Lead Opinion
Oрinion by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge CALLAHAN.
ORDER
The Opinion filed March 11, 2010 is withdrawn. A new Opinion is filed herewith.
With the new Opinion, the government’s petition for panel rehearing is DENIED. Judge Callahan would grant the government’s petition for rehearing.
The panel votes to deny Tijani’s petition for panel rehearing. Judge Callahan votes to deny the petition for rehearing en banc and Judge Noonan so recommends. Judge Tashima recommends granting the petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote whether to rehear the matter en banc. Fed. R.App. P. 35.
Tijani’s petition for rehearing is DENIED and his petition for rehearing en banc is DENIED.
No further petitions for rehearing and for rehearing en banc will be entertained.
OPINION
Monsuru Olasumbo Tijani, a native and citizen of Nigeria, petitions for a review of a decision of the Board of Immigration Appeals (the BIA), affirming a decision by
Credit comes into existence through confidence — confidence that one human being may rely on the representations of another human being. On this utterly unmechanical, uniquely human understanding, a credit economy is formed and wealth is created. To exploit, pervert and destroy the confidence that creates credit is a vicious act. The abuse of the distinctively human capacities to reason and to engage in rational speech, using these capacities to harm another human, may well be considered an act of moral turpitude.
That, at least, is the conclusion most people in this country wnuld reach once they knew the facts. Credit is today the most widespread means of acquiring wealth in this country. To suppose that it is not fraud to try to tap into this wealth by lies is to ignore the economic elements of the modern world. Credit card fraud not fraud? No, in the modern United States it is the paradigm of fraud.
FACTS
Tijani was born in Lagos, Nigeria on October 19, 1965. He entered the United States in 1982 on a student visa. He adjusted his status to lawful permanent resident in 1985. He was a student at California State University at Sacramento from 1982 tо 1985 and has held several jobs in information technology and in biomedical laboratories. He is now married to a citizen of the United States.
In 1986, the year after he achieved the status of lawful permanent resident, Tijani was convicted of perjury in violation of CahPenal Code § 118 and of grand theft in violation of CahPenal Code § 487; he was sentenced to three years probation. The next year, 1987, he was convicted of passing fraudulent checks in violation of CahPenal Code § 476a(a) and sentenced to one and one third years imprisonment.
As a result of these felony convictions, the Immigration and Naturalization Services (now the Department of Homeland Security (DHS)) placed Tijani in deportation proceedings. He applied for a waiver of inadmissibility, submitting a letter on the letterhead of the Brotherhood of the Cross and Star, with its world headquarters indicated as Calabas, Nigeria, and its local headquarters indicated as Los Angeles. The letter was signed by “Pastor O.J. Omogi” and stated that Tijani had been a practicing member of this Christian church for two years. In 1989, an immigration judge granted the waiver.
Two years later, in 1991, Tijani was convicted of violating CahPenal Code § 532a(l) by providing false information to obtain credit cards and using the cards to obtain goods; he was sentenced to prison for one and one-third years. One month later, on January 3, 1992, he was again convicted of filing false statements and had his prison sentence doubled.
On June 9, 1999; Tijani was convicted of twelve counts under the same section of the criminal law which he had been found in 1991 and 1992 to have violated; the crimes this time had been committed between June 1996 and July 1998. This time he was sentenced to prison for nine years and ordered to pay $27,793.71 in restitution.
PROCEEDINGS
In 2003, Tijani was charged with being removable as an alien convicted of an ag
Prior to his removal hearing before the immigration judge in El Centro, California, Tijani filed a pro se motion for change of venue of the removal proceeding to San Francisco. The immigration judge denied his request.
The immigration judge found the charges against Tijani true, rendering him removable. He found that the 1991 and 1999 convictions were crimes of moral turpitude and that the 1999 conviction was an aggravated felony. The immigration judge further found Tijani’s credit card frauds to be particularly serious crimes, hurtful to the credit structure on which the economy of the United States exists. The immigration judge ruled that considering the multiple lies to which his convictions witnessed and also the conflict between his story of his change of religion and the account given in Pastor Omogi’s letter, the immigration judge had “reason not to believe him.” The immigration judge did explicitly refuse to rule that Tijani was not credible, reasoning that he could “not find an inconsistency in [Tijani’s] testimony ... to say that he [was] not credible.” At the same time, the immigration judge found “his words deserve no weight,” and described him as the Boy Who Cried Wolf. The judge concluded that Tijani had failed to prove eligibility for asylum, withholding of removal, or relief under the Convention Against Torture (“CAT”).
The BIA, using its streamlined procedure, affirmed the immigration judge’s decision without opinion. Tijani petitions for review.
JURISDICTION
We have jurisdiction to review the questions of law presented by Tijani’s petition. Fernandez-Ruiz v. Gonzales,
ANALYSIS
On this appeal, we must decide, first, whether the crimes of Tijani, a lawful permanent resident, made him removable.
The Crimes. Tijani’s string of crimes consisted in credit card fraud in violation of CaLPenal Code § 532a(l) — a modern form of swindle particularly tempting because of the ease and the impersonality with which the crime may be carried out. Do they constitute removable offenses? The government argues that the BIA correctly affirmed the IJ’s decision holding that Tijani’s 1991 and 1999 convictions are crimes involving moral turpitude. It also argues that the 1999 conviction is an aggravated felony.
To determine whether a conviction constitutes a removable offense, this court applies the approach set out in Taylor v. United States,
Section 532a(l) provides:
Any person who shall knowingly make or cause to be made, either directly or indirectly or through any agency whatsoever, any false statement in writing, with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself, or any other person, firm or corporation, in whom he is interested, or for whom he is acting, for the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the execution of a contract of guaranty or suretyship, the discount of an account receivable, or the making, acceptance, discount, sale or indorsement of a bill of exchange, or promissory note, for the benefit of either himself or of such person, firm or corporation shall be guilty of a public offense.
Tijani has argued that his convictions do not constitute crimes involving moral turpitude. His argument appears foreclosed by the frauds of which he stands convicted. The law is that “to be inherently fraudulent, a crime must involve knowingly false representation to gain something of value.” Navarro-Lopez v. Gonzales,
When this standard is applied, any conviction under the California statute involves fraud; that is, the crime is committed by making a false statement with the intent that it be relied upon to obtain “the delivery of personal property, the payment of cash, the making of a loan or credit. ..CaLPenal Code § 532a(l). Fraud is implicit in the nature of a crime under section 532a(l). The statute of conviction does not explicitly list intent to defraud as an element. But we have held that “[ejven if intent to defraud is not explicit in the
Our dissenting colleague makes this argument as to the elements of the California crime:
As the BIA recognized in In re Kinney: “The intent that the false statement be relied upon is not necessarily an intent to do evil or work fraud becausе ... one who intends that there be reliance upon his false statement may nevertheless also intend to pay for the goods he is attempting to obtain.” 10 I. & N. Dec. at 549 (citations omitted).
The same benevolent interpretation could be extended to a borrower misrepresenting his credit-worthiness to a bank to get a loan: “I’ll get rich and pay it all back, the bank will benefit by my chicanery.” No court would accept such a defense. The intent of the fraudster is evil: to get what he has no right to get. The California Court of Appeal has rejected this same defense in analyzing California’s law of false pretenses, which does explicitly require an intent to defraud:
[T]he fraudulent intent contemplated by the statute is the intent by the use of false representations to induce another to part with his property when otherwise he would not have done so ... therefore, when the property is obtained under such circumstances, neither the promise to repay, the intention at the time to make the aggrieved party whole, nor repayment, will relieve the false and fraudulent act in obtaining the property of its criminality.
People v. Hand,
Even if we were to accept the dissent’s argument, it would be inapplicable in Tijani’s case under the modified categorical approach. The mistaken argument is that Tijani’s conviction did not necessarily require аn intent to defraud. The information filed in Tijani’s 1999 case shows that he was charged specifically with making false statements to procure “the extension of credit,” not goods or cash. Two assumptions are concealed in dissent’s argument where it is applied to a credit-seeker: (1) that the lying credit-seeker has not obtained something of value when he gets credit and (2) that the lying credit-seeker harbors no evil intent to deprive the creditor of anything. Each assumption is fallacious.
Creditors, like investors, transact in risk. An investor who, as a result of a person’s misrepresentations, receives a riskier asset than he bargained for, has suffered measurable and foreseeable economic harm, and is the victim of fraud. Similarly, the creditor who is induced through misrepresentations to give credit suffers measurable and foreseeable harm the moment the creditor enters into the transaction with the fraudster.
The harm is inflicted regardless of whether the customer intends to make timely payments or whether or not he eventually makes them. The creditor’s contract with the customer has more than one parameter. Creditors extend a particular line of credit, including a specific credit limit, a specific interest rate, and particular provisions for late fees and penalties, based on the cаlculated credit-worthiness of a specific customer. A credit-seeker who misrepresents his credit-worthiness
The current economic crisis highlights the full impact of the misrepresentation of risk in the credit market. The impact is on creditors, consumers, and on the economy. When creditors take on too many risky contracts, whether due to their own carelessness or the misrepresentations of their customers, they are likely to suffer enormous economic harm, and the resulting effects on society can be devastating. Any assessment of the pecuniary harm suffered by the creditor of a fraudster will be incomplete if it is divorced from these economic realities.
In a word, to induce a creditor into a risky contract through misrepresentation, on terms to which the creditor would not have agreed if he had not been duped, is to commit fraud on the creditor. Precisely this type of conduct is prоhibited under § 532a(l). Tijani’s conduct was “inherently fraudulent.”
Further fraud is committed when the fraudster uses his fraudulently-obtained credit card to obtain goods. The seller of the goods is now the victim. The seller parts with property in return for a representation of credit to which the fraudster has no right. The harm is tangible and immediate.
The argument might be advanced that fraudulently using the card to obtain goods is not fraud on the merchant because he will be paid by the issuer of the card. But at the moment the merchant delivers the goods, he has parted with property on the basis of a lie: that is the fraud. That the merchant will be reimbursed is no more relevant than is insurance to the victim of a theft; the reimbursement does not mean that the victim was not deprived of his property. What is secured by the fraudster is the property he purchases. To argue that it is not fraud to obtain property by falsehood if one harbors the intent to pay for it at some future time is to suppose that any prosecution for fraud could be defeated by the swindler saying “I intended to pay all along and will now do so.” We held in a federal case involving fraud: “While an honest, good-faith belief in the truth of the misrepresentations may negate intent to defraud, a good-faith belief that the victim will be repaid and will sustain no loss is no defense at all.” United States v. Benny,
When argument suggests that an intent to repay is a defense to a charge of fraud, it confuses a practical possibility with a legal defense. Of course if the fraudster does in fact pay his bills, he is probably not going to be prosecuted. Who would turn him in? His upright intent to repay does not absolve him of the lie by which he obtained what was not his. It is contended that the creditor could benefit from the fraud when the honest fraudster paid up. But no sane giver of credit would want to be lied to and be persuaded to make credit available or to deliver his goods on the basis of the lie. Any benefit that came from the fraudster turning honest would be a matter of chance.
It is argued that our reading of § 532a(l) makes another section of the same statute, 532(a), redundant. This section criminalizes the act of one who “knowingly or designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal ... and
Tijani cites People v. Hagedorn,
Berry v. Am. Express Publ’g, Inc.,
Tijani calls our attention to Hirsch v. INS,
Marmolejo-Campos. Finally, we disagree with Judge Tashima’s assertion that our recent decision in Marmolejo-Campos v. Holder,
The first step is that “the elements of the petitioner’s offense be established.” To establish the elements is to construe the statute of conviction. As we said:
The first inquiry requires the BIA to construe a state criminal statute. As the BIA has no statutory expertise in such state law matters, we review de novo its determination of the elements of the offense for which the petitioner was convicted. [2] The second inquiry requires the BIA to construe the INA by defining a particular removable of*1079 fense and applying that definition to a petitioner’s state convictiоn. If, in resolving the second issue, the BIA has interpreted an ambiguous INA statutory term, and rendered its interpretation in a precedential decision intended to carry the force of law, we defer under Chevron U.S.A [], to the BIA’s definition so long as it is reasonable.
See Fregozo v. Holder,
As the Marmolejo-Campos court explained:
It is well established that we give no deference to the BIA’s answer to the first question. The BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes and, thus, has no special administrative competence to interpret the petitioner’s statute of conviction. As a consequence, we review the BIA’s finding regarding the specific act for which the petitioner was convicted de novo.
Marmolejo-Campos v. Holder,
Deference is not due the agency in construing state law. We determine that an element of the California statute is fraud. Once that is determined, the conclusion is clear: “Crimes involving fraud are considered to be crimes involving moral turpitude.” Matter of Correa-Garces, 20 I. & N. Dec. 451, 453 (BIA 1992).
The erroneous exposition of the elements of the crime in Kinney is not binding upon us. Kinney contains the proposition that credit card fraud is not fraud because the fraudster might harbor the intent to repay the credit he fraudulently acquires. That proposition, as our preceding analysis has demonstrated, is contrary to the law. Moral turpitude attaches to the fraud. “Without exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude.” Jordan v. De George,
The dissent [page 1081-82] observes that the majority’s analysis is “contained in three sentences” and that the analysis is not “a reasoned analysis; it is patently ipse dixit.” These comments appear to be made without acknowledgment of the analysis in the majority opinion pages 1074-78 showing why Tijani was convicted of crimes of fraud. The dissent does not note that the first step specified in MarmolejoCampos is for us to establish the elements of the offense. Our interpretation of Marmolejo is no canard, i.e. “a false or fabricated report.” Our interpretation simply repeats what the en banc court said.
Intent to repay is not recognized as a defense by any California case we have been able to find or by California Model Jury Instructions for crimes charged under Penal Code § 532a. They read:
To prove that the defendant is guilty of this crime, the People must prove that: ... The defendant (made the statement/[or] caused the statement to be made) to obtain the (delivery of personal property!,]/[or] payment of cash[,]/[or] making of a loan[,]/[or] extension of credit!,Mor] execution of a contract of guaranty or suretyship!,]/[or] discount of an account receivable!,]/[or] making, acceptance, discount, sale, or endorsement of a bill of exchange or promissory note) for ((his/her) benefit/the benefit of the (other person/corporation)).
Judicial Council of Cal. Crim. Jury Instructions No. 2020 (emphasis added).
Nowhere is there an instruction stating that an intent to repay is a defense.
Relief. Tijani has a fallback: he seeks asylum, withholding of deportation, or CAT relief. There are reasons, set out
The Real ID Act of 2005 has remedied part of the problem created by our precedent. It permits an immigration judge to ask for corroboration of otherwise credible testimony. 8 U.S.C. § 1158(b)(l)(B)(ii). The proceedings in this case began before the effective date of the new law and are therefore not governed by it. Sandoval-Lua v. Gonzales,
Scope of Remand
Accordingly, we must remand to the agency to address the question of whether Tijani is entitled to relief. But Tijani has not preserved all of his claims. Fairly read, we have no doubt that the IJ’s decision denied Tijani asylum as a matter of discretion. Tijani failed to argue before the BIA or in his oрening brief before this court that the exercise of discretion was error. We lack jurisdiction to review legal claims not presented in an alien’s administrative proceedings before the BIA. Barron v. Ashcroft,
We remand to the BIA for consideration of Tijani’s other claims for withholding of deportation and CAT relief.
AFFIRMED in part, REVERSED in part, and REMANDED. Each party shall bear its own costs.
Notes
. Tijani argues that the BIA violated his due process rights by (1) denying his motion to transfer venue and (2) using the streamlined procedure to affirm the immigration judge’s decision. Neither claim has merit. This court has held that streamlining does not violate an alien’s due process rights. Falcon Carriche v. Ashcroft,
. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 9, opened for signature Dec. 10, 1984, 231465 U.N.T.S. 85.
Concurrence Opinion
concurring in part and dissenting in part:
Because the majority employs an unauthorized noncategorical mode of analysis in concluding that the petitioner was convicted of a crime involving moral turpitude (“CIMT”), I respectfully dissent from the mаjority opinion, except for the section entitled Relief, commencing at Maj. op. 1079-80.
In open defiance of our recent en banc holding in Marmolejo-Campos v. Holder,
Granting the BIA’s decision the deference that it is owed, and requiring the BIA in a one-member, “streamlined” disposition to follow its own binding precedent, I
The pivotal issue in this case is whether a violation of CaLPenal Code § 532a(l) is a CIMT. We recently held, en banc, that the BIA’s precedential decision determining that a crime is or is not a CIMT is entitled to Chevron
The crime at issue here, entitled “False financial statements,” provides in relevant part:
Any person who shall knowingly make or cause to be made, either directly or indirectly or through any agency whatsoever, any false statement in writing, with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself ... fer the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the execution of a contract of guaranty or suretyship, the discount of an account receivable, or the making, acceptance, discount, sale or indorsement of a bill of exchange, or promissory note, for the benefit of [ ] himself ... shall be guilty of a public offense.
Cal.Penal Code § 532a(l).
But in its perplexing interpretation of Chevron deference, the majority collapses the CIMT determination into the Taylor analysis of the elements of the offense. The majority’s entire “analysis” is contained in three sentenсes:
Deference is not due the agency in construing state law. We determine that an element of the California statute*1082 is fraud. Once that is determined the conclusion is clear: “Crimes involving fraud are considered to be crimes involving moral turpitude.” See Matter of Correa-Garces, 20 I. & N. Dec. 451, 453 (BIA 1992). ¶ The erroneous exposition of the elements of the crime in Kinney is not binding upon us.
Maj. op. at 1079. But this interpretation of the statute is not a reasoned analysis; it is patently ipse dixit. Moreover, it is the majority’s “exposition of the elements of the crime” that is erroneous. It is also inconsistent with a Taylor categorical inquiry because fraudulent intent is not an element of the crime. Under California’s standard jury instructions, the only intent required for a conviction under § 532a(l) is that the defendant “intended that the statement be relied on.” CALCRIM 2020, 2 Judicial Council of Cal., Criminal Jury Instructions (2009).
As the BIA recognized in In re Kinney: “The intent that the false statement be relied upon is not necessarily an intent to do evil or work fraud because ... one who intends that there be reliance upon his false statement may nevertheless also intend to pay for the goods he is attempting to obtain.” 10 I. & N. Dec. at 549 (citations omitted). The majority labels this as a “benevolent interpretation” and asserts that “[n]o court would accept such a defense.” Maj. op. at 1076. But it is exactly the “defense” that is accepted by the California courts in California’s standard jury instructions; moreover, it is also exactly how the BIA, pursuant to its discretion recognized by Marmolejo-Campos, interprets the statute.
Rather than making the categorical inquiry mandated by Taylor, the majority constructs an elaborate apologia of Wall Street and the banking industry and engages in speculation on the causes of the “current economic crisis.” Maj. op. at 1077. These ruminations, however, have nothing to do with the question at hand and do not move us forward in the task with which we are charged: To examine the statute and to determine whether that statute, as construed by the California courts, is categorically a CIMT.
The majority’s subjective, non-eategorical approach to interpreting the statute begins with its characterization of the crime as “a modern form of swindle,” Maj.
The intent to which moral turpitude adheres, is the intent to do evil or work fraud' — this intent is absent in section 8698. The intent that the false statement be relied upon is not necessarily an intent to do evil or work fraud because as the special inquiry officer has pointed out, one who intends that there be reliance upon his false statement may nevertheless also intend to pay for the goods he is attempting to obtain. The fact that a person convicted under section 8698, intended to commit fraud, does not make a conviction under the section one involving moral turpitude. It is the moral obliquity of the crime and not of the individual that is the test under the law.
In re Kinney, 10 I. & N. Dec. at 549.
The majority also insists on labeling а violation of § 532a(l) as “credit card fraud,” e.g., Maj. op. at 1073, 1074, 1074-75, which is not an accurate categorical description of the elements of this 97-year-old statute, which was enacted decades before the credit card was invented. Whatever else the majority’s fixation on “credit card fraud” as “a modern form of swindle” may be, it decidedly is not the categorical examination of § 532a(l) mandated by Taylor.
“The essence of moral turpitude is an evil or malicious intent.” In re Phong Nguyen Tran, 21 I. & N. Dec. 291, 293 (BIA 1996). Fraud is a crime of moral turpitude because evil intent is inherent in an intent to defraud. Goldeshtein v. INS,
Additionally, People v. Hagedorn,
Thus, reading § 532a(l) as not categorically including an intent to defraud is consistent with California law,
The majority characterizes MarmolejoCampos as “inapposite to this petition,” Maj. op. at 1078, but it reaches that conclusion, as explained earlier, only by relying on its offhand, single-sentence “determination” that “an element of the California statute is fraud.” Maj. op. at 1079.
Under our case law, like any other court or agency, the BIA, too, must follow the law. The BIA’s own regulations provide:
Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board, and decisions of the Attorney General, shall be binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States.
8 C.F.R. § 1003.1(g).
As we explained in Hernandez v. Ashcroft,
The decision at issue here was an IJ’s decision which was adopted by one member of the BIA. As the majority concedes, Maj. op. at 1074, this was a “streamlined” decision, ie., a decision by one member in which the BIA agrees with the result but does not endorse the reasoning. See 8 C.F.R. § 1003.1(e)(4); Falcon Carriche v. Ashcroft,
Tijani was not convicted of a CIMT. Contrary to the majority’s ipse dixit, intent to defraud is not an explicit or implicit requirement of § 532a(l). Moreover, the BIA has reasonably determined in a precedential decision that this crime is not morally turpitudinous and, under MarmolejoCampos, we owe deference to the BIA’s determination.
Because Tijani has not committed a removable offense, I would hold that he is not removable and grant the petition.
‡ ‡ ‡ *
Alternatively, I concur in that portion of the majority opinion holding that the IJ erred in requiring corroborating evidence in the absence of an explicit adverse credibility finding. Maj. op. at 1079-80. I would add only that on remand, under the cases cited in the majority opinion, when evaluating Tijani’s claims for relief from removal, the IJ must сredit Tijani’s testimony as true. See Mansour v. Ashcroft,
. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
. The majority mislabels this offense as "credit card fraud,” which it is not. The California Penal Code entitles the section “False financial statements.” Thus, by mislabeling the offense, the majority prejudges the issue of whether it is a CIMT, because all fraud offenses are CIMTs. See Jordan v. De George,
. Although the majority asserts that In re Kinney contains an "erroneous exposition of the elements of the crime,” Maj. op. at 1079, it does not contest that the elements of the Connecticut statute at issue in In re Kinney are identical to the elements of Cal.Penal Code § 532a(l). The statute at issue in In re Kinney provided:
Any person who knowingly makes or causes to be made, either directly or indirectly or through any agency, any false statement in writing, with intent that it shall be relied upon, concerning the financial condition or means or ability to pay of himself ... for the purpose of procuring ... the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of credit ... shall be fined two thousand dollars or imprisoned not more than five years оr both.
In re Kinney, 10 I. & N. Dec. at 548-49 (quoting Conn. Gen.Stat. § 8698 (1949 Revision)). A comparison of the two statutes quickly reveals that they are, for all relevant purposes, identical.
. Note that, while the majority also relies on and quotes this same standard instruction, CALCRIM 2020, see Maj. op. at 1079-80, it carefully avoids mention of the mens rea element of the crime quoted above, which is not an intent to defraud.
. The majority complains that my characterization of its "determination” that "an element of the California statute is fraud” "is patently ipse dixit" does not "acknowledge[] the analysis in the majority opinion pages 1074-78 showing why Tijani was convicted of crimes of fraud.” Maj. op. at 1079. Obviously, however, those subjective ruminations, wholly divorced from the elements of § 532a(l) and unsupported by any citation to directly applicable California authority, are not an objective categorical analysis of the elements of the offense mandated by Taylor.
. The majority also makes a half-hearted attempt to invoke the modified categorical approach, Maj. op. at 1076-77, but this attempt is as deficient as its categorical-approach analysis in that it also completely ignores the mens rea element of the offense. Moreover, because intent to defraud is a "missing element,” it cannot be supplied by turning to the modified categorical approach. See Navarro-Lopez v. Gonzales,
. Moreover, the California Legislature has been explicit that when it intends fraud to be an element of аn offense it includes it in the statute. See, e.g., Cal.Penal Code § 470(d) (forgery includes "with intent to defraud” as an element); Cal.Penal Code § 476a(a) (check kiting) (same); Cal.Penal Code § 548(a) (insurance fraud) (same). As the court observed in Hagedom, "Obviously, if the Legislature meant for [the statute in question] to require an intent to defraud, it knew how to so provide.”
. Although the majority purports to address why Tijani cited Hagedom, noting that "the court held that intent to defraud was not necessary” for a conviction under Cal.Penal Code § 530.5(a), Maj. op. at 1078 (citing Hagedom,
. Judge Callahan, in her concurring and dissenting opinion, offers a further reason for distinguishing In re Kinney and MarmolejoCampos. She states that “Marmolejo-Campos, like all other cases following Chevron, recognizes that an agency may develop its positions through a 'process of case-by-case adjudication.'
Concurrence Opinion
concurring and dissenting:
Monsuru Olasumbo Tijani, a native and citizen of Nigeria, has been convicted on four separate occasions for crimes of dishonesty and financial fraud: in 1986 for perjury, in 1987 for passing fraudulent checks, in 1991 for providing false information to obtain credit cards in violation of California Penal Code § 532, and in 1999 on twelve counts of again violating § 532(a)(1) by providing false information to obtain credit cards and using the cards to obtain goods. The government, most reasonably, seeks to remove Tijani to Nigeria. I would affirm the decision by the Board of Immigration Appeals (“BIA”) to deny Tijani relief.
I agree with Judge Noonan that Tijani was convicted of a crime involving moral turpitude.
Because Judge Noonan and I agree that Tijani is removable, Tijani would only be entitled to relief if he made the requisite showings for asylum, withholding of removal, or protection against torture. However, Tijani’s eligibility for these forms of relief depends on his credibility. I read the record to show that the IJ held that Tijani was not credible and to contain substantial evidence supporting that determination. Moreover, the IJ properly held that Tijani had not carried his burden to show eligibility for asylum, withholding of removal, or protection against torture because he failed to proffer any evidence to support his incredible testimony.
A. The Immigration Judge’s Opinion
The best evidence that the IJ found that Tijani was not credible is the IJ’s decision. The IJ wrote:
The respondent was admitted into the United States in 1985. The court finds the situation with the respondent analogous tо that of the boy who cried wolf. In 1986 the respondent was convicted of perjury. Perjury is a crime under Section 118 of the California Penal Code, which is essentially a crime for lying. In 1986 when the respondent in essence cried wolf a Judge in a court found that he did in fact lie and he was convicted and sentenee[d] to 36 months probation. At the same time the respondent indicated his willingness to violate law and his lack of character by also being convicted of grand theft. As mentioned above, it is not clear whether the respondent has two perjury convictions or one perjury conviction, two grand theft convictions or one. It is respondent’s burden of proof.
In 1987 the respondent was convicted of insufficient funds under Section 476A. This is the seeond time the respondent cried wolf. Again, a Judge was called upon to determine whether the respondent’s statements were time or not. The respondent wrote a check representing that he had funds in an account necessary to cover the expenses. He knowingly did not have the funds and therefore he was sentenced to 16 months in prison. This is the second time a Judge has found the respondent has not told the truth.
In 1989 the respondent was in removal proceedings by the foreign Immigration Judge. The respondent submitted or had submitted on his behalf by his legal representative, who he was friendly еnough with to attend church together, a letter to the Judge. The letter to the Judge is from a pastor. The letter represents that the respondent is a Christian and that he provided numerous dedicated services. The letter represents that respondent attended the*1087 church for two years. The letter provided the respondent had become a member of that church. The respondent now testifies that this letter that was sent to the Judge on his behalf is a lie. The respondent represents how that letter was written and he does not recall having seen the letter.
In 1991 the respondent picked up a conviction for filing financial statements. In this case the respondent lied, used a fictitious name, fictitious social security number, fictitious business name and business address and falsely represented himself to be another person. In essence the respondent lied about his own identity. The respondent did so in such a manner that it was relied upon by Sears to extend benefits to him for which he was not entitled. This is the third time the respondent cried wolf. Again, a Judge was called upon and found that the respondent had in fact lied and the cry of wolf was not true. The Judge, as a result, sentenced the respondent to two years, 4 months in prison. 16 months for the lie and 1 year for the prior lies. Exhibit 3 reflects the respondent has another conviction, оn January 23, 1992 in Santa Barbara, California for false financial statements. This was found to be the basis to sustain a one year prison enhancement. This is another instance, and in fact the fourth in the United States, where the respondent cried wolf and a Judge was called upon and determined that the respondent had lied again and this time the respondent was given appropriate sanctions.
The respondent is now in front of me on 12 counts of again lying. The respondent was convicted in 1999 on 12 different counts of filing false financial statements. These lies occurred between 1996 and 1998. This is another 12 instances where the respondent cries wolf. And each time the Court and a ■ Judge is required to come in and in each of these 12 instances that were alleged, the Judge found that the respondent had lied and this time imposed 9 years in prison.
The respondent in front of me has testified in 1994 he was in college and that he decided to convert to Christianity. The respondent acknowledges that the Christian faith has as one of its [tenets, thou] shall not steal. The respondent based upon the record has committed numerous offenses of this section. The Court finds that this, at a minimum draws into question whether the respondent holds this faith. The Court also find[s] the fact that the respondent previously has been in front of an immigration judge and someone on behalf of the respondent has submitted a very detailed letter written directly to the Judge saying the respondent had been a Christian and part of the Christian sect of Brotherhood of the Cross and Star [in] 1999 [sic]. Accordingly take notice, Judge Peters granted the respondent relief on May 12, 1989. The case before Judge Peters began in 1987. The respondent, however, distances himself from this letter saying he does not recall it and that it is not true. If it is not respondent in this case who is not telling the truth, someone is submitting lies to the Judge on his behalf.
Now the respondent is coming before this Court. The respondent is requesting asylum in the United States. Although the respondent or someone in his behalf testified that he became a Christian in 1987 and submitted details regarding his practice and church attendance as well as his character during the two year period of [1987 to 1989] when he was allegedly a member of this Christian sect of Brotherhood of the Cross and Star. Respondent has testified to the contrary today that he did not be*1088 come a Christian until 1994 when he was in college.
The respondent is claiming that he would be persecuted and tortured upon return to Nigeria because of the fact that he [has] changed his religion. This time the respondent is not crying wolf. Instead on this occasion the respondent is crying an alligator is present. The respondent would like the United States and its Government to run and give him the necessary relief and bеlieve him. The Court, however, finds that after a conviction for perjury, after false statements have been submitted to an Immigration Judge regarding the respondent in the past, the fact that the record contains conflicting evidence as to when the respondent did become [a] Christian, even if [he] did and based upon this case that the Court has reason not to believe the respondent this time. The 9th Circuit Court of Appeals has held that it is not necessary to corroborate one[’s] testimony if it is specific, credible and direct. This Court, however, finds for the reasons set forth above that there are a number of deficiencies in the respondent’s testimony. The Court also finds that when the little boy comes 16 times and cries wolf and each time it is verified beyond a doubt that he is telling a lie, the 17th time that he cries [that] he is afraid of an alligator, that it is reasonable for the trier [of] fact, in this case myself, not to [believe] him. This Court is not going to specifically find for the record that the respondent is not credible because the Court cannot point to a single inconsistency in the record other than the fact that the respondent claims that in 1994 he was a Christian, although it appears that it has been represented to an Immigration Judge before, that occurred in 1987. But the Court finds based upon the respondent’s past lengthy detаiled record of lying in this country, which has occurred on [a] continuous and regular basis that the words of this respondent simply deserve no weight. This Court is not, after 16 occasions of crying wolf, going to believe the respondent at this time when he claims a different harm that necessitating asylum without requiring some type of corroboration. In essence what the Court is saying then is while it cannot find an inconsistency in the respondent’s testimony at this time to say that he is not credible, it finds that the weight of his words is not sufficient to carry his burden of proving eligibility for asylum. If the boy comes and claims alligator, this Court cannot say that after 16 prior lies that there is any way to deem the statement there is an alligator to be inconsistent. The Court, however, finds that the weight of those words, there is an alligator after 16 occasions of finding beyond a doubt that there is [a] lie sufficient to say to the boy well if there is an alligator this time, you need to prove it to me and demonstrate that your words are true. The Court simply finds that the respondent has not done so and has failed to meet his burden of proof.
B. The IJ adequately explained his determination that Tijani was not credible
Even though the IJ’s perspective is certainly reasonable, if not compelling, my colleagues read the IJ’s decision as insufficiently explicit to be a credibility determination. As authority they cite the statement in Mansour v. Ashcroft,
First, there is nothing implicit about the IJ’s determination. He finds that because Tijani has been found by judges to have lied on 16 prior occasions, he is not credi
Admittedly, our opinions have not been a model of сlarity or consistency. In Jibril v. Gonzales,
Under our case law, testimony that is “implausible in light of the background evidence,” Chebchoub v. INS,257 F.3d 1038 , 1043 (9th Cir.2001) (emphasis added), can support an adverse credibility finding. For example, a finding made by an IJ that a petitioner’s testimony is implausible given the evidence in a Country Report or other objective evidence in the record is accorded deference. However, when an IJ finds a petitioner’s testimony implausible based solely on “conjecture and speculation” that the testimony, though uncontroverted by any evidence that the IJ can point to in the record, is inherently unbelievable, then that “finding” should not automatically be accorded deference. See Vera-Villegas v. INS,330 F.3d 1222 , 1231 (9th Cir.2003) (“The IJ’s view was based on mere speculation and conjecture, and ... conjecture is not a substitute for substantial evidence.”) (quotation marks omitted).
Although “speculation and conjecture” alone cannot sustain an adverse credibility finding, an IJ must be allowed to*1090 exercise common sense in rejecting a petitioner’s testimony even if the IJ cannot point to specific, contrary evidence in the record to refute it. Without such latitude, IJs would be bound to credit even the most outlandish testimony as long as it was internally consistent and not contradicted by independent evidence in the record. Unfortunately, a survey of our precedent reveals no consistent line that has been drawn between an IJ’s legitimate application of common sense, on the one hand, and an IJ’s reliance on “speculation or conjecture” in determining that a fact alleged by a petitioner is implausible on the other.
It appears that a critical line regarding deference to an IJ’s determination that an applicant is not credible is whether the determination is based on “speculation or conjecture” or on compelling background evidence. In Mansour, we declined to defer to the IJ’s ambiguous adverse credibility determination because it was based on concerns as to inconsistencies in the evidence and questions as to whether the petitioner had provided false information.
In the case at bar, the IJ was not concerned so much with inconsistencies in Tijani’s actual testimony or mistakes in his application but with the facts that: (1) on numerous prior occasions, Tijani had been judicially determined to have lied and had been criminally convicted for his lies; and (2) Tijani testified that he had not converted to Christianity until 1994 althоugh in 1989, a prior IJ had granted Tijani adjustment of status based on his representation that he had converted to Christianity in 1987. This irrefutable “background” information suggests that no fact-finder should be compelled to accept Tijani’s unsupported testimony as true.
C. The IJ properly denied Tijani relief because he failed to proffer any corroborative evidence
I do not read our precedent as prohibiting the IJ in this case, where substantial evidence undermined the petitioner’s credibility, from requiring that Tijani provide supporting evidence of his claim of religious persecution. Our rule is that “the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application.” Kataria,
“Because asylum cases are inherently difficult to prove, an applicant may establish his case through his own testimony alone.” ... That is, Chebchoub’s testimony, if credible, may be sufficient to sustain his burden of proof without corroboration.... However, 8 C.F.R. § 208.13 plainly indicates that if the trier of fact either does not believe the applicant or does not know what to believe, the applicant’s failure to corroborate his testimony can be fatal to his asylum application. Thus, the regulations unambiguously contemplate cases where an applicant’s testimony alone will not satisfy his burden of proof.
Finally, I note that our rulings that an IJ must make an explicit adverse credibility determination and that credible evidence may be sufficient to support an asylum claim are based on sound concerns that are not applicable here. The IJ’s determination that Tijani is not credible was not based on speculation or conjecture,
This case tests the extremes to which our precedent can be stretched. My colleagues appear to reason that because the
D. Conclusion
Tijani has been convicted of four crimes since he came to the United States. After the first two, he prevailed upon an IJ to grant him a waiver of deportation because he had converted to Christianity and feared persecution if he returned to Nigeria. Tijani continued to commit frauds and after two more convictions, the government again sought his removal to Nigeria. Tijani now claims, based only on his unsupported testimony, that he became a Christian in 1994, and that when he visited his mother in Nigeria in 1995 and told her he had converted to Christianity, he was attacked and injured by “a group of Sharia police officers and regular civil police officers.” I agree with the IJ that Tijani’s record of lying to the courts in this country coupled with his revision of when he allegedly became a Christian is sufficient to strip his testimony of any credibility. Accordingly, the IJ properly required Tijani to provide some corroboration of his testimony, and properly denied him relief when he failed to do so. The petition for review should be denied.
. I also agree that neither of Tijani’s due process claims have any merit.
. Even if In re Kinney were not distinguishable as set forth in Judge Noonan's opinion, there are two features of Marmolejo-Campos that render it inapposite to the case at bar. First, the issue is what deference this court should give to an agency decision, not what deference an agency is required to give to its own precedent. See United States v. Mead,
. This case presents a similar situation to that to which then Judge, now Chief Judge, Kozinski dissented in Kumar v. Gonzales,
The larger problem with the majority’s opinion is its know-it-all approach, an error oft repeated when our circuit reviews immigration cases in which an IJ has made an adverse credibility determination. First, the majority lays out the applicant's story as if it were the gospel truth, making it seem like denial of rehearing will cause a huge miscarriage of justice. Then the majority picks apart the IJ’s findings piece by piece, scrutinizing his every sentence as if it is completely unconnected to the rest of his opinion. Don’t agree with the IJ that the applicant is lying? Not to worry; just label the IJ's finding "speculation and conjecture." ... Finding it difficult to dispute that the applicant is lying? No problem; just label the inconsistencies "minor,” or "merely incidental to [the] asylum claim." ... The net effect is that any asylum applicant who is a skillful enough liar — and many who aren’t — must be believed no matter how implausible or farfetched their story.... It also means that IJs, who are doubtless chary of being vilified by august court of appeals judges, become even more reluctant to make adverse credibility findings, even when they have good reason tо believe the asylum applicant is lying,
(footnote and internal citations omitted).
. The panel, however, ultimately found that even accepting Mansour’s testimony as true, lie had not demonstrated past persecution. Mansour,
. For example, in Shoafera v. INS,
As we explained in Canjura-Flores v. INS,784 F.2d 885 , 888-89 (9th Cir. 1985), without an adverse credibility finding we accept a petitioner’s testimony as credible because “[a]ny other rule would put us in the position of second-guessing the credibility of the petitioner on appeal when no doubts have been raised by the Immigration Judge or the Board.” Consequently, the IJ "must have 'a legitimate articulable basis to question the petitioner’s credibility,' ” and must express "a specific, cogent reason for any stated disbelief.” Garrovillas [v. INS], 156 F.3d [1010] at 1013 [(9th Cir. 1998)] (emphasis added)____ Indeed, any such reasons for doubting a petitioner's credibility must be "substantial and must bear a legitimate nexus to the finding.” Id. (citation omitted); Akinmade v. INS,196 F.3d 951 , 954 (9th Cir.1999); Turcios v. INS,821 F.2d 1396 , 1399 (9th Cir.1987). “Generalized statements that do not identify specific examples of evasiveness or contradiction in the petitioner's testimony” are insufficient. Garrovillas,156 F.3d at 1013 .
Here, the IJ had "a legitimate articulable basis for questioning” Tijani's credibility, the IJ explicitly stated his reasons, the reasons are substantial, and they bear a legitimate nexus to the IJ's fact-finding mission.
. For example, in Smolniakova v. Gonzales,
Here, however, the IJ only sought some corroboration of Tijani's claim that he was attacked and injured while visiting his mother in Nigeria because of his conversion to Christianity. The corroboration could have been in the form of a letter or affidavit from his mother or his brother, or hospital records, or even statements from acquaintances that Tijani had the injury when he returned to the United States. Tijani offered no evidence of his claim other than his word, but due to his past misrepresentations, his word is not entitled to any presumption of credibility.
. It should be remembered that in the fable, the last time the boy cried wolf there really was a wolf, but the people ignored the cry. Thus, if those who had heard the call had not discounted the ciy based on past events and had investigated the last cry, the boy might have been saved. The moral, however, is that society does not have any obligation to investigate the unsupported claim of a person who has repeatedly confirmed that he is a liar.