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OTTO v. BARR (2019)

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United States Court of Appeals, Ninth Circuit.

Kanisto Elias OTTO, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 16-73272

Decided: October 28, 2019

Before: GRABER, M. SMITH, and WATFORD, Circuit Judges. Manuel Q. Diones, II, Esquire, Attorney, Law Offices of Manuel Q. Diones, Lllc, Honolulu, HI, for Petitioner Colin J. Tucker, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent


Kanisto Elias Otto petitions for review of the Board of Immigration Appeals’ (BIA) decision affirming the immigration judge’s order removing Otto to the Federated States of Micronesia, based on Otto’s commission of a crime involving moral turpitude (CIMT). See 8 U.S.C. § 1227(a)(2)(A)(i). Because Otto’s conviction for attempted second-degree assault is categorically a CIMT, we deny the petition for review. See Haw. Rev. Stat. §§ 705-500, 707-711(1)(d); see also Luther v. Holder, 585 F. App'x 644 (9th Cir. 2014) (unpublished) (holding that Hawaii Revised Statutes § 707-711(1)(d) is a CIMT).

The determination whether a conviction is categorically a CIMT involves two steps. The first step is to identify the elements of the statute of conviction. The second step is to compare the elements of the statute of conviction to the generic definition of a CIMT. Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010). In determining whether a conviction for an inchoate offense like attempt constitutes a CIMT, we look to the elements of the underlying crime. See Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007).

Under Hawaii Revised Statutes § 707-711(1)(d), second-degree assault is committed by “intentionally or knowingly caus[ing] bodily injury to another with a dangerous instrument.” “Bodily injury” is defined as “physical pain, illness, or any impairment of physical condition.” Haw. Rev. Stat. § 707-700. And a “dangerous instrument” is defined as “any firearm, whether loaded or not, and whether operable or not, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.” Id. Because the “state of mind with which the defendant acts applies to all elements of the offense, unless otherwise specified in the statute defining the offense,” State v. Kalama, 94 Hawai'i 60, 8 P.3d 1224, 1229 (2000), the least culpable way of committing second-degree assault is knowingly.

Determining whether an assault is a CIMT requires assessing the state of mind and resulting harm in tandem. “[A]s the level of conscious behavior decreases, i.e., from intentional to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude.” In re Solon, 24 I. & N. Dec. 239, 242 (B.I.A. 2007); see also Ceron v. Holder, 747 F.3d 773, 782–83 (9th Cir. 2014) (en banc). Moreover, as the level of conscious behavior decreases, usually there must be some “aggravating factor,” such as the use of a deadly weapon, to transform an assault into a CIMT. Ceron, 747 F.3d at 783; Uppal, 605 F.3d at 717; In re Medina, 15 I. & N. Dec. 611, 612 (B.I.A. 1976). Finally, a defendant must generally act with the “intent to harm,” Nunez v. Holder, 594 F.3d 1124, 1131 n.4 (9th Cir. 2010), which must be more than merely offensively touching, see Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1060–61 (9th Cir. 2006).

The BIA correctly determined that Otto’s crime of conviction is a CIMT. First, Otto must have acted with the intent or knowledge that his actions would cause actual bodily injury. Haw. Rev. Stat. § 707-711(1)(d). Second, Otto must have used a “dangerous instrument,” which is defined to include objects “capable of producing death or serious bodily injury.” Id. §§ 707-700, 707-711(1)(d). The use of an object “capable of producing death or serious bodily injury” with an intentional or knowing state of mind meets the test described above for a CIMT. See also Medina, 15 I. & N. Dec. at 614 (holding that an assault involving the use of a deadly weapon with a reckless state of mind constitutes a CIMT).


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