Malcolm Alarmo Addy v. Jefferson Sessions
696 F. App'x 801
| 9th Cir. | 2017Background
- Petitioner Malcolm Alarmo Addy was convicted in 1999 under California Penal Code § 470 (forgery) and sentenced to 32 months’ imprisonment.
- An Immigration Judge found Addy removable, concluding the § 470 conviction constituted an aggravated felony under the Immigration and Nationality Act (INA) as an offense “relating to . . . forgery” with at least one year’s imprisonment.
- The Board of Immigration Appeals (BIA) dismissed Addy’s appeal, and he petitioned this court for review.
- Addy argued (1) his § 470 conviction is not categorically an aggravated felony and (2) alternatively sought remand so he could request a continuance to apply for adjustment of status based on his U.S. citizen son.
- The Ninth Circuit reviewed de novo whether the California forgery statute categorically fits the federal generic forgery definition and considered whether jurisdiction existed to review the failure to seek a remand for adjustment of status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. P.C. § 470 is categorically an aggravated felony "relating to forgery" under INA § 1101(a)(43)(R) | § 470 does not necessarily match the federal generic forgery offense | Federal definition and the INA’s "relating to" language encompass § 470 convictions | Court: § 470 is categorically an aggravated felony relating to forgery |
| Whether the elements of California forgery align with federal generic forgery elements | California statute may be broader or different | State and federal crimes both require false instrument and fraudulent intent; use of forged instrument also qualifies as related conduct | Court: Elements align; conviction fits generic forgery or related activity |
| Whether the sentence meets the "at least one year" imprisonment requirement | Sentence might be below the threshold | Actual imposed sentence (32 months) exceeds one year | Court: Sentence satisfies the one-year requirement; aggravated felony established |
| Whether the court can review or remand for adjustment of status based on son’s citizenship when not raised administratively | Requested remand to allow application for adjustment of status | Issue was not raised before IJ or BIA; exhaustion required | Court: Lack of jurisdiction to review or remand; claim dismissed for failure to exhaust administrative remedies |
Key Cases Cited
- Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir.) (standard of review for categorical analysis)
- Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir.) (use of categorical approach to state forgery statutes)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S.) (conviction must necessarily involve facts equating to generic offense)
- Shepard v. United States, 544 U.S. 13 (U.S.) (scope of record for categorical inquiry)
- Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir.) ("relating to" language broadens INA aggravated felony scope)
- Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir.) (elements of federal forgery and related activity)
- Alberto-Gonzalez v. INS, 215 F.3d 906 (9th Cir.) (use of actual sentence imposed to determine one-year threshold)
- Cortez-Felipe v. INS, 245 F.3d 1054 (9th Cir.) (prosecutorial discretion and nonreviewability)