United States 9th Circuit Court of Appeals Reports


SONG v. GONZALES, 05-71319 (9th Cir. 1-10-2007) CHAN WOO
SONG, Petitioner, v. ALBERTO R. GONZALES, Attorney General,
Respondent. No. 05-71319, Agency No. A79-761-409. United
States Court of Appeals, Ninth Circuit. Submitted November
16, 2006[fn**] Honolulu, Hawaii. January 10, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.][fn**] This panel unanimously finds this case
suitable for decision without oral argument. See
Fed.R.App.P. 34(a)(2).


[fn*] This disposition is not appropriate for publication
and is not precedent except as provided by 9th Cir. R.

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

Before: TROTT, WARDLAW, and W. FLETCHER, Circuit Judges.

Petitioner Chan Woo “Jack” Song, a native and citizen of
South Korea, petitions for review of a Board of Immigration
Appeals (“BIA”) order affirming an Immigration Judge’s
(“IJ”) decision finding him removable and ineligible for
relief. The IJ found Song removable based on a state
conviction for third degree assault on his wife in violation
of Haw. Rev. Stat. § 707-712(1)(a), concluding that
the offense categorically fell within the definition of a
crime of domestic violence. The IJ also denied Song’s
applications for cancellation of removal and voluntary

The BIA affirmed without opinion, pursuant to 8 C.F.R.
§ 1003.1(e)(4). Thus, “the IJ’s decision becomes the
BIA’s decision and we evaluate the IJ’s decision as we
would that of the Board.” Lanza v. Ashcroft, 389 F.3d 917,
925 (9th Cir. 2004) (internal quotation marks omitted).

Since this appeal was filed, an en banc panel of our court
issued its decision in Fernandez-Ruiz v. Gonzales, 466 F.3d
1121 (9th Cir. 2006) (en banc). We held in Fernandez-Ruiz
that crimes involving the reckless use of force are not
categorically crimes of violence within the meaning of 18
U.S.C. § 16(a) or, by extension, crimes of domestic
violence under 8 U.S.C. § 1227(a)(2)(E)(i). 466 F.3d
at 1132.

A mens rea of recklessness is sufficient to support a
conviction under Haw. Rev. Stat. § 707-712(1)(a),
which reads, in relevant part: “A person commits the
offense of assault in the third degree if the person . . .
[i]ntentionally, knowingly, or recklessly causes bodily
injury to another person . . . .” (emphasis added). Because
the “full range of conduct” covered by the statute of
conviction includes merely reckless conduct, United States
v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999),
Fernandez-Ruiz compels the conclusion that Haw. Rev. Stat.
§ 707-712(1)(a) is not categorically a crime of
violence. 466 F.3d at 1132.

“When a petitioner’s state statute of conviction does not
define a categorical crime of violence, we apply a modified
categorical approach.” Id. (citing Penuliar v. Gonzales,
435 F.3d 961, 966 (9th Cir. 2006)) (internal quotation
marks omitted). The IJ failed to analyze the record as
permitted by the modified categorical approach, even though
the government introduced copies of the criminal complaint,
the judgment of conviction, and a transcript of Song’s plea
proceeding. Had the IJ conducted the modified categorical
review of these documents, however, she would not have been
able to discern Song’s mens rea, as none of the documents
specifies Song’s state of mind. Under these circumstances,
we are not required to remand to the BIA for further
proceedings. Id. at 1133-34.

In sum, Song’s conviction under Haw. Rev. Stat. §
707-712(1)(a) is not a crime of violence within the
definition of 18 U.S.C. § 16(a). Consequently, “the
subject conviction cannot justify his removal.”
Fernandez-Ruiz, 466 F.3d at 1135 (citing 8 U.S.C. §

Because we hold that the IJ erred in ordering Song’s
removal, we need not reach Song’s due process claims.

Petition GRANTED.