Blanco v. Mukasey

• Decision Date: 03 March 2008
• Docket Number: No. 06-71385.,06-71385.
• Citation: 518 F.3d 714
• Parties: Mario Jorge BLANCO, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

518 F.3d 714

Mario Jorge BLANCO, Petitioner, v. Michael B. MUKASEY,^* Attorney General, Respondent.

No. 06-71385.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2007.

Filed March 3, 2008.

Michael J. Codner (argued) and Murray D. Hilts, Law Offices of Murray Hilts, San Diego, CA, for the petitioner.

Anthony C. Payne (argued) and Alison R. Drucker, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-159-176.

Before: HARRY PREGERSON, HAWKINS and RAYMOND C. FISHER, Circuit Judges.

Opinion by Judge FISHER; Concurrence by Judge PREGERSON.

FISHER, Circuit Judge:

Mario Jorge Blanco petitions for review of a final order of removal, arguing that the Board of Immigration Appeals ("BIA") erred in holding that he is an inadmissible alien who is not eligible for any discretionary relief. The BIA found Blanco to be ineligible for adjustment of status because he made a false claim to citizenship when he was detained at the border, and ineligible for cancellation of removal because he had been convicted of crimes involving moral turpitude. Because the BIA's moral turpitude finding was flawed, we grant Blanco's petition as to cancellation of removal, but deny his petition in all other respects.

FACTS AND PRIOR PROCEEDINGS

Blanco is a native and citizen of Argentina who has been living in the United States since 1978. In 2001, Blanco traveled to Mexico with his wife and a co-worker to deliver a truckload of furniture. He was stopped by the Border Patrol when he applied for admission into the United States. He presented a California driver's license, social security card and various membership cards to the Border Patrol agents, but did not have immigration documents. The officer at the primary inspection point suspected that Blanco had made a false claim to U.S. citizenship and referred him to secondary inspection for further questioning, which led to his being placed in detention. The Immigration and Naturalization Service ("INS")¹ thereafter instituted removal proceedings against him.

The INS charged Blanco with being inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an alien who was not in possession of valid entry documents, and under § 1182(a)(6)(C)(ii) as an alien who made a false claim to U.S. citizenship in order to gain entrance to the United States.² Blanco contested these charges and also applied for various forms of relief from removal proceedings, including cancellation of removal available for certain long-time residents under § 1229b(b) and adjustment of status under § 1255(i). Blanco conceded that he was inadmissible as an alien without a valid visa, but argued that he had never falsely claimed U.S. citizenship at the border. Ruling against Blanco on both charges, the immigration judge ("IJ") found Blanco to be inadmissible.

The IJ denied Blanco's request for adjustment of status because under then-existing federal regulations, this relief was unavailable to arriving aliens. The IJ further held that Blanco was not eligible for consideration for cancellation of removal because he had been convicted of two crimes involving moral turpitude, as defined by § 1182(a)(2). Although ordinarily cancellation relief is barred if the alien has committed even one such crime, one of Blanco's convictions — in 1980, for receipt of stolen property — was a misdemeanor violation, which allowed Blanco to remain eligible for cancellation of removal under the so-called petty offense exception. See § 1182(a)(2)(A)(ii). However, because the IJ determined that another of Blanco's prior convictions — a 1986 misdemeanor conviction for false identification to a peace officer under California Penal Code § 148.9(a) — was also a crime involving moral turpitude, the IJ held that Blanco was not eligible for the petty offense exception. The IJ ordered Blanco removed to Argentina.

Blanco timely appealed to the BIA. The BIA declined to affirm the IJ's adjustment of status ruling in light of our intervening decision in Bona v. Gonzales, 425 F.3d 663 (9th Cir.2005), which held that regulations barring arriving aliens from applying for adjustment of status were invalid. It nevertheless denied Blanco's adjustment of status application, holding that his false claim of United States citizenship at the border barred such relief. See § 1255(a). The BIA affirmed the IJ's conclusion that Blanco was not eligible for cancellation of removal because he had been convicted of two crimes involving moral turpitude. Lastly, the BIA denied Blanco's request for a remand based on ineffective assistance of his prior counsel. Blanco filed a timely petition for review before this court.

ANALYSIS

We have jurisdiction to review the petition under § 1252(b). Because Blanco was not ordered removed as a criminal alien under § 1182(a)(2), the jurisdictional bar of § 1252(a)(2)(C) does not apply. We review questions of law de novo, including "whether a state statutory crime constitutes a crime involving moral turpitude." Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005). We review findings of fact by the IJ and BIA for substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also § 1252(b)(4)(B). Where, as here, the BIA "has reviewed the IJ's decision and incorporated portions of it as its own, we treat the incorporated parts of the IJ's decision as the BIA's." Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002).

I.

Blanco argues that the BIA erred in holding that he was not eligible for cancellation of removal because his misdemeanor conviction for false identification to a peace officer under California Penal Code § 148.9(a) is not a crime involving moral turpitude. We agree.

In determining whether a conviction qualifies as a crime involving moral turpitude, we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).³ See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005). Under the categorical approach, a crime involves moral turpitude if the generic elements of the crime show that it involves conduct that "(1) is base, vile, or depraved and (2) violates accepted moral standards." Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068 (9th Cir.2007) (en banc). The Supreme Court has held that crimes that involve fraud categorically fall into the definition of crimes involving moral turpitude. See Jordan v. De George, 341 U.S. 223, 227, 71 S.Ct. 703, 95 L.Ed. 886 (1951) ("Without exception . . . a crime in which fraud is an ingredient involves moral turpitude."); see also Cerezo v. Mukasey, 512 F.3d 1163, 1166-67 (9th Cir.2008); Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005).

Whether Blanco was convicted of a crime of fraud depends on the statutory definition of the crime. In 1986, Blanco pled guilty to violating California Penal Code § 148.9(a), which provides:

Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer . . . upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.

The California courts have explained that a violation of California Penal Code § 148.9(a) occurs whenever any person falsely identifies himself in a way that would mislead the officer and evade proper identification, including by giving a false name or date of birth. See In re Ivan J., 88 Cal.App.4th 27, 30-32, 105 Cal.Rptr.2d 382 (Cal.Ct.App.2001). To convict a defendant under the statute, the prosecutor does not need to show that the individual had specific intent to obtain a benefit or cause another to be liable on his behalf; rather, the prosecutor "need only establish general intent . . . that the defendant intended to do the act which forms the basis of the crime, whether or not he knew that the act was unlawful." People v. Robertson, 223 Cal.App.3d 1277, 1281-82, 273 Cal. Rptr. 209 (Cal.Ct.App.1990), rev'd on other grounds by People v. Rathert, 24 Cal.4th 200, 99 Cal.Rptr.2d 779, 6 P.3d 700, 704-05 (2000). Thus a conviction under California Penal Code § 148.9(a) requires a showing that the individual knowingly misrepresented his or her identity to a peace officer, but does not require that the individual thereby knowingly attempted to obtain anything of value.

A crime involves fraudulent conduct, and thus is a crime involving moral turpitude, if intent to defraud is either "explicit in the statutory definition" of the crime or "implicit in the nature" of the crime. Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir.1993) (internal quotation marks omitted). Intent to defraud is not explicitly required by California Penal Code § 148.9(a), which requires only the knowing provision of false information. The element of knowing misrepresentation does not itself make fraud an element of the crime, however, because it shows only that "the forbidden act is done deliberately and with knowledge," and not that the individual acts with evil intent. See id. (quoting Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.1962)). Because intent to defraud is not a statutory element of the offense, we must determine whether intent to defraud is part of the crime's "essential nature." Id. at 649.

Our cases hold that intent to defraud is implicit in the nature of the crime when the individual makes false statements in order to procure something of value, either monetary or non-monetary. See id. (holding that fraud is not inherent where crime "does not involve the use of false statements . . . nor does the defendant obtain anything" of value); see also Navarro-Lopez, 503 F.3d at 1076 (Reinhardt, J., concurring); cf. Notash v. Gonzales, 427 F.3d 693, 698 (9th Cir.20...