Kanisto Otto v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KANISTO ELIAS OTTO, No. 16-73272
Petitioner, Agency No. A200-864-991
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 23, 2019**
University of Hawaii at Manoa
Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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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also Luther v. Holder, 585 F. App’x 644 (9th Cir. 2014) (unpublished) (holding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
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the offense, unless otherwise specified in the statute defining the offense,” State v.
Kalama, 8 P.3d 1224, 1229 (Haw. 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
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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).
PETITION FOR REVIEW DENIED.