Bryan Maie v. Merrick GarlandBryan Maie v. Merrick Garland
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted March 16, 2021
San Francisco, California
Opinion by Judge Christen;
Concurrence by Judge Berzon
SUMMARY*
Immigration
Granting Bryan Maie‘s petition for review of a decision of the Board of Immigration Appeals, the panel held that: (1) Hawaii‘s fourth degree theft statute,
The panel rejected the government‘s contention that Maie‘s pro se admissions during his immigration hearing bound him such that he failed to preserve the argument that his convictions are not CIMTs. Noting that an alien‘s admissions regarding removability can satisfy the government‘s burden of proof if the IJ relies on those admissions, the panel explained that, here, the IJ did not rely on Maie‘s concession. Instead, the IJ recognized that Maie did not understand the relevant legal concepts, and so reviewed the record in determining removability. The panel also rejected the government‘s argument that Maie failed to preserve his challenge to his convictions by failing to raise the issue in his pro se appeal to the BIA. The panel explained that Maie did assert that his convictions were not CIMTs and that where, as here, the BIA considers an issue on the merits and ignores a procedural defect, the court cannot decline to consider the issue based on the defect.
In concluding that
The panel explained that
Next, the panel concluded that Hawaii‘s fourth degree theft statute is indivisible because it proscribes one crime that can be committed eight different ways, not eight distinct crimes. The panel explained that Hawaii‘s legislature explicitly directed that a jury need not decide which subsection of
Accordingly, the panel concluded that Maie‘s convictions for fourth degree theft are not categorically CIMTs because
Concurring in full, Judge Berzon wrote separately to reiterate once again that, in her view, the phrase “crime involving moral turpitude” is unconstitutionally vague. Observing that the IJ‘s attempt to explain moral turpitude during Maie‘s hearing highlights that the BIA and the courts have failed to establish any coherent criteria, Judge Berzon urged this court to consider en banc whether the phrase is unconstitutionally vague, applying current vagueness jurisprudence.
COUNSEL
Anna Lovelace Owen (argued) and Olivia Medina, Certified Law Students; Leah Spero (argued), Gary A. Watt, and Stephen Tollafield, Supervising Counsel; Hastings Appellate Project, Hastings College of Law, University of California, San Francisco, California; for Petitioner.
Jaclyn Shea and Anthony O. Pottinger, Trial Attorneys; Bernard A. Joseph and Lindsay B. Glauner, Senior Litigation Counsel; Jennifer J. Keeney, Assistant Director; Brian Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
CHRISTEN, Circuit Judge:
Bryan Maie seeks review of a decision by the Board of Immigration Appeals (BIA) that he is removable pursuant to
I
Bryan Maie is a native and citizen of the Marshall Islands who came to the United States as a child with his family in 1989. Maie and his family arrived in Hawaii pursuant to the Compact of Free Association, which allows citizens of the Marshall Islands to come to the United States to live,
In 2017, and again in 2018, the State of Hawaii charged Maie with fourth degree theft, a petty misdemeanor involving property valued at less than $250.
Maie appeared pro se at his first immigration hearing and admitted the factual allegations contained in the Notice to Appear. The Immigration Judge (IJ) reviewed Maie‘s conviction records to determine whether the government established removability. The IJ explained that Maie‘s two theft crimes involved moral turpitude because “[t]he state of mind” necessary to commit fourth degree theft in Hawaii is “‘intentional’ and/or ‘with intent to deprive.‘” The IJ also ruled that Maie‘s crimes were not a part of a single scheme of criminal conduct because they occurred two months apart. Based on these findings, the IJ concluded that Maie was removable.
Maie timely appealed to the BIA, again appearing pro se. He contested the IJ‘s determination that he had been convicted of two separate CIMTs and also asserted that the offenses did not qualify as CIMTs. The BIA dismissed Maie‘s appeal because the record supported his admissions that he had been convicted of two counts of fourth degree theft. The BIA separately rejected Maie‘s argument that his convictions did not qualify as CIMTs, explaining:
The respondent avers that his 2018 convictions under the Hawaii Revised Statutes
§ 708-833(1) are not crimes involving moral turpitude. His argument is limited to the number and timing of the convictions and does not reach the mens rea and reprehensible act requirements for a crime involving moral turpitude. We note, however, that the respondent was convicted after our decision in Diaz-Lizarraga, and that Hawaii has adopted the model penal code definition of “intent to deprive” which we analyzed in that case in determining that a similar Arizona theft statute was a crime involving moral turpitude. Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016); see also Barbosa v. Barr, 926 F.3d 1053 (9th Cir. 2019) (finding that the standard described in Diaz-Lizarraga does not apply retroactively).
The BIA dismissed Maie‘s appeal, and he timely petitioned for review.
Maie‘s petition contends that his petty theft convictions are not categorically CIMTs. The government‘s initial response argued only that Maie failed to preserve this argument. For reasons explained more fully below, we conclude that Maie‘s argument was not waived. Because Maie‘s argument presents an issue we have yet to address in a published opinion, we ordered supplemental responses to fill the gap left by the government‘s first brief. Now, having considered the parties’ post-argument briefs, we conclude that Hawaii‘s fourth degree theft statute is not a CIMT. Thus, the government has not shown that Maie is subject to removal.
II
Where the BIA “has reviewed the IJ‘s decision and incorporated portions of it as its own, we treat the incorporated parts of the IJ‘s decision as the BIA‘s.” Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002) (as amended). The
III
We begin with the government‘s original contention that Maie‘s admissions in his first immigration hearing bound him in future proceedings. The government is correct that an alien‘s admissions to charges of removability can satisfy the government‘s burden of proof if the IJ relies upon the admissions in making her determination. Perez-Mejia v. Holder, 663 F.3d 403, 414–15 (9th Cir. 2011) (holding an alien‘s admission that he committed a removable offense under the
But here, the IJ did not rely on Maie‘s concessions when she determined that Maie was removable. Instead, when Maie asked the IJ why the two misdemeanor convictions made him removable, and whether there was anything he could do to contest the immigration charges, the IJ reviewed his records of conviction and explained that moral turpitude is a way of referring to “a crime involving . . . deceit, deception . . . ,” and “even things like shoplifting can be a crime involving moral turpitude” because shoplifting entails “an intent to deprive the owner permanently or under circumstances where the owner‘s property rights are substantially eroded.” In short, rather than relying on Maie‘s oral pro se admission, the IJ recognized that Maie actually did not at all understand the legal concepts underlying removal, and so reviewed the record to ascertain whether the government had established he was removable.
The government also argues that Maie failed to preserve the challenge to his convictions as qualifying CIMTs because he did not raise this issue in his pro se appeal to the BIA.
Again, we disagree. If the BIA considers an issue on its merits and chooses to ignore a procedural defect that would have justified declining to decide the issue, “we cannot then decline to consider the issue based upon [the] procedural defect.” Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc) (citation omitted). Maie‘s pro se appeal to the BIA did assert that his convictions were not CIMTs. See Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (construing pro se filings liberally, and concluding that general contentions by a pro se petitioner were sufficient to satisfy the exhaustion requirement so long as they gave the BIA notice of the contested issue). And although he did not flesh out his argument, both the IJ and the BIA reached the merits of the issue. The BIA signaled its adoption of the IJ‘s reasoning by citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and went on to explain that Hawaii‘s fourth degree theft statute incorporates the Model Penal Code‘s definition of “intent to deprive,” which the BIA deemed morally turpitudinous in Diaz-Lizarraga.2
IV
Maie argues that he is not subject to removal because his prior convictions do not qualify as CIMTs. The
For many years, BIA precedent held that the showing required to establish “moral turpitude” is “‘a vicious motive or a corrupt mind’ because ‘evil or malicious intent is . . . the essence of moral turpitude.‘” Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016) (omission in original) (quoting Latter-Singh, 668 F.3d at 1161). This standard generally required an intent to defraud or intent to injure another person. See id.
Before Diaz-Lizarraga, the BIA‘s rule was that “a theft offense categorically involves moral turpitude if—and only if—it is committed with the intent to permanently deprive an owner of property.” Garcia-Martinez, 886 F.3d at 1294 (emphasis and footnotes omitted) (quoting Diaz-Lizarraga, 26 I. & N. Dec. at 849). But in Diaz-Lizarraga, the BIA changed the threshold for theft offenses to qualify as CIMTs. Diaz-Lizarraga considered an Arizona shoplifting statute that required the government to prove the defendant acted with an intent to deprive the owner of property. 26 I. & N. Dec. at 847–48. The Arizona statute incorporated the Model Penal Code‘s definition of “deprive,” which the BIA summarized as an intent to permanently deprive or substantially erode the property rights of another. Id. at 851–52. The BIA determined that its case law had not kept pace with contemporary standards, concluded that the Model Penal Code‘s more capacious definition of “deprive” satisfies the mens rea necessary to qualify as a CIMT, and held that, because Arizona‘s shoplifting statute included an intent standard that was virtually the same as the Model Penal Code‘s, the Arizona statute was a categorical match. Id. at 854–55.
After Diaz-Lizarraga, the BIA‘s rule is that “a theft offense is a crime involving moral turpitude if it involves an intent to deprive the owner of his property either permanently or under circumstances where the owner‘s property rights are substantially eroded.” Id. at 853 (emphasis added).
We have observed that Diaz-Lizarraga represented an “abrupt change” from the BIA‘s prior construction of theft-related CIMTs because it abandoned the need to show an intent to permanently deprive. Garcia-Martinez, 886 F.3d at 1295. In this appeal, we do not review whether Diaz-Lizarraga was correctly decided and we need not decide whether Congress intended
V
A
We apply the categorical approach described in Taylor v. United States, 495 U.S. 575, 598–602 (1990), to determine whether a state statute is equivalent to its generic federal counterpart. Here, the Taylor approach requires us to compare the elements of Hawaii‘s fourth degree theft statute,
1
The Taylor categorical inquiry “is not whether some of the conduct prohibited by the statute is morally turpitudinous, but rather whether all of the conduct prohibited by the statute is morally turpitudinous.” Morales-Garcia v. Holder, 567 F.3d 1058, 1062 (9th Cir. 2009) (citation, internal quotation marks, and brackets omitted). Thus, we examine the least serious conduct criminalized by Hawaii‘s fourth degree theft statute to determine whether that conduct necessarily involves moral turpitude. If it does not, the statute is overbroad because it criminalizes more conduct than its generic federal counterpart. See id. “When determining the reach of the state criminal statute at issue, we consider not only the text of the statute, but also state court interpretations of the statutory language.” Id. at 1063.
The Hawaii Penal Code defines four degrees of theft that criminalize conduct based on the value or kind of property stolen and, in some instances, the circumstances surrounding the theft. See
All four degrees of theft incorporate Hawaii‘s statutory definition of “theft,”
It appears the IJ concluded that Maie‘s convictions for fourth degree theft were CIMTs because the IJ concluded the state of mind required to commit fourth degree theft is “‘intentional’ and/or with ‘intent to deprive.‘” The BIA adopted the IJ‘s reasoning and cited its decision in Diaz-Lizarraga, where it concluded Arizona‘s shoplifting statute qualified as a CIMT because Arizona adopted the Model Penal Code‘s definition of “intent to deprive.” The Commentary to Hawaii‘s Penal Code states Hawaii‘s theft statutes “follow[] the Model Penal Code” and consolidate traditionally distinct common law theft crimes into one statute for simplicity, separated by degrees to delineate the seriousness of each offense. See
require an “intent to deprive” comparable to the Model Penal Code‘s standard.
2
We agree with Maie that
Subsection
We may look to a state‘s pattern jury instructions to determine the elements of a crime. See Descamps, 570 U.S. at 275 n.5; see also Ramirez v. Lynch, 810 F.3d 1127, 1135 (9th Cir. 2016). There is no pattern jury instruction specific to fourth degree theft because Hawaii does not provide a right to jury trial for fourth degree theft, as it is considered a petty misdemeanor punishable by up to thirty days of imprisonment.5 Nevertheless, our reading of
and (b) tracks Hawaii‘s most relevant jury instructions. The pattern jury instructions for first and second degree theft offenses committed by intentionally failing to make a required disposition of funds in violation of
For defendants charged with violating
Because the state need not prove that a defendant charged with committing theft by intentionally failing to make a required disposition of funds in violation of
The government argues that Hawaii‘s legislative Commentary compels the conclusion that all eight variations of theft require an intent to deprive. The Commentary states that “in all theft offenses, the requisite mental state is intent to deprive the owner of the value of property or services.”
Further, the government overlooks that the Commentary is prepared by the Judicial Council of Hawaii, not Hawaii‘s legislature,
Contrary to the Commentary‘s unqualified statement that Hawaii‘s theft statute follows the Model Penal Code, the Hawaii legislature chose to deviate from the Model Penal Code by criminalizing at least some conduct that does not require proof of the defendant‘s intent to permanently deprive or substantially erode the owner‘s property interest. Model Penal Code § 223.0(1) at 124 (Am. L. Inst. 1980). In particular,
We conclude that Hawaii‘s definition of “theft” does not always require the government to prove the defendant acted with an intent to permanently deprive or substantially erode the owner‘s property rights. Accordingly, Hawaii‘s fourth degree theft statute is overbroad because it criminalizes conduct not encompassed by the BIA‘s definition of a CIMT.
B
The next step is to determine whether
Here, the divisibility inquiry requires that we identify the elements of Maie‘s conviction to determine whether fourth degree theft contains multiple alternative elements of functionally distinct crimes, or multiple alternative means to commit fourth degree theft. Rendon v. Holder, 764 F.3d 1077, 1084–86 (9th Cir. 2014) (“The critical distinction is that while indivisible statutes may contain multiple, alternative means of committing the crime, only divisible statutes contain multiple, alternative elements of functionally separate crimes.“); Mathis, 136 S. Ct. at 2249. The BIA did not consider divisibility, but because we “owe no deference to the decision of the BIA on [divisibility] . . . there is no reason to remand for the BIA to decide the issue of divisibility in the first instance.” Sandoval, 866 F.3d at 993.
Where a jury instruction is available, we can look to it to identify the elements on which a jury must be unanimous among a list of alternatives in the statute. See Mathis, 136 S. Ct. at 2248–49 (“‘Elements’ are the ‘constituent parts’ of a crime‘s legal definition—the things the ‘prosecution must prove to sustain a conviction.‘” (citation omitted)). If the jury must agree on one of the alternatives, the alternatives are elements and the statute is divisible into separate crimes; if they do not have to agree, the alternatives are means and the statute is indivisible. See id. at 2249. “Any statutory phrase that—explicitly or implicitly—refers to multiple, alternative means of commission must still be regarded as indivisible if the jurors need not agree on which method of committing the offense the defendant used.” Rendon, 764 F.3d at 1085; see also Sandoval, 866 F.3d at 993–94.
We conclude that Hawaii‘s fourth degree theft statute is indivisible because it proscribes one crime that can be committed eight different ways, not eight distinct crimes. Accordingly, Maie‘s prior theft convictions do not categorically match the BIA‘s definition for CIMTs.
The divisibility analysis here is straightforward because Hawaii‘s legislature explicitly directed that a jury need not decide which subsection of
Hawaii case law is in accord. In State v. Klattenhoff, 801 P.2d 548, 600 (Haw. 1990), abrogated on other grounds by State v. Walton, 324 P.3d 876, 906 (Haw. 2014), appellant was the treasurer of an organization convicted of two counts of first degree theft for obtaining or exerting unauthorized control over $20,000 belonging to the organization. Klattenhoff challenged the sufficiency of the evidence
The government argues that we should not rely on
Hawaii case law undercuts the government‘s argument. In Tomomitsu v. State, 995 P.2d 323, 325 (Haw. Ct. App. 2000), the Hawaii Intermediate Court of Appeals considered an appeal by a defendant convicted of three theft offenses: second degree robbery, for stealing a camera and wristwatch; first degree theft, for selling the stolen camera; and second degree theft, for selling the stolen wristwatch. The court vacated Tomomitsu‘s convictions for first and second degree theft, holding Hawaii law does “not permit the conviction [of] a defendant of two counts of theft for, first, having obtained or taken an item of property and, second, for having disposed of or sold the same item of property.” Id. at 327. The court explained that
The government points to cases where the State charged a defendant with a specific subsection of theft in addition to a particular degree of theft based upon the value of the stolen property. See, e.g., State v. Taylor, 269 P.3d 740 (Haw. 2011). In the government‘s view, these cases support its argument that the various ways of committing theft must be divisible into separate crimes. We disagree. Though
Because we conclude that
PETITION GRANTED.
I concur in the majority opinion in full. I write separately to reiterate once again that, in my view, the phrase “crime involving moral turpitude” is unconstitutionally vague. See Barbosa v. Barr, 926 F.3d 1053, 1060–61 (9th Cir. 2019) (Berzon, J., concurring); Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1121 (9th Cir. 2020) (Berzon, J., concurring); Silva v. Garland, 993 F.3d 705, 720 (9th Cir. 2021) (Berzon, J., concurring).
We are bound by this court‘s precedent to the contrary in Martinez-de Ryan v. Whitaker, 909 F.3d 247 (9th Cir. 2018). But the IJ‘s attempt to explain moral turpitude during Maie‘s hearing—defining it as “a fancy way of saying it‘s a crime involving . . . deceit, deception, you know” and conceding that “in some cultures the moral turpitude standard varies a little bit“—highlights that the BIA and the courts have failed to establish any “coherent criteria” consistently defining a “crime involving moral turpitude,” Islas-Veloz v. Whitaker, 914 F.3d 1249, 1258 (9th Cir. 2019) (Fletcher, J., concurring). I continue to urge this court consider en banc whether the phrase is unconstitutionally vague, applying current vagueness jurisprudence. See Johnson v. United States, 576 U.S. 591 (2015).