Joseph Fugow v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH FUGOW, No. 16-70918
Petitioner,
Agency No.
v. A206-352-767
WILLIAM P. BARR, Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 23, 2019
University of Hawaii at Manoa
Filed November 18, 2019
Before: Susan P. Graber, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Per Curiam Opinion
2 FUGOW V. BARR
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
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FUGOW V. BARR 3
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.
COUNSEL
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.
4 FUGOW V. BARR
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).
Nonetheless, in this case we must decide whether a
conviction for first-degree unlawful imprisonment under
Hawaii law qualifies as a CIMT.
Joseph Fugow, a native and citizen of the Federated
States of Micronesia, was admitted to the United States in
2011. In July 2014, Fugow was convicted of first-degree
unlawful imprisonment in violation of Hawaii Revised
Statutes section 707-721(1), an offense that carries a
maximum sentence of five years in prison. Shortly
thereafter, the Department of Homeland Security initiated
removal proceedings against Fugow for being convicted of
a CIMT within five years of admission. An immigration
judge (IJ) determined that Fugow would be removable for
being convicted of a categorical CIMT. Instead of ordering
Fugow removed on this basis, the IJ permitted Fugow to
voluntarily depart the United States. On appeal, the BIA
affirmed the IJ’s ruling in an unpublished decision. Fugow
now timely petitions for review.
FUGOW V. BARR 5
We use the categorical approach to determine whether a
conviction qualifies as a CIMT. Under this approach, the
first step is to identify the elements of the statute of
conviction. The second step is to compare the elements of
the statute of conviction to the generic federal definition of
a CIMT. The goal of the inquiry is to determine whether the
statute of conviction is broader than the federal definition.
See Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en
banc). If there is a “realistic probability” that the statute of
conviction would be applied to non-turpitudinous conduct,
there is no categorical match. Gonzalez v. Duenas-Alvarez,
549 U.S. 183, 193 (2007).
First-degree unlawful imprisonment is committed by
“knowingly restrain[ing] another person under
circumstances which expose the person to the risk of serious
bodily injury.” Haw. Rev. Stat. § 707-721(1). “Serious
bodily injury” is defined as “bodily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” Id. § 707-700.
Under Hawaii law, the “state of mind with which the
defendant acts applies to all elements of the offense, unless
otherwise specified in the statute defining the offense.” State
v. Kalama, 8 P.3d 1224, 1229 (Haw. 2000). As a result, 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.
Having defined the elements of the statute of conviction,
we now compare those elements with the federal definition
of a CIMT. Our court has defined a CIMT as involving
“either fraud or base, vile, and depraved conduct that shocks
the public conscience.” Nunez, 594 F.3d at 1131 (brackets
6 FUGOW V. BARR
and internal quotation marks omitted). When comparing a
statute of conviction with this federal definition, we assess
the state of mind and the resulting harm in tandem. Leal v.
Holder, 771 F.3d 1140, 1146 (9th Cir. 2014). “[A]s the level
of conscious behavior decreases, i.e., from intentional to
reckless conduct, more serious resulting harm is required in
order to find that the crime involves moral turpitude.” Id.
(quoting Ceron, 747 F.3d at 783). It follows that a crime
committed knowingly or intentionally needs less serious
harm to qualify as a CIMT than a crime committed
recklessly.
Although non-fraudulent CIMTs generally involve an
“intent to injure, actual injury, or a protected class of
victims,” Castrijon-Garcia v. Holder, 704 F.3d 1205, 1213
(9th Cir. 2013), we have held that certain reckless
endangerment offenses qualify as CIMTs. In Leal, we
upheld the BIA’s determination that an Arizona law barring
“recklessly endangering another person with a substantial
risk of imminent death” is a CIMT. 771 F.3d at 1144
(quoting Ariz. Rev. Stat. § 13-1201). Even though the
offense required a state of mind of only recklessness, we
found that the “creation of a substantial, actual risk of
imminent death is sufficiently reprehensible” to establish a
CIMT. Id. at 1146.
Here, we conclude that first-degree unlawful
imprisonment under Hawaii law also qualifies as a CIMT.
The Hawaii statute requires proof that the defendant knew
that his actions would expose another person to a risk of
serious bodily injury. Haw. Rev. Stat. § 707-721(1). Thus,
the state of mind contemplated by the Hawaii statute
(knowledge) is higher than that of the Arizona statute that
we considered in Leal (recklessness). The lesser harm
contemplated by the Hawaii statute (exposure to a risk of
FUGOW V. BARR 7
serious, permanent disfigurement, or protracted loss or
impairment of the function of a bodily member or organ) is
less severe than the harm contemplated by the Arizona
statute (exposure to a substantial risk of imminent death).
But the harm required by the Hawaii statute is still severe,
and it is coupled with a knowing state of mind. That
combination, in our view, results in conduct that is no less
turpitudinous than the conduct proscribed by the Arizona
reckless endangerment statute at issue in Leal.
Our decision in Castrijon-Garcia, which held that
simple kidnapping under California law is not a CIMT, is not
to the contrary. Unlike first-degree unlawful imprisonment
under Hawaii law, simple kidnapping under California law
is a “general intent crime,” does not require any risk of harm,
and has been applied by the state courts in cases involving
non-turpitudinous conduct. 704 F.3d at 1211–17.
We hold that first-degree unlawful imprisonment under
Hawaii law is categorically a CIMT. Our decision accords
with the decisions of our sister circuits. See Idy v. Holder,
674 F.3d 111, 118–19 (1st Cir. 2012) (holding that New
Hampshire’s crime of “reckless conduct,” defined as
“recklessly engag[ing] in conduct which places or may place
another in danger of serious bodily injury,” constitutes a
CIMT); Keungne v. U.S. Att’y Gen., 561 F.3d 1281, 1286–
87 (11th Cir. 2009) (holding that Georgia’s misdemeanor
crime of “reckless conduct,” defined in part as recklessly
“endanger[ing] the bodily safety of another person by
consciously disregarding a substantial and unjustifiable risk
that his act or omission will cause harm or endanger the
safety of the other person,” constitutes a CIMT).
PETITION FOR REVIEW DENIED.