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BIA Holds That When The Government Must Prove The Elements Of A Sentencing Enhancement Beyond A Reasonable Doubt

October 20, 2025 Philip Levin

BIA Holds That When The Government Must Prove The Elements Of A Sentencing Enhancement Beyond A Reasonable Doubt, Those Additional Elements Are Combined With The Elements Of The Underlying Criminal Statute And All The Elements Are Then Considered Together As One Compound Crime. Respondent’s Compound Conviction Under California Penal Code §191.5(b) Enhanced By California Vehicle Code §20001(c) Is Therefore Categorically For a Crime Involving Moral Turpitude.

On November 1, 2024, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent whose conviction for gross vehicular manslaughter while intoxicated under California Penal Code (CPC) §191.5(b), with a sentencing enhancement for fleeing the scene of an accident per California Vehicle Code (CVC) §2001(c), was found by an Immigration Judge (IJ) to be for a crime involving moral turpitude (CIMT), causing him to become removable under INA §237(a)(2)(A)(i). The IJ also found Respondent ineligible for an INA §212(h) waiver of inadmissibility. The case was previously before the Board in 2017, when it concluded that Respondent was not removable as charged and remanded to the IJ to consider DHS’s newly-lodged allegations (the BIA held then that Respondent’s conviction for failure to stop at the scene of an accident involving injury per CVC §20001(a) was not a CIMT).

As background, Respondent was driving while intoxicated in 2008 and, while speeding, hit and killed a pedestrian, then fled the scene. In 2009, a California jury found him guilty of 3 counts: violating a base offense with a sentencing enhancement, vehicular manslaughter while intoxicated with ordinary negligence per CPC §191.5(b), as enhanced by CVC §20001(c) for fleeing the scene, and leaving the scene of an injury accident in violation of CVC §20001(a) Respondent was sentenced to 7 years confinement on the 1st count and 3 years, stayed, on the 2nd.

On appeal, DHS argued that Respondent’s conviction under count one was a “merged crime,” requiring both a culpable mental state and reprehensible conduct. While agreeing that this conviction required the elements of both §191.5(b) and §20000(c), Respondent contended that 191.5(b) lacked a culpable mens rea and 20000(c) lacked reprehensible conduct.

The Board noted that whether DHS had satisfied its burden of proving that Respondent’s conviction is for a CIMT is a question of law it reviewed de novo, explaining that to involve moral turpitude, a crime requires 2 essential elements: 1) a culpable mental state and 2) reprehensible conduct. Additionally, the categorical approach requires the BIA to “focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, rather than on the facts underlying the respondent’s particular violation of that statute.”

In beginning its analysis, first as to the elements of Respondent’s compound conviction, the Board set forth CPC §191.5(b) as: “The unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of [driving while intoxicated statutes] and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.”

Respondent’s sentencing enhancement provided that one who fled the scene of a crime after violating  §191.5, upon conviction, in addition to and consecutive with the prescribed punishment, shall be punished by an additional term of 5 years in state prison. DHS claimed that the combined elements of §191.5(b) and §20001(c) must be viewed as “one combined crime under the categorical approach.” Agreeing with this argument, the IJ concluded that this enhanced conviction, when considered as a combined crime, qualified as a CIMT under Quintero-Cisneros v. Sessions, 891 F.3d 1197 (9th Cir. 2018).  

In that case, the Ninth Circuit Court of Appeals found that a conviction for committing “assault of a child in the third degree” with criminal negligence, in conjunction with a sentencing enhancement for having committed the crime “with a sexual motivation” was for sexual abuse of a minor; the Court reasoned that the sentencing enhancement was an element of the overall offense as “the facts supporting the enhancement are required under Washington State law to be charged in the information and found by a jury beyond a reasonable doubt or admitted by the defendant.” This view, stated the decision, is consistent with the Board’s prior case law holding that any fact (including a fact contained in a sentence enhancement) that serves to increase the maximum penalty for a crime to which a defendant is subject and that is required by the law in the convicting jurisdiction to be found beyond a reasonable doubt by a jury, if not admitted by the defendant, is to be treated as an element of the underlying offense.

As in Washinton, California law requires sentencing-enhancing elements to be charged in the information and found beyond a reasonable doubt by a jury. Thus, held the BIA, when the government must prove the elements of a sentencing enhancement beyond a reasonable doubt, those additional elements are combined with the elements of the underlying criminal statute and all the elements are then considered together as one compound crime.

Although Respondent, on appeal, agreed that the elements of §191.5(b) could be considered with the sentence enhancing of §20000(c), he argued that the elements of each statute remain separate and apart. In effect, he contended that a sentencing enhancement is a self-contained element of the overall offense, asserting that the Board should view the statutes “as two distinct silos that do not interact or intersect but nevertheless constitute a combined crime.”

The BIA was “not persuaded.” The opinion found that the §20001(c) sentence enhancement is not a stand-alone, separate offense and is only triggered by the commission of the predicate crime; it cannot be charged on its own but “provides additional elements to be proven for the overall offense.”

As to the required mental state, the decision stated that Respondent’s compound conviction contained 3 “mentes reae”: 1) negligence stemming from §191.5(b) for the driving violation; 2) knowledge originating from §20001(c) for knowing that a person was injured; and 3) willfulness for the act of leaving the scene of the accident. DHS claimed that Respondent’s willfully leaving the scene despite knowing that he had injured another lent the offense “sufficient culpability to qualify as morally turpitudinous.”

Respondent did not argue against there being a knowing mens rea in is compound conviction but claimed that the mens rea of leaving the scene could not be applied to the conduct of the base offense (vehicular manslaughter while intoxicated) because there were two discrete acts with distinct mentes reae. He also contended that, as in Quintero-Cisneros, §20001(c) supplied the culpable mental state but, unlike in that case, 20001(c) did not “explicitly inject the knowing or willful mens rea into the base offense of vehicular manslaughter.” Respondent argued that the knowing or willful mens rea was tied to the “separate and subsequent” act of fleeing the scene. The Board was not convinced that Quintero-Cisneros supported this distinction.

To constitute a CIMT, explained the decision, a perpetrator must have the requisite level of knowledge for the specific act that constitutes reprehensible conduct and both the act and the mens rea must be considered together to determine whether the behavior they describe “is sufficiently culpable to be labeled morally turpitudinous.” For example, another  Ninth Circuit case had upheld the BIA’s conclusion that a simple DUI did not involve moral turpitude,  but that moral turpitude inhered to an aggravated DUI conviction where the driver knew that he or she was not allowed to drive (a culpable mens rea), but drove anyway (the criminalized act). The added element of knowingly driving without a license in conjunction with the act of the DUI elevated the simple DUI into an aggravated DUI which, in turn, made the offense a CIMT.

Similarly, reasoned the opinion, while §20001(c) adds a knowing mens rea to the act of fleeing the scene, the mens rea “is informed by the preceding accident causing injury.” Considered together, this “adds the level of scienter required for” a CIMT. As a result, the combined conviction contains a culpable mental state; the remaining question is whether the act of leaving the scene after causing another’s death as a result of a negligent act while driving under the influence constitutes reprehensible conduct.

As to this issue, the BIA initially found that the willful fleeing the scene despite knowing either that another had been injured or “that the nature of the accident made it probable that another person was injured” constituted reprehensible conduct. As such, Respondent’s conduct was “inherently base, vile, or depraved , and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The Board next set forth Respondent’s appellate claim that the combined conviction did not include such conduct, explaining that he was focusing exclusively on §20001(c)’s elements to argue that the acts penalized by that section did not independently constitute a CIMT. In response, DHS contended that §20001(c)’s sentencing enhancements alone qualified as a CIMT.

The decision found that §20001(c) was not a stand-alone offense but was only implicated by a violation of CPC §191.5 or of §192(1)(c). Additionally, the conduct criminalized was “not merely fleeing the scene of a crime”; in fact, the elements of this “compound conviction” prohibit one from driving under the influence, negligently causing another’s death, and, despite knowing that it is likely someone had been injured, willingly fleeing the scene. This, concluded the BIA, was inherently reprehensible conduct. Under prior case law, such a compound conviction required the same elements as a traditional hit and run i.e., a driver involved in an accident, who knew that he had injured another or that injury was probable, and fled the scene, and thus Respondent’s conviction reflected moral turpitude.

Further, both the Ninth Circuit and the Board had recognized that while a simple DUI was not a CIMT, aggravating factors could “infuse the offense with moral turpitude.” Moral turpitude does not simply accrue in fleeing the scene, explained the opinion, but is “a characteristic of the combined elements considered in total”; moral turpitude inheres when the DUI driver willfully flees after causing a fatal accident despite knowing it is likely someone was injured.

Additionally, the BIA was unimpressed by Respondent’s argument that fleeing the scene under §20001(c) was not necessarily reprehensible conduct because it did not require that the act of fleeing be the proximate cause of the risk of harm or harm. Respondent claimed that non-fraudulent CIMTs “generally involve an intent to injure, actual injury, or a protected class of victims.” Yet, found the decision, these things were not determinative; in cases like Respondent’s, where the offense required actual injury or the risk of injury, the law did not require that the reprehensible conduct be the proximate cause of the injury or risk. In fact, the Ninth Circuit had held that a hit and run causing injury can be a CIMT when a conviction did not require that the culpable act – knowingly fleeing the scene – be the proximate cause of the actual injury.

Respondent also contended on appeal that “flees the scene” under §20001(c) did not necessarily reflect reprehensible conduct because, unlike other similar statutes, it did not explicitly require that one render aid to injured persons. Here, he claimed, there was a distinction between failing to stop and failing to render aid and the turpitudinous act was the failure to render aid so moral turpitude did not necessarily inhere in a violation of §20001(c). The Board remined unpersuaded, noting the DHS argument that one fleeing an accident knowing that he or she has injured another, or probably done so, “necessarily fails to render aid.”

Therefore, held the decision, considering the added elements of his sentencing enhancement as elements of the underlying offense, Respondent’s willful flight from the scene, despite knowing that he had been in an accident that injured another, or that such an injury was probable, constituted reprehensible conduct and required a culpable mens rea. The IJ’s decision that the compound conviction was categorically a CIMT, rendering Respondent removable per §237(a)(2)(A)(i), was affirmed.

As to the applications for relief, the BIA first affirmed the IJ’s denial of the §212(h) waiver on the ground that Respondent failed to prove he was prima facie eligible for the relief; such a waiver is not available on a stand-alone basis without a concurrently filed visa, admission, or adjustment of status application. As Respondent provided no evidence of an adjustment application or proof that he was seeking admission to the U.S., he has not demonstrated prima facie eligibility. His argument that he was not offered an opportunity to submit his §212(h) waiver was likewise unavailing. He had not submitted any such application or countered the DHS arguments against his eligibility for INA §212(h), §240B(b), and §245 relief and the IJ’s pretermitting of  these types of relief was thus permissible. Respondent’s due process contention met a similar fate.

The Board next affirmed the IJ’s finding that Respondent was ineligible for cancellation of removal as he failed to show that he had resided in the U.S. continuously for 7 years after having been admitted in any status. He had lived in the U.S. as a nonimmigrant for 6 years and 8 months, then departed, returning 3 years and 4 months later on an immigrant visa. His commission of the instant CIMT approximately 6 months after his admission as a permanent resident served to terminate Respondent’s accrual of continuous residence.

On appeal, Respondent argued he had maintained his U.S. residence during his 3+ years absence; the BIA found no error of fact or law in the IJ’s finding that this departure “interrupted his accrual of 7 years of continuous residence.” He did not continue to accrue U.S. residence during the first 4 months of his absence, held the opinion, nor had the IJ given undue weight to his “physical absence.” He could not prove eligibility for cancellation. The appeal was dismissed.

In a detailed dissenting opinion, AIJ Andrea Sáenz first noted that the case raised “difficult questions”, agreeing with the majority that it is “unquestionably serious” to cause the death of another in a car accident. However, here the base §191.5(b) offense was caused negligently, not with any higher intent, and thus could not be a CIMT on its own. A driver could fail to stop without knowledge that his or her negligent act had killed another. This failure to stop, stated the dissent, “is best characterized as a regulatory offense”- not reprehensible on its own – under Ninth Circuit case law. AIJ Sáenz also cited to the same precedent decision as the majority, albeit the dissent, to register her disagreement that a combination of a DUI offense “that lacked the sufficient mens rea” and a driving without a license offense “that lacked reprehensible conduct” could change the “nature” of either act.  

Further, asserted the dissent, the majority concluded that the instant compound conviction was a CIMT because it “matches” a traditional hit and run,” but the Ninth Circuit case on which the majority predicated much of its decision had involved CVC §20001(a), not §20001(c). Also, while a “traditional hit and run” was undefined by the federal courts of appeal, Respondent had argued  persuasively that it required “the element of a failure to render aid,” which was not an element of Respondent’s §191.5(b) and §20001(c) convictions. The majority read a failure to render aid into 20001(c), thus converting it into a version of 20001(a). Each conviction must be evaluated on its own merits, explained AIJ Sáenz, and the elements of these 2 provisions do not add up to a CIMT.

While the dissent agreed that the §2001(c) enhancements are properly treated as additional elements of the conviction, it could not find that “when the two acts at issue happen one after the other,” a CIMT is created. The two parts of Respondent’s conviction were not one act in which AIJ Sáenz found evil intent. She would also have found that Respondent’s §20001(a) conviction was not a CIMT “because it is not clear under which subsection of that statute he was convicted, for the same reasons as the majority notes.” Nor, in AIJ Sáenz’s opinion, had the IJ’s most recent opinion correctly applied the modified categorical approach. She would find that DHS’s charges of removability were not proven by clear and convincing evidence and therefore would not have reached the additional relief issues addressed by the majority. The dissent would have terminated removal proceedings. Matter of Khan, 28 I&N Dec. 850 (BIA 2024).

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