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), such inadmissible 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 between
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 requiring, 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
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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