Mario Jorge BLANCO, Petitioner, v. Michael B. MUKASEY,* Attorney General, Respondent.
No. 06-71385.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 18, 2007. Filed March 3, 2008.
518 F.3d 714
* Michael B. Mukasey is substituted for his predecessor, Alberto R. Gonzales, as Attorney General of the United States, pursuant to
Anthony C. Payne (argued) and Alison R. Drucker, United States Department of Justice, Washington, D.C., for the respondent.
Before: HARRY PREGERSON, HAWKINS and RAYMOND C. FISHER, Circuit Judges.
Opinion by Judge FISHER; Concurrence by Judge PREGERSON.
FISHER, Circuit Judge:
Mario Jorge Blanco petitions for review of a final order of removal, arguing that the Board of Immigration Appeals (“BIA“) erred in holding that he is an inadmissible alien who is not eligible for any discretionary relief. The BIA found Blanco to be ineligible for adjustment of status because he made a false claim to citizenship when he was detained at the border, and ineligible for cancellation of removal because he had been convicted of crimes involving moral turpitude. Because the BIA‘s moral turpitude finding was flawed, we grant Blanco‘s petition as to cancellation of removal, but deny his petition in all other respects.
FACTS AND PRIOR PROCEEDINGS
Blanco is a native and citizen of Argentina who has been living in the United States since 1978. In 2001, Blanco trav-
The INS charged Blanco with being inadmissible under
The IJ denied Blanco‘s request for adjustment of status because under then-existing federal regulations, this relief was unavailable to arriving aliens. The IJ further held that Blanco was not eligible for consideration for cancellation of removal because he had been convicted of two crimes involving moral turpitude, as defined by
Blanco timely appealed to the BIA. The BIA declined to affirm the IJ‘s adjustment of status ruling in light of our intervening decision in Bona v. Gonzales, 425 F.3d 663 (9th Cir.2005), which held that regulations barring arriving aliens from applying for adjustment of status were invalid. It nevertheless denied Blanco‘s adjustment of status application, holding that his false claim of United States citizenship at the border barred such relief. See
ANALYSIS
We have jurisdiction to review the petition under
I.
Blanco argues that the BIA erred in holding that he was not eligible for cancellation of removal because his misdemeanor conviction for false identification to a peace officer under
In determining whether a conviction qualifies as a crime involving moral turpitude, we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 599-602 (1990).3 See Cuevas-Gaspar, 430 F.3d at 1017. Under the categorical approach, a crime involves moral turpitude if the generic elements of the crime show that it involves conduct that “(1) is base, vile, or depraved and (2) violates accepted moral standards.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068 (9th Cir.2007) (en banc). The Supreme Court has held that crimes that involve fraud categorically fall into the definition of crimes involving moral turpitude. See Jordan v. De George, 341 U.S. 223, 227 (1951) (“Without exception . . . a crime in which fraud is an ingredient involves moral turpitude.“); see also Cerezo v. Mukasey, 512 F.3d 1163, 1166–67 (9th Cir.2008); Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005).
Whether Blanco was convicted of a crime of fraud depends on the statutory definition of the crime. In 1986, Blanco pled guilty to violating
Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer . . . upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.
The California courts have explained that a violation of
A crime involves fraudulent conduct, and thus is a crime involving moral turpitude, if intent to defraud is either “explicit in the statutory definition” of the crime or “implicit in the nature” of the crime. Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir.1993) (internal quotation marks omitted). Intent to defraud is not explicitly required by
Our cases hold that intent to defraud is implicit in the nature of the crime when the individual makes false statements in order to procure something of value, either monetary or non-monetary. See id. (holding that fraud is not inherent where crime “does not involve the use of false statements . . . nor does the defendant obtain anything” of value); see also Navarro-Lopez, 503 F.3d at 1076 (Reinhardt, J., concurring); cf. Notash v. Gonzales, 427 F.3d 693, 698 (9th Cir.2005) (holding fraud not inherent where statute “did not require an intent to deprive the United States of revenue“). Fraud therefore does not equate with mere dishonesty, because fraud requires an attempt to induce another to act to his or her detriment. See Black‘s Law Dictionary 685 (8th ed.2004). One can act dishonestly without seeking to induce reliance. Our cases have therefore recognized fraudulent intent only when the individual employs false statements to obtain something tangible. See, e.g., McNaughton v. INS, 612 F.2d 457, 459 (9th Cir.1980) (securities); Winestock v. INS, 576 F.2d 234, 235 (9th Cir.1978) (securities); Bisaillon v. Hogan, 257 F.2d 435, 437 (9th Cir.1958) (a passport); see also Zaitona v. INS, 9 F.3d 432, 437 (6th Cir.1993) (a driver‘s license); United States ex rel. Popoff v. Reimer, 79 F.2d 513, 515 (2d Cir.1935) (naturalization papers); Matter of R, 5 I. & N. Dec. 29, 38 (BIA 1952) (military deferment).
When the only “benefit” the individual obtains is to impede the enforcement of the law, the crime does not involve moral turpitude. In Navarro-Lopez, we held that the crime of misprision of a felony does not involve moral turpitude, even though a conviction for misprision of a felony under California law requires “knowing interference with the enforce-
We hold that because the crime of false identification to a peace officer does not require fraudulent intent under California law, it is not categorically a crime involving moral turpitude under
II.
Blanco argues that the BIA erred in holding that he was an inadmissible alien who was not eligible to be considered for adjustment of status, based on its finding that Blanco made a false claim of United States citizenship when he was detained at the U.S.-Mexico border in 2001. In removal proceedings, the alien has the burden of establishing that he is “clearly and beyond doubt entitled to be admitted and is not inadmissible.” Pichardo v. INS, 216 F.3d 1198, 1200 (9th Cir.2000) (quoting
The INS charged Blanco with being an inadmissible alien in part because it alleged he had made a false assertion of U.S. citizenship when he was stopped by the Border Patrol when attempting to re-enter the United States. See
During removal proceedings, the government produced the sworn statement signed by Blanco. The statement showed that in response to the question, “Did you declare yourself to be a United States citizen,” Blanco answered, “Yes.” The gov-
Although Blanco‘s account of the misunderstanding between himself and the border guards—that he only said he “grew up” in Los Angeles, not that he was “born” there—is plausible, we hold that the IJ‘s decision was supported by substantial evidence. The record shows that Blanco had motivation to misrepresent himself as a citizen, because he had previously left the United States without any immigration documents, had been detained at reentry and warned not to travel again without proper documentation. Most importantly, however, Blanco‘s own signed statement contradicted his testimony during removal proceedings. Blanco argues here that his signed statement should not have been admitted into evidence because it was not “voluntary and knowing,” see Choy v. Barber, 279 F.2d 642, 646 (9th Cir.1960) (holding that “statements made by the alien and used to achieve his deportation must be voluntarily given“), but Blanco‘s only support for this due process argument is that he had to wait as long as 26 hours between his initial detention and his interview and that he was provided only bologna and cheese to eat. Although the deprivation of food and sleep can affect the voluntariness of a confession, see Reck v. Pate, 367 U.S. 433, 441-42 (1961), Blanco has not established that his “will was overborne,” see Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).6
III.
Blanco lastly argues that the BIA erred when it denied his request for a remand based on ineffective assistance of his prior counsel during his removal proceedings. We hold that Blanco has not shown that his counsel‘s performance violated due process and so we deny the petition as to this claim. See Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999).
Blanco asserts that his counsel was ineffective because she failed to move to reopen the record on the day of the IJ‘s oral decision, thereby preventing Blanco‘s witness and co-worker, Eric Jackson, from testifying in his behalf. Jackson, was traveling with Blanco when he attempted to re-enter the United States at the U.S.-Mexico border and presumably could have supported his testimony that he did not falsely claim U.S. citizenship. Blanco‘s counsel testified that she was not aware of Jackson‘s presence on the final day of the hearing until after the IJ finished his oral ruling. Blanco and Jackson admitted that Jackson showed up to testify only after the close of evidence, and after failing to show at two previous merits hearings, but insist-
Individuals in immigration proceedings do not have Sixth Amendment rights, so ineffective assistance of counsel claims are analyzed under the Fifth Amendment‘s due process clause. Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir. 2005). Ineffective assistance of counsel in a removal proceeding is a denial of due process if the proceeding “was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.2005) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). Blanco must also show that he was prejudiced by his counsel‘s ineffective performance. See id.; see also Grigoryan v. Mukasey, 515 F.3d 999, 1003–04 (9th Cir.2008) (per curiam).
We conclude that the BIA did not err, because Blanco has not shown that his counsel‘s performance denied him the “right to a full and fair hearing.” Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004). The record as a whole shows that Blanco‘s counsel diligently examined and cross-examined witnesses, argued points of law before the IJ and informed Blanco of his right to appeal. Further, counsel‘s performance, even if ineffective, was not “so inadequate that it may have affected the outcome of proceedings.” Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir. 2003) (internal quotation marks omitted). Given that the testimony and written records of several Border Patrol officers, as well as Blanco‘s own sworn statement, contradicted his testimony regarding the false claim of U.S. citizenship, the testimony of a co-worker as a supporting witness would not likely have led the IJ to reach a different outcome.
CONCLUSION
Because the BIA erred when it held that Blanco‘s conviction under
GRANTED IN PART, DENIED IN PART AND REMANDED.
Each party shall bear its own costs on appeal.
PREGERSON, Circuit Judge, specially concurring:
I concur with the holding that a violation of