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Rodriguez-Herrera v. Immigration and Naturalization Service

filed: April 6, 1995.

NOEL ALI RODRIGUEZ-HERRERA, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A35-666-886.

Before: James R. Browning and William C. Canby, Jr., Circuit Judges, and Marilyn L. Huff*fn* , District Judge. Opinion by Judge Canby.

Author: Canby

CANBY, Circuit Judge.

In this case we are asked to determine whether second degree malicious mischief, as defined in the Revised Code of Washington ("RCW") § 9A.48.080, is necessarily a crime involving "moral turpitude" for purposes of establishing deportability under § 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1988).*fn1 Because Washington's crime of malicious mischief in the second degree is a relatively minor offense and does not necessarily involve a base act contrary to moral standards, we hold that it does not qualify as a crime of moral turpitude.

I

Noel Ali Rodriguez-Herrera was admitted to the United States as a lawful permanent resident in September 1978. In May 1983, he was charged with two counts of malicious mischief in the second degree, and one count of malicious mischief in the third degree under RCW §§ 9A.48.080 and 9A.48.090. The information alleged that he and another individual damaged three automobiles. Rodriguez eventually pleaded guilty to one count of second degree malicious mischief. In May 1986, Rodriguez was charged with two counts of arson in the first degree in violation of RCW § 9A.48.020(1)(A)(1)(B)(1)(C).*fn2 He pleaded guilty to one of those counts.

In March of 1989, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against Rodriguez-Herrera. The INS charged that Rodriguez-Herrera is deportable under section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1988), because he had been convicted of two crimes involving moral turpitude not involving a single scheme of criminal conduct. After a deportation hearing, The Board of Immigration Appeals ("BIA") found Rodriguez-Herrera deportable as charged. After the BIA dismissed his appeal, he petitioned this court to review the BIA's decision that second degree malicious mischief is a crime involving moral turpitude.

II

The Washington statute in question, RCW § 9A.48.080(1)(a), provides in relevant part:

(1) A person is guilty of malicious mischief in the second degree if he knowingly and maliciously:

(a) Causes physical damage to the property of another in an amount exceeding two hundred fifty dollars; . . . .

(2) Malicious mischief in the second degree is a class C felony.*fn3

Maliciously is defined in Section 9A.04.110 (12), which provides:

"malice" and "maliciously" shall import an evil intent, wish, or design to vex, annoy, or injure another person. Malice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an ...


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