823 F.3d 508
9th Cir.2016Background
- Petitioners Linares-Gonzalez (Guatemala) and Maribel Preciado (Mexico) were convicted under California Penal Code § 530.5 (identity theft) in 2008 (Linares: §530.5(d)(2); Preciado: §530.5(a)) during removal proceedings and sought cancellation of removal/NACARA relief.
- Immigration Judges denied cancellation; the BIA affirmed, finding the §530.5 convictions were categorical crimes involving moral turpitude (CIMTs), which rendered petitioners ineligible (and affected continuous-presence and good‑moral‑character assessments).
- Linares admitted obtaining and transferring several customers’ credit card numbers; received jail time and probation. Preciado pled guilty, received suspended jail time and probation; later had her conviction reduced to a misdemeanor by state court.
- The BIA concluded §530.5(a) and (d)(2) involve fraud or otherwise are categorically vile/base/depraved such that there was no realistic probability the statutes would apply to non‑turpitudinous conduct.
- The Ninth Circuit reviewed whether the California identity‑theft subsections are categorical CIMTs under the Taylor categorical approach and Gonzales v. Duenas‑Alvarez realistic‑probability test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CPC §§ 530.5(a) and (d)(2) are categorical crimes involving moral turpitude | Petitioners: statute can be applied to non‑turpitudinous conduct (e.g., posting obscene Facebook messages; no intent to harm or fraud) | Government: statute necessarily involves fraud or morally turpitudinous conduct because it criminalizes willful use/transfer of others’ identifying info for unlawful purposes | Held: Not categorical CIMTs — statute can cover non‑fraudulent, non‑vile conduct (BIA erred) |
| Whether §§ 530.5(a)/(d)(2) are categorical fraud offenses (fraud = moral turpitude) | Petitioners: California courts have held the statute does not require intent to defraud; can apply without tangible benefit | Government: the statute’s elements imply fraudulent intent and gaining a benefit | Held: Not categorical fraud crimes — California appellate decisions (e.g., Hagedorn, Rolando) show no required intent to defraud or benefit |
| Whether statute necessarily involves conduct that is "vile, base, or depraved" (non‑fraud CIMT) | Petitioners: statute reaches conduct (libel, annoying social‑media hijack) that lacks malicious intent or actual harm | Government: identity theft is an "indisputable evil" and typically involves morally turpitudinous conduct | Held: §530.5 may reach non‑turpitudinous uses (e.g., harassment, libel); therefore not categorically vile/base/depraved |
| Whether relief denial should be affirmed on other grounds (petty‑offense exception, divisibility, record of conviction) | Petitioners: petty‑offense exception or reduction to misdemeanor may apply; remand needed | Government: original conviction severity and CIMT finding preclude relief | Held: Court grants petitions solely because BIA erred on CIMT; declines to decide petty‑offense, divisibility, or whether record shows CIMT; remands for further proceedings |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (framework for categorical approach)
- Descamps v. United States, 133 S. Ct. 2276 (categorical/modified categorical approach clarification)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 ("realistic probability" test)
- Saavedra‑Figueroa v. Holder, 625 F.3d 621 (definition of CIMT in Ninth Circuit)
- Robles‑Urrea v. Holder, 678 F.3d 702 (CIMT inquiry—vile/base standard)
- Planes v. Holder, 652 F.3d 991 (fraud crimes treated as CIMTs)
- Blanco v. Mukasey, 518 F.3d 714 (false identification statute not categorical CIMT)
- Tijani v. Holder, 628 F.3d 1071 (fraud requires knowingly false representation to obtain value)