What's Up Attorney? Hit and run: is it a deportable offense?

Leaving the scene of an accident is punishable in every state under “hit and run” laws. See http://traffic.findlaw.com/traffic-tickets/leaving-the-scene-of-an-accident-hit-and-run-state-laws.html See also https://www.edgarsnyder.com/car-accident/types-of-accidents/hit-and-run-accidents/hit-and-run-laws/

Typical of such laws are Hawaii Revised Statutes §§ 291C-12.5 and 291C-12.6 providing that the driver of any vehicle involved in an accident resulting in bodily injury to any person shall immediately stop the vehicle at the scene of the accident and remain until the driver has fulfilled the requirements of section 291C-14, including giving the driver's name, address, and the registration number of the vehicle the driver is driving, and rendering to any person injured in the accident reasonable assistance. The laws usually classify the offense as misdemeanors or felonies, depending on the seriousness of the injuries, and provide penalties including fines and jail term. See https://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319/HRS0291C/HRS_0291C-0012_0006.htm

If an alien is convicted under state law for a hit and run offense, is it a deportable one? There are two views.

One view, involving a Texas statute, holds that it is a deportable offense. Garcia-Maldonado, 491 F.3d 284 (5th Cir. 2007). Garcia, a Mexican, legally entered the United States. After his admission, Garcia was convicted of failure to stop and render aid following a fatal auto accident in which he was involved. Garcia later left the United States and, when he returned, he was charged as an inadmissible arriving alien. The IJ found Garcia removable on the basis that he committed an aggravated felony. The IJ also implied without expressly stating that the failure to stop conviction was for a crime involving moral turpitude (CIMT). Garcia appealed to the BIA, challenging the IJ's determination that he was ineligible to apply for a waiver of deportation under former INA § 212(c) arguing that the failure-to-stop conviction was neither a CIMT nor an aggravated felony and was not a conviction for immigration purposes because it was on appeal. The BIA held that, because a vacated conviction remains a conviction for immigration purposes under Fifth Circuit law, the failure-to-stop conviction likewise remained a conviction, whether on appeal or not. The BIA did not rule on whether the failure-to-stop conviction was an aggravated felony, deeming Garcia removable without such a finding because the failure-to-stop conviction was for a CIMT.

The Court of Appeals Fifth Circuit affirmed, saying: An alien who has been convicted of a crime of moral turpitude is inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Under 8 U.S.C. § 1227(a)(2)(A)(i)(I), suchinadmissible aliens are deportable. "The INA does not define the term `moral turpitude' . The immigration regulations provide only that a CIMT is an offense that is both (1) a crime in the jurisdiction of occurrence, and (2) a crime of turpitude per the "moral standards generally prevailing in the United States." 22 C.F.R. § 40.21(a)(1) (2006). Although the State Department's Foreign Affairs Manual has a lengthy list of CIMTs, no mention is made of failure to stop and render aid. See 9 FAM 40.21(a) Note 2. Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. The court concluded: We agree with the BIA's conclusion that the failure to stop and render aid after being involved in an automobile accident is the type of base behavior that reflects moral turpitude.

Another view, involving a Hawaii statute which is similarly worded as the Texas statute, holds that it is not a deportable offense. Latu v. Mukasey, 547 F.3d 1070 (9th Cir. 2008). Latu was admitted into the U.S. and subsequently was convicted of violating Hawaii Revised Statute § 291C-12.5. The DHS served Latu with a Notice to Appear, charging him with removability for having committed a CIMT within five years of his admission into the United States. See 8 U.S.C. § 1227(a)(2)(A)(i). The IJ ordered Latu removed. The BIA affirmed saying that leaving the scene of an accident without rendering aid to an injured person was "inherently depraved and contrary to the accepted rules of morality." It reasoned that the failure to aid someone injured in the accident demonstrated "an indifference to the duties owed to persons or to society in general." The BIA found that Latu's offense was a CIMT and dismissed Latu's appeal.

The Court of Appeals Ninth Circuit granted Latu’s petition for review. But instead of specifically addressing directly the question whether the failure to stop and render aid after being involved in an automobile accident is the type of base behavior that reflects moral turpitude, the Court said: Under the categorical approach, a crime involves moral turpitude if the generic elements of the crime show that it involves conduct that `(1) is base, vile, or depraved and (2) violates accepted moral standards.' " In order to constitute a CIMT under the categorical approach, the "full range of conduct encompassed by the statute [must] constitute[ ] a crime of moral turpitude." A driver may violate § 291C-12.5 merely by failing to provide all the information required by § 291C-14. Thus, "the state statute plainly and specifically criminalizes conduct outside the contours of the federal definition." The failure following an accident to give an address or a vehicle registration number" is not base, vile and depraved; nor does it necessarily evince any willfulness or evil intent, a requisite element of crimes of moral turpitude." Because the full range of conduct encompassed by the Hawaii statute does not constitute a CIMT, Latu's offense is not categorically a CIMT.

The dissenting opinion said where the statute plainly and specifically criminalizes conduct outside the contours of a federal definition, we do not engage in “judicial prestidigitation” by concluding that the statute passes muster under the categorical approach. The dissenting justice said that Hawaii case law does not similarly construe section 291C-12.5 to criminalize the failure to provide any of the required information. On the contrary, such precedent construes section 291C-12.5, together with section 291C-14, as required, in relevant part, self-identification sufficient to facilitate subsequent findings of liability. The purpose of statutes like [Haw.Rev.Stat. section 291C-12.5] ... is to protect those injured ... and [to] facilitate a determination of civil and criminal liability."). The dissenter pointed out that it was Latu’s burden to point to Hawaii precedent showing that a conviction under section 291C-12.5 reasonably might be founded on conduct that falls outside the generic definition of a crime involving moral turpitude. Latu failed to do so.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He served as a U.S. Immigration Officer. He is a co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

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