26 I. & N. Dec. 895
BIA2016Background
- Respondent (Guatemalan national) entered U.S. without inspection and pled guilty in 1993 to perjury under Cal. Penal Code § 118(a); sentenced to 2 years.
- DHS initiated removal proceedings; respondent conceded removability and sought cancellation/suspension relief, which the IJ denied as respondent’s conviction was an aggravated felony under INA § 101(a)(43)(S).
- BIA affirmed in Matter of Martinez-Recinos, relying on 18 U.S.C. § 1621 as the federal generic definition of perjury.
- Ninth Circuit granted an unopposed remand to reconsider whether California § 118(a) is an aggravated felony under INA § 101(a)(43)(S).
- On remand, BIA surveyed state statutes, the Model Penal Code, common law, and § 1621 to define the contemporaneous (1996) generic meaning of “perjury.”
- BIA concluded California § 118(a) matches the generic definition (material false statement knowingly/willfully under oath/penalty of perjury) and therefore is an aggravated felony rendering respondent ineligible for relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal § 1621 alone defines the generic offense of “perjury” for INA § 101(a)(43)(S) | Martinez-Recinos/BIA earlier relied on § 1621 as the generic definition | Respondent argued distinctions between § 1621 and CA § 118(a) undermine categorical match | BIA: § 1621 alone is not required; define generic perjury by contemporary usage (survey of states, MPC, common law, and § 1621) |
| What are the elements of the generic offense of “perjury” as of 1996 | N/A (BIA formulated generic elements) | N/A | Generic perjury requires a material false statement made knowingly/willfully while under oath/affirmation or under penalty of perjury where oath is authorized or required by law |
| Whether Cal. Penal Code § 118(a) is a categorical match to the generic perjury definition | Respondent argued CA statute narrower/different in wording (e.g., “knows to be false”) | DHS/BIA argued CA § 118(a) contains the same essential elements as the generic definition | Held: § 118(a) is a categorical match; all conduct punishable under CA statute falls within generic perjury |
| Whether a conviction under CA § 118(a) constitutes an aggravated felony under INA § 101(a)(43)(S) | Respondent argued differences preclude aggravated-felony classification | DHS argued sentence >1 year and categorical match trigger aggravated-felony status | Held: Yes — conviction is an aggravated felony; respondent ineligible for relief and appeal dismissed |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (contemporary usage approach to generic offense definitions)
- Perrin v. United States, 444 U.S. 37 (look to ordinary meaning at time of enactment)
- United States v. Dunnigan, 507 U.S. 87 (willful intent element for perjury under § 1621)
- United States v. Garcia-Santana, 774 F.3d 528 (method for determining contemporary usage of a criminal term)
- Mathis v. United States, 136 S. Ct. 2243 (categorical-match principle — elements must be same as or narrower than generic offense)