*1 TIJANI, Pеtitioner, Olasumbo Monsuru Attorney JR.,* H. HOLDER
Eric General, Respondent.
No. 05-70195. Appeals, Court of United States Ninth Circuit. Nov. Argued 2007. 10, 2008. Submitted Feb. Dec. Filed * Holder, Jr., States, pre- pursuant H. for his General of the United to Fed. Eric substituted decessor, 43(c)(2). Attorney Mukasey, R.App. Michael B. P. *2 NOONAN,
Before: JOHN T. A. TASHIMA, WALLACE and CONSUELO CALLAHAN, Judges. M. Circuit NOONAN; Opinion Judge Partial Concurrence and Partial Dissent Judge TASHIMA; Partial Concurrence and by Judge Partial Dissent CALLAHAN. ORDER Opinion March filed 2010 is A withdrawn. new Opinion is filed here- with. Opinion,
With the new the government’s panel petition rehearing for is DENIED. Judge grant govern- Callahan would petition rehearing. ment’s for The panel deny Tijani’s petition votes to panel rehearing. Judge for Callahan votes deny petition for en rehearing banc Judge Noonan so recommends. Judge Tashima recommends granting the petition rehearing for en banc. The full court has been advised banc, petition rehearing for en and no judge of requested the court vote rehear whether the matter banc. en Fed. P. 35. R.App.
Tijani’s petition rehearing for is DE- petition NIED and his for rehearing en banc DENIED. petitions
No further for rehearing and rehearing for en banc will be entertained. OPINION
NOONAN, Judge: Circuit Wang, Francisco, CA, D. Cecillia San Tijani, Monsuru Olasumbo a native and petitioner. petitions citizen of Nigeria, for a review of Bosque, D.C.,
Ada E. Washington, Immigration a decision Board (the respondent. BIA), Appeals affirming a decision year In after achieved the ordering his removal judge immigration resident, Tijani permanent status of lawful to the asylum. him Central denying perjury in violation of was convicted of economy. in our of credit place ease is *3 § 118 and of theft in grand CahPenal Code to and sometimes unsophisticated To the 487; § violation of Code he was CahPenal credit a the nature of sophisticate, years three probation. sentenced to animal, veg- mineral or It is not mystery. 1987, year, pass- next he was convicted of It is a property. It is not real etable. checks of ing fraudulent in violation it is a money. It is not Yet chattel. 476a(a) § and sentenced to CahPenal Code it a vapor. The one who uses becomes years imprisonment. and one one third empowered debtor, a debtor but becomes it, grants wealth. The one who acquire to convictions, felony As a of these result creditor, wealth at risk. puts his own and Naturalization Ser- Immigration (now Department vices of Homeland through into comes existence con- Credit (DHS)) Security placed Tijani deporta- being human that one fidence—confidence proceedings. applied tion He for a waiver representations of rely on the another inadmissibility, on submitting of letter utterly unmechani- being. human On this of the letterhead Brotherhood cal, understanding, human cred- uniquely Star, with its headquar- Cross and world is creat- economy it is formed and wealth Calabas, Nigeria, ters indicatеd as and its destroy and exploit, pervert ed. To headquarters Ange- local indicated as Los is a that creates credit vicious confidence signed les. letter was “Pastor O.J. distinctively human act. The abuse Omogi” Tijani and stated that had been engage to in ra- capacities to reason and practicing of this church member Christian capacities to speech, using tional these 1989, years. immigration for two In human, may well be consid- harm another judge granted the waiver. moral turpitude. ered an act of years later, Tijani Two was least, That, at is the conclusion most violating convicted of Code CahPenal reach country in this wnuld once people 532a(l) by § to providing false information today the facts. Credit is they knew and using obtain credit cards the cards widespread acquiring most means goods; prison obtain he was sentenced country. suppose in this To wealth years. for one and one-third One month try into this tap is not fraud to wealth later, 3, 1992, January again on he was ignore is to the economic elements lies filing false and had convicted of statements modern card fraud world. Credit prison sentence doubled. No, not fraud? in the modern United fraud. paradigm States it is the 1999; Tijani On June was convicted twelve counts under same section FACTS he the criminal law which had been found violated; Nigeria in 1991 Tijani Lagos, was born in and 1992 to have crimes time had been October 1965. He entered United committed be- July and time in 1982 on a student visa. He tween June 1996 1998. This States adjusted prison years he was for nine permanent his status to lawful sentenced $27,793.71 pay in restitu- ordered in 1985. He was student at resident tion. University State at Sacramento California held from 1982 to 1985 and has several PROCEEDINGS
jobs
technology
in information
and in
being
now
In
Tijani
charged
laboratories. He is
mar-
was
with
biomedical
ag-
citizen
removable as an alien convicted of an
ried to a
of the United States.
felony
judge
gravated
immigration
and two crimes of moral
had “reason not to be-
turpitude
under
U.S.C.
immigration judge
lieve him.” The
did
1227(a)(2)(A)(ii)
(iii),
respectively.
explicitly
refuse to
rule
was
asylum, withholding
applied
He
of de-
credible, reasoning that he could “not find
portation, and other relief. He testified
inconsistency
[Tijani’s]
testimony ...
Muslim,
that,
up a
he
brought
had become
say
he
not credible.” At the
[was]
that,
returning
in 1994
a Christian
time,
same
the immigration judge found
village
to his mother’s
to her
weight,”
“his
deserve
words
no
and de-
change
consternation
revealed
Boy
scribed him as the
Who Cried Wolf.
*4
neighbors,
told
who
religion. She
told
judge
Tijani
The
concluded that
had failed
him a
police,
paid
Sharia
who
visit
her
prove eligibility
asylum, withholding
for
reproached
apostasy
him for his
house and
removal,
or relief
under
Convention
head,
He
from
was struck
Islam.
(“CAT”).2
Against Torture
The judge also
requiring
repair
blow
seventeen stitches to
Tijani
eligible
held that if
asylum,
was
for
a scar.
leaving
and
He was summoned to
asylum was denied as a matter of discre-
court,
explain
apostasy in
but
his
fled tion.
days
Nigeria three
after the incident.
BIA, using
proce-
The
its streamlined
hearing
to his
Prior
removal
before the
dure,
immigration judge’s
affirmed the
de-
Centro,
immigration judge in El
Califor-
opinion. Tijani
cision
petitions
without
for
nia, Tijani
pro
filed a
motion
change
se
for
review.
proceeding
of venue of
removal
to San
immigration judge
The
Francisco.
denied
JURISDICTION
request.1
his
jurisdiction
ques
We have
to review the
immigration judge
found the
presented
Tijani’s
tions of
petition.
law
true,
Tijani
charges against
rendering him
Gonzales,
v.
Fernandez-Ruiz
410 F.3d
He
removable.
found that the 1991 and
Cir.2005),
586-87
as adopted
1999 convictions were crimes of moral tur-
Gonzales,
Fernandez-Ruiz
v.
466 F.3d
pitude
1999 conviction was an
(9th Cir.2006)
(en banc).
1121, 1124
aggravated
felony.
immigration
questions
Among
Tijani
these
are whether
judge
Tijani’s
further found
credit card
has been convicted of crimes of moral tur
crimes,
particularly
frauds to be
serious
pitude
whether
was
required
hurtful to the credit structure on which the
testimony.
corroborate
own
economy of the United States exists. The
immigration judge
considering
ruled that
ANALYSIS
multiple
lies to which his convictions
decide, first,
appeal,
On
and also
we must
witnessed
the conflict between his
story
change
religion
Tijani,
of his
whether the crimes of
per-
and the
lawful
letter,
given
Omogi’s
resident,
account
in Pastor
the manent
him
made
removable.
Tijani argues
ings
"fundamentally
the BIA violated
so
his due
were
unfair” that he
(1)
process rights
denying
was,
effect,
his motion to
"prevented
reasonably
from
(2) using
transfer venue and
INS,
streamlined
representing his
Colmenar
case.” See
procedure
immigration
judge’s
affirm the
(9th Cir.2000).
210 F.3d
decision. Neither claim has merit. This
streamlining
court has held
does not vio
against
2. Convention
Torture
Other Cru-
process rights.
late
due
an alien’s
Falcon
el,
Degrading
Inhuman or
Treatment or Pun-
Ashcroft,
Carriche v.
ishment,
signature
opened
art.
Dec.
venue,
Cir.2003). As to the motion to transfer
1984, 231465 U.N.T.S. 85.
proceed-
has not established that the
whether,
script
plea proceedings.”
if
from the
Id. at
Second,
remov-
decide
must
(citation omitted).
for relief.
able,
claim
he has established
532a(l) provides:
Section
Tijani’s string of
The Crimes.
Any
knowingly
who
make
person
shall
fraud in
in credit card
consisted
crimes
made,
directly
or cause to be
either
or
532a(l)
Code
of CaLPenal
violation
—a
indirectly
through any agency
what-
particularly
swindle
form of
modern
soever, any
writing,
false statement
the ease and
im
because of
tempting
upon,
with intent that it shall be relied
crime
personality with which the
condition,
respecting
financial
they
out. Do
constitute removable
carried
himself,
ability
pay,
means or
government argues
offenses?
any
corporation,
firm or
person,
other
cоrrectly affirmed the IJ’s deci
the BIA
interested, or for
he is
whom he is
whom
holding
Tijani’s 1991 and 1999
sion
acting,
purpose
procuring
moral tur
involving
crimes
convictions are
whatsoever,
delivery
form
either the
It
that the 1999 con
pitude.
argues
also
*5
personal property,
payment
of
the
of
felony.
an aggravated
viction is
cash,
making
credit,
or
the
of a loan
the
credit,
of a
the
a
extension
execution of
To
whether a convic
determine
guaranty
suretyship,
contract of
or
the
offense, this
constitutes a removable
tion
receivable,
an
discount of
account
or the
in Tay
out
applies
approach
the
set
court
discount,
acceptance,
or in-
making,
sale
575,
States, 495
110
U.S.
lor v. United
exchange,
of
of
or
dorsement
bill
(1990);
2143,
L.Ed.2d 607
Gon
109
S.Ct.
note,
promissory
for the benefit of either
Duenas-Alvarez,
183,
549 U.S.
127
zales v.
such
firm
person,
corpo-
himself or of
(2007).
815,
Coun
statutory
Cal.App.
nevertheless
16 P.2d
(1932),
turpitude if
may
citing
moral
such intent
v.
People Wieger,
involve
(1893)
in the nature of the crime.”
implicit
Cal.
P. 826
and People
v.
Cаrty Ashcroft,
Bowman,
Cal.App. 781,
ing property, money, obtains falsehood argument, inapplicable Tija- it would be intentionally credit. The fraudster seeks categorical ni’s case under the modified of value means something and obtains approach. mistaken argument is that misrepresentation. v. Mu- See Tall Tijani’s necessarily did conviction re- (9th Cir.2008). kasey, 517 F.3d quire intent defraud. informa- dissenting colleague ar- Our makes this Tijani’s tion filed in 1999 case shows that gument as to the elements of the Califor- charged specifically he was with making nia crime: procure false statements to “the extension BIA recognized
As the In re Kin- credit,” goods or cash. Two as- ney: “The intent state- false sumptions are concealed in argu- dissent’s upon necessarily ment be relied applied ment where it is to a credit-seeker: intent to do evil work fraud because (1) that lying credit-seeker has not ... one who intends there be reli- something obtained when he gets value upon ance his false statement nev- (2) lying credit and credit-seeker pay ertheless also intend *6 harbors no intent deprive evil to the credi- goods is to attempting he obtain.” 10 I. of anything. assumption tor Each is falla- (citations omitted). & N. Dec. at 549 cious. interpretation same benevolent could Creditors, investors, like transact be to а borrower misrepresent- extended who, An a risk. investor result of a ing get his credit-worthiness to a bank to a person’s misrepresentations, receives a ri- back, get pay loan: “I’ll rich and it all the for, skier asset than he bargained has my bank benefit by chicanery.” will No suffered measurable and foreseeable eco- court a accept would such defense. The harm, nomic and is the victim of fraud. intent of the is evil: get fraudster to what Similarly, the creditor who is induced right he no get. has to The California through misrepresentations give to credit Appeal rejected Court of this same suffers measurable and harm foreseeable analyzing defense in law California’s of the moment the creditor into enters false pretenses, explicitly which does re- transaction with fraudster. quire an intent to defraud: regardless The harm is inflicted of contemplated intent
[T]he fraudulent whether the customer to intends make by by the statute is intent use of timely payments or whether or not he representations false to another induce eventually makes them. The creditor’s part property to with his other- when contract with the customer has more than wise he would not have ... done so parameter. partic- one a Creditors extend therefore, property when the is obtained credit, specific ular line of including a cred- circumstances, under such neither the limit, ratе, specific it partic- interest and promise repay, the intention at the provisions penalties, ular for late whole, make fees and aggrieved party time to nor on the repayment, will relieve the false based calculated credit-worthiness specific act in obtaining property fraudulent of a customer. A credit-seeker criminality. of its misrepresents who his credit-worthiness on the basis of a lie: that is the property with intent of receiv- precisely does so limit, interest a lower ing credit That the merchant will be reim higher fraud. more monthly payments, and rate, lower no more than is insur bursed is relevant penalty provisions late-fee favorable theft; of to the victim a the reim ance expense would—at the than he otherwise does not that the victim bursement mean creditor, in this situa- the creditor. deprived property. was not What tion, a riskier and less valuable receives property fraudster is the secured for, and bargained than investment To it purchases. argue that he foresee- measurable and therefore suffers falsehood if property by fraud to obtain de- harm. He has been able economic for it at pay one harbors intent frauded. time is suppose some future highlights economic crisis The current prosecution for fraud defeated could be misrepresentation impact full saying pay “I all the swindler intendеd impact risk in the credit market. now do in a along and will so.” We held consumers, creditors, econo- and on the involving federal case fraud: “While many my. creditors take on too When honest, truth of good-faith belief in the contracts, own whether due to their risky misrepresentations may negate intent misrepresentations carelessness defraud, good-faith that the victim belief customers, they likely are to suffer their repaid and will no will be sustain no loss is harm, the result- economic enormous Benny, all.” defense at United States v. devastating. ing society can be effects on (9th Cir.1986). 1410, 1417 harm pecuniary Any assessment argument suggests When intent creditor a fraudster will suffered fraud, repay charge is a defense to a these if it is divorced from incomplete practical confuses a with a possibility realities. economic Of if the fraudster legal defense. course word, to induce into In a a creditor pay bills, probably in fact through misrepresentation, risky contract *7 prosecuted. to be Who would going to which the creditor would terms repay upright turn him in? His intent to is to duped, if he had not been agreed have him he not absolve of the lie which Precisely on the commit fraud creditor. what was not It is contend- obtained his. is under type prohibited of conduct that the creditor could benefit from ed 532a(l). Tijani’s § “inherent- conduct was paid up. fraud when honest fraudster ly fraudulent.” giver of want to But no sane credit would fraud is committed when the Further persuaded to and to make credit be lied fraudulently-obtained fraudster uses goods or to deliver on the available goods. to obtain The seller of credit card Any of the lie. that came basis benefit now the victim. The seller goods is turning from the fraudster honest would repre- for a parts property with return of chance. be a matter of credit to which the fraudster sentation tangible The harm right. has no is argued reading It is that our immediate. 532a(l) makes of the § another section 532(a), statute, This sec- same redundant. argument advanced might be “know- tion criminalizes act of one who fraudulently using obtain the card to or fraudu- ingly designedly, any or false goods fraud on merchant be is not representation pretense, or defrauds lent paid cause he will be the issuer labor, person money, prop- or any other But at the the merchant card. moment real or ... goods, parted erty, personal delivers the with whether 1078
thereby fraudulently gets possession only of hibits false made in statements money property, or obtains the labor or expectation property that credit or will be ” another.... Cal.Penal service of Code given Tijani’s reliance them. false 532(a). specify § This statute does not that purpose. statements were made for Therefore, obtaining credit. fraud Marmolejo-Campos. Finally, we dis 532(a) § is not It otiose. criminalizes agree Judge with assertion that Tashima’s labor, money obtain property. fraud to our in Marmolejo-Campos recent decision 532a(l) at fraud in obtaining Section aims (9th Cir.2009) (en Holder, v. 558 903 credit. banc) requires we direct the BIA to Hagedorn, People cites v. 127 Cal. Kinney, adhere to its decision in In re 10 (Cal.Ct. App.4th Cal.Rptr.3d 25 879 (1964). I. & N. Dec. 548 Our decision Cal.Penal App.2005), applying Code Marmolejo-Campos to this inapposite 530.5(a) § which criminalizes the use of petition the contrary suggestion opens “for person’s identity another unlawful the door to considerable mischief. Mar obtain, including to purpose, attempt to molejo-Campos concerned the deference obtain, credit, services, goods, real proper give opinion this court should a BIA when ” ty, or medical information.... For con reviewing challenge BIA to a decision. statute, viction under the the court held an that, pursuant We clarified to Chevron necessary. intent to defraud was not Id. Council, U.S.A. Inc. Natural Res. Def. 742, Cal.Rptr.3d But 25 879. this case Inc., 467 U.S. S.Ct. merely identity shows theft is a crime (1984), L.Ed.2d 694 ... “where the board fraud. The involve statute morally determines that certain conduct identity “any criminalizes theft unlaw turpitudinous decision, in a precedential purpose.” ful apply Chevron deference.” 558 F.3d at Berry Inc., Express Publ’g, v. Am. concluded that We “once the ele Cal.App.4th Cal.Rptr.3d petitioner’s mеnts of the offense are estab (2007) worth question comment. The lished, our review of the BIA’s determina suit was this civil whether credit card tion that such offense constitutes a ‘crime by the Legal was covered Consumer Rem turpitude’ governed by moral (CLRA), edies Act Cal. Civil Code principles same traditional of administra seq. et The court held card fell tive apply deference we to the Board’s neither goods within the definition of nor interpretation of other ambiguous terms in services, types protect the two of property *8 the INA.” Id. CLRA. ed the The court further noted step The first is that “the elements of legislature dropped that “money” had petitioner’s offense be established.” from protect and “credit” what the CLRA To establish the to elements is construe Berry ed. does not show credit is the statute conviction. we California; rather, of As said: valueless the case establishes credit a distinct is kind of inquiry requires first valuable. BIA to construe a state criminal statute. As the has no statutory expertise BIA
Tijani calls our
to
attention
Hirsch v.
matters,
such
law
state
we review de
INS,
Cir.1962),
1081
any
purpose
procuring
fer
of
form
petitioner Monsuru Ola-
the
hold that
would
whatsoever,
delivery
per-
the
of
grant
either
Tijani is not removable
sumbo
cash,
payment
sonal
the
of
the
property,
for review.
petition
the
credit,
of a loan or
making
the extension
this
is whether
pivotal
issue in
case
credit,
a
the
of
execution of a contract of
532a(l)
§
Code
a violation of CaLPenal
guaranty
suretyship,
or
discount
the
of
banc,
held, en
recently
CIMT. We
receivable,
or
making,
account
the
precedential decision determin-
the BIA’s
discount, sale
acсeptance,
or indorse-
crime is or is not a CIMT is
ing that a
exchange,
of
promissory
ment of bill
or
Mar-
deference. See
entitled to Chevron1
note,
of [
for the benefit
himself ...
]
at
molejo-Campos,
910-11. We
558
guilty of a public
shall be
offense.
precedential
BIA’s
de-
there held that the
532a(l).2
§
In In re Kin-
Cal.Penal Code
an offense meets
termination of whether
(BIA 1964),
N.
ney, 10 I. &
Dec. 548
turpitude
moral
“is
INA’s definition of
precedential opinion, in
published,
constru-
action
type
agency
precisely
ing a
statute that is identical
Connecticut
is entitled to
Supreme Court
instructs
5S2a(l),3
§
procuring
the BIA held that
at
(citing
Id.
910
Chevron deference.”
415, 425,
way of a false statement
credit
U.S.
Aguirre-Aguirre,
INS
(1999)).
1439,
turpitudinous. That
be
morally
L.Ed.2d 590
should
S.Ct.
inquiry.
end
our
here,
at
entitled “False
The crime
issue
But in its perplexing interpretation of
statements,”
in relevant
provides
financial
deference,
collapses
majority
Chevron
part:
Taylor
determination
CIMT
into
knowingly make
Any
who shall
person
analysis of the elements of the offense.
made,
directly
either
or
or
to be
cause
majority’s
“analysis”
entire
is con-
what-
indirectly
through
agency
or
tained in three sentences:
soever,
writing,
any false statement
agency
is not due the
upon,
Deference
that it shall be relied
with intent
condition,
construing state law. We determine
the financial
or
respecting
ability
himself ...
that an element of the California statute
pay,
means оr
Kinney
statute at issue in In re
are
1. Chevron U.S.A. Inc.
v. Natural Res.
necticut
Def.
Inc.,
2778,
Council,
to the elements
Cal.Penal Code
U.S.
104 S.Ct.
identical
(1984).
532a(l).
§
at
In re
1083 of the elements of this 97- 1074-75, description that statute implying op. at statute, year-old which enacted dec card was to combat credit recently enacted was States,” was Maj. before the credit card invented. modern ades fraud “in the United fixation majority’s was else the on 1073, that the statute Whatever ignoring at op. 251, “a card fraud” as modern form of Stat. c. “credit in See 1913 Cal. enacted 1913. be, decidedly it is not the 437, stating swindle” § then 1. It concludes
p. 532a(l) §of man categorical examination of the ele- exposition erroneous “[t]he by Taylor.6 dated Kinney is crime in not bind- ments Maj. 1079. But the upon op. at ing us.” moral turpitude “The essence of is an Kinney. In re majority misreads simply Phоng intent.” In re evil or malicious crime accepts the as defined Kinney In re Tran, 291, 21 I. & Dec. 293 Nguyen N. that the What it concludes is by state law. (BIA 1996). is a crime of Fraud moral not statute does required intent turpitude because evil intent is inherent agreeing gov- with amount to fraud. After INS, intent to v. an defraud. Goldeshtein statute, like ernment counsel 645, (9th Cir.1993); compare 8 F.3d statute, “requires the false California INS, v. Hirsch 308 F.2d it made intent that be to be with Cir.1962) (“A statement not crime necessar- to upon,” goes the BIA observe: relied intent, such as intent ily involve evil turpitude moral ad- defraud, to which necessarily The intent is not a crime involv- heres, to do evil or work is the intent The evil intent ing turpitude.”). moral intent absent section simply fraud' —this intent to is inherent an defraud state- intent that false deprive 8698. The intent to another of missing where necessarily upon is ment be relied an element of the offense. property Thus, evil or work fraud because procuring intent to do the crime of credit inquiry pointed officer has special categorically as a false is not use of statement out, reli- fraudulent, that there be recognized one who intends BIA In re as the may nev- ance his false statement need upon Kinney, because an individual pay for the ertheless also intend making an evil intent to defraud have statute, to obtain. goods attempting he is statement in violation of false sec- person i.e., fact convicted under intent to is not an element of defraud fraud, to commit tion intended offense. make a conviction under does not Hagedorn, 127 Additionally, People v. involving turpitude. moral section one (2005), Cal.App.4th Cal.Rptr.3d of the crime and obliquity It is the moral courts’ reluctance evinces California individual that is the test
not of the into a statute an intent to defraud read under the law. it face. does not include on its I. Dec. at Kinney, In re 10 & N. identity question, there in theft statute statute, personal criminalizes use of labeling majority also insists 532a(l) belonging to anoth identifying card information as “credit violation of fraud,” 1073, 1074, purpose, including “for unlawful Maj. op. 1074- er at e.g., obtain, obtain, credit, goods, attempt categorical not an accurate which is "missing defraud ele- at- intent to majority also a half-hearted because 6. The makes ap- ment,” tempt categorical supplied by turning invoke modified it to the cannot 1076-77, attempt op. proach, Maj. but this categorical approach. See Navarro- modified categorical-approach as deficient its Gonzales, Lopez completely analysis ignores in that also Cir.2007) (en banc). Moreover, mens element of the offense. rea *13 services, real property, or medical infor- Except as Board decisions 530.5(a). § mation.” CaLPenal Code modified or by overruled the Board Attorney General, сourt held that the statute “clearly and decisions of the Board, and decisions unambiguously require Attorney does not an intent General, shall be binding all to defraud.” officers Hagedom, Cal.Rptr.3d 25 at and employees of Department clearly 885. un- Hagedom illustrates that Security Homeland immigration der analysis, the California courts’ mode of judges in the administration of the immi- requirement implied a fraud will not be gration laws of the United States. into a statute that does not contain a fraud § element on its face.7 C.F.R. 1003.1(g). explained As we in Hernandez v. Ash- 532a(l) Thus, § reading categori- as not 824, (9th croft, Cir.2003), 345 F.3d cally including an intent to defraud is con- BIA cannot simply ignore long- its own law,8 sistent with California as well with as precedent. established emphasized We interpretation the BIA’s reasonable regulations that “the themselves limit the which we must majority’s defer. The re- BIA’s operating discretion to within the grant fusal to Chevron In deference to re 1003.1). Thus, § law.” (discussing Id. we Kinney and it accept binding as flies held, nonprecedential “[a] decision face of our en recent banc decision BIA in precedential defiance of its own Marmolejo-Campos. Marmolejo- Under case simply law cannot be classified as Campos, authority no ignore have In discretionary.” short, In Id. the “BIA has Kinney, re as majority purports to do. no discretion to make a decision that majority Marmolejo- characterizes сontrary to law.” Id. Campos “inapposite petition,” as to this The decision at issue here was an IJ’s Maj. op. at but it reaches that adopted by decision which was one mem conclusion, explained earlier, only concedes, ber the BIA. the majority As offhand,
relying
its
single-sentence
Maj.
op. at
this was a “streamlined”
“determination” that “an element
decision, ie.,
a decision
one
member
California statute is
Maj. op.
fraud.”
at which
BIA agrees
with the result but
1079.
does not
the reasoning.
endorse
See 8
law,
Under our
case
like
1003.1(e)(4);
other court
§
C.F.R.
Falcon Carriche v.
BIA, too,
agency,
must
Ashcroft,
Cir.2003).
follow the
350 F.3d
law.
Thus,
The BIA’s own regulations provide:
rejection
majority’s
of the con-
Moreover,
7.
Legislature
532a(l),
concedes,
§
California
majority
as the
"does
explicit
been
that when it intends fraud to be
expressly require
Maj.
an intent to defraud.”
an element of an offense it includes it in the
op. at 1076.
See,
470(d)
e.g.,
statute.
§
Code
Cal.Penal
(forgery includes "with
intent
defraud” as
Although
majority purports
to address
element);
476a(a) (check
§
Cal.Penal Code
why Tijani
Hagedom, noting
cited
"the
(same);
kiting)
548(a) (in-
§
Cal.Penal Code
court held that
intent
to defraud was not
fraud) (same).
surance
As the court observed
necessary” for a conviction under Cal.Penal
Hagedom, "Obviously,
Legislature
if the
530.5(a), Maj.
§
op.
Code
(citing
at 1078
question]
meant
require
[the
statute in
885),
Hagedom,
Cal.Rptr.3d
it does nоt
defraud,
pro-
intent
knew how to so
respond my
citing
reason
case—that
Cal.Rptr.3d
vide.” 25
People
at 885.
v.
Hagedom's
analysis
Hand,
mode of
demonstrates
(1932),
Cal.App.
tent to defraud is Tijani, native and Monsuru Olasumbo 532a(l). Moreover, the §of requirement Nigeria, of has been convicted citizen a prece- in reasonably determined BIA has for crimes of dis- separate four occasions is mor- this crime not that dential decision honesty financial fraud: in 1986 for and and, Marmolejo- under ally turpitudinous passing fraudulent in 1987 for perjury, the BIA’s to Campos, we owe deference checks, providing in informa- 1991 for false determination. credit cards in violation of tion to obtain not a re- Tijani has committed Because § and in 1999 Penal Code California is offense, hold that he I would movable again violating counts of on twelve petition. the grant removable and not 532(a)(1) false by providing information ‡ ‡ ‡ [*] to obtain to obtain credit cards and goods. government, using the cards most Alternatively, portion in that I concur Tijani reasonably, to remove seeks that the IJ opinion holding majority the the Nigeria. I would affirm decision (“BIA”) corroborating Appeals evidence requiring Immigration in Board erred the deny relief. explicit Tijani adverse credi the of an in absence I op. finding. Maj. at 1079-80. bility Tijani agree Judge I Noonan that with remand, under that would add involving of a crime moral was convicted opinion, when majority in cases cited slightly I also albeit for turpitude.1 agree, from Tijani’s claims for relief evaluating expressed by Judge reasons than different Tijani’s testi removal, IJ must credit Noonan, Marmolejo- in opinion that our Ashcroft, v. Holder, Mansour mony as true. See F.3d 903 Cir. Campos v. 558 (“In Cir.2004) banc) 2009) (en require that credibility in to its decision explicit an adverse direct BIA adhere absence of (1964).2 10 I. N. Dec. Kinney, re & that In [Petitioner’s] must assume finding, we circuit) (or Callahan, years any the 45 concurring BIA her and dis- case Judge 9. Kinney questions In was decided that since re opinion, reason for senting offers further And, course, one-member, Kinney. Marmolejo- Kinney distinguishing re and In adoption decision in IJ’s “Marmolejo-Cam- streamlined Campos. She states Chevron, case not entitled to Chevron deference. this following pos, cases like all other Gonzales, 449 v. See Miranda Alvarado may develop recognizes agency its an (9th Cir.2006). 'рrocess case-by-case positions through a process adjudication.' F.3d at This 908. Tijani’s agree that due 1. I also neither of period inherently for differences over a allows process have merit. claims agency forty-five years. The decision-mak- process by Congress ing" allows envisioned time, nothing distinguish- in Chevron or change Kinney were over Even In re if supports opinion, insist- Marmolejo-Campos Judge this court Noonan's able as set forth forty-five year Marmolejo-Campos ing old the BIA adhere are two features of there concur, op. inapposite at precedent.” and diss. to the case bar. Callahan that render First, assertion, problem deference this court 1086 n. 2. The with issue what decision, may general proposi- give agency not what although it be true should tion, give agency required to its Judge Callahan nor the deference that neither Mead, precedent. See United States any precedential own majority cites or identifies However, essentially I do not that because which is agree lying. a crime (“IJ”) Immigration Judge respondent In when the in essence Tijani explicitly have stated that was not wolf a Judge cried a court found that credible, Tijani presumed must to be he did fact lie he was convicted credible, not require IJ could to 36 probation. sentenee[d] months unsupported corroborate his respondent At thе time same indi- least, testimony. very my At col- willingness cated his to violate law and needlessly prolong Tijani’s leagues remov- his lack of being character also con- harm, greater proceedings. al howev- grand victed of theft. As mentioned er, in their reliance on technicalities to lies above, it is not clear whether the re- reality of the situation and to overcome spondent perjury two convictions our prece- and letter of purpose defeat conviction, *15 perjury grand one two theft dents. It is respondent’s convictions one. Judge agree Noonan and I that Because proof. burden of removable, Tijani would respondent In 1987 the was convicted requisite relief if he made the entitled to of insufficient funds under Section 476A. showings asylum, withholding for re- respondent This is the seeond time moval, protection against torture. Again, Judge cried wolf. a was called However, Tijani’s eligibility for these upon determine whether the respon- depends credibility. forms of relief on his dent’s statements were time or not. The I the record show that the read IJ held respondent wrote a representing check Tijani was that not credible and to contain that he had in funds an account neces- evidence that supporting substantial deter- sary to expenses. cover the He know- Moreover, properly the IJ held mination. ingly did not have the funds and therе- Tijani had that not carried his burden to he fore was sentenced to 16 in months asylum, eligibility withholding for show This prison. Judge is the second a time removal, protection against torture be- respondent has found the has not told proffer any he failed to cause evidence to the truth. incredible support testimony. his
In 1989
respondent
was in remov-
Immigration
The
Judge’s Opinion
A.
proceedings
al
foreign
Immigra-
Judge.
respondent
tion
The
submitted
The best evidence that the
that
IJ found
or had
submitted
his behalf
Tijani was not credible is the IJ’s decision.
legal representative,
who was friend-
IJ
The wrote:
ly enough with to attend church togeth-
respondent
The
was admitted into the
er, a letter to
Judge.
The letter to
in
United States
1985. The court finds
Judge
pastor.
a
from
The letter
respondent
the situation with the
analo-
represents
respondent
that
a
gous to
of the boy
that
who cried wolf.
provided
Christian and that he
In
numer-
respondent
1986 the
was convicted of
Perjury
perjury.
rep-
is a crime under
ous dedicated services. The letter
Sec-
Code,
tion 118
California Penal
respondent
resents
attended the
218, 229,
period
forty-five years.
533 U.S.
121 S.Ct.
agency
a
The
deci-
(2001). Second, Marmolejo-
L.Ed.2d sion-making process
by Congress
envisioned
Campos,
following
time,
like all the other cases
change
nothing
allows
over
Chevron, recognizes
agency may
that an
de-
Marmolejo-Campos supports
Chevron or
veloр
positions through
"process
a
its
of case-
insisting
forty-
court
adhere
a
the BIA
by-case adjudication.”
and cries wolf and each time it is veri- B. The adequately explained IJ his de- beyond fied a doubt telling that he is termination lie, Tijani that was the 17th time he that cries he [that] credible alligator, is afraid of an that it is reason- fact, able for the trier in [of] this case Even though perspective IJ’s cer- is myself, not to him. This Court [believe] reasonable, tainly if not compelling, my going specifically is not find for the colleagues read the IJ’s decision insuffi- respondent record that the is not credi- ciently explicit credibility to be a determi- ble because the point Court cannot to a authority they nation. As cite the state- single inconsistency in the record other in Ashcroft, ment Mansour v. 390 F.3d than respondent the fact that the claims 667, Cir.2004), 671 that the Ninth Christian, that in 1994he was a although Circuit permit “does not implicit adverse appears it that it represented has been credibility determinations.” Judge before, to an Immigration that First, nothing implicit there about the occurred in 1987. But the Court finds IJ’s determination. He finds that because upon respondent’s based past Tijani by judges lengthy lying detailed record of been found to have country, occasions, which has occurred on con- lied 16 prior [a] he is not credi-
1089
opinions
our
have not been
Admittedly,
upon
that “based
The IJ concluded
ble.
clarity
consistency. In Jibril
a model of
lengthy detailed rec-
past
respondent’s
Gonzales,
1129,
423 F.3d
1135
Cir.
country, which has
in this
lying
ord of
2005), we explained:
regular
and
basis
on a continuous
occurred
law, testimony
respondent simply
that
of this
Under our casе
that the words
“implausible
light
background
Perhaps if the IJ had
weight.”
deserve no
INS,
evidence,” Chebchoub v.
257 F.3d
more,
af-
he
have been
said no
would
(9th Cir.2001)
1038,
(emphasis add
IJ, however,
admitted that on
firmed.
ed),
credibility
support
can
an adverse
claim,
incredible
Tijani’s seventeenth
finding.
example,
For
a finding made
only
inconsistency he found was
specific
testimony
(on
petitioner’s
that a
IJ
Tijani’s
representation
which he
prior
relief)
implausible given the evidence in a
granted
was
that
had converted
objective
Country Report or other
evi
Christianity in 1987 or
rather than
dence in the record is
defer
accorded
This too should be
as he now claims.
However,
ence.
when an IJ finds a
deny
relief. See INS v.
enough
testimony
petitioner’s
implausible based
Elias-Zacarias,
1,n.
U.S.
solely
“conjecture
speculation”
and
(1992) (“To
re-
S.Ct.
117 L.Ed.2d
testimony,
that
though
uncontrovert
find
finding
BIA
we must
verse the
by any
point
that the IJ can
ed
evidence
conclu-
supports
evidence
record,
inherently
to in the
unbelieva
sion,
it.”)
(emphasis
origi-
compels
but
ble,
“finding”
auto
then
should not
nal).
however,
majority opinion,
matically be accorded deference. See
the IJ fails to
seems
hold
because
INS,
Vera-Villegas v.
Tija-
inconsistency
find more specific
(9th Cir.2003) (“The IJ’s view
was
religious persecution Nige-
ni’s
claim
conjec
speculation
based on mere
ria,
are
our
precedent
bound
ture,
conjecture
...
is not a substi
Tijani’s representations as true.
In
accept
evidence.”) (quota
tute for substantial
words,
applicant spins
other
if an
suffi-
omitted).
tion marks
no
ciently
yarn
clever
for which there is
evidence,
“speculation
conjecture”
contrary
Although
must be ac-
*18
direct
I
an
cepted
prece-
as
not read our
alone cannot sustain
adverse credibil-
true.3
do
compelling
ity finding, an IJ must be allowed to
dent as
this conclusion.
worry; just
applicant
lying?
Not
label
presents
case
a similar situation to that
to
This
Judge,
Judge,
conjec-
finding "speculation
to which then
now Chief
Kozin-
the IJ's
Gonzales,
ski dissented in Kumar v.
444 F.3d
Finding
dispute
ture."
...
it difficult to
J.,
(9th Cir.2006) (Kozinski,
1060-61
applicant
lying?
problem;
No
dissenting),
he wrote:
where
"minor,”
just
the inconsistencies
or
label
larger problem
majority’s
with
asylum
"merely
to
claim."
[the]
incidental
approach,
opinion is
know-it-all
an error
its
asylum appli-
any
... The net effect is that
repeated when
reviews immi-
oft
our circuit
enough
cant who is a skillful
liar—and
gration
an
cases which
IJ has made an
many
no mat-
who aren’t—must be believed
First,
credibility
adverse
determination.
implausible
ter
their sto-
how
farfetched
lays
applicant's story
majority
as
out
IJs,
ry....
It
means that
who are
also
truth,
gospel
making it
if it were the
seem
august
chary
being
doubtless
vilified
rehearing
huge
cause a
like denial of
will
appeals judges,
court of
become even more
justiсe.
majority
miscarriage of
Then the
credibility
to make adverse
find-
reluctant
apart
findings piece by piece,
picks
the IJ’s
ings,
they
good
even when
have
reason to
scrutinizing
every
his
sentence as if it is
lying,
asylum applicant is
believe the
rest
his
completely unconnected
omitted).
(footnote and internal citations
agree
opinion.
with the IJ that
Don’t
rejecting
prior
granted Tijani adjust-
common
IJ
exercise
sense
had
petitioner’s testimony even if the IJ can-
on
representation
ment
status based
his
not point
specific, contrary
evidence
Christianity
had converted to
in the record to refute it. Without such
“background” infor-
1987. This irrefutable
latitude, IJs would be bound to credit
suggests
mation
that no fact-finder should
testimony
even the most
as
outlandish
compelled
accept Tijani’s unsupport-
internally
it
long as was
consistent and
testimony
ed
as true.
by independent evi-
contradicted
Unfortunately,
in the
dence
record.
properly
Tijani
C. The IJ
denied
relief
survey of our
no
precedent reveals
con-
proffer
because he
cor-
failed
line
sistent
that has been drawn between
roborative evidence
an
legitimate application
IJ’s
of common
hand,
sense, on
one
IJ’s
precedent
I do not read our
prohibit-
as
conjecture”
“speculation
reliance
case,
ing the IJ in this
where substantial
in determining
alleged by
that a fact
petitioner’s
evidence undermined the
cred-
petitioner
implausible
on the other.
ibility,
requiring
from
provide
It appears that a
regarding
critical line
supporting
claim
evidence
his
of reli-
to an
deference
IJ’s
that an
determination
gious persecution. Our rule is that “the
applicant is not
credible
whether the
may
require
BIA
independent corrobo-
“speculation
determination is based on
rative
an asylum
evidence from
applicant
conjecture” or
compelling background
credibly
who
in support
testifies
of his
Mansour,
In
evidence.
declined to
de-
Kataria,
application.”
4. The
past persecution.
found
lie had
that
not demonstrated
true,
Mansour,
accepting
even
testimony
Mansour’s
1091 is not where an determination credible presents an instance case This conjec- speculation criminally convict- was based has been applicant, who ture,5 request for lying, nor did the corroborat- times seeks at least three ed testimony ing evidence seek information that was alleg- of his asylum on the basis beyond Tijani’s reach.6 In- presumptively which is inconsis- ing religious persecution stead, successfully accept IJ refused to pre- simply position tent with testimony applicant of an who unsupported years ten earlier and sented to IJ lying has several criminal convictions for no corroborative evidence. which he offers religious a proffered claim relatively unique circum- and who these Under inconsistent with the stances, persecution “what to was the IJ could not know years thus, presented he had to an IJ ten believe,” compelled if not to claim even evidence, Tijani’s unsupported be Because tes- request cannot earlier. corroborative any timony presump- to was entitled doing faulted for so. I find that the credibility, tion of would IJ Finally, rulings I that our that an note in requiring produce not err that he did explicit credibili- must make an adverse IJ evidence. some corroborative ty and that credible evi- determination asy- This the extremes to which support to case tests dence be sufficient My precedent our can be stretched. col- lum based on sound concerns claim are reason that because the leagues appear IJ’s applicable that are here. basis for minations, rule IJ Here, 1070, For must be "substantial and must bear have tion the weAs petitioner been raised ized statements tion of stated mate nexus to phasis sons for out the Board.” express Garrovillas, a 784 examples оf evasiveness or contradiction omitted); “[a]ny Mansour, explicitly petitioner’s against implied adverse petitioner's an adverse example, 1074 n. 3 F.2d the IJ had "a [1010] 'a disbelief.” Garrovillas second-guessing other rule would explained in added)____ questioning” Tijani's credibility, legitimate petitioner’s credibility,' "a the court doubting Akinmade 390 Cir.1999); stated specific, cogent reason for by the testimony as appeal when no doubts have (9th F.3d at Consequently, 888-89 credibility finding we testimony” that do not F.3d at 1013. Shoafera explained: articulable basis Cir.2000), finding.” Indeed, Canjura-Flores Immigration Judge petitioner's [(9th legitimate Cir.1987). 671, Turcios v. reasons, (9th INS, put v. credibility credible credibility Cir. Cir. are insufficient. identify specific INS, us any such rea which is cited support [v. Id. 1998)] (em 1985), the reasons in the ” articulable credibility INS], 156 INS, “General and must IJ 228 (citation because v. accept "must of the legiti deter- ques with posi INS, F.3d 6. For The court that "Smolniakova’s nexus to the IJ's that the IJ committed roborating mined from the present mony INS, held that an attacked tianity. his claim other than past offer are expect er.” Id. mother corroboration of United States. ni 422 tled to even statements from Here, Nigeria had substantial, F.3d form specific misrepresentations, "[ajuthentic refugees rarely direct corroboration about example, any presumption Smolniakova independent however, stranger who Similarly, in F.2d her failure because his letter from an unidentified hеld injury corroboration threat injured applicant brother, Tijani May 1047 in Smolniakova v. fact-finding letter or affidavit Tijani's of his the IJ when he returned while his to have obtained 1991 attack with letter acquaintances (9th Cir.2005), they corroborative credibility was under "it witnessed offered legal cannot Bolanos-Hernandez corroborate word, his conversion hospital is unreasonable life, claim that he was credibility. visiting could have (9th bear a mission. word specific error in no evidence and concluded but due to his Cir. sought are required *20 records, his mother legitimate 1984), Gonzales, from her to Chris- assault.” threats.” evidence not enti- we held holding been a able to strang a some testi Tija- cor v. credibility petition IJ’s adverse determination was he failed to do so. The for review should be denied. sufficiently explicit, Tijani’s testimony true, must be taken as and that because true, testimony accepted be must as
the IJ could not evi- require corroborative words, contrary In other
dence. to the fable, Circuit, in the Ninth does asylum applicant
matter how often an cries wolf, cry each new for relief must be treat- argu- ed true because to do otherwise is Jimmy BILLS, Lee Petitioner-
ably speculative conjectural.7 and Even Appellant, assuming precedent that our could be I point, stretched to this dissent because it CLARK, Warden, Respondent- Ken should not be.
Appellee. D. Conclusion No. 08-17517. Tijani has been of four convicted crimes Appeals, United States Court of since he came to the United States. After Ninth Circuit. two, upon
the first he prevailed an IJ to Argued and Submitted 2010. June grant deportation him a waiver of because Filed Dec. 2010. he had converted to Christianity and persecution feared if he Nige- returned to Tijani
ria. continued to commit frauds convictions, and after two gov- more again sought Nige- ernment his removal to claims, ria. now based on his unsupported testimony, that he became a
Christian in and that when he visited in Nigeria his mother in 1995 and her told Christianity, he had converted to he was injured by group attacked “a of Sharia police regular officers police civil offi- agree I
cers.” with the Tijani’s IJ that lying record of country the courts in this coupled with his alleg- revision of when he
edly became a Christian is sufficient to strip his testimony any credibility. Ac-
cordingly, properly required Tijani the IJ provide some corroboration his testi- mony, properly denied him relief when fable, It investigated should might remembered that in the had cry, boy the last moral, however, boy really the last time the cried wolf there have been saved. The is that wolf, people cry. was a but ignored society obligation not have to inves- Thus, tigate if those who unsupported person had heard the call had not claim of a who ciy past discounted repeatedly based on events and confirmed that he is a liar.