Li v. Ashcroft

Citation389 F.3d 892
Decision Date19 November 2004
Docket NumberNo. 02-72597.,02-72597.
PartiesChung Ping LI, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Zachary Nightingale, Megan Ferstenfeld-Torres, Van Der Hout, Brigagliano and Nightingale, LLP, San Francisco, CA, for the petitioner.

Jennifer Paisner, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: WALLACE, KOZINSKI, and GRABER, Circuit Judges.

GRABER, Circuit Judge:

We must decide whether an alien defendant is removable for conviction of an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," 8 U.S.C. § 1101(a)(43)(M)(i), even though monetary loss is not an element of the crimes of which he was convicted. Applying the "modified categorical approach," we hold that the requisite amount of loss is not demonstrated unequivocally by the charging document and the judgment of conviction. Therefore, we must grant the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Chung Ping Li is a citizen of Taiwan who was admitted to the United States in 1987 as a legal permanent resident. In 1995, he was convicted, after a jury trial, of eight fraud-related federal offenses under 18 U.S.C. §§ 2,1 287,2 371,3 and 1001.4 Following his conviction, Petitioner was sentenced to twenty-four months in prison. After his release he was served with a Notice to Appear and placed in removal proceedings by the Immigration and Naturalization Service (INS).5

The INS argued to the immigration judge (IJ) that Petitioner is removable as an alien who was convicted of an "aggravated felony." See 8 U.S.C. § 1227(a)(2)(A)(iii). The INS specified three types of "aggravated felon [ies]": "a theft offense ... for which the term of imprisonment[is] at least one year," id. § 1101(a)(43)(G); an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," id. § 1101(a)(43)(M)(i); and "an attempt or conspiracy to commit" one of those two offenses, id. § 1101(a)(43)(U).

The IJ agreed with the INS with respect to subsections (M) and (U) and did not rule on the argument under subsection (G). In finding that the loss to the victim exceeded $10,000, the IJ relied on the superseding information and the judgment of conviction. The superseding information charged Petitioner and his associates with manipulating and falsifying data that they generated under contract with various federal agencies and with submitting invoices in which they sought payment for the improperly obtained data; counts 3, 6, and 8 of the superseding information each described invoices seeking payment totaling more than $10,000. The judgment of conviction, in turn, states that Petitioner "was found guilty of Counts one — eight of the Superseding [Information]." Relying on these documents, the IJ ordered Petitioner's removal.

Petitioner timely appealed to the Board of Immigration Appeals (BIA).6 The BIA affirmed the IJ's decision and ordered Petitioner's removal. The BIA reasoned that the jury had found Petitioner guilty of counts 1 through 8 of the superseding information and that counts 3, 6, and 8 referred to falsely claimed amounts of more than $10,000. Therefore, the BIA concluded, Petitioner must have been convicted of an offense resulting in a loss of more than $10,000 to the victim. This timely petition for review followed.

JURISDICTION AND STANDARD OF REVIEW

We lack jurisdiction to review a final order of removal against an alien who has committed an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). Nonetheless we retain jurisdiction to decide whether we have jurisdiction. Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir.2000). Here, because we must determine whether Petitioner committed an aggravated felony, the jurisdictional inquiry requires an examination of the merits. Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000).

We review de novo whether a particular conviction is an aggravated felony. Luu-Le, 224 F.3d at 914.

DISCUSSION

To determine whether Petitioner was convicted of an aggravated felony and is therefore removable under 8 U.S.C. § 1227(a)(2)(A)(iii), we employ the analysis set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Tokatly v. Ashcroft, 371 F.3d 613, 621-22 & n. 8 (9th Cir.2004). The essence of the Taylor approach is that the sentencing court may not look beyond the record of the prior conviction to the facts underlying it. Tokatly, 371 F.3d at 620.

We first make a categorical comparison between the generic crime — here, an "aggravated felony," defined as an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," 8 U.S.C. § 1101(a)(43)(M)(i) — and the elements of each particular offense of which Petitioner was convicted. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). If the statutory crime of conviction is broader than the generic crime (that is, if Petitioner could have been convicted under the statute for conduct that would not satisfy the generic crime) then we must move to the "modified categorical approach":

Under the modified categorical approach, we conduct a limited examination of documents in the record of conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime even though his or her statute of conviction was facially overinclusive.

Id."The idea of the modified categorical approach is to determine if the record unequivocally establishes that the defendant was convicted of the generically defined crime...." United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc). To satisfy the modified categorical approach in the case of a jury conviction, the record of conviction must establish that the "`jury was actually required to find all the elements' of the generic crime." Id. (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143).7

Petitioner is removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for conviction of an aggravated felony if, under the two-step categorical approach, we find that he was convicted of an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," id. § 1101(a)(43)(M)(i), or of an attempt or conspiracy to commit the same, id. § 1101(a)(43)(U).

A. The Categorical Approach.

The parties agree that Petitioner's convictions do not satisfy the strict categorical approach, in which we may "look only to the fact of conviction and the statutory definition of the prior offense." Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The relevant definition of an aggravated felony "has two elements: (1) the offense must involve fraud or deceit, and (2) the offense must also have resulted in a loss to the victim or victims of more than $10,000."8 Chang, 307 F.3d at 1189. By contrast, the statutes under which Petitioner was convicted do not require proof of a monetary loss. See, e.g., United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir.1993) ("To convict someone under 18 U.S.C. § 371 the government need only show (1) he entered into an agreement (2) to obstruct a lawful function of the government (3) by deceitful or dishonest means and (4) at least one overt act in furtherance of the conspiracy."); United States v. Causey, 835 F.2d 1289, 1292 (9th Cir.1987) ("[T]he elements of the offense created by 18 U.S.C. § 287 are (1) presenting a claim against the United States, and (2) knowing such claim to be false.")9; United States v. Medina De Perez, 799 F.2d 540, 542 (9th Cir.1986) (18 U.S.C. § 1001 prohibits "not only those false statements that might cause pecuniary or property loss to the government, but also statements and deceptive practices that prevent[] government agencies from carrying out administrative or regulatory directives"). Therefore, we must move to the modified categorical approach.

B. The Modified Categorical Approach.

The modified categorical approach permits courts to go beyond the mere fact of conviction "in a narrow range of cases where a jury was actually required to find all the elements" of the generic offense. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The Court in Taylor gave one example of when a prior conviction would satisfy the modified categorical approach: a case in which a state's burglary statute "include[s] entry of an automobile as well as a building," but "the indictment or information and jury instructions" show that the jury "necessarily had to find an entry of a building to convict." Id. As we said in United States v. Parker, 5 F.3d 1322, 1327 (9th Cir.1993), "[w]e have recognized that the Court's main concern in Taylor was ensuring that the jury actually found all the requisite facts to render the offense a `violent felony.'" Thus, if the record of conviction demonstrates that the jury in Petitioner's case actually found that Petitioner caused, or intended to cause, a loss to the government of more than $10,000, the modified categorical approach will be satisfied.

In Parker, we discussed the types of documents that might demonstrate unequivocally that a jury had found all the requisite charging allegations to be true. We interpreted the Taylor Court's reference to jury instructions, in the example described above, as a requirement that the sentencing court verify that the jury actually made the findings necessary to satisfy the elements of the generic crime. See Parker, 5 F.3d at 1327. However, we recognized that the charging paper and the jury's verdict form, like jury instructions, could demonstrate unequivocally that the jury had found the requisite elements, as we had held previously in United States v. Alvarez, 972 F.2d 1000 (9th Cir.1992) (per curiam). Parker, 5 F.3d at 1327. In Alvarez, we held that the modified categorical...

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