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 ...
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