Ferreira v. Ashcroft
| Decision Date | 01 December 2004 |
| Docket Number | No. 03-16966.,03-16966. |
| Parties | Susana FERREIRA, Petitioner-Appellant, v. John ASHCROFT, Attorney General; Ronald J. Smith, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Vikram K. Badrinath, Tucson, AZ, for the petitioner-appellant.
Andrew C. MacLachlan, Assistant United States Attorney, Washington, DC, and Cynthia M. Parsons, Assistant United States Attorney, Phoenix, AZ, for the respondents-appellees.
Appeal from the United States District Court for the District of Arizona; Frederick J. Martone, District Judge, Presiding. D.C. No. CV-03-00403-FJM.
Before TROTT, McKEOWN, Circuit Judges, and SHADUR,* Senior District Judge.
Petitioner Susana Ferreira, a lawful permanent resident, appeals the district court's denial of her petition for writ of habeas corpus. Ferreira pled guilty to one count of False Statement to Obtain Aid in violation of California Welfare and Institutions Code ("WIC") section 10980(c)(2). On account of that conviction, an immigration judge concluded that Ferreira had been convicted of an aggravated felony and found her removable from the United States and ineligible for relief from removal. Ferreira contends that her conviction did not constitute an aggravated felony. She further argues that the Board of Immigration Appeals ("BIA") violated her due process rights when it affirmed the immigration judge's decision, without comment, pursuant to the new BIA streamlining provisions. Because Ferreira's conviction involved fraud or deceit with a loss to a victim exceeding $10,000, and because streamlining does not violate an alien's due process rights, we affirm the district court's denial of Ferreira's habeas petition.
Ferreira, a native and citizen of Venezuela, was admitted to the United States in 1980 as a lawful permanent resident. Between 1997 and 2000, Ferreira was convicted of one petty theft violation and two drug related charges. Ferreira pled guilty in 1998 to welfare fraud pursuant to WIC section 10980(c)(2). Ferreira's plea agreement to the welfare fraud charge required her to pay $22,305 in restitution to the State of California.
The Immigration and Naturalization Service ("INS")1 issued a Notice to Appear charging Ferreira with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii)(conviction of two crimes involving moral turpitude) and § 1227(a)(2)(B)(i) (). The INS subsequently lodged additional charges of removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for conviction of an "aggravated felony" as defined by 8 U.S.C. § 1101(a)(43)(M)(i)(offense involving fraud or deceit with a loss in excess of $10,000).
An immigration judge found Ferreira removable because of her controlled substance convictions. The immigration judge also found Ferreira ineligible for cancellation of removal, concluding that her welfare fraud conviction constituted an aggravated felony. Pursuant to recently adopted streamlining procedures, the BIA affirmed the immigration judge's decision without comment.
Ferreira then filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona. In her habeas petition, Ferreira argued that her conviction for welfare fraud did not constitute an aggravated felony because the offense did not involve an element of fraud or deceit and the government had not proven that the amount of loss to the victim exceeded $10,000. Ferreira also argued that the BIA's decision to streamline her appeal violated her right to due process. The district court denied Ferreira's habeas petition, and Ferreira now appeals that denial.
We review the district court's denial of a habeas corpus petition de novo. Nulph v. Cook, 333 F.3d 1052, 1056(9th Cir.2003). We review de novo the issue of whether a particular offense constitutes an aggravated felony. Park v. INS, 252 F.3d 1018, 1021 (9th Cir.2001). Due process challenges to immigration decisions are also reviewed de novo. Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001).
Under 8 U.S.C. § 1227(a)(2)(A)(iii), an alien is removable if he or she has been convicted of an aggravated felony. An aggravated felony conviction also renders an alien ineligible for cancellation of removal. 8 U.S.C. § 1229b(a)(3). In determining whether an offense qualifies as an aggravated felony, we look to the statute under which the person was convicted and compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43). See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The first task is to make a categorical comparison. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). Under this "categorical approach," an offense qualifies as an aggravated felony "if and only if the full range of conduct covered by [the criminal statute] falls within the meaning of that term." Id. (citation and internal quotation marks omitted). If the statute of conviction is not a categorical match because it criminalizes both conduct that does and conduct that does not qualify as an aggravated felony, we then proceed to a "modified categorical approach." Id.
Under the modified categorical approach, we conduct a limited examination of documents in the "record of conviction." Id. Upon this examination, we determine whether there is sufficient evidence to conclude that the alien was convicted of the elements of the generically defined crime even though his or her statute of conviction was facially overinclusive. Id. The record of conviction consists of a narrow, specified set of documents that includes "the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment." Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003). Like the immigration judge and the BIA, we may not "look beyond the record of conviction itself to the particular facts underlying the conviction." Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004). If the record of conviction does not establish that the offense the petitioner committed qualifies as an aggravated felony, the government has not met its burden of proving that the defendant committed an aggravated felony. Id.
Ferreira was convicted under WIC section 10980(c)(2), which at the time of her conviction provided:
(c) Whenever any person has, by means of false statement or representation or by impersonation or other fraudulent device, obtained or retained aid under the provisions of this division for himself or herself or for a child not in fact entitled thereto, the person obtaining this aid shall be punished as follows:
* * *
(2) If the total amount of the aid obtained or retained is more than four hundred dollars ($400), by imprisonment in the state prison for a period of 16 months, two years, or three years, by a fine of not more than five thousand dollars ($5,000), or by both imprisonment and fine; or by imprisonment in the county jail for a period of not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both imprisonment and fine.
Thus, the elements of the statutory crime include: (1) "by means of false statement or representation or by impersonation or other fraudulent device, obtain[ing] or retain[ing] aid," and (2) in an amount more than $400. The two elements of the applicable aggravated felony definition are: (1) the offense "involves fraud or deceit," and (2) the "loss to the victim or victims exceeds $10,000." 8 U.S.C. § 1101(a)(43)(M)(i). As will be established by the following discussion, the first element of WIC section 10980(c)(2) is a categorical match with the first element of the aggravated felony definition in that both require an element of fraud or deceit. The second element is not a categorical match, but a modified categorical inquiry establishes that Ferreira's conviction involved a loss exceeding $10,000.
Ferreira argues that the statute under which she was convicted does not "involve fraud or deceit" under the categorical approach. She argues that WIC section 10980(c) prohibits four types of conduct, including: (1) false statement; (2) false representation; (3) impersonation; or (4) fraudulent device, and that some but not all of these offenses involve fraud or deceit. We are not persuaded by Ferreira's interpretation of the statute. We conclude that WIC section 10980(c) and the first element of section 1101(a)(43)(M)(i)'s aggravated felony definition are a categorical match (i.e., both require an element of fraud or deceit) because California caselaw provides that all convictions under WIC section 10980(c) necessarily involve an element of fraud or deceit.
In People v. Camillo, 198 Cal.App.3d 981, 989 n. 3, 244 Cal.Rptr. 286 (1988), the California Court of Appeal, after noting that "on its face subdivision (c) does not explicitly require that the false statement or representation be made knowingly or with intent to deceive or defraud," stated in dicta that "[a]bsent any requirement of scienter, the statute would be legally and constitutionally suspect." The court further concluded that "[n]o doubt such a requirement is implicit in the statute, particularly in light of its use of the phrase `or other fraudulent device.'" Id.
In People v. Ochoa, although also in dicta, the California Court of Appeal reaffirmed this analysis. 231 Cal.App.3d 1413, 1420 n. 1, 282 Cal.Rptr. 805 (1991) (...
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