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Fugow v. Barr

United States Court of Appeals, Ninth Circuit

November 18, 2019

Joseph Fugow, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted October 23, 2019 University of Hawaii at Manoa

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-352-767

          Manuel Q. Diones (argued), Law Offices of Manuel Q. Diones LLLC, Honolulu, Hawaii, for Petitioner.

          M. Jocelyn L. Wright (argued), Senior Litigation Counsel; Melissa Neiman-Kelting, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Susan P. Graber, Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges.

          SUMMARY[*]

         Immigration

         Denying Joseph Fugow's petition for review of a decision of the Board of Immigration Appeals, the panel held that Fugow's conviction for first-degree unlawful imprisonment under Hawaii Revised Statutes § 707-721(1) is categorically a crime involving moral turpitude (CIMT) that made him removable.

         The panel observed that both the BIA and this court have been unable to establish any coherent criteria for determining which crimes are CIMTs. Nonetheless, the panel applied the categorical approach to determine whether Fugow's conviction constitutes a CIMT.

         Examining the elements of the Hawaii statute, the panel explained that the least culpable way of committing first-degree unlawful imprisonment is to knowingly restrain another person under circumstances that the defendant knows will expose the person to a risk of serious bodily injury.

         Next, the panel compared the elements of the statute with the federal definition of a CIMT, noting that this court has defined a CIMT as involving either fraud or base, vile, and depraved conduct that shocks the public conscience. The panel also observed that non-fraudulent CIMTs generally involve an intent to injure, actual injury, or a protected class of victims, but explained that this court has held that certain reckless endangerment offenses qualify as CIMTs. In Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014), the court held that an Arizona law barring recklessly endangering another person with a substantial risk of imminent death is a CIMT.

         The panel concluded that first-degree unlawful imprisonment under Hawaii law is categorically a CIMT. The panel explained that the state of mind contemplated by the Hawaii statute (knowledge) is higher than that of the Arizona statute in Leal (recklessness). The panel noted that the harm contemplated by the Hawaii statute is less severe than the harm contemplated by the Arizona statute, but explained that the combination of the harm and state of mind required by the Hawaii statute results in conduct that is no less turpitudinous than the conduct at issue in Leal.

          OPINION

          PER CURIAM.

         Under the Immigration and Nationality Act (INA), certain noncitizens who are convicted of a "crime involving moral turpitude" (CIMT) are removable. 8 U.S.C. § 1227(a)(2)(A)(i). The INA does not define the term "crime involving moral turpitude." As we have noted before, both the Board of Immigration Appeals (BIA) and our court have been unable "to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not." Nunez v. Holder, 594 F.3d 1124, 1130 (9th Cir. 2010), superseded in other part as stated by Betansos v. Barr, 928 F.3d 1133, 1142 (9th Cir. 2019). ...


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