943 F.3d 456
9th Cir.2019Background
- Petitioner Joseph Fugow, admitted as a noncitizen in 2011, was convicted in July 2014 of first-degree unlawful imprisonment under Haw. Rev. Stat. § 707-721(1).
- That statute criminalizes knowingly restraining another under circumstances exposing the person to a risk of serious bodily injury; “serious bodily injury” is defined in Haw. Rev. Stat. § 707-700.
- DHS initiated removal proceedings on the ground that the conviction was a crime involving moral turpitude (CIMT) within five years of admission; an IJ found Fugow removable but allowed voluntary departure; the BIA affirmed.
- Fugow petitioned this court for review, contesting the BIA’s determination that his conviction is categorically a CIMT.
- The Ninth Circuit applied the categorical approach: identify the statute’s elements (including mens rea) and compare them to the federal definition of a CIMT.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Whether Hawaii § 707-721(1) is categorically a CIMT | Fugow argued the statute could encompass non-turpitudinous conduct and thus is not a categorical CIMT | Government argued the statute’s elements (knowledge + risk of serious bodily injury) describe conduct that is a CIMT | The court held the statute is categorically a CIMT |
| What is the least culpable conduct under the Hawaii statute | Fugow implied the statute could be applied to less culpable restraint without serious-risk knowledge | Government relied on Hawaii law (State v. Kalama) to show mens rea of knowledge applies to all elements, so least culpable is knowingly exposing another to risk of serious bodily injury | Court concluded the least culpable means knowingly restraining another while knowing it exposes them to risk of serious bodily injury |
| How to apply precedent (Leal; Castrijon‑Garcia) | Fugow relied on Castrijon‑Garcia (California simple kidnapping not a CIMT) to argue against a CIMT finding | Government relied on Leal (Arizona reckless endangerment is a CIMT) and distinguished Castrijon‑Garcia | Court distinguished Castrijon‑Garcia (general intent, no risk requirement) and analogized to Leal, finding Hawaii’s knowing mens rea + serious-risk harm at least as turpitudinous as Leal’s statute |
Key Cases Cited
- Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (discussing difficulty of coherent CIMT criteria)
- Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc) (explaining categorical approach for CIMTs)
- Gonzalez v. Duenas‑Alvarez, 549 U.S. 183 (2007) (describing realistic-probability test for categorical mismatch)
- Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014) (holding reckless endangerment with substantial risk of imminent death is a CIMT)
- Castrijon‑Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013) (holding California simple kidnapping is not a CIMT)
- Idy v. Holder, 674 F.3d 111 (1st Cir. 2012) (holding reckless conduct endangering others can be a CIMT)
- Keungne v. U.S. Att’y Gen., 561 F.3d 1281 (11th Cir. 2009) (holding reckless conduct endangering bodily safety is a CIMT)