Maie v. Garland

7 F.4th 841

Bryan MAIE, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-73099

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 2021 San Francisco, California

Filed August 2, 2021

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.

Before: Marsha S. Berzon, Mary H. Murguia, and Morgan Christen, Circuit Judges.

Concurrence by Judge Berzon

CHRISTEN, Circuit Judge:

Bryan Maie seeks review of a decision by the Board of Immigration Appeals (BIA) that he is removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) because his two prior convictions for violating Hawaii's fourth degree theft statute, Haw. Rev. Stat. § 708-833(1), constitute crimes involving moral turpitude (CIMTs). The BIA reasoned that Maie's prior convictions categorically qualify as CIMTs because the BIA understood that Hawaii adopted the Model Penal Code's definition of "intent to deprive" in its theft statute, and the BIA had previously decided that an Arizona shoplifting statute with a very similar definition of "intent to deprive" qualified as morally turpitudinous, see Matter of Diaz-Lizarraga , 26 I. & N. Dec. 847, 848, 854–55 (BIA 2016). Maie argues Hawaii's fourth degree theft statute is not categorically a CIMT because it is overbroad—i.e., it criminalizes more conduct than the generic federal definition of a CIMT—and it is indivisible. We have jurisdiction under 8 U.S.C. § 1252, and we grant Maie's petition.¹

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, work, and go to school without a visa. See 48 U.S.C. § 1901(b). Although he took one single-day trip back to the Marshall Islands in 2010, Maie has lived in Honolulu since he entered the United States in 1989.

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. Haw. Rev. Stat. § 708-833(1). He pleaded no contest to both charges. In 2019, the Department of Homeland Security served Maie with a Notice to Appear that alleged he was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been convicted of two CIMTs not arising from a single scheme.

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 BIA's determination that a crime is a categorical match to its generic federal counterpart is entitled to appropriate deference. Garcia-Martinez v. Sessions , 886 F.3d 1291, 1293 (9th Cir. 2018). We give no deference to the BIA's determination of the elements of a statute of conviction. Marmolejo-Campos v. Holder , 558 F.3d 903, 907 (9th Cir. 2009) (en banc).

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 removablility 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 Controlled Substances Act "relieved the government of the obligation to present any evidence on the factual question of the nature of the drug offense").

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

See Chuen Piu Kwong v. Holder , 671 F.3d 872, 876–77 (9th Cir. 2011) (holding the exhaustion requirement satisfied where the BIA expressly adopted an IJ decision that "explicitly discussed" a ground for relief). Accordingly, Maie's argument was preserved.

IV

Maie argues that he is not subject to removal because his prior convictions do not qualify as CIMTs. The Immigration and Nationality Act specifies that "[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct ... is deportable." 8 U.S.C. § 1227(a)(2)(A)(ii). On several occasions, we have observed that, "[a]lthough the immigration statutes do not specifically define offenses constituting crimes involving moral turpitude, a crime involving moral turpitude is generally a crime that ‘(1) is vile, base, or depraved and (2) violates accepted moral standards.’ " Latter-Singh v. Holder , 668 F.3d 1156, 1161 (9th Cir. 2012) (quoting Saavedra-Figueroa...