and Submitted October 23, 2019 University of Hawaii at Manoa
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A206-352-767
Q. Diones (argued), Law Offices of Manuel Q. Diones LLLC,
Honolulu, Hawaii, for Petitioner.
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.
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
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.
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.
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.
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.
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). ...