Linares-Gonzalez v. Lynch

• Decision Date: 21 March 2016
• Docket Number: Nos. 12–71142,12–73313.,s. 12–71142
• Citation: 823 F.3d 508
• Parties: Reyes Abigail LINARES–GONZALEZ, aka Reyes Abigail Linares, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent. Maribel Preciado, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

823 F.3d 508

Reyes Abigail LINARES–GONZALEZ, aka Reyes Abigail Linares, Petitioner

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

Maribel Preciado, Petitioner

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

Nos. 12–71142

12–73313.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 20, 2015.

Filed March 21, 2016.

Elsa Martinez, Los Angeles, California; Maria Teresa Delgado (argued), Ventura, CA, for Petitioner Maribel Preciado.

Rosana Kit Wai Cheung and Jamie Lefkowitz (argued), Los Angeles, CA, for Petitioner Linares–Gonzalez.

Stuart F. Delery, Assistant Attorney General, Civil Division; Stephen J. Flynn, Assistant Director; Francis W. Fraser, Senior Litigation Counsel; Linda Y. Cheng ; Annette M. Wietecha ; Jane T. Schaffner (argued); Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of Orders of the Board of Immigration Appeals. Agency Nos. A075–679–882, A095–759–507.

Before: HARRY PREGERSON and CONSUELO M. CALLAHAN, Circuit Judges and STANLEY ALLEN BASTIAN,^* District Judge.

OPINION

CALLAHAN, Circuit Judge:

Petitioners Reyes Abigail Linares–Gonzales (“Linares”) and Maribel Preciado (“Preciado”) challenge the denial of their applications for cancellation of removal. The immigration judges (“IJ”) denied their applications, and the Bureau of Immigration Appeals (“BIA”) affirmed, finding, among other things, that they were ineligible for cancellation of removal because their convictions for identity theft under California Penal Code (“CPC”) §§ 530.5(a) and (d)(2) were categorical crimes involving moral turpitude (“CIMT”).¹ We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we grant the petitions.

I

1. Linares–Gonzalez v. Lynch, No. 12–71142

Linares is a native and citizen of Guatemala who arrived in the United States without inspection in 1998. The Department of Homeland Security initiated removal proceedings in September 2004, and Linares eventually filed an application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”)² as a derivative beneficiary on his father's application.³ See Pub.L. No. 105–100, 111 Stat. 2160, 2193–2201 (1997).

In October 2008, while these proceedings were ongoing, Linares pled guilty to three counts of identity theft under CPC § 530.5(d)(2), a felony. He received a sentence of 180 days in jail and 36 months' probation and was ordered to pay restitution.⁴ Linares testified to the immigration judge that he obtained credit card numbers from about six customers at the restaurant where he worked, and he gave the numbers to a friend who paid him $20 for each number. He also testified that he did not know what his friend did with the numbers, but he thought that the friend used the numbers “to get money.” Linares served 122 days of his 180–day sentence.

The IJ denied Linares' application for cancellation of removal in June 2010. The IJ held, among other things, that 1) Linares was not eligible for cancellation of removal because his 2008 identity theft conviction was a categorical CIMT because it involved an element of fraud and he did not have 10 years of continuous presence in the United States following the 2008 conviction; and 2) Linares failed to show good moral character during the required period of physical presence because he had four convictions, including three theft convictions, in the last eight years.

The BIA dismissed Linares' appeal in August 2011. The BIA held that 1) Linares was ineligible for the “petty offense exception” under Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(ii)⁵ because he was convicted of three counts of identity theft; 2) Linares' conviction in 2008 for three counts of identity theft was categorically a crime involving moral turpitude, because “selling, transferring or conveying the personal identifying information of another knowing that it will be used for an unlawful purpose ... involves conduct that is inherently base, vile, or depraved and contrary to accepted rules of morality and duties owed between persons or to society in general”; and 3) CPC § 530.5(d)(2) contains the requisite scienter required to constitute a CIMT. Accordingly, the BIA held that Linares had not shown a “realistic probability” that CPC § 530.5(d)(2) may be applied to non-turpitudinous conduct.

The BIA held that because Linares had committed a CIMT, he was subject to the heightened 10–year continuous presence requirement for special rule cancellation of removal. The BIA determined that Linares had not met the 10–year requirement, measured from the time of his identity theft conviction and rejected Linares' claim that the 10 years were measured from the date of his arrival in the United States. The BIA further held that Linares could not show good moral character under the catch-all provision of INA § 101(f), 8 U.S.C. § 1101(f) because of his convictions in 2004, 2007, and 2008.⁶

2. Preciado v. Lynch, No. 12–73313

Preciado is a native and citizen of Mexico who entered the United States without inspection in 1990. Preciado pled guilty to and was convicted for felony identity theft under CPC § 530.5(a) in September 2008. Under the terms of the plea agreement, Preciado admitted the allegations of the complaint and agreed that the statutory maximum prison term was three years.⁷ Preciado received a suspended sentence of 120 days in jail and probation for 36 months and was ordered to pay restitution.

In January 2009, the Department of Homeland Security began removal proceedings against Preciado, and she filed an application for cancellation of removal. The IJ denied the application in November 2010, finding that her identity theft conviction was a categorical crime involving moral turpitude that barred relief. In doing so, the IJ noted that in her plea agreement and conviction, Preciado admitted that she willfully obtained personal identifying information of the victim without authorization and used or attempted to use the information to obtain credit, goods and services, or medical information in the name of the victim without consent. The IJ also held that she did not qualify for the petty offense exception and had not demonstrated good moral character for the necessary time period.

After the IJ denied relief, and while Preciado's appeal to the BIA was pending, her identity theft conviction was reduced to a misdemeanor by the California Superior Court in February 2012, pursuant to her motion for expungement. Before the BIA, Preciado argued that her identity theft conviction was subject to the petty offense exception listed at 8 U.S.C. § 1182(a)(2)(A)(ii). Preciado contended that the petty offense exception applies where the maximum possible sentence for the applicable offense does not exceed imprisonment for one year and the alien is not sentenced to a term of imprisonment in excess of six months. In her view, because the maximum punishment for CPC § 530.5(a) is imprisonment in a county jail not to exceed one year, and her actual sentence was 120 days in jail, the petty offense exception applied, even if CPC § 530.5(a) was a CIMT. Preciado also argued that her case should be remanded in light of the reduction of her felony conviction to a misdemeanor, which she claimed was additional support for her contention that she was eligible for the petty offense exception.

The BIA dismissed Preciado's appeal in September 2012. The BIA acknowledged that CPC § 530.5(a) did not require an intent to defraud. However, the BIA held that CPC § 530.5(a) was still a categorical CIMT because there was no realistic possibility that the applicable statute would be applied to non-turpitudinous conduct. The BIA reasoned that there were no cases where CPC § 530.5(a) had been applied to non-turpitudinous conduct, and identity theft was described by the statute as an “indisputable evil.”

The BIA also held that the petty offense exception did not apply, even though her conviction had been reduced to a misdemeanor, because 1) even if a crime would otherwise qualify for the petty offense exception, if it is a CIMT it may still disqualify an applicant from cancellation of removal; and 2) the later reduction of Preciado's conviction to a misdemeanor, or even its expungement, did not alter the fact that she had originally been convicted for a CIMT for which a sentence of one year or longer may be imposed. Thus, the BIA held that Preciado's identity theft conviction rendered her ineligible for cancellation of removal.

II

To show his eligibility for cancellation of removal under 8 U.S.C. § 1229b(b), a nonpermanent resident alien must show that he:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Offenses listed under 8 U.S.C. § 1227(a)(2), which render an alien ineligible for cancellation of removal under § 1229b(b), include crimes of moral turpitude. Cf. 8 U.S.C. § 1182(a)(2)(A)(i)(I) (alien who commits a crime of moral turpitude is inadmissible). NACARA imposes similar requirements for cancellation of removal. See 8 C.F.R. § 1240.66.

III

The BIA dismissed Linares' and Preciado's appeals based in part on its determination that both had committed CIMTs, due to their identity theft convictions under CPC § 530.5. Both Linares and Preciado argue that their violations of CPC § 530.5 were not categorical CIMTs.⁸

In determining whether the conduct proscribed by the statute involves moral turpitude, we apply the categorical approach of Taylor v. United States, 495 U.S. 575, 598–602...