Latu v. Mukasey

• Decision Date: 03 November 2008
• Docket Number: No. 05-75889.,05-75889.
• Parties: Ikuvalu Molou LATU, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

547 F.3d 1070

Ikuvalu Molou LATU, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 05-75889.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 2, 2007.

Submission Vacated and Deferred November 6, 2007.

Resubmitted April 18, 2008.

Filed November 3, 2008.

Ramon J. Ferrer, Wailuku, HI, for the petitioner.

Kathryn L. Moore, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A46-960-902.

Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.

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)(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 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(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, 65 S.Ct. 161, 89 L.Ed. 124 (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.

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...