RODRIGUEZ-VALENCIA v. Holder, 652 F.3d 1157

OPINION

PER CURIAM:

Jose Rodriguez-Valencia, a native and citizen of Mexico, petitions for review of the Bоard of Immigration Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s order finding him removаble and denying his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252.

Rodriguez-Valencia challenges the BIA’s finding that his six convictions for “willfully manufacturing, intentionally sеlling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark,” in violation of California Penal Code § 350(a)(2), constitute an aggravated felony as an “offense relating to ... counterfeiting.” INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R). Rodriguez-Valencia maintains that the generic offense of counterfeiting refers only to the imitаtion of currency and that his conviction under California Penal Code § 350 did not require proof of his intent to defraud. We review de novo whether an offense is an aggravated felony. Martinez-Perez v. Gonzales, 417 F.3d 1022, 1025 (9th Cir.2005).

To determine whether a conviction qualifies as an aggravated ‍​‌‌​‌​​‌​​‌‌‌​​‌​‌​​‌​‌‌​​‌​‌‌​​​​​‌​​​​‌‌‌​​‌‌​‍felony, we apply the categorical apprоach articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Penuliar v. Mukasey, 528 F.3d 603, 608 (9th Cir.2008). Under this approach, we “look to the statute under which the persоn was convicted and compare its elements to the relevant definition of an aggravаted felony in 8 U.S.C. § 1101(a)(43).” Penuliar, 528 F.3d at 608. An offense is an aggravated felony “if and only if the full range of conduct covered by thefcriminal statute] falls within the meaning of that term.” Id.

I.

We turn first to the argument that the generic offense of counterfeiting refers only to the unlawful imitation of currency and other government obligations. INA sеction 101(a)(43)(R) defines an aggravated felony as “an offense relating to ... counterfeiting ... for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(R). While the common law may have limited the crimе of counterfeiting to “debasing or imparing the coin,” Fox v. State of Ohio, 46 U.S. 410, 428, 5 How. 410, 12 L.Ed. 213 (1847), by the time Congress enacted INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), 1 federal counterfeiting offenses had grown to encompass, inter alia, the unauthorized imitation of: state securities, 18 U.S.C. § 513; foreign securities, 18 U.S.C. § 478; court seals, 18 U.S.C. § 505; federal department and agency seals, 18 U.S.C. § 506; customs papers, 18 U.S.C. § 496; ship’s papers, 18 U.S.C. § 507; letters patent, 18 U.S.C. § 497; passports, 18 U.S.C. § 1543; postage stamps, 18 U.S.C. § 502; and Post Office keys, 18 U.S.C. § 1704. Indeed, over a decade before Congress ‍​‌‌​‌​​‌​​‌‌‌​​‌​‌​​‌​‌‌​​‌​‌‌​​​​​‌​​​​‌‌‌​​‌‌​‍enacted INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), it criminalized trafficking in counterfeit goods and services. See Trademark Counterfeiting Act of 1984, Pub.L. No. 98-473, § 1502, 98 Stat. 1837, 2178 (1984) (codified at 18 U.S.C. § 2320); see also United States v. Petrosian, 126 F.3d 1232, 1234 (9th Cir.1997) (finding that the Trademark Counterfeiting Act of 1984 was intended “[t]o helр stem ... an ‘epidemic’ of commercial counterfeiting ... [and to] provide[ ] for stiff criminal penalties for those who intentionally traffic in goods or services knowing them to be counterfeit.”) (еllipses in original) (internal quotations and citations omitted). Accordingly, when Congress added conviсtions relating to counterfeiting to the definition of aggravated felony, it was well understood and clearly established that the generic crime of counterfeiting extended far beyond the imitation of currency.

A plain reading of INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), further bolsters a broad construction of an “offense relating to ... counterfеiting.” When interpreting the INA, we “construe[ ] the ‘relating to’ language broadly.” Luu-Le v. I.N.S., 224 F.3d 911, 915 (9th Cir.2000). In Albillo-Figueroa v. I.N.S., 221 F.3d 1070, 1073 (9th Cir.2000), we held that the “relating to” language of INA “[s]ection 101(a)(43)(R) necessarily covers a range of activities beyond those оf counterfeiting or forgery itself.” Other circuits have similarly found that “Congress evidenced an intent to dеfine [counterfeiting] in [its] broadest possible sense” by employing the phrase “relating to.” See Magasouba v. Mukasey, 543 F.3d 13, 15 (1st Cir.2008) (quoting Park v. Attorney General of United States, 472 F.3d 66, 72 (3rd Cir.2006); Kamagate v. Ashcroft, 385 F.3d 144, 154 (2d Cir.2004)) (“The term [‘relating ‍​‌‌​‌​​‌​​‌‌‌​​‌​‌​​‌​‌‌​​‌​‌‌​​​​​‌​​​​‌‌‌​​‌‌​‍to’ in INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R),] ... suggests] Congress’s intent to reach more broadly than any single statute.”); see also Morales v. Trans World Airlines, 504 U.S. 374, 383-84, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (finding that the phrase “relating to” has “a broad scope ... and an expansive sweep.”) Indeed, both the First and the Third Circuits have held that convictions for counterfeiting trademarks categorically relate to counterfeiting under section 101(a)(48)(R) of the INA, 8 U.S.C. § 1101(a)(43)(R). See Magasouba, 543 F.3d at 15 (finding a Rhode Island statute that punishes “[a]ny person who knowingly and willfully sells, offer[s] to sell, or possesses with the intent to sell goods which contain a counterfeit trademаrk,” R.I.G.L. § 11 — 14—03(c)(1), qualifies as an offense relating to counterfeiting); see also Park, 472 F.3d at 71 (finding a conviction for trafficking in counterfeit goods or services, in violation of 18 U.S.C. § 2320, relates to counterfeiting). We similarly hold that the definition of aggravated felony extends to convictions for the unauthorized imitation of trademarks.

II.

We quickly dispose of Rodriguez-Valencia’s ‍​‌‌​‌​​‌​​‌‌‌​​‌​‌​​‌​‌‌​​‌​‌‌​​​​​‌​​​​‌‌‌​​‌‌​‍remaining argument that California Penal Code § 350 does not incorporate “an intent to defraud” as an essential element of the offense. Pet’r Br. at 7. While there may be somе counterfeiting crimes that do not require an intent to defraud, see e.g., United States v. Reich, 479 F.3d 179, 188-89 (2d Cir.2007) (“Congress deliberately chose tо require an intent to defraud for some forgery and counterfeiting crimes, but not for others.”) (Sotomаyor, J.), assuming arguendo that the generic offense of counterfeiting requires such an intent, California Penal Code § 350 “is an inherently fraudulent crime.” Tall v. Mukasey, 517 F.3d 1115, 1117 (9th Cir.2008). Indeed, “[a]ll of the conduct punished by [California Penal Code] § 350, ‘willfully manufacturing], intentionally selling], or knowingly possessing] for sale any counterfeit ... mark,’ ‘involve[s] knowingly false representations made in order to gain something оf value.’ ” Id. at 1119-20 (citation omitted) (third, fourth, fifth, and sixth alterations in original). Because “[t]he commission of ‍​‌‌​‌​​‌​​‌‌‌​​‌​‌​​‌​‌‌​​‌​‌‌​​​​​‌​​​​‌‌‌​​‌‌​‍thе crime necessarily defrauds the owner of the mark, or an innocent purchaser of the counterfeit items, or both,” id. at 1120, we “have difficultly distinguishing such intent from a general intent to defraud,” Winestock v. I.N.S., 576 F.2d 234, 235 (9th Cir.1978).

The petition for review is DENIED.

Notes

1

. Congress enacted INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), as part of the Anti-terrorism and Effective Death Penalty Act of 1996. Pub.L. No. 104-132, § 440, 110 Stat. 1214, 1278 (1996).

Case Details

Case Name: RODRIGUEZ-VALENCIA v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 21, 2011

Citations: 652 F.3d 1157; 99 U.S.P.Q. 2d (BNA) 1476; 2011 WL 2899605; 2011 U.S. App. LEXIS 14869; 09-72060

Docket Number: 09-72060

Court Abbreviation: 9th Cir.