Ho Sang Yim v. Barr

• Decision Date: 25 August 2020
• Docket Number: No. 17-70624, No. 17-70742, No. 17-70670,17-70624
• Citation: 972 F.3d 1069
• Parties: HO SANG YIM, aka Alez Suk Peter Yim Yoon, Petitioner, v. William P. BARR, Attorney General, Respondent. Orlando Velasquez Garcia, Petitioner, v. William P. Barr, Attorney General, Respondent. Raul Borges Borba-Cardoso, Petitioner, v. William P. Barr, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

972 F.3d 1069

HO SANG YIM, aka Alez Suk Peter Yim Yoon, Petitioner,

v.William P. BARR, Attorney General, Respondent.

Orlando Velasquez Garcia, Petitioner,

v.William P. Barr, Attorney General, Respondent.

Raul Borges Borba-Cardoso, Petitioner,

v.William P. Barr, Attorney General, Respondent.

No. 17-70624

No. 17-70670

No. 17-70742

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2020 Pasadena, California

Submitted June 5, 2020^* Pasadena, California^**

Filed August 25, 2020

Robert G. Berke (argued), Berke Law Offices Inc., Canoga Park, California, for Petitioner Ho Sang Yim.

Alejandro Garcia, Commerce, California, for Petitioner Orlando Velasquez Garcia.

Mario Acosta Jr., Law Offices of Mario Acosta Jr., Los Angeles, California, for Petitioner Raul Borges Borba-Cardoso.

Jessica A. Dawgert (argued), M. Jocelyn Lopez Wright, Song E. Park, and Andrew N. O'Malley, Senior Litigation Counsel; Keither I. McManus, Assistant Director; John F. Stanton, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petitions for Review of Orders of the Board of Immigration Appeals, Agency No. AXXX-XX3-102, Agency No. AXXX-XX6-839, Agency No. AXXX-XX1-138

Before: Consuelo M. Callahan and Sandra S. Ikuta, Circuit Judges, and Cathy Ann Bencivengo,^*** District Judge.

IKUTA, Circuit Judge:

We hold that the Board of Immigration Appeals (BIA) reasonably interpreted "perjury," as used in 8 U.S.C. § 1101(a)(43)(S), to mean an offense where "an offender make[s] a material false statement knowingly or willfully while under oath or affirmation [or penalty of perjury] where an oath is authorized or required by law." Matter of Alvarado , 26 I. & N. Dec. 895, 901 & n.11 (BIA 2016). Given this definition, we hold that perjury under section 118(a) of the California Penal Code is an "aggravated felony" because it is "an offense relating to ... perjury." 8 U.S.C. § 1101(a)(43)(S).

I

This opinion addresses issues raised in three separate petitions for review: Yim v. Barr , No. 17-70624; Velasquez Garcia v. Barr , No. 17-70670; and Borba-Carodoso v. Barr , No. 17-70742. Each of the petitioners was convicted of perjury under section 118(a) of the California Penal Code and then suffered adverse immigration consequences on the ground that he had committed an "aggravated felony," namely, an "an offense relating to ... perjury." 8 U.S.C. § 1101(a)(43)(S). The petitioners contend that perjury under section 118(a) is not an "aggravated felony" because it is not "an offense relating to ... perjury." Id. We briefly summarize the facts relevant to each petition before addressing the petitioner's arguments.

A

Raul Borges Borba-Cardoso, a native and citizen of Portugal, was admitted to the United States as a lawful permanent resident in 1975. In 2004, Borba was convicted of perjury in violation of section 118(a) for testifying falsely during a judicial proceeding, and he was sentenced to three years in prison. The Department of Homeland Security (DHS) initiated removal proceedings on the ground that Borba had been convicted of an "aggravated felony." An immigration judge (IJ) found Borba removable as charged, and the BIA affirmed.

B

Orlando Velasquez Garcia is a native and citizen of Guatemala. He came to the United States on June 18, 1990. Once here, he amassed a significant criminal record, including a conviction for perjury in violation of section 118(a) for providing false information, under penalty of perjury, to the California Department of Motor Vehicles. In 2009, DHS charged Velasquez as removable on the ground that he was an alien "present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." 8 U.S.C. § 1182(a)(6)(A)(i).

An IJ found Velasquez removable as charged and denied Velasquez's requests for asylum, cancellation of removal, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ ruled that Velasquez's perjury conviction was an "aggravated felony," rendering him ineligible for asylum and cancellation of removal, and the IJ denied Velasquez's requests for withholding of removal and CAT protection on the ground that Velasquez had not made the requisite showing. The BIA affirmed.

C

Ho Sang Yim is a native and citizen of South Korea. He was admitted to the United States as a lawful permanent resident on June 3, 1983. In March 2010, Yim was arrested pursuant to a four-count complaint charging grand theft auto, identity theft, falsifying financial statements, and perjury. Yim, like Velasquez, was charged with providing false information, under penalty of perjury, to the California Department of Motor Vehicles. Yim eventually pleaded nolo contendere to one count of perjury in violation of section 118(a), and in December 2011, DHS charged Yim as removable for having committed an "aggravated felony." An IJ found Yim removable as charged, and the BIA affirmed.

II

The term "aggravated felony" covers "offense[s] relating to ... perjury ... for which the term of imprisonment is at least one year." 8 U.S.C. § 1101(a)(43)(S). An alien convicted of an "aggravated felony" is removable, 8 U.S.C. § 1227(a)(2)(A)(iii), and is also ineligible for asylum, 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i), and cancellation of removal, 8 U.S.C. § 1229b(a)(3). The question here is whether perjury under section 118(a) of the California Penal Code is "an offense relating to ... perjury." 8 U.S.C. § 1101(a)(43)(S). To answer this question, we apply the categorical approach from Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).¹ The categorical approach prescribes a three-step process for determining whether an offense is an "aggravated felony."

First, we must identify the elements of the generic federal offense, Renteria-Morales v. Mukasey , 551 F.3d 1076, 1081 (9th Cir. 2008), in this case, "perjury," 8 U.S.C. § 1101(a)(43)(S). We "defer to the BIA's articulation of the generic federal definition ‘if the statute is silent ... and the BIA's interpretation is based on a permissible construction of the statute.’ " Renteria-Morales , 551 F.3d at 1081 (quoting Parrilla v. Gonzales , 414 F.3d 1038, 1041 (9th Cir. 2005) ); cf. United States v. Garcia-Santana , 774 F.3d 528, 542–43 (9th Cir. 2014). An interpretation is permissible so long as it is not "clearly contrary to the plain meaning of the statute." Parrilla , 414 F.3d at 1041.

Second, we must identify the elements of the specific crime of conviction, Renteria-Morales , 551 F.3d at 1081, here, section 118(a) of the California Penal Code, Cal. Penal Code § 118(a). In doing so, we will "not defer to the BIA's interpretation of state law," Renteria-Morales , 551 F.3d at 1081, because the BIA "has no special expertise ... in construing state ... statutes," Marmolejo-Campos v. Holder , 558 F.3d 903, 907 (9th Cir. 2009) (en banc). To determine the elements of a state statute, "we may consider the interpretation of the statute provided by state courts." United States v. Perez , 932 F.3d 782, 785 (9th Cir. 2019).

Third, we compare the statute of conviction to the generic federal offense to determine "whether the specific crime of conviction meets the ... definition of an aggravated felony."

Renteria-Morales , 551 F.3d at 1081. Here, unlike in other cases, the state offense need not criminalize the same amount of conduct (or less) as the generic offense, because the INA refers to "an offense relating to ... perjury." 8 U.S.C. § 1101(a)(43)(S) (emphasis added); see, e.g. , United States v. Sullivan , 797 F.3d 623, 638 (9th Cir. 2015) ; United States v. Sinerius , 504 F.3d 737, 743 (9th Cir. 2007). As we have recognized, the phrase "relating to," when used in this context, indicates that Congress intended to "cover[ ] a range of activities beyond" just the generic offense. Albillo-Figueroa v. I.N.S. , 221 F.3d 1070, 1073 (9th Cir. 2000). Therefore, the statute of conviction need only "stand[ ] in some relation, bear[ ] upon, or [be] associated with th[e] generic offense." Sinerius , 504 F.3d at 743.

A

We begin with the first step of the categorical approach, which is to identify the elements of the generic crime of "perjury," as it is used in 8 U.S.C. § 1101(a)(43)(S), with due deference to the BIA. See Renteria-Morales , 551 F.3d at 1086. We presume that Congress intended the terms of a statute, including a list of offenses, to have their "contemporary meaning." Taylor , 495 U.S. at 598, 110 S.Ct. 2143. The definition of the relevant offense in another section of the United States Code provides strong evidence as to Congress's intent, given Congress's presumed familiarity with that definition. See, e.g. , Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 1570–71, 198 L.Ed.2d 22 (2017). Accordingly, the BIA may "rely to a significant degree on the Federal definition of an offense, where available." Matter of M-W- , 25 I. & N. Dec. 748, 752 n.5 (BIA 2012) (citation omitted); see Renteria-Morales , 551 F.3d at 1086 (holding that "the BIA acted reasonably in deriving the definition of ‘obstruction of justice’ for purposes of § 1101(a)(43)(S) from the body of federal statutes imposing criminal penalties on obstruction-of-justice offenses"). Although probative, a parallel federal offense might not provide "the complete or exclusive definition" of a generic offense, Esquivel-Quintana , 137 S. Ct. at 1571 ; cf. Garcia-Santana , 774 F.3d at 535, and so a multi-jurisdictional analysis "can be useful insofar as it helps shed light on the common understanding and meaning of the federal provision being interpreted," even though undertaking such an analysis is "not required by the categorical approach," Esquivel-Quintana , 137 S. Ct. at 1571 n.3 (citation omitted).² In addition to state criminal codes, the Model Penal Code and scholarly commentary may shed light on the contemporary...