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Date: 10-03-2021
Case Style:
BRYAN MAIE v. MERRICK B. GARLAND, Attorney
General
Case Number: 19-73099
Judge: Morgan Christen
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney:
Defendant's Attorney: 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,
Description:
San Francisco, CA - Immigration lawyer represented Petitioner with review of a decision of the Board of Immigration Appeals.
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 DiazLizarraga, 26 I. & N. Dec. 847, 848, 854–55 (BIA 2016).
Maie argues Hawaii’s fourth degree theft statute is not
6 MAIE V. GARLAND
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
1 Thomas Thomas’s motion for leave to file an out-of-time brief as
amicus curiae, ECF 47, is DENIED.
MAIE V. GARLAND 7
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 RevisedStatutes
§ 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
8 MAIE V. GARLAND
the standard described inDiaz-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.” MolinaEstrada 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).
MAIE V. GARLAND 9
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.
10 MAIE V. GARLAND
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.
2 We have explained that “where the BIA cites its decision in
Burbano and does not express disagreement with any part of the IJ’s
decision, the BIA adopts the IJ’s decision in its entirety.” Abebe, 432 F.3d
at 1040 (citation omitted). The BIA’s citation to Burbano signals “that it
ha[s] conducted an independent review of the record and ha[s] exercised
its own discretion in determining that its conclusions [are] the same as
those articulated by the IJ.” Arreguin-Moreno v. Mukasey, 511 F.3d 1229,
1232 (9th Cir. 2008) (citation omitted).
MAIE V. GARLAND 11
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 involvingmoral 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 v. Holder, 625 F.3d
621, 626 (9th Cir. 2010)).
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 anArizona shoplifting statute that
12 MAIE V. GARLAND
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 theftrelated 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 DiazLizarraga was correctly decided and we need not decide
whether Congress intended CIMTs to include prior
convictions that state legislatures deem “petty offenses,”
because Maie’s convictions fail to satisfy even the BIA’s
sweeping new standard.3
3 Similarly, we do not reach Maie’s argument that the statutory term
CIMT is void for vagueness.
MAIE V. GARLAND 13
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,
Haw. Rev. Stat. § 708-833(1), to the BIA’s interpretation of
CIMT in the theft context. If the elements of Hawaii’s statute
are a categorical match to that interpretation, Maie’s prior
convictions qualify as CIMTs. See Linares-Gonzalez,
823 F.3d at 514 (citing Descamps v. United States, 570 U.S.
254, 260–66 (2013)). “A state offense categorically qualifies
as . . . a CIMT when its elements, without any consideration
of the facts underlying the individual case, are fully
encompassed by the generic federal offense.” JaureguiCardenas v. Barr, 946 F.3d 1116, 1119 (9th Cir. 2020). We
conclude that Hawaii’s fourth degree theft statute does not
categorically describe a CIMT because it criminalizes
conduct not encompassed by the BIA’s understanding of what
constitutes a CIMT. We further conclude that the statute is
indivisible, so we do not employ the modified categorical
approach.
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
14 MAIE V. GARLAND
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 Haw. Rev. Stat. §§ 708-830 to 708-833. First
degree theft criminalizes theft of property or services valued
at more than $20,000, or theft of a firearm, dynamite or other
explosive, or “property or services during an emergency
period.” Haw. Rev. Stat. § 708-830.5. Second degree theft
criminalizes theft of, for example, “[p]roperty or services the
value of which exceeds $750,” and agricultural products or
equipment from fenced or enclosed premises that have “no
trespassing” or similar signs prominently displayed. Haw.
Rev. Stat. § 708-831. Third degree theft criminalizes theft
“[o]f property or services the value of which exceeds $250 or
. . . [o]f gasoline, diesel fuel, or other related petroleum
products . . . of any value not exceeding $750.” Haw. Rev.
Stat. § 708-832(1). The statute Maie was convicted of
violating, § 708-833(1), provides: “A person commits the
offense of theft in the fourth degree if the person commits
theft of property or services of any value not in excess of
$250.”
All four degrees of theft incorporate Hawaii’s statutory
definition of “theft,” § 708-830(1)–(8), which identifies eight
MAIE V. GARLAND 15
distinct ways a person can commit “theft.”4 Five expressly
require an intent to deprive or defraud; three do not. See
Haw. Rev. Stat. § 708-830(4) (obtaining services by
deception); id. § 708-830(5) (diverting services); id. § 708-
830(6) (failing to make required disposition of funds).
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 DiazLizarraga, 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 Haw. Rev. Stat. Ann.
Commentary on §§ 708-830 to 708-833. Maie argues that the
BIA erred because it failed to recognize there are differences
between Hawaii’s definition of theft and the Model Penal
Code’s definition of theft. In particular, he argues that at
least some of the ways to violate Hawaii’s theft statute do not
4 Hawaii defines “theft” as “any of the following” eight actions:
(1) obtaining or exerting unauthorized control over property, with an
intent to deprive; (2) obtaining or exerting control over property through
deception, with an intent to deprive; (3) appropriating property, with an
intent to deprive; (4) intentionally obtaining services by deception;
(5) intentionally diverting services to which a person is not entitled;
(6) intentionally failing to make required disposition of funds;
(7) receiving stolen property, with intent to deprive; or (8) shoplifting,
with intent to defraud. Haw. Rev. Stat. § 708-830(1)–(8).
16 MAIE V. GARLAND
require an “intent to deprive” comparable to the Model Penal
Code’s standard.
2
We agree with Maie that § 708-830(6), theft by
intentional failure to make required disposition of funds, is
the least serious of the acts criminalized in Hawaii’s fourth
degree theft statute. Section 708-830(6) contains two
subsections that criminalize separate conduct. Subsection
708-830(6)(a) requires intent to “deal with” another’s
property as one’s own. A person commits this type of theft
if he “intentionally obtains property from anyone upon an
agreement . . . and deals with the property as the person’s
own and fails to make the required payment or disposition.”
Haw. Rev. Stat. § 708-830(6)(a). Thus, subsection (a)
criminalizes a person’s misuse of property entrusted to him.
Subsection 708-830(6)(b) criminalizes the intentional
failure to make a required payment to an employee subject to
an agreement or known legal obligation. A person commits
this type of theft if he “obtains personal services from an
employee upon agreement . . . and . . . intentionally fails to
make the payment or disposition at the proper time.” Haw.
Rev. Stat. § 708-830(6)(b). Pursuant to subsection (b),
intentionally withholding or delaying a paycheck qualifies as
theft, even if the paycheck is later delivered. It appears that
§ 708-830(6)(a) does not require the government to prove the
defendant intended to permanently deprive or substantially
erode the owner’s property rights, and § 708-830(6)(b)
certainly does not.
Case law from the Hawaii Supreme Court supports the
conclusion that § 708-830(6)(a) sweeps more broadly than the
MAIE V. GARLAND 17
federal generic definition of a CIMT because it does not
require proof that a defendant acted with the Model Penal
Code’s “intent to deprive.” In State v. Gaylord, 890 P.2d
1167, 1170–71 (Haw. 1995), the defendant was convicted of
two counts of first degree theft and one count of second
degree theft after he used his position as an attorney to
appropriate client funds and abscond with them. Gaylord
concerned three separate charges of first and second degree
theft because the value of each client’s funds was $47,248.95,
$70,000.00, and $5,000.00, respectively. See id. On appeal,
the Hawaii Supreme Court acknowledged that “intent to
appropriate the value of property for the actor’s own benefit”
was part of the gravamen of § 708-830(6)(a), id. at 1179 n.20
(internal quotation marks omitted), but the court did not
require the government to show that the attorney intended to
permanently deprive or substantially erode his clients’
property interests, see id. at 1176. In the process, the court
identified the elements of § 708-830(6)(a) and did not include
an intent to permanently deprive an owner of property or
substantially erode the owner’s property interest. See id. at
1177.
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 § 708-830(6)(a)
5 Hawaii Revised Statute § 806-60 provides: “Any defendant charged
with a serious crime shall have the right to trial by a jury of twelve
members. ‘Serious crime’ means any crime for which the defendant may
18 MAIE V. GARLAND
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 § 708-830(6)(a)
or (b) do not require the government to prove the defendant
intended to permanently deprive or substantially erode the
owner’s property interest.
For defendants charged with violating § 708-830(6)(a),
the government must prove the defendant intentionally
obtained property, did so upon an agreement or subject to a
known legal obligation to make payment or disposition, dealt
with the property as his own, and failed to make the require
payment or disposition. See Haw. Crim.Jury Instr. 10.22.2A;
10.22.2B. The pattern jury instructions for § 708-830(6)(b)
offenses require proof that the defendant intentionally
obtained personal services from an employee, did so subject
to an obligation to make payment, and failed to make
payment at the proper time. See Haw. Crim. Jury Instr.
10.22.3A; 10.22.3B.
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 § 708-830(6)(a)
or (b) intended to permanently deprive or substantially erode
the owner’s property interest, these subsections criminalize
more conduct than the BIA’s definition of CIMT; they
encompass conduct involving less culpable mens rea than the
be imprisoned for six months or more.” Fourth degree theft is a petty
misdemeanor punishable by up to thirty days of imprisonment, Haw. Rev.
Stat. §§ 706-663; 708-833(1), and is therefore not required to be tried by
a jury. See State v. Emerson, 129 P.3d 1167, 1172 (Haw. Ct. App. 2006),
as corrected (Feb. 10, 2006).
MAIE V. GARLAND 19
Model Penal Code’s “intent to permanently deprive or
substantially erode” standard.
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.”
Haw. Rev. Stat. Ann. Commentary on §§ 708-830 to
708-833. But the government puts too much weight on the
Commentary. First, the government implies that the phrase
“intent to deprive” as used in the Commentary necessarily
carries the same meaning as the Model Penal Code’s “intent
to permanently deprive or substantially erode” standard that
the BIA found dispositive in Diaz-Lizarraga, but that is by no
means clear.
Further, the government overlooks that the Commentary
is prepared by the Judicial Council of Hawaii, not Hawaii’s
legislature, Haw. Rev. Stat. Ann. Commentary on § 701-105;
see also State v. Nobriga, 527 P.2d 1269, 1271 (Haw. 1974),
and the legislature explicitly limited the Commentary’s
persuasive power. See Haw. Rev. Stat. § 701-105 (directing
that the Commentary “may be used as an aid in
understanding” the statute “but not as evidence of legislative
intent”). Because the Commentary cannot overcome the
plain text of the statute, we must look to the statute as written
by Hawaii’s legislature and as interpreted by Hawaii state
courts to identify the elements of a state offense. See
Morales-Garcia, 567 F.3d at 1063.
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
20 MAIE V. GARLAND
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, § 708-830(6)(b) of Hawaii’s theft statute was not
adopted from the Model Penal Code and it criminalizes
significantly more conduct. The drafters of the Model Penal
Code expressly declined to include a provision that
criminalizes failure to make a required payment after
receiving the services of an employee, explaining that theft by
failure to make required disposition “must not be construed
so broadly that a bright line between theft and breach of
contract is obscured.” Model Penal Code § 223.8 cmt. at 261
(Am. L. Inst. 1980). Because Hawaii clearly departed from
the Model Penal Code, we decline to afford the Commentary
the weight the government urges. See Bostock v. Clayton
County, 140 S. Ct. 1731, 1749 (2020) (“The people are
entitled to rely on the law as written, without fearing that
courts might disregard its plain terms based on some
extratextual consideration.”).
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 § 708-833(1) is
divisible. See Sandoval v. Sessions, 866 F.3d 986, 993 (9th
Cir. 2017). If the statute of conviction is not a categorical
match, but is divisible, we apply the modified categorical
MAIE V. GARLAND 21
approach to determine the elements of the particular crime the
defendant was convicted of committing. See Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016) (citing Shepard
v. United States, 544 U.S. 13, 26 (2005)). The modified
categorical approach allows us to consider a particular class
of documents to determine the elements established by the
prior conviction, without considering the factual
circumstances of the crime. In this way, the modified
categorical analysis allows us to determine whether each
element of the generic federal counterpart was necessarily
established beyond a reasonable doubt, even if the statute of
conviction is broader. In contrast, if the statute of conviction
is not a categorical match and is indivisible, we cannot
employ the modified categorical approach and our inquiry
ends. See id. at 2248–49.
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.
22 MAIE V. GARLAND
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 § 708-830 is violated to sustain a
conviction for fourth degree theft. Section 708-835 states
“[a] charge of an offense of theft in any degree may be
proved by evidence that it was committed in any manner that
would be theft under section 708-830, notwithstanding the
specification of a different manner in the indictment . . . .”
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.
MAIE V. GARLAND 23
Klattenhoff challenged the sufficiency of the evidence used
to convict him. Id. at 599. The Hawaii Supreme Court
affirmed his convictions, but did not specify which subsection
of § 708–830 the evidence supported. Id. at 607. Instead, the
court held that “HRS § 708–835 permits proof of theft by any
manner under HRS § 708–830, including appropriation
[§708-830(3)] and deception [§708-830(4)].” Id.; see also
State v. Jones, 29 P.3d 351, 371 (Haw. 2001) (as amended)
(“[U]nanimity is not required where alternative means of
establishing an element of an offense are submitted to the
jury, provided that there is no reasonable possibility that the
jury’s verdict was based on an alternative unsupported by
sufficient evidence.”).
The government argues that we should not rely on § 708-
835 because that statute requires the State to give “fair
notice” of the essential elements of the criminal charges
brought against a defendant. “A charge’s essential elements
include conduct, attendant circumstances, and results of
conduct.” State v. Kauhane, 452 P.3d 359, 367 (Haw. 2019).
The government reasons that describing the essential
elements of the charge necessarily requires the prosecution to
tailor its case to one of the theft statute’s eight subsections,
thereby identifying the particular subsection of the theft
statute to the defendant.
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
24 MAIE V. GARLAND
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 § 708–830 “specifies eight ways of committing
theft . . . . Obtaining the property is one way (HRS
§ 708–830(1)),” and “[d]isposing of the property is another
way (HRS § 708–830(7)).” Id. at 326–27. Were Hawaii’s
theft statute divisible, the court could have upheld the
separate convictions because Tomomitsu’s conduct satisfied
the elements of two subsections of § 708-830. See Rendon,
764 F.3d at 1084–86. Thus, the result in Tomomitsu
reinforces our conclusion that the Hawaii theft statute is
indivisible; a person is properly convicted of one crime, not
two, even if his conduct satisfies two separate subsections of
§ 708-830.
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 § 708-
835 gives the State flexibility to prove theft by any means, the
fact the State of Hawaii sometimes charges with greater
specificity than § 708-835 requires does not undermine the
conclusion that the fourth degree theft statute is indivisible.
Outcome: Because we conclude that § 708-833(1) is overbroad and
indivisible, Maie’s convictions for fourth degree theft are not
categorically CIMTs. Thus, the government did not show
that Maie is subject to removal pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(ii).
PETITION GRANTED.
Plaintiff's Experts:
Defendant's Experts:
Comments: