Case Information
*3 WHALEY, District Judge:
Maria Jauregui-Cardenas petitions for review of a final order of removal, arguing the Board of Immigration Appeals (“BIA”) erred in holding that she is an inadmissible alien who is not eligible for discretionary relief. The BIA concluded Jauregui-Cardenas is ineligible for cancellation of *4 removal because her conviction for using false documents to conceal citizenship, in violation of California Penal Code (“CPC”) § 114, categorically qualifies as an aggravated felony and alternatively, a crime involving moral turpitude (“CIMT”). Because the BIA erred in concluding that a conviction under CPC § 114 qualifies as an aggravated felony and a CIMT, we grant Jauregui-Cardenas’ petition and remand for further consideration. [1]
FACTUAL AND PROCEDURAL BACKGROUND Jauregui-Cardenas, a native of Mexico, has been living in the United States since 1992. In July 2013, Jauregui- Cardenas was convicted of using a false document to conceal citizenship, in violation of CPC § 114, and was sentenced to five years’ imprisonment. Shortly thereafter, the Department of Homeland Security issued Jauregui-Cardenas a Notice to Appear and initiated removal proceedings against her. Jauregui-Cardenas sought relief from removal in the form of an application for cancellation of removal, pursuant to 8 U.S.C. § 1229b(b).
An immigration judge (“IJ”) concluded that Jauregui- Cardenas was statutorily ineligible for cancellation of removal because her state conviction was categorically an aggravated felony pursuant to the Immigration and Nationality Act (“INA”), § 1101(a)(43)(P). The IJ issued a written decision denying Jauregui-Cardenas’ request for relief and ordering that she be removed from the United States.
On appeal, the BIA affirmed the IJ’s determination that Jauregui-Cardenas’ conviction under CPC § 114 constitutes a categorical aggravated felony. The BIA further concluded, sua sponte , that the statute of conviction also qualifies as a [1] Because we hold that Jauregui-Cardenas’ conviction under CPC § 114 is not an aggravated felony or a CIMT that would bar her from cancellation of removal, we need not and do not reach the continuance issue in this matter.
6 J AUREGUI -C ARDENAS V . B ARR categorical CIMT because it requires the use of a false document. Jauregui-Cardenas was declared ineligible for cancellation of removal and her appeal was dismissed. She now timely petitions for review.
Whether a conviction under CPC § 114 constitutes an aggravated felony or a CIMT for immigration purposes are novel issues before this court.
STANDARD OF REVIEW
This Court has jurisdiction to review final orders of
removal.
See Galindo-Romero v. Holder
,
LEGAL STANDARD
Pursuant to the INA, certain noncitizens who are
convicted of a predicate state offense are removable.
8 U.S.C. § 1227(a). In determining whether a conviction
constitutes a disqualifying offense, such as an aggravated
felony or a CIMT, courts apply the multi-step categorical
approach set forth in
Taylor v. United States
,
The second step involves comparing the elements of the
statute of conviction to the generic federal definition to
determine whether the statute of conviction is broader than
the federal definition.
See Ceron v. Holder
,
If the statute is overbroad, the third step requires determining whether the statute is divisible, thus warranting application of the modified categorical approach. See Descamps v. United States , 570 U.S. 254, 263–65 (2013). Under Descamps , a divisible statute is one that “sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile.” Id . at 257. When a statute is indivisible, the inquiry ends and the overbroad statute cannot be used as a predicate offense. Id . at 265.
I
At issue on review is whether a conviction for a violation of CPC § 114 constitutes a predicate offense rendering Jauregui-Cardenas ineligible for discretionary relief from removal. Thus, our inquiry centers around the statutory language of CPC § 114, which provides as follows:
Any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a felony, and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for five years or by a fine of twenty-five thousand dollars ($25,000).
In determining whether the California statute categorically qualifies as an aggravated felony, we employ the steps of the categorical approach. See supra at pp. 7–8. Based on the above, the necessary elements for conviction *7 under CPC § 114 are: (1) the use; (2) of a false document; (3) to conceal citizenship or alien status; (4) with specific intent. Having identified the elements of the statute of conviction, we then compare these elements with the relevant federal definition of an aggravated felony. [2] 18 U.S.C. § 1546(a) provides: [2] INA Section 1101provides, in relevant part: (43) The term “aggravated felony” means— Whoever . . . utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained [shall be punished according to law].
In contrast to the elements in the state statute, which allow for the use of any false document, the federal offense narrowly proscribes only the use of the specific documents enumerated in § 1546(a). Thus, the California statute cannot be a match to the federal offense because it includes documents, such as fake drivers’ licenses, that are not enumerated in the description of the federal crime. See United States v. Wei Lin , 738 F.3d 1082, 1084 (9th Cir. 2013) (the fraudulent use of a driver’s license did not establish a violation of 18 U.S.C. § 1546(a) because it is not the type of document enumerated in the statute); People v. Galvan , 2008 WL 4666423, at *1 (Cal. Ct. App. 2008) (defendant pleaded no contest to a CPC § 114 charge after (P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months.
10 J AUREGUI -C ARDENAS V . B ARR admitting to obtaining “a fake DMV identification card in order to work”). The California statute is overbroad.
Further, the California statute is not divisible, as there are no subsections or separate elements expressed in the statute that could be independently proven. As such, application of the modified categorical approach would be improper. The inquiry ends with the state statute of conviction being broader than its federal counterpart and thus, not a match. Accordingly, we hold that CPC § 114 does not constitute an aggravated felony for purposes of eligibility for cancellation of removal.
II
In the alternative, the BIA concluded that a state conviction under CPC § 114 constitutes a CIMT. We disagree. [3] In reaching our conclusion we again employ the categorical approach. See supra at pp. 7–8.
Having already determined the necessary elements for
the statute of conviction, we begin by comparing these
elements with the federal definition of a CIMT. Although the
INA instructs that certain noncitizens who are convicted of
a CIMT may not receive cancellation of removal pursuant to
8 U.S.C. § 1229b(b)(1)(C), the INA does not provide a
definition for the term “crime involving moral turpitude.” In
the absence of a statutory definition, this court has defined a
CIMT as an offense involving “either fraud or base, vile, and
depraved conduct that shocks the public conscience.”
Nunez
,
594 F.3d at 1131 (brackets and internal quotation marks
[3]
In addition to arguing that CPC § 114 is not a CIMT under the
categorical approach, Jauregui-Cardenas asserts that she was denied her
due process right to be heard because that issue was never argued before
the BIA or IJ. As we hold that CPC § 114 does not constitute a CIMT,
we do not reach Jauregui-Cardenas’ due process argument.
*9
omitted). As relevant here, a state conviction qualifies as a
fraudulent CIMT when the intent to defraud is explicit in the
statutory definition of the crime or implicit in the nature of
the crime.
Blanco v. Mukasey
,
Looking first to the state statute, the text of CPC § 114 provides that a violation of the statute occurs when a person has specific intent to use any false document to conceal his or her citizenship for any reason. Intent to defraud is therefore not explicit in the statutory definition of the crime. Turning to whether the crime is inherently fraudulent, this court has held 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.” Blanco , 518 F.3d at 719. However, where the purpose of deception is to obtain an intangible government benefit, there is no CIMT. Id . Further, “[w]hen the only ‘benefit’ the individual obtains is to impede the enforcement of the law, the crime does not involve moral turpitude.” See Latu v. Mukasey , 547 F.3d 1070, 1074 (9th Cir. 2008) (citation omitted) .
CPC § 114 does not require that there be any specific benefit to any specific person—it permits conviction simply for the use of a document to show another that the holder is a legal resident, even where that representation does not incur any benefit to the defendant. Thus, on its face, the California statute is overbroad. On that basis alone, it fails to qualify as a match with its federal counterpart and our inquiry is over. [4] As such, we hold that because CPC § 114 [4] As previously noted, CPC § 114 is not divisible and thus, the modified categorical approach is not applicable. See supra at p. 10. does not require fraudulent intent, it is not categorically a crime involving moral turpitude.
CONCLUSION
A conviction under CPC § 114 it is not an aggravated felony or a crime involving moral turpitude under the INA. Thus, the BIA erred in holding that Jauregui-Cardenas’ state conviction precludes her from consideration for cancellation of removal.
Accordingly, the petition for review is GRANTED , the BIA’s decision is REVERSED , and the matter is REMANDED to the agency for further proceedings *10 consistent with this opinion.
BERZON, Circuit Judge, concurring:
I concur in the majority opinion in full. I write separately
to reiterate my view that the phrase “crime involving moral
turpitude” is unconstitutionally vague.
See Barbosa v. Barr
,
926 F.3d 1053, 1060–61 (9th Cir. 2019) (Berzon, J.,
concurring). The majority opinion provides yet another
example of our “failed enterprise” to consistently determine
whether a crime involves moral turpitude when there is no
“coherent criteria” as to what that phrase encompasses.
Islas-Veloz v. Whitaker
, 914 F.3d 1249, 1258–61 (9th Cir.
2019) (Fletcher, J., concurring). As “persistent efforts” have
failed “to establish a standard” of what a “crime involving
moral turpitude” is, it is time to revisit whether this phrase is
unconstitutionally vague.
See Johnson v. United States
, —
U.S. —,