Rivera v. Lynch, 12–72668.

• Citation: 816 F.3d 1064
• Decision Date: 10 March 2016
• Docket Number: No. 12–72668.,12–72668.
• Parties: Milton Bladimir Rosales RIVERA, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

816 F.3d 1064

Milton Bladimir Rosales RIVERA, Petitioner,

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 12–72668.

United States Court of Appeals, Ninth Circuit.

Argued July 9, 2015.

Submitted March 10, 2016.

Nicole Henning (argued), Jones Day, Chicago, Illinois; Craig Stewart, Jones Day, San Francisco, CA, for Petitioner.

Jessica Dawgert (argued), Kristofer McDonald, Trial Attorney, and Leslie McKay, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Washington, D.C.; Joyce Branda, Acting Assistant Attorney General, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A200–156–835.

Before: WILLIAM A. FLETCHER, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.

OPINION

PAEZ

, Circuit Judge:

At common law, a person could be convicted of perjury "when, under oath, he wilfully and corruptly [gave] false testimony on a material point in a judicial proceeding." 4 Wharton's Crim. Law § 574, Westlaw (database updated Sept. 2015); see also In re H–––––, 1 I. & N. Dec. 669, 670 (BIA 1943)

. Today, many states have adopted expanded definitions of perjury that include false statements made in depositions, declarations, and other non-judicial proceedings. California Penal Code section 118

is one such "general" perjury statute. See 2 Witkin & Epstein, Cal.Crim. Law 4th §§ 57, 60 (4th ed.2012). California "supplement[s]" section 118 with several context-specific, or "special," perjury statutes, including Financial Code section 460 (prohibiting as perjury intentional false statements in bank reports) and Government Code section 1368 (prohibiting as perjury false statements made by a public officer while taking the oath of office). Id. § 60.

Within this complex framework, Milton Bladimir Rosales Rivera, a citizen of El Salvador, pled no contest to a charge under section 118

.¹ Later, in removal proceedings, the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") ruled that this conviction was a crime involving moral turpitude ("CIMT") and therefore disqualified Rosales Rivera from obtaining cancellation of removal. The first issue in this proceeding is whether section 118 is categorically a CIMT. Because we determine that it is not, we proceed to consider whether section 118 is divisible. We find that section 118 criminalizes two distinct offenses: written and oral perjury. Finally, applying the modified categorical approach, we hold that Rosales Rivera's offense of conviction—written perjury—is not a CIMT. We therefore grant the petition for review and remand for further proceedings.

We note that whether section 118

is a CIMT is a different question from whether perjury, generally, is a CIMT. We recognize that historically common law perjury was considered to be a CIMT, but, as we will explain, both section 118 as a whole and the specific offense of written perjury criminalize significantly more conduct than common law perjury. Moreover, in focusing on section 118 alone, we leave the rest of California's perjury framework untouched. California's special perjury statutes, for instance, have distinct elements and therefore require an entirely separate CIMT analysis from the one we undertake here.

I.

Rosales Rivera is a citizen of El Salvador who first came to the United States in 2001. He has a son who is a United States citizen. He admits he is present in the United States without having been admitted, paroled, or inspected by an Immigration Officer, the basis for removal that the Department of Homeland Security ("DHS") cited in its Notice to Appear. See 8 U.S.C. § 1182(a)(6)(A)(i)

. Rosales Rivera may be entitled to cancellation of removal under 8 U.S.C. § 1229b(b) due to his son's citizenship, but conviction of a CIMT would bar such relief. 8 U.S.C. § 1229b(b)(1)(C).

On December 14, 2011, in the County of San Bernardino Superior Court, Rosales Rivera was charged with "PERJURY—APPLICATION FOR DRIVER'S LICENSE" in violation of California Penal Code section 118

. He pled no contest to the felony charge, and was sentenced to 180 days in the county jail.

DHS initiated removal proceedings against Rosales Rivera. The IJ ordered Rosales Rivera removed. In doing so, she concluded that a conviction under section 118

"is clearly a crime involving moral turpitude," and therefore Rosales Rivera was ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)

. The BIA, citing to In re Martinez–Recinos, 23 I. & N. Dec. 175 (BIA 2001), affirmed the IJ's decision. In summary fashion, it reasoned that Rosales Rivera provided no arguments supporting a "realistic probability" that California "would apply its perjury statute to prosecute conduct which was not morally turpitudinous." The BIA also noted that the criminal complaint indicated that Rosales Rivera "committed his offense by providing false information to the State of California when he applied for a Driver's License," and that crimes with fraud as an element are categorically CIMTs.

Rosales Rivera timely filed a petition for review. 8 U.S.C. § 1252(b)(1)

. "We have no jurisdiction to review a final order removing an alien on account of a conviction for a crime involving moral turpitude. Nevertheless, we have jurisdiction to review the [BIA's] determination that [Rosales Rivera's conviction is], in fact," a CIMT. Marmolejo–Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc) (citing 8 U.S.C. § 1252(a)(2)(C) ); see also 8 U.S.C. § 1252(a)(2)(D).

II.

In Marmolejo–Campos, we established a two-step framework for evaluating whether a conviction is categorically a CIMT. 558 F.3d at 907–12

. In the first step, we must identify the elements of the petitioner's statute of conviction, reviewing de novo the BIA's analysis. Id. at 907, 911.

The second step requires determining whether the "petitioner's offense" is a CIMT. Id. We employ the categorical approach, as described below, to assess whether a statute of conviction is a CIMT. Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir.2008)

. To make this determination, we "compare the elements of the statute of conviction to the generic definition of a [CIMT to] decide whether the conviction meets that definition." Castrijon–Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.2013). We rely on our "own generalized definition of moral turpitude," which divides almost all CIMTs "into two basic types: those involving fraud and ‘those involving grave acts of baseness or depravity.’ " Marmolejo–Campos, 558 F.3d at 910 (quoting Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005) ).

III.

In determining whether the statute of conviction fits categorically within our general definition of moral turpitude, some deference to the BIA may be warranted. Ordinarily, where "the [BIA] determines that certain conduct is morally turpitudinous in a precedential decision, we apply Chevron² deference regardless of whether the order under review is the precedential decision itself or a subsequent unpublished order that relies upon it." Id. at 911

. Otherwise, Skidmore³ deference applies. Id. at 909. Here, as noted above, the BIA cited to a published decision, Martinez–Recinos, in which the BIA stated without analysis that "the respondent's aggravated felony offense" under California Penal Code section 118 was a CIMT. 23 I. & N. Dec. at 178. Nonetheless, we conclude that the BIA's decision does not warrant Chevron deference because Martinez–Recinos provided no reasoned explanation for its conclusion.

In Chevron, the Supreme Court contemplated an agency engaging in the process of "informed rulemaking" by "consider[ing] varying interpretations and the wisdom of its policy on a continuing basis." Chevron, 467 U.S. at 863–64, 104 S.Ct. 2778

. In the immigration law context, the Attorney General "vested the BIA with power to exercise the ‘discretion and authority conferred upon the Attorney General by law’ in the course of ‘considering and determining cases before it.’ " I.N.S. v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quoting 8 C.F.R. § 3.1(d)(1) (1998) ). Chevron deference applies to BIA decisions because the BIA "gives ambiguous statutory terms concrete meaning through [this] process of case-by-case adjudication." Id. (internal quotation marks omitted).

We have limited Chevron deference to precedential BIA decisions based on similar reasoning. The BIA issues precedential decisions where it "intend[s] to issue an interpretation of a statute it enforces." Miranda Alvarado v. Gonzales, 449 F.3d 915, 922 (9th Cir.2006)

(internal quotation marks omitted); see also 8 C.F.R. § 1003.1(g). There are, however, "rare instances" where we withhold deference from precedential BIA decisions, including where the BIA has "failed to provide an explanation for its action." Marmolejo–Campos, 558 F.3d at 916 ; see also Mellouli v. Lynch, ––– U.S.––––, 135 S.Ct. 1980, 1989, 192 L.Ed.2d 60 (2015) ("Because it makes scant sense, the BIA's interpretation, we hold, is owed no deference under the doctrine described in Chevron [.]").

This case presents such a "rare instance." In Martinez–Recinos, the BIA's analysis focused on why section 118

is an aggravated felony, without any explanation of why section 118 is a CIMT. 23 I. & N. Dec. at 176–78. The only sentence concerning section 118's status as a CIMT is: "We concur with the [IJ] that the respondent's [conviction under section 118 ] is also a crime involving moral turpitude, which renders him inadmissible...." Id. at 178. The decision contains no discussion of the elements required for a conviction under section 118, nor any explanation of why section 118 constitutes a CIMT under the BIA's definition or our definition of moral turpitude. See id. Because the BIA did not support its conclusion with any statutory interpretation or reasoning, we accord no deference to Martinez–Recinos under Chevron.

Where Chevron deference does not apply in the CIMT...