Latu v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IKUVALU MOLOU LATU, 
Petitioner, No. 05-75889
v.
 Agency No.
A46-960-902
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 2, 2007
Honolulu, Hawaii
Submission Vacated and Deferred November 6, 2007
Resubmitted April 18, 2008
Filed November 3, 2008
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge O’Scannlain
15019
15022 LATU v. MUKASEY
COUNSEL
Ramon J. Ferrer, Wailuku, Hawaii, for the petitioner.
Kathryn L. Moore, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
the respondent.
OPINION
TASHIMA, Circuit Judge:
Ikuvalu Latu, a native and citizen of Tonga, petitions for
review of a decision of the Board of Immigration Appeals
(“Board” or “BIA”), dismissing his appeal from an order of
an Immigration Judge (“IJ”). The IJ found Latu removable
pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) for being convicted of
a crime involving moral turpitude (“CIMT”). Latu was con-
victed in 2003 of a violation of Hawaii Revised Statute
§ 291C-12.5, which requires a driver involved in an accident
resulting in substantial injury to remain at the scene of the
LATU v. MUKASEY 15023
accident, provide certain information, and render assistance as
required by Hawaii Revised Statute § 291C-14.
After hearing oral argument, we deferred submission pend-
ing this court’s decision in Cerezo v. Mukasey, 512 F.3d 1163(9th Cir. 2008). Cerezo held that a conviction under a Califor-
nia statute nearly identical to the Hawaii statute at issue here
was not a CIMT. We now follow Cerezo and hold that Latu’s
conviction is not a CIMT. We therefore grant Latu’s petition.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a).
I.
Latu was admitted into the United States in 1999. In 2003,
he was convicted of violating Hawaii Revised Statute § 291C-
12.5. The Department of Homeland Security subsequently
served Latu with a Notice to Appear, charging him with
removability for having committed a CIMT within five years
of his admission into the United States. See 8 U.S.C.
§ 1227(a)(2)(A)(i).
Latu sought termination of the proceedings on the basis that
his conviction was not for a CIMT. The IJ denied the motion
and ordered Latu removed to Tonga.
Latu appealed to the BIA. The Board stated that leaving the
scene of an accident without rendering aid to an injured per-
son was “inherently depraved and contrary to the accepted
rules of morality.” It reasoned that the failure to aid someone
injured in the accident demonstrated “an indifference to the
duties owed between persons or to society in general.” The
BIA therefore found that Latu’s offense was a CIMT and dis-
missed Latu’s appeal.
II.
“When the BIA conducts an independent review of the IJ’s
findings we review the BIA’s decision and not that of the IJ.”
15024 LATU v. MUKASEY
Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir.
2006). Whether a state statutory crime constitutes a CIMT is
a decision of law reviewed de novo. Blanco v. Mukasey, 518
F.3d 714, 718 (9th Cir. 2008). “The government has the bur-
den to prove ‘by clear and convincing evidence’ that an alien
is removable.” Sinotes-Cruz, 468 F.3d at 1194 (quoting 8
U.S.C. § 1229a(c)(3)(A)). Because “the BIA’s decision in this
case was neither published nor marked as precedential[,] . . .
the applicable standard of review is the Skidmore ‘power to
persuade’ standard.” Estrada-Rodriguez v. Mukasey, 512 F.3d
517, 520 (9th Cir. 2007) (quoting Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944)). In addition, “[a]lthough the BIA’s
order cited several published BIA decisions, none of them sets
forth a binding interpretation of the question at issue,”
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir.
2006), or even addresses the question at issue here.
III.
[1] In determining whether a conviction is a CIMT for
removability purposes, “we apply the categorical and modi-
fied categorical approaches set forth in Taylor v. United
States, 495 U.S. 575, 599-602 (1990).” Blanco, 518 F.3d at
718 (footnote omitted). “Under the categorical approach, a
crime involves moral turpitude if the generic elements of the
crime show that it involves conduct that ‘(1) is base, vile, or
depraved and (2) violates accepted moral standards.’ ” Id.(quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068
(9th Cir. 2007) (en banc)). A crime that involves fraud also
may “fall into the definition of crimes involving moral turpi-
tude.” Id. In order to constitute a CIMT under the categorical
approach, the “full range of conduct encompassed by the stat-
ute [must] constitute[ ] a crime of moral turpitude.” Quintero-
Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir. 2007).
A.
Hawaii Revised Statute § 291C-12.5(a) provides that “[t]he
driver of any vehicle involved in an accident resulting in sub-
LATU v. MUKASEY 15025
stantial bodily injury to any person shall immediately stop the
vehicle at the scene of the accident or as close thereto as pos-
sible,” and “remain at the scene of the accident until the driver
has fulfilled the requirements of [Haw. Rev. Stat. §] 291C-
14.” Section 291C-14 provides as follows:
(a) The driver of any vehicle involved in an accident
resulting in injury to or death of any person or dam-
age to any vehicle or other property which is driven
or attended by any person shall give the driver’s
name, address, and the registration number of the
vehicle the driver is driving, and shall upon request
and if available exhibit the driver’s license or permit
to drive to any person injured in the accident or to
the driver or occupant of or person attending any
vehicle or other property damaged in the accident
and shall give such information and upon request
exhibit such license or permit to any police officer at
the scene of the accident or who is investigating the
accident and shall render to any person injured in the
accident reasonable assistance, including the carry-
ing, or the making of arrangements for the carrying,
of the person to a physician, surgeon, or hospital for
medical or surgical treatment if it is apparent that
such treatment is necessary, or if such carrying is
requested by the injured person; provided that if the
vehicle involved in the accident is a bicycle, the
driver of the bicycle need not exhibit a license or
permit to drive.
(b) In the event that none of the persons specified
is in condition to receive the information to which
they otherwise would be entitled under subsection
(a), and no police officer is present, the driver of any
vehicle involved in the accident after fulfilling all
other requirements of section . . . 291C-12.5 . . .
insofar as possible on the driver’s part to be per-
formed, shall forthwith report the accident to the
15026 LATU v. MUKASEY
nearest police officer and submit thereto the infor-
mation specified in subsection (a).
Haw. Rev. Stat. § 291C-14.
In Cerezo, we addressed whether California Vehicle Code
§ 20001(a) is a CIMT. Section 20001(a), like § 291C-12.5,
requires a driver involved in an accident resulting in injury or
death to stop and fulfill the reporting requirements of Califor-
nia Vehicle Code §§ 20003 and 20004.1
[2] Cerezo reasoned that, under the plain language of Cali-
fornia Vehicle Code § 20001, “a driver in an accident result-
ing in injury who stops and provides identification, but fails
to provide a vehicle registration number, has violated the stat-
ute.” 512 F.3d at 1167. Because “[t]he failure to provide a
vehicle registration number under such circumstances is not
base, vile and depraved; nor does it necessarily evince any
willfulness or evil intent,” we concluded that the petitioner’s
conviction was not a CIMT. Id.
[3] As in Cerezo, a driver may violate § 291C-12.5 merely
by failing to provide all the information required by § 291C-
14. Thus, “the state statute plainly and specifically criminal-
izes conduct outside the contours of the federal definition.”
1
Section 20003 requires the driver of a vehicle involved in an accident
resulting in injury or death to
give his or her name, current residence address, the names and
current residence addresses of any occupant of the driver’s vehi-
cle injured in the accident, the registration number of the vehicle
he or she is driving, and the name and current residence address
of the owner to the person struck or the driver or occupants of
any vehicle collided with, and shall give the information to any
traffic or police officer at the scene of the accident. The driver
also shall render to any person injured in the accident reasonable
assistance . . . .
Cal. Vehicle Code § 20003(a). Section 20004 further requires that, in the
event of death, the driver shall report the accident to law enforcement.
LATU v. MUKASEY 15027
Id. In fact, Hawaii Revised Statute § 291C-14 goes further
than California Vehicle Code § 20003, requiring that, if no
one at the scene of the accident is in condition to receive the
name, address, and vehicle registration information, and no
police officer is present, the driver must “forthwith report the
accident to the nearest police officer and submit thereto the
information specified in subsection (a).” Haw. Rev. Stat.
§ 291C-14(b). Thus, in Hawaii, a driver involved in an acci-
dent involving injury who stops and renders assistance to the
injured person, but later fails to give all the requisite informa-
tion to a police officer has nonetheless violated the statute.
After concluding that the California statute criminalized
conduct that was not categorically a CIMT, Cerezo further
considered “whether California courts have interpreted the
scope of § 20001(a) more narrowly so as to make it applicable
only to conduct which involves moral turpitude.” 512 F.3d at
1167-68. Although one California appellate court case had
speculated that a violation of § 20001 might indicate moral
turpitude, other cases had held that a failure to provide all the
requisite information constituted a violation of the statute. We
therefore held that Ҥ 20001(a) does not categorically involve
moral turpitude.” Id. at 1169.
[4] Hawaii cases similarly indicate that the failure to give
all the information required by § 291C-14 constitutes a viola-
tion of § 291C-12.5.2 See, e.g., State v. Chen, 884 P.2d 392,
400 (Haw. Ct. App. 1994) (addressing the predecessor statute
to § 291C-12.5 and stating that “[t]he statutory language is
broad, hinging criminal liability for failing to give information
and to render aid on involvement in the incident” (emphasis
added)); State v. Gartrell, 828 P.2d 298, 299-300 (Haw. Ct.
2
Although the dissent asserts that Hawaii case law narrows the applica-
bility of the statute, Dissenting op. at 15034, it cites no Hawaii case to
support this assertion. The Hawaii cases we rely on clearly indicate that
the statute is interpreted broadly to penalize the failure to give any of the
requisite information.
15028 LATU v. MUKASEY
App. 1992) (stating that one of the ways the State could prove
that the defendant violated §§ 291C-13 and -14 was to prove
that the defendant “failed to give the person attending the
property and any police officer at the scene certain informa-
tion required by the statute”). As in Cerezo, the failure follow-
ing an accident to give an address or a vehicle registration
number “is not base, vile and depraved; nor does it necessar-
ily evince any willfulness or evil intent, a requisite element of
crimes of moral turpitude.” Cerezo, 512 F.3d at 1167; cf.
Plasencia-Ayala v. Mukasey, 516 F.3d 738, 747 (9th Cir.
2008) (stating that a statute requiring a sex offender to register
with local law enforcement was a “ ‘strict liability crime that
does not require any showing of scienter’ ” and therefore
“ ‘lack[ed] the requisite element of willfulness or even
intent’ ” to be a base or depraved act (quoting Quintero-
Salazar, 506 F.3d at 693)).
[5] Thus, “the state statute plainly and specifically crimi-
nalizes conduct outside the contours of the federal definition.”
Cerezo, 512 F.3d at 1167. Because the full range of conduct
encompassed by the Hawaii statute does not constitute a
CIMT, Latu’s offense is not categorically a CIMT.3
B.
[6] The government argues in the alternative that Latu’s
offense is a CIMT because it involves fraud. “A crime
involves fraudulent conduct, and thus is a crime involving
moral turpitude, if intent to defraud is either ‘explicit in the
statutory definition’ of the crime or ‘implicit in the nature’ of
the crime.” Blanco, 518 F.3d at 719 (quoting Goldeshtein v.
INS, 8 F.3d 645, 648 (9th Cir. 1993)). Intent to defraud is not
explicit in the statutory definition of Latu’s offense; nor is it
implicit in the nature of the crime.
3
The BIA did not follow the categorical approach, instead focusing on
only one clause in the statute.
LATU v. MUKASEY 15029
[7] “[I]n order to be inherently fraudulent, a crime must
involve knowingly false representations made in order to gain
something of value.” Navarro-Lopez, 503 F.3d at 1076 (Rein-
hardt, J., concurring for a majority of the court). Navarro-
Lopez explicitly stated that “[t]he type of benefit at issue in
fraud cases is not the evasion of criminal penalties, but rather
something more tangible, such as money, a passport, natural-
ization papers, or an occupational deferment from military
service.” Id. at 1077 (citations omitted). “When the only ‘ben-
efit’ the individual obtains is to impede the enforcement of the
law, the crime does not involve moral turpitude.” Blanco, 518
F.3d at 719. Latu’s offense does not involve knowingly false
representations in order to gain something of value.4 Instead,
a driver may violate the statute merely by failing to provide
all the requisite information.
In Blanco, we addressed a violation of a California statute
criminalizing the provision of false information to an officer
to evade the process of the court or the proper identification
of the person. Id. at 718. We held that the statute did not
require fraudulent intent and therefore was not a crime involv-
ing moral turpitude. Id. at 720. Although the crime violated
a duty to society to obey the law and not to impede the inves-
tigation of crime, it did not require an intent to obtain some-
thing tangible. Id. at 719-20.
The purpose of a statute such as § 291C-12.5 is to “ ‘facili-
tate a determination of civil and criminal liability.’ ” Chen,
884 P.2d at 400 (quoting Wylie v. State, 797 P.2d 651, 657
(Alaska Ct. App. 1990)). Thus, similar to Blanco, the statute
imposes a duty to society not to impede a finding of liability,
but it does not require an intent to obtain something tangible.
4
The dissent argues that implicit in the failure to provide information is
an attempt to “evade . . . civil liability.” Dissenting op. at 15036. But this
assertion is purely speculative and does not establish that the offense is
inherently fraudulent. For starters, the statute’s reporting requirement
applies regardless of whether the party required to make the report is the
party at fault, i.e., the party liable for damages.
15030 LATU v. MUKASEY
[8] Section 291C-12.5 on its face does not involve fraud.
As in Blanco, the statute does not require an intent to “obtain
something tangible” or to “induce another to act to his or her
detriment.” 518 F.3d at 719. Nor does it require “a showing
of specific intent to avoid arrest.” Id. at 720. In fact, as in
Plasencia-Ayala, “there is no state of mind requirement” at
all. 516 F.3d at 747; see State v. Melemai, 643 P.2d 541, 545
(Haw. 1982) (describing § 291C-14 as “essentially regulatory
and not criminal”). There is no intent to defraud requirement
in the statute. We therefore reject the government’s argument
that the statute is a CIMT because it involves fraudulent con-
duct.5
C.
The government asks us to remand for the BIA to deter-
mine whether Latu’s offense qualifies as a CIMT under the
modified categorical approach, citing INS v. Ventura, 537
U.S. 12 (2002) (per curiam). However, “Ventura has nothing
to do with a case such as this.” Ruiz-Vidal v. Gonzales, 473
F.3d 1072, 1080 (9th Cir. 2007); see also Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1132-35 (9th Cir. 2006) (en banc)
(explaining why Ventura did not apply and proceeding to the
modified categorical approach).
In Fernandez-Ruiz, we declined the government’s request
to remand for the BIA to consider whether the petitioner’s
state offense was a crime of violence under the modified cate-
gorical approach. 466 F.3d at 1132-35. We distinguished Ven-
tura, in which the Supreme Court required remand for the
agency to consider evidence of changed country conditions
that the BIA had not considered when it denied the asylum
5
The dissent implies that the overall burden is on Latu by selectively
quoting language from Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822
(2007). See Dissenting op. at 15037-38. We emphasize, however, that it
is the government that bears the burden of proving removability by clear
and convincing evidence. 8 U.S.C. § 1229a(c)(3)(A).
LATU v. MUKASEY 15031
application. See Ventura, 537 U.S. at 15. In contrast to Ven-
tura, where the State Department report of country conditions
was ambiguous, and new evidence of country conditions may
have developed since the BIA’s decision, Fernandez-Ruiz
involved unambiguous documents of conviction that were
available prior to the commencement of removal proceedings.
466 F.3d at 1133. Moreover, unlike in Ventura, the interpreta-
tion of a state criminal statute was not an issue committed to
the agency’s expertise, and the BIA already had considered
whether the petitioner’s offense was a crime of violence. Id.
at 1133-34; see also Ruiz-Vidal, 473 F.3d at 1080 (calling the
government’s request to remand under Ventura “misplaced,”
because “the record on remand would consist only of those
documents already in the record,” no further agency expertise
was required to determine removability, and the BIA already
had considered the issue).
[9] Similar to Fernandez-Ruiz and Ruiz-Vidal, the BIA
already has considered whether Latu’s offense is a CIMT, and
all of the evidence regarding his conviction has been pres-
ented to the BIA. Also similar to those two cases, this case
involves the interpretation of a state statute, rather than a
question committed to the agency’s expertise, such as
changed country conditions. Ventura accordingly is inappo-
site.
[10] Finally, where, as here, the government has not asked
us to apply the modified categorical approach, we “consider
only whether the categorical approach is satisfied.”
Mandujano-Real v. Mukasey, 526 F.3d 585, 589 (9th Cir.
2008). Because the categorical approach is not satisfied, we
grant the petition. See id. at 591 (granting the petition and
remanding for the agency to provide an opportunity to apply
for cancellation of removal). The petition for review is
GRANTED.
15032 LATU v. MUKASEY
O’SCANNLAIN, Circuit Judge, dissenting:
Today the court holds that Hawaii’s hit-and-run statute
does not define a crime involving moral turpitude for pur-
poses of removal under the immigration laws. With respect,
I believe the majority arrives at its counter-intuitive holding
by misapplying three of our precedents, and therefore I must
dissent.
This case turns on whether Latu’s conviction for violating
Hawaii Revised Statutes section 291C-12.5 amounts to a
crime involving moral turpitude, providing grounds for
removal under 8 U.S.C. § 1227(a)(2)(A)(i). Haw. Rev. Stat.
section 291C-12.5 (which incorporates section 291C-14 by
reference) is violated if either (1) a driver involved in an acci-
dent fails to stop and to provide certain information1 or (2) a
driver fails to stop and to provide reasonable assistance to an
injured driver. Although the majority does not say so explic-
itly, it is unlikely that its members would disagree with me
that the conduct described in the second prong constitutes a
crime involving moral turpitude under the categorical
approach. The rub, therefore, is in the first prong and there I
will focus my discussion.
I
The majority’s first mistake is to jump to the conclusion
that our reasoning in Cerezo v. Mukasey, 512 F.3d 1163 (9th
Cir. 2008), controls this case. It is true that in Cerezo we held
that a violation of California Vehicle Code section 20001(a),
a statute substantially similar to the Hawaii statute at issue
here, was not a crime involving moral turpitude under the cat-
egorical approach. See Cerezo, 512 F.3d at 1169. The major-
1
This refers to the following specific information: “the driver’s name,
address, and the registration number of the vehicle the driver is driving,
and . . . the driver’s license or permit to drive.” Haw. Rev. Stat. § 291C-
14(a).
LATU v. MUKASEY 15033
ity simply points to the similarity between the language of the
two statutes as if that were conclusive. If these were federal
statutes, it might be. But since these are state statutes, which
“only state courts may authoritatively construe,” its analysis
is flawed. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
577 (1996).
To be sure, in Cerezo we began our analysis by noting that,
“[r]eading section 20001(a) literally, a driver in an accident
resulting in injury who stops and provides identification, but
fails to provide a vehicle registration number, has violated the
statute.” 512 F.3d at 1167. But our analysis continued by
carefully heeding the Supreme Court’s recent admonition that
we may not consider “a theoretical possibility[ ] that the State
would apply its statute to conduct that falls outside the generic
definition of a crime.” Id. (internal quotation marks omitted)
(citing Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 817
(2007)). Mindful of Duenas-Alvarez, we tentatively observed
that “where, as here, the state statute plainly and specifically
criminalizes conduct outside the contours of a federal defini-
tion, we do not engage in judicial prestidigitation by conclud-
ing that the statute” passes muster under the categorical
approach. Id. at 1167.
All the same, Cerezo’s holding ultimately rested on our
observation that “California courts have [not] interpreted the
scope of section 20001(a) more narrowly so as to make it
applicable only to conduct which involved moral turpitude.”
Id. at 1167-68 (citing Gore, 517 U.S. at 577). The majority
seems to brush over the importance of this point. If California
courts had narrowed section 20001(a), the unadulterated lan-
guage of the statute would no longer have controlled—the
statute would cover whatever the state’s courts construed it to
cover. But the state courts had in fact done the contrary in
Cerezo. California precedent expressly holds that “ ‘[t]he var-
ious requirements of [section 20001] are set forth in the con-
junctive and omission to perform any one of the acts required
constitutes an offense.’ ” Id. at 1168 (quoting People v. New-
15034 LATU v. MUKASEY
ton, 66 Cal. Rptr. 3d 422, 424-25 (Ct. App. 2007)) (emphasis
added). Even with this broadening, rather than narrowing,
precedent, we found the “issue” in the case to be “close.” Id.
at 1168.
Here, by contrast, Hawaii case law does not similarly con-
strue section 291C-12.5 to criminalize the failure to provide
any of the required information. On the contrary, such prece-
dent construes section 291C-12.5, together with section 291C-
14, as requiring, in relevant part, self-identification sufficient
to facilitate subsequent findings of liability. See State v. Chen,
884 P.2d 392, 400 (Haw. Ct. App. 1994) (“The purpose of
statutes like [Haw. Rev. Stat. section 291C-12.5] . . . is to pro-
tect those injured . . . and [to] facilitate a determination of
civil and criminal liability.”) (final alteration in original)
(internal quotation marks and citation omitted); see also State
v. Liuafi, 623 P.2d 1271, 1282 (Haw. Ct. App. 1981) (“The
information required to be given by HRS section 291C-14 . . .
is information necessary to resolve questions of civil liabili-
ty.”).
Having focused entirely on statutory language to the exclu-
sion of judicial construction, the majority unfortunately over-
looks that the orientation of relevant state law in this case is
contrary to its orientation in Cerezo. There, California case
law broadened the applicability of the relevant statute; here,
Hawaii case law narrows it. By speculating nonetheless that
a defendant in Hawaii could be convicted for stopping at the
scene of an accident and furnishing his name, address, and
driver’s license, but not his vehicle registration number, the
majority engages in precisely the “legal imagination” prohib-
ited by Duenas-Alvarez, 127 S. Ct. at 822. That is, it considers
the theoretical possibility that Hawaiian courts would
apply section 291C-12.5 beyond its established scope and
purpose. Since there simply is no Hawaii precedent constru-
ing section 291C-12.5 in a manner remotely similar to the
California precedent considered in Cerezo, I fail to see how
Cerezo can possibly control this case.
LATU v. MUKASEY 15035
The majority’s attempt to cast doubt on the usefulness of
Hawaiian precedent in construing sections 291C-12.5 and
291C-14 likewise misses the point. See Maj. Op. at 15027-28.
Under Duenas-Alvarez, it is Latu’s burden to point to Hawaii
precedent showing that a conviction under section 291C-12.5
reasonably might be founded on conduct that falls outside the
generic definition of a crime involving moral turpitude.
Therefore, even if all of the foregoing Hawaii case law were
not binding for some reason, Latu would still have failed to
point to any cases construing section 291C-12.5 as narrowly
as he urges us to construe it.
II
The majority missteps again in its rejection of the govern-
ment’s alternative argument that the first prong of Haw. Rev.
Stat. section 291C-12.5 covers conduct involving moral turpi-
tude because inherently fraudulent.
Since Hawaii’s statute does not require on its face that the
perpetrator had an intent to defraud, we can only infer such
intent where it is “implicit in the nature of the crime.”
Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993) (internal
quotation marks and citations omitted). As the majority cor-
rectly points out, to meet this test “the criminalized conduct
must necessarily involve false representations or deceit for the
purpose of gaining something of value.” Navarro-Lopez v.
Gonzales, 503 F.3d 1063, 1076 n.2 (9th Cir. 2007) (en banc).
However, the majority seems to have a somewhat cramped
view of what this actually requires.
The majority relies heavily on our decisions in Navarro-
Lopez and Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008),
to support its conclusion that the failure to provide the requi-
site information in violation of section 291C-12.5 is not a
misrepresentation for the purpose of gaining something of
value. In Navarro-Lopez, the concurrence remarked that the
benefit a perpetrator of an inherently fraudulent crime must
15036 LATU v. MUKASEY
obtain “is not the evasion of criminal penalties, but rather
something more tangible, such as money, a passport, natural-
ization papers, or an occupational deferment from military
service.” 503 F.3d at 1077 (Reinhardt, J., concurring for a
majority of the court) (citations omitted) (holding that acces-
sory after the fact is not a crime involving moral turpitude).
Blanco reiterated the same point, stating that “[w]hen the only
‘benefit’ the individual obtains is to impede the enforcement
of the law, the crime does not involve moral turpitude.” 518
F.3d at 719 (holding that providing false identification to a
police officer is not a crime involving moral turpitude). These
cases are certainly useful for resolving the issue before us, but
they point in a direction opposite to the one the majority pur-
sues.
It helps to take note of the conduct Hawaii has targeted by
means of sections 291C-12.5 and 291C-14. Based upon a
review of state cases construing section 291C-14, it appears
that the purpose of the statute’s self-identification prong is to
facilitate subsequent findings of civil and criminal liability.
See Chen, 884 P.2d at 401 (citing Wylie v. State, 797 P.2d
651, 657 (Alaska Ct. App. 1990) (holding that an identical
Alaskan statute was enacted to prevent parties to an accident
from “evading liability” for the accident “by escaping before
their identity can be established”)). Accordingly, implicit in
the nature of a defendant’s failing to provide such information
is that he sought to evade not just criminal liability, but also
civil liability, with its associated insurance costs and damages.
Thus, in contrast to the conduct considered in Blanco and
Navarro-Lopez, one who leaves the scene of an accident with-
out identifying himself has surely obtained a financial benefit.
The majority seems to think that Blanco and Navarro-
Lopez require that the perpetrator obtain something he can
actually hold in his hand. It is true that Judge Reinhardt’s con-
currence in Navarro-Lopez opinion used the word “tangible,”
but the context strongly suggests that this referred to anything
of non-speculative monetary value. After all, the opinion cited
LATU v. MUKASEY 15037
cases where the perpetrator obtained securities—nowadays
often recorded in a computer instead of on a stock certificate
—and even military deferment. See Navarro-Lopez, 503 F.3d
at 1077 (Reinhardt, J., concurring) (citing cases). Blanco cited
the same list of cases. 518 F.3d at 719 (same). Neither opin-
ion, on which the majority so heavily relies, appears to make
the distinction the majority implicitly makes between decep-
tion to obtain hard assets and deception to avoid debts and
civil damages.
Or perhaps the majority does not regard the avoidance of
debts as a financial benefit. Indeed, the majority’s cursory
treatment of this question suggests that it simply regards crim-
inal liability and civil liability as equivalent. See Maj. Op. at
15029 (“Thus, similar to Blanco, the statute imposes a duty to
society not to impede a finding of liability, but it does not
require an intent to obtain something tangible.”). But surely
there is no controversy in the tax code’s treatment of dis-
charge of indebtedness as income, see 26 U.S.C. section
61(a)(12); and what is potential civil liability but a debt, dis-
counted by the probability of its ultimately coming due? It is
precisely that kind of debt the avoidance of which sections
291C-12.5 and 291C-14 criminalize. See Chen, 884 P.2d at
401.
The majority ends by returning to the fact that the Hawaii
statute does not “on its face . . . involve fraud.” Maj. Op. at
15030. This is a curious non sequitur, since the entire analysis
on this issue had assumed that fact. Though its opinion is a
bit confusing on this point, I suspect that the majority is wor-
ried that someone could be convicted under section 291C-
12.5 without a showing of fraudulent intent. But while we
might speculate that the Hawaiian government would prose-
cute an individual who did not have an intent to defraud—say,
someone who leaves the scene of an accident to attend to an
emergency—the Supreme Court has expressly foreclosed
such speculation. See Duenas-Alvarez, 127 S. Ct. at 822(“[T]o find that a state statute creates a crime outside the
15038 LATU v. MUKASEY
generic definition of a listed crime in a federal statute . . .
requires a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls out-
side the generic definition of a crime.”). It is, again, Latu’s
burden “to point to his own case or other cases in which the
state courts in fact did apply the statute in [a] special (non-
generic) manner.” Id. Latu has simply failed to carry such
burden.
Accordingly, I have no alternative but to conclude, contra
the majority, that the first prong of section 291C-12.5 inher-
ently requires that an individual has acted with an intent to
evade civil and criminal liability for the accident. That is, it
involves “deceit for the purpose of gaining something of
value,” Navarro-Lopez, 503 F.3d at 1076 n.2, and therefore
categorically is a crime involving moral turpitude, see Carty
v. Ashcroft, 395 F.3d 1081, 1082 (9th Cir. 2005) (concluding
that “intent to evade” and “intent to defraud” are synonymous
for purposes of assessing whether a statute is a crime involv-
ing moral turpitude); see also Jordan v. De George, 341 U.S.
223 (1951) (holding that the offense of evading liquor taxes
is a crime involving moral turpitude).2
III
The majority stops there, having determined that the first
2
I note that Cerezo apparently misconstrued Garcia-Maldonado v. Gon-
zales, 491 F.3d 284 (5th Cir. 2007), as holding that a Texas statute, Tex.
Transp. Code Ann. section 550.021, with two prongs substantially similar
to the Hawaii statute in this case, is not a crime involving moral turpitude
under the categorical approach. Cerezo, 512 F.3d at 1169. The Fifth Cir-
cuit provided no analysis as to whether the first prong of section 550.021
was a crime involving moral turpitude, instead focusing on the second
prong, which was the basis for Garcia-Maldonado’s conviction. See
Garcia-Maldonado, 491 F.3d at 289. Moreover, even if the Cerezo inter-
pretation were correct, Garcia-Maldonado did not consider whether vio-
lating section 550.021 involves fraudulent conduct. See id. at 288. With
respect to the first prong, therefore, Garcia-Maldonado is inapposite.
LATU v. MUKASEY 15039
prong of section 291C-12.5 is not a crime involving moral
turpitude. Because I disagree with that determination, I would
continue the analysis to the second prong, which, to para-
phrase, punishes the failure to stop and to provide reasonable
assistance to an injured driver. Here I find the terrain far
smoother.
“[A] crime other than fraud must be more than serious; it
must offend the most fundamental moral values of society, or
as some would say, ‘shock[ ] the public conscience.’ ”
Navarro-Lopez, 503 F.3d at 1074-75 (Reindardt, J., concur-
ring) (final alteration in original) (quoting Medina v. United
States, 259 F.3d 220, 227 (4th Cir. 2001)). “A crime involv-
ing the willful commission of a base or depraved act is a
crime involving moral turpitude, whether or not the statute
requires proof of evil intent.” Gonzalez-Alvarado v. INS, 39
F.3d 245, 246 (9th Cir. 1994) (per curiam); see also Notash
v. Gonzalez, 427 F.3d 693, 698 (9th Cir. 2005) (“[T]he word
‘wilful’ means no more than that the forbidden act is done
deliberately and with knowledge.” (internal quotation marks
and citations omited)).
A conviction under section 291C-12.5 requires, at mini-
mum, that the defendant acted with recklessness. See Haw.
Rev. Stat. section 702-204. Accordingly, conviction under the
second prong of sections 291C-12.5 and 291C-14 requires
proof that the defendant knew of the likelihood that an indi-
vidual in an accident might have been substantially injured,
and yet consciously disregarded such risk by failing reason-
ably to assist such person. Indeed, a conviction may rest on
a driver’s failure to do so much as to stop and to check
whether a person injured in the accident requires assistance.
Two of our sister circuits, considering similar reckless con-
duct, have held that such wilful disregard of a risk of harm is
sufficiently “base and depraved” as to involve moral turpi-
tude. See Knapik v. Ashcroft, 384 F.3d 84, 89-90 (3d Cir.
2004) (upholding BIA determination that reckless endanger-
ment is a crime involving moral turpitude); Franklin v. INS,
15040 LATU v. MUKASEY
72 F.3d 571, 573 (8th Cir. 1995) (upholding BIA determina-
tion that involuntary manslaughter, where alien “recklessly
cause[d] the death of her child by consciously disregarding a
substantial and unjustifiable risk to life,” is a crime involving
moral turpitude).
Thus, I agree with the Fifth Circuit that the failure to confer
reasonable assistance to the victim of an accident “is both
morally reprehensible and contrary to the accepted rules of
morality in our society.” Garcia-Maldonado, 491 F.3d at 290.
An individual involved in an accident, and who therefore
knows that others may have been injured in it, owes a moral
duty to stop at the scene of the accident and to provide what
reasonable assistance is possible; to shirk that duty and to flee
from the scene is a base and depraved act. Accordingly, I
would hold failing to confer reasonable assistance to an indi-
vidual injured in an accident as required by Haw. Rev. Stat.
section 291C-12.5 categorically is a crime involving moral
turpitude.
IV
Because both prongs of Haw. Rev. Stat. section 291C-12.5
define crimes involving moral turpitude, I would hold that the
statute categorically prohibits such crimes for purposes of
alien removal. Therefore, I would deny the petition for
review. For the foregoing reasons, I respectfully dissent.