Espino-Castillo v. Holder
| Decision Date | 29 October 2014 |
| Docket Number | No. 13–70756.,13–70756. |
| Citation | 770 F.3d 861 |
| Parties | Felipe ESPINO–CASTILLO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Petition denied. Hugo F. Larios (argued), Hugo F. Larios Law, PLLC, Tempe, AZ, for Petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division, Blair T. O'Connor, Assistant Director, Office of Immigration Litigation, Edward C. Durant and Jonathan Robbins (argued), United States Department of Justice, Washington, D.C. for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A205–414–449.
Before: J. CLIFFORD WALLACE, MARY M. SCHROEDER, and WILLIAM A. FLETCHER, Circuit Judges.
In this petition for review of a Board of Immigration Appeals' (“BIA”) order of removal, the novel question is whether Congress has exempted state fraud convictions from characterization as crimes involving moral turpitude, when the underlying conduct involved fraud in an application for employment. We hold Congress has not.
Petitioner relies on our decision in Beltran–Tirado v. INS, 213 F.3d 1179 (9th Cir.2000), where we considered an amendment to the social security laws that granted immunity from prosecution for longstanding resident aliens who used a false social security number to obtain employment. We held the amendment expressed congressional intent that such conduct did not establish moral turpitude for immigration purposes. We have never applied Beltran–Tirado's holding outside the social security context. We therefore deny the petition.
In Beltran–Tirado, the petitioner had been convicted in federal court of using a false social security number in violation of the predecessor to 42 U.S.C. § 408(a)(7)(B). 213 F.3d at 1182. For nineteen years she had used a social security card, found on a bus, to establish credit and obtain employment, until her income brought her to the attention of federal authorities. Id. When faced with deportation proceedings in 1993, Beltran sought to apply for relief under the registry statute, 8 U.S.C. § 1259. Id. That statute was enacted to provide relief to persons who had resided in the United States for a long period of time and possessed “good moral character.” Id. at 1183. The BIA denied the application on the ground that her fraud conviction was a CIMT that prevented her from showing good moral character. Id.
On review of the BIA order, this court held that Beltran's conviction was not a CIMT. Id. at 1184. We did so by looking at a 1990 amendment to § 408 that exempted a category of aliens from prosecution for the crime of using a false social security number. Id. at 1183–84; 42 U.S.C. § 408(e) (2012) (previously numbered § 408(d)). Those exempted were persons who had been granted permanent resident status under longstanding amnesty or registry statutes. Id. at 1183–84. The legislative history of the 1990 amendment indicated that Congress intended the exemption to include persons who used a false social security number in order to obtain employment. Id.
Although the amendment did not exempt Beltran herself from prosecution, because she could not meet the deadline for registration, we concluded that the amendment was indicative of a somewhat broader congressional intent. Id. at 1184. We said “that § 408(d) and the accompanying legislative history express Congress's intent that the crimes of which Beltran was convicted do not establish ‘moral turpitude.’ ” Id. at 1184.
Beltran–Tirado is grounded in the history and purpose of § 408, the specific federal social security statute under which Beltran had been convicted. We have never overruled Beltran–Tirado, but we have never cited its holding for any purpose beyond the application of that specific statute. Both before and after Beltran–Tirado, we have expressly and repeatedly rejected the argument that fraud crimes are not per se CIMTs. See, e.g., Planes, 652 F.3d at 997–98; Navarro–Lopez v. Gonzales, 503 F.3d 1063, 1074–75 (9th Cir.2007) (en banc) (Reinhardt, J., concurring for a majority), overruled on other grounds by United States v. Aguila–Montes de Oca, 655 F.3d 915 (9th Cir.2011).
Other circuits have refused to follow Beltran–Tirado in any context. See Lateef v. Dep't of Homeland Sec., 592 F.3d 926, 930–31 (8th Cir.2010) (); Serrato–Soto v. Holder, 570 F.3d 686, 692 (6th Cir.2009) (); Hyder v. Keisler, 506 F.3d 388, 393 (5th Cir.2007) ( ).
Moreover, we doubt we could now expand the reasoning of Beltran–Tirado beyond its original scope, even if we wanted to. That is because the inquiry in which petitioner asks us to engage involves examination of the circumstances surrounding petitioner's particular conviction. Because a conviction under Ariz.Rev.Stat. § 13–2002(A) requires intent to defraud, the Supreme Court's recent decision in Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), forecloses any such inquiry.
To determine whether a petitioner's conviction is a CIMT, the court applies the categorical and modified categorical approaches articulated by the Supreme Court in Taylor v. United States, 495 U.S. 575, 599–602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir.2008). A court must apply the categorical approach unless the statute in question is divisible and proscribes multiple alternative elements, some of which would qualify as a CIMT and some of which would not. See Descamps, 133 S.Ct. at 2284–85. A court may not apply the modified categorical approach “if the statute proscribes only conduct that involves moral turpitude.” Mendoza v. Holder, 623 F.3d 1299, 1303 (9th Cir.2010). In Descamps, the Supreme Court emphasized the necessity of looking to the elements of the crime under the categorical approach, rather than to the underlying circumstances or motivations. See id. at 2285. The Court said that a “circumstance-specific review is just what the categorical approach precludes.” Id. at 2292. Because the petitioner here was convicted under a statute that proscribes only morally turpitudinous conduct, we cannot look to the underlying circumstances of his crime.
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