                              NOT FOR PUBLICATION                        FILED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).
                                                                            Page 2 of 4

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also Luther v. Holder, 585 F. App’x 644 (9th Cir. 2014) (unpublished) (holding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
                                                                           Page 3 of 4

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
                                                                        Page 4 of 4

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.
