                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 03-1961, 03-2595
WEI CONG MEI,
                                                       Petitioner,
                               v.

JOHN ASHCROFT, Attorney General
of the United States,
                                                      Respondent.

                        ____________
               On Petitions for Review of Orders of
               the Board of Immigration Appeals.
                         No. A 45 206 486
                        ____________
    ARGUED OCTOBER 5, 2004—DECIDED DECEMBER 29, 2004
                        ____________



  Before POSNER, KANNE, and WOOD, Circuit Judges.
  POSNER, Circuit Judge. Wei Cong Mei has petitioned us for
review of two orders by the Board of Immigration Appeals,
one ordering him removed from this country and the other,
which need not be discussed separately, denying his motion
to reconsider the first order. The principal issue we consider
is the meaning of “crimes involving moral turpitude” in
immigration law and generally.
  In 1998 Mei (who had been admitted to the United States
as a lawful permanent resident three years previously) was
2                                     Nos. 03-1961, 03-2595

convicted of unlawful possession of a stolen motor vehicle,
in violation of 625 ILCS 5/4-103(a)(1), and sentenced to 30
months’ probation. Three years later he was convicted of
aggravated fleeing from a police officer in violation of 625
ILCS 5/11-204.1(a)(1), the “aggravation” consisting in his
fleeing at 21 or more miles per hour above the speed limit.
He sped away from the officer—who had turned on his siren
and flashing lights—at 105 miles per hour in a 55 m.p.h.
zone. For this crime Mei was sentenced to a year in prison.
  Under the heading of “general crimes,” the immigration
law makes removable an alien who “(I) is convicted of a
crime involving moral turpitude committed within five
years (or 10 years in the case of an alien provided lawful
permanent resident status . . .) after the date of admission,
and (II) is convicted of a crime for which a sentence of one
year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i).
Mei clearly qualifies, since he committed a crime that he
concedes to involve moral turpitude—unlawful possession
of a stolen vehicle—three years after his admission to this
country and it is a crime punishable by a sentence of one
year or more. The crime is a “Class 2 felony,” 625 ILCS 5/4-
103(b), for which the maximum sentence is 7 years. 730 ILCS
5/5-8-1(a)(5).
   But, remarkably, given that the immigration judge had
ruled that Mei was removable both because aggravated flee-
ing is a crime involving moral turpitude and because
unlawful possession of a motor vehicle also is such a
crime—as Mei concedes—the Board, without any reference
to the conviction for unlawful possession, pitched its order
of removal on the sole ground that aggravated fleeing
(which is also punishable by a sentence of a year or more,
see 625 ILCS 5/11-204.1(b); 730 ILCS 5/5-8-1(a)(7)) is a
crime involving moral turpitude, which Mei denies. Actually
it’s unclear whether that was the Board’s sole ground; the
Nos. 03-1961, 03-2595                                        3

Board may have thought that one of its earlier orders in
what has become a protracted proceeding had affirmed the
immigration judge’s alternative ground for removal. But if
so, why did it bother to devote an opinion to the aggra-
vated-fleeing ground? At any rate the government is insist-
ent that it was the Board’s sole ground, and so has waived
any reliance it might have placed on Mei’s concession that
unlawful possession of a motor vehicle is a crime of moral
turpitude punishable by a sentence of a year or more in
prison. So we can’t avoid deciding whether aggravated
fleeing is a crime involving moral turpitude.
  But maybe it is not we who have to decide, but the Board.
The courts that have addressed the question (our court has
not) agree that the Board’s interpretation of the meaning of
“crime involving moral turpitude” is entitled to Chevron de-
ference; see INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999),
where the Supreme Court gave Chevron deference to the
Board’s interpretation of another term in the immigration
statute, “serious nonpolitical crime.” But they are divided
over whether the Board’s decision to classify a particular
crime as one involving moral turpitude is entitled to such
deference. Compare Knapik v. Ashcroft, 384 F.3d 84, 87 (3d Cir.
2004); Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir.
2004), and Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 1994),
holding that it is, with Smalley v. Ashcroft, 354 F.3d 332, 336
(5th Cir. 2003), and Rodriguez-Herrera v. INS, 52 F.3d 238 n.
4 (9th Cir. 1995), holding the contrary.
   Since Congress did not define “crime involving moral
turpitude” when it inserted the term in the immigration
statute, and the term had no settled meaning at the time
(and has none still), it is reasonable to suppose à la Chevron
that Congress contemplated that the agency charged with
administering the statute would define the term, and speci-
fically would tailor the definition to the policies embodied
4                                       Nos. 03-1961, 03-2595

in the immigration statutes. The Board of Immigration
Appeals has done neither. When the Board says that “moral
turpitude has been defined as an act which is per se morally
reprehensible and intrinsically wrong, or malum in se, so it
is the nature of the act itself and not the statutory prohibi-
tion of it which renders a crime one of moral turpitude,” In
re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (this was also its
formula in the present case), or that “moral turpitude refers
generally to conduct which is inherently base, vile, or
depraved, and contrary to the accepted rules of morality
and the duties owed between [persons or to] society in
general,” In re Danesh, 19 I. & N. Dec. 669 (BIA 1988), it is
merely parroting the standard criminal-law definition. E.g.,
Speed v. Scott, 787 So. 2d 626, 633 (Miss. 2001); Benitez v.
Dunevant, 7 P. 3d 99, 104 (Ariz. 2000); In re Sims, 861 A.2d 1,
3 n. 2 (D.C. App. 2004); State v. Miller, 836 P.2d 1004, 1005
(Ariz. App. 1992); People v. Brooks, 4 Cal. Rptr. 2d 570 (App.
1992); Bane v. State, 533 A.2d 309, 314 (Md. Spec. App. 1987).
It is not deploying any insights that it might have obtained
from adjudicating immigration cases.
  Since the Board hasn’t done anything to particularize the
meaning of “crime involving moral turpitude,” giving
Chevron deference to its determination of that meaning has
no practical significance. It is only the second issue, the one
that divides the courts, that has any significance—the issue
of deciding which crimes involve moral turpitude. The res-
olution of that issue depends on whether the character, the
gravity, the moral significance of particular crimes is a topic
that Congress, had it thought about the matter, would have
wanted the Board to decide rather than the courts. Perhaps
so; and if so, the courts that accord Chevron deference to the
Board’s classification of particular crimes as involving moral
turpitude are on the right track. We need not decide. We
Nos. 03-1961, 03-2595                                       5

shall see that the Board’s determination in this case must be
upheld whether great or for that matter no deference is
given to its judgment.
   A curious feature of this case is that both sides have lim-
ited their research into the meaning of “moral turpitude” to
immigration cases, even though as we have seen the term
bears the same meaning in immigration law as in the crim-
inal law and even though there are no immigration cases on
point. In fairness, though, most of the recent cases involving
the question whether a crime involves moral turpitude are
immigration cases; and in federal law at least, the term
“moral turpitude” has little significance outside the immi-
gration setting. Although the term is of seventeenth-century
origin and has been a ground for excluding aliens since
1891, Brian C. Harms, “Redefining Crimes of Moral Turpi-
tude: A Proposal to Congress,” 15 Geo. Immigr. L.J. 259, 262
(2001), it is largely a stranger to the federal criminal code.
  In desperation the government cites an immigration case
in which concealing drug money was held to involve moral
turpitude, Smalley v. Ashcroft, supra, 354 F.3d at 339, and
asks us to analogize it to the present case on the ground that
Mei wouldn’t have fled from the police if he hadn’t had
something disreputable to conceal. The argument gives new
meaning to arguing by analogy. Not only did Mei have
nothing to conceal (for, as far as the record reveals, when he
was apprehended after the chase no contraband or evidence
of crime was found in his car), but that’s often the case
when drivers “take off” when they hear the siren and see
the flashing lights of a police car trying to overtake them.
Had the parties broadened their research to take in cases in
which moral turpitude is found (or not found) in criminal as
distinct from immigration cases, they would have found a
couple of cases more nearly in point than any that either of
them cites. Barge v. State, 568 S.E.2d 841, 845 (Ga. App.
6                                      Nos. 03-1961, 03-2595

2002); People v. Dewey, 49 Cal. Rptr. 2d 537, 541 (App. 1996).
But unfortunately the cases point in opposite directions. We
are writing on a clean slate.
  The natural way to approach the question whether “crimes
involving moral turpitude” include aggravated fleeing would
be to enumerate the crimes that have been held to involve
moral turpitude and those that have been held not to, and
see which of the groups aggravated fleeing is closer to; for
we have found no reported cases classifying that particular
offense as involving or not involving moral turpitude. In
general, crimes in the first class are (1) serious crimes, in
terms either of the magnitude of the loss that they cause or
the indignation that they arouse in the law-abiding public
(hence during the Prohibition era Judge Learned Hand
refused to declare every violation of a prohibition law a
crime involving moral turpitude, United States ex rel. Iorio v.
Day, 34 F.2d 920, 921 (2d Cir. 1929)), that are (2) deliberate,
because a person who deliberately commits a serious crime is
regarded as behaving immorally and not merely illegally.
Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir. 2000); Gonzalez-
Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (per curiam);
Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993). Conspiring
to evade federal taxes on “4,675 gallons of alcohol and an
undetermined quantity of distilled spirits” was held in
Jordan v. De George, 341 U.S. 223, 225 n. 5 (1951), to be a
crime involving moral turpitude; large-scale tax fraud is a
serious crime and a deliberate one. Crimes in the second
class—crimes deemed not to involve moral turpitude—are
either very minor crimes that are deliberate or graver crimes
committed without a bad intent, most clearly strict-liability
crimes. Rodriguez-Herrera v. INS; supra, 52 F.3d at 241;
Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993); State v.
Miller, supra, 836 P.2d at 1005.
Nos. 03-1961, 03-2595                                          7

   Some cases, such as Hamdan v. INS, 98 F.3d 183, 188 (5th
Cir. 1996), seem to require, for classification as a crime
involving moral turpitude, an “evil intent” that goes beyond
merely the intent to commit the crime. That is unhelpful. If
the crime is a serious one, the deliberate decision to commit
it can certainly be regarded as the manifestation of an evil
intent. Conversely, if the crime is trivial, even a deliberate
intent to commit it will not demonstrate an intent so “evil”
as to make the crime one of moral turpitude. Rodriguez-
Herrera v. INS, supra, 52 F.3d at 240-41.
  The distinction between the two classes of case that we
have described corresponds, as noted in Beltran-Tirado v.
INS, 213 F.3d 1179, 1184 (9th Cir. 2000), and Orlando v.
Robinson, 262 F.2d 850, 851 (7th Cir. 1959), to the distinction
between crimes that are malum in se and crimes that are
malum prohibitum. The former refer to crimes that because
they violate the society’s basic moral norms are known by
everyone to be wrongful, the latter to crimes that are not
intuitively known to be wrongful. United States v. Urfer, 287
F.3d 663, 666 (7th Cir. 2002); United States v. Beavers, 206 F.3d
706, 710 (6th Cir. 2000) (“the lack of intuitive wrongfulness is
the hallmark of all laws that are malum prohibitum”). In
application, however, the distinction turns out to be paper
thin. In South Carolina, for example, simple possession of
cocaine is classified as a crime involving moral turpitude,
State v. Major, 391 S.E. 2d 235, 237 (S.C. 1990), but simple
possession of marijuana is not. State v. Harvey, 268 S.E.2d
587, 588 (S.C. 1980). An alien convicted of making false
statements on an employment application and using a fake
Social Security number was held in Beltran-Tirado v. INS,
supra, not to have committed a crime involving moral
turpitude, but the crime of making false statements in a
driver’s license application was held in Zaitona v. INS, 9
F.3d 432 (6th Cir. 1993), to involve moral turpitude.
8                                        Nos. 03-1961, 03-2595

  The holdings of the Board of Immigration Appeals are
consistent with regard to some crimes but “there are a
number of miscellaneous cases involving indecent acts,
gambling, perjury, and other crimes where the findings of
moral turpitude vary widely.” Toutounjian v. INS, 959 F.
Supp. 598, 603 (W.D.N.Y. 1997). The Board should not be
blamed too harshly; courts have equally failed to impart a
clear meaning to “moral turpitude.” Time has only confirmed
Justice Jackson’s powerful dissent in the De George case, in
which he called “moral turpitude” an “undefined and un-
definable standard.” 341 U.S. at 235. The term may well
have outlived its usefulness. But that is not for us to decide,
and let us turn at last to Mei’s offense.
  Mei contends that aggravated fleeing in Illinois is a crime
of strict liability because the statute does not require that the
defendant have fled the police knowingly. And it is of
course possible to be speeding and not know that a police
officer is in pursuit. This is possible though unlikely even if
the police officer has turned on his siren and flashing lights,
because some drivers are extremely inattentive, which is a
fault but not a deep moral wrong. (The driver might be
impaired by age or illness yet not know it.) But the statute
that Mei violated defines a subset of fleeing, namely fleeing
at 21 or more miles per hour above the speed limit. The
statute that defines the unaggravated version of the offense,
625 ILCS 5/11-204(a), explicitly requires a willful failure or
refusal to obey a police officer’s order to stop. It would be
unlikely for the aggravated version of the offense to have
dropped the requirement of willfulness, though not impos-
sible, because the legislature might think that the requirement
for the aggravated offense that the defendant has exceeded
the speed limit by at least 21 m.p.h. was a proxy for will-
fulness as well as evidence of increased dangerousness
warranting a heavier penalty. But however this may be, the
Nos. 03-1961, 03-2595                                      9

requirement of proving willfulness is implicit in the aggra-
vated offense. Ill. Pattern Jury Instructions-Crim. 23.03
(2003).
  It seems to us that a person who deliberately flees at a
high speed from an officer who, the fleer knows, wants him
to stop, thus deliberately flouting lawful authority and
endangering the officer, other drivers, passengers, and
pedestrians, is deliberately engaged in seriously wrongful
behavior, as held in People v. Dewey, supra, albeit under a
somewhat differently worded statute. See also Knapik v.
Ashcroft, supra. He may not want to endanger anyone, but he
has to know that he is greatly increasing the risk of an
accident (and for the further reason that a fleeing driver is
dividing his attention between the road ahead and his pur-
suer); and he is doing so as a consequence of his deliberate
and improper decision to ignore a lawful order of the police.
We conclude, therefore, that aggravated fleeing is indeed a
crime involving moral turpitude.
  Mei argues that, even if so, he should have been granted
asylum because he is an opponent of China’s “one-child”
policy and consequently faces persecution if he is sent back
to China. The immigration judge, however, seconded by the
Board, resolved critical credibility issues against Mei’s
claim.
  The petition to review the order of removal, and the denial
of the petition for reconsideration, are
                                                    DENIED.
10                                  Nos. 03-1961, 03-2595

A true Copy:
       Teste:

                       _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                USCA-02-C-0072—12-29-04
