NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SABLEEN SABNAT, No. 18-71814 Petitioner, Agency No. A205-957-667 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 8, 2020 Honolulu, Hawaii Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges. Petitioner Sableen Sabnat, a native and citizen of the Federated States of Micronesia, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal of an Immigration Judge’s (“IJ”) removal order. In its dismissal of Sabnat’s appeal, the BIA concluded in an unpublished disposition that Sabnat’s prior conviction in Guam for theft of property held in trust, 9 Guam Code Ann. § 43.60, was a crime involving moral turpitude (“CIMT”). The BIA * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reasoned that a violation of section 43.60 is categorically a CIMT involving fraud and is also categorically a CIMT involving grave acts of baseness or depravity. Considering only the grounds on which the BIA relied in holding that section 43.60 constitutes a CIMT,1 see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011); 8 U.S.C. § 1252(a)(2)(D), we grant Sabnat’s timely petition for review and remand for any further proceedings. 1. The BIA erred in concluding that Guam theft of property held in trust is categorically a CIMT involving fraud. Section 43.60 penalizes a broader range of conduct than the federal generic CIMT involving fraudulent conduct because it does not require a misrepresentation or falsehood, and because it does not require implicit fraudulent intent. See Tijani v. Holder, 628 F.3d 1071, 1075-76 (9th Cir. 2010); Blanco v. Mukasey, 518 F.3d 714, 719 (9th Cir. 2008). The BIA’s reasoning otherwise, which is not persuasive enough to be entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), depends on inferring that whenever a person obtains section 43.60 property pursuant to an obligation or agreement and subsequently deals with that property as her own and fails to make the required disposition, a misrepresentation takes place. But such a violation of 1 Because, as the Government argues, the BIA did not address whether section 43.60 constitutes a theft CIMT, and because our review is limited to the grounds the BIA relied on, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011), we do not consider in the first instance whether section 43.60 constitutes a CIMT. 2 trust does not necessarily require a false statement, and is not necessarily fraudulent. See State v. Johnson, 880 P.2d 132, 134-36 (Ariz. 1994).2 The drafting history of the Model Penal Code section on which section 43.60 was modeled, see 9 Guam Code Ann. § 43.60 cmt. (citing Model Penal Code § 223.8), and the caselaw that informed that drafting, make clear that there is a ...
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