                                                                           FILED
                             NOT FOR PUBLICATION                           NOV 18 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


RLUTH LUTHER,                                    No. 11-71456

               Petitioner,                       Agency No. A089-246-387

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted October 9, 2014**
                                 Honolulu, Hawaii

Before:        TASHIMA, RAWLINSON, and CLIFTON, Circuit Judges.

       Rluth Luther, a native and citizen of Tonga and a citizen of the Federated

States of Micronesia, petitions for review of the Board of Immigration Appeals’s

(“BIA”) decision affirming the Immigration Judge’s order removing Luther to the

Federated States of Micronesia. Luther disputes the BIA’s conclusion that he was

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
convicted of a crime involving moral turpitude (“CIMT”) under 8 U.S.C. §

1227(a)(2)(A)(i). This Court has jurisdiction to review the BIA’s conclusion that

Luther’s conviction is a CIMT. See 8 U.S.C. § 1252(a)(2)(D) (providing for

judicial review of legal questions raised by individuals found removable based on

criminal activity); see also Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th

Cir. 2009) (en banc).

      The BIA correctly determined that Luther’s crime of conviction was a

CIMT. Luther pleaded guilty to violating Hawaii Revised Statute § 707-711(1)(d),

which provides that “[a] person commits the offense of assault in the second

degree if . . . [t]he person intentionally or knowingly causes bodily injury to

another with a dangerous instrument.” Although simple assaults are not CIMTs,

“[s]ome assault statutes . . . have been held to be CIMTs.” Uppal v. Holder, 605

F.3d 712, 716-17 (9th Cir. 2010). Those statutes include “as an element ‘some

aggravating dimension,’” such as the use of a deadly weapon or the presence of a

special relationship between the victim and the perpetrator. Id. at 717. Morever,

the statute usually must require that the defendant acted with the “intent to harm.”

Nunez v. Holder, 594 F.3d 1124, 1131 n.4 (9th Cir. 2010). Finally, the statute must

require that the defendant inflicted a meaningful level of harm, which must be

more than mere offensive touching. Galeana-Mendoza v. Gonzales, 465 F.3d


                                           2
1054, 1060-61 (9th Cir. 2006).

      Luther’s crime of conviction contains each of the necessary elements to

transform his crime of conviction into a CIMT. Section 707-711(1)(d) includes an

“aggravating dimension,” the use of a “dangerous instrument.” Moreover, to be

found guilty of a § 707-711(1)(d) violation, a defendant must act with the intent to

cause bodily harm (or with knowledge that such a result is practically certain to

occur). See State v. Kalama, 8 P.3d 1224, 1229 (Haw. 2000) (holding that, under

Hawaii law, the state of mind set forth in a criminal statute “applies to all elements

of the offense, unless otherwise specified in the statute defining the offense”).

Finally, to be found guilty under § 700-711(1)(d), the defendant must have

inflicted some “bodily injury,” defined as “physical pain, illness, or any

impairment of physical condition.” Haw. Rev. Stat. § 707-700.

      Accordingly, the petition for review is DENIED.




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