, slip op. at 1–2 (Va. Oct. 28, 2021). Instead, the court viewed “so as

to” as linking language that applied the mens rea to the result of endangerment. Id.

(requiring “‘disregard by the driver of a motor vehicle for the consequences of his act and

an indifference to the safety of life, limb, or property’ of others” (quoting Powers v.

Commonwealth,

(Va. 1970))). While we would not presume to transfer

the reading of Va. Code § 46.2-852 to the interpretation of the felony eluding statute before

us in this case, we do note that the text of the Virginia felony eluding statute gives us every

reason to apply the general presumption that a specified mens rea applies to each element

of the statute. Flores-Figueroa,

. Interfering or endangering therefore

carries a willful and wanton mens rea sufficient to render the crime a CIMT.

2.

Next, Canales Granados cites the statutory affirmative defense available where “the

defendant shows he reasonably believed he was being pursued by a person other than a

law-enforcement officer.”

(B). Canales Granados claims that this

defense demonstrates that ignoring the law enforcement signal requires a mens rea of only

negligence.

We reject his argument because affirmative defenses are not considered under the

categorical approach. The Supreme Court has made clear that courts may look only to the

elements of the statute in implementing the categorical approach, not affirmative defenses.

Mathis v. United States,

(2016); Descamps v. United States,

(2013); see also Quito v. Barr,

, 92–93 (2d Cir. 2020); United

13 States v. Escalante,

, 399–400 (5th Cir. 2019); United States v. Velasquez-

Bosque,

(9th Cir. 2010).

And even if the affirmative defense were considered, it does not demonstrate that

the statute can be violated through mere negligence. In the case of felony eluding, the

affirmative defense is extraneous. It merely serves to underscore the willful and wanton

mens rea required. A Virginia driver who does not stop at the direction of someone who is

not objectively recognizable as a police officer has not committed felony eluding because

he has not driven in “willful and wanton disregard of [a law enforcement] signal.” Va.

Code § 46.2-817(B). Only if he knew or “manifest[ed] arrogant recklessness,” Forbes,

, toward whether the individual signaling him to stop was an officer can he

have willfully and wantonly disregarded a law enforcement signal. This requirement of a

culpable state of mind is simply underscored by the affirmative defense.

Our approach to a judicially created affirmative defense in United States v. Martin,

, 493–94 (4th Cir. 2014), does not suggest a different result. Maryland fourth-

degree burglary has no statutory mens rea, so Maryland courts created an affirmative

defense requiring negligence.

Because binding state court precedent determined the

crime could be committed with a negligent mens rea, this court found it did not qualify as

a “crime of violence.”

Here, however, there is a statutory mens rea: willful and wanton.

And no Virginia court has held that the statutory affirmative defense lowers that bar.

A violation of Virginia felony eluding requires willful and wanton disregard of a

law enforcement signal and willful and wanton interference or endangerment. Because

14 both aspects require a sufficiently culpable mens rea, there can be no doubt Virginia felony

eluding meets the culpability prong to be considered a CIMT.

B.

Next, we turn to the reprehensible conduct requirement. For a crime to involve

sufficiently reprehensible conduct to constitute a CIMT, it must “independently violate[] a

moral norm” and “shock[] the public conscience as being inherently base, vile, or

depraved.” Nunez-Vasquez,

. Since vehicular flight from law enforcement

has been consistently found to involve sufficient risk and danger to be morally

reprehensible, we conclude that Virginia felony eluding requires reprehensible conduct.

As the Supreme Court has noted, “[w]hen a perpetrator defies a law enforcement

command by fleeing in a car, the determination to elude capture makes a lack of concern

for the safety of property and persons of pedestrians and other drivers an inherent part of

the offense.” Sykes v. United States,

(2011). For the same reason, the Seventh

Circuit concluded that Wisconsin’s eluding statute was sufficiently turpitudinous because

a defendant who intentionally flees from an officer “has to know that he is greatly

increasing the risk of an accident.” Cano-Oyarzabal v. Holder,

(7th Cir.

2014).

Canales Granados nevertheless argues that Virginia felony eluding does not require

turpitudinous conduct because “conduct that raises the specter of endangerment,” Tucker

v. Commonwealth,

(Va. Ct. App. 2002), or conduct that endangers

only the defendant, Phelps v. Commonwealth,

(Va. 2008), is sufficient

for conviction. Raising the “specter of endangerment,” is, however, sufficient to render a

15 crime morally reprehensible. Congress explicitly recognized the inherent danger of

automotive flight by expressly deeming high-speed flight from an immigration checkpoint,

18 U.S.C § 758, a deportable offense.

(a)(2)(A)(iv). High-speed flight

requires only flight in excess of the legal speed limit for conviction. 18 U.S.C § 758. The

inherent risk associated with speeding is thus sufficient for deportation on its own—

without any evidence the defendant actually interfered with or endangered anyone. Where,

as here, actual endangerment or interference is required, the reprehensible nature of the

conduct becomes indisputable. And that distinguishes this case from a case like Nunez-

Vasquez, where we held that Virginia’s hit-and-run statute did not qualify as a CIMT.

. An individual could violate that statute merely by getting into an accident and

failing to report his name, address, or other piece of identifying information, even if he

remained at the scene of the accident.

Conduct such as that is simply different in kind

from ignoring a signal from law enforcement and fleeing from the police.

Finally, Canales Granados argues that interference with “the operation of the law-

enforcement vehicle” is akin to Virginia obstruction of justice, which this court held does

not meet the CIMT conduct prong. See Ramirez v. Sessions,

, 704–06 (4th

Cir. 2018). That comparison fails. There is a fundamental difference between vehicular

flight from an officer and obstruction of justice. Flight carries with it an intrinsic element

of risk and danger, see United States v. Hudson,

(4th Cir. 2012), while

obstruction can be carried out with no risk of harm—and even from the safety of a

defendant’s home. Virginia courts have, for example, upheld obstruction convictions for

actions as minor as demanding police officers leave a defendant’s yard or refusing to roll

16 down a car window. See Ramirez,

(collecting cases). Comparing this

relatively innocuous conduct to the danger inherent in vehicular flight is untenable.

Ramirez, in fact, supports the conclusion that interfering with a law enforcement

vehicle through automotive flight is sufficiently turpitudinous. In Ramirez, the court

rejected the argument that “any intent to obstruct, impair, or pervert the lawful operations

of government necessarily involves moral turpitude.”

(internal quotation marks

omitted). The court instead required an “aggravating element that pushes a mere violation

of the law into the territory of moral depravity.”

. The risk inherent in vehicular

flight is the exact aggravating factor that elevates the interference involved with felony

eluding above mere obstruction.

America is a welcoming country, but Congress has made plain that its hospitality is

strained when people commit the sort of offense at issue in this case. The Virginia felony

eluding statute clearly satisfies both the culpable mental state and reprehensible conduct

prongs of a CIMT. We accordingly deny the petition.

DENIED

17