Latu v. Mukasey

547 F.3d 1070, 2008 U.S. App. LEXIS 23291, 2008 WL 4764442

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 3, 2008
• Docket: 05-75889
• Status: Published

Opinions

Opinion by Judge TASHIMA; Dissent by Judge O’SCANNLAIN.

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 convicted 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 accident, provide certain information, and render assistance as required by Hawaii Revised Statute § 291C-14.

After hearing oral argument, we deferred submission pending this court’s decision in Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir.2008). Cerezo held that a conviction under a California 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)®.

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 person 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 dismissed 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.” 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 burden 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(e)(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, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). In addition, “[ajlthough 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.

In determining whether a conviction is a CIMT for removability purposes, “we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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 turpitude.” Id. In order to constitute a CIMT under the categorical approach, the “full range of conduct encompassed by the statute [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 substantial bodily injury to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible,” 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 damage 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 carrying, 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 performed, shall forthwith report the accident to the nearest police officer and submit thereto the information 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 California Vehicle Code §§ 20003 and 20004.¹

Cerezo reasoned that, under the plain language of California Vehicle Code § 20001, “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. 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.

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 criminalizes conduct outside the contours of the federal definition.” 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 accident involving injury who stops and renders assistance to the injured person, but later fails to give all the requisite information 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 “ § 20001(a) does not categorically involve moral turpitude.” Id. at 1169.

Hawaii cases similarly indicate that the failure to give all the information required by § 291C-14 constitutes a violation of § 291C-12.5.² See, e.g., State v. Chen, 77 Hawai'i 329, 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, 9 Haw.App. 156, 828 P.2d 298, 299-300 (Haw.Ct.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 information required by the statute”). As in Cerezo, the failure following an accident to give an address or a vehicle registration number “is not base, vile and depraved; nor does it necessarily 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)).

Thus, “the state statute plainly and specifically criminalizes 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.

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.

“[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 (Reinhardt, 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, naturalization papers, or an occupational deferment from military service.” Id. at 1077 (citations omitted). “When the only ‘benefit’ 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 involving moral turpitude. Id. at 720. Although the crime violated a duty to society to obey the law and not to impede the investigation of crime, it did not require an intent to obtain something tangible. Id. at 719-20.

The purpose of a statute such as § 291C-12.5 is to “ ‘facilitate 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.

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, 64 Haw. 479, 643 P.2d 541, 545 (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 conduct.⁵

C.

The government asks us to remand for the BIA to determine whether Latu’s offense qualifies as a CIMT under the modified categorical approach, citing INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (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 Femandez-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 categorical approach. 466 F.3d at 1132-35. We distinguished Ventu-ra, 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 application. See Ventura, 537 U.S. at 15, 123 S.Ct. 353. In contrast to Ventura, where the State Department report of country conditions was ambiguous, and new evidence of country conditions may have developed since the BIA’s decision, Femandez-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 interpretation 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).

Similar to Femandez-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 presented 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 inapposite.

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.

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 vehicle 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.

2 .Although the dissent asserts that Hawaii case law narrows the applicability of the statute, Dissenting op. at 1077, 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.

3 . The BIA did not follow the categorical approach, instead focusing on only one clause in the statute.

4 . The dissent argues that implicit in the failure to provide information is an attempt to "evade ... civil liability.” Dissenting op. at 1078-79. 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.

5 . The dissent implies that the overall burden is on Latu by selectively quoting language from Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007). See Dissenting op. at 1079-80. 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).