CA9 on CIMT, Divisibility, Categorical Approach: Maie v. Garland

Maie v. Garland

"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. ... 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. ... 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."

[Hats off to Team Hastings, 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!]