Jauregui-Cardenas v. Barr, 011320 FED9, 16-71309
|Opinion Judge:||WHALEY, DISTRICT JUDGE.|
|Party Name:||Maria Jauregui-Cardenas, Petitioner, v. William P. Barr, Attorney General, Respondent.|
|Attorney:||Richard Flores Lemus (argued), Law Offices of Richard F. Lemus, Fullerton, California, for Petitioner. Yanal H. Yousef (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.|
|Judge Panel:||Before: Marsha S. Berzon and Paul J. Watford, Circuit Judges, and Robert H. Whaley, District Judge. BERZON, Circuit Judge, concurring.|
|Case Date:||January 13, 2020|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted November 15, 2019 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-320-208
Richard Flores Lemus (argued), Law Offices of Richard F. Lemus, Fullerton, California, for Petitioner.
Yanal H. Yousef (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: Marsha S. Berzon and Paul J. Watford, Circuit Judges, and Robert H. Whaley, [*] District Judge.
The panel granted Maria Jauregui-Cardenas' petition for review of a decision of the Board of Immigration Appeals concluding that she was ineligible for cancellation of removal due to her conviction for using false documents to conceal citizenship, in violation of California Penal Code ("CPC") § 114, and reversed and remanded, holding that CPC § 114 is neither an aggravated felony under 8 U.S.C. § 1101(43)(P) nor a crime involving moral turpitude.
The panel observed that the necessary elements for conviction under CPC § 114 are: (1) the use; (2) of a false document; (3) to conceal citizenship or alien status; (4) with specific intent.
The panel held that CPC § 114 is not an aggravated felony under 8 U.S.C. § 1101(43)(P). The definition of an aggravated felony set out in § 1101(43)(P) incorporates an offense described in 18 U.S.C. § 1546(a), which, as relevant here, provides that "[w]hoever . . . uses . . . any such visa, permit, border crossing card, alien registration card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be . . . falsely made" shall be punished by law. The panel concluded that CPC § 114 is not a match to 18 U.S.C. § 1546(a), explaining that, in contrast to the elements of the state statute, which allow for the use of any false document, the federal offense narrowly proscribes the use of specific, enumerated documents.
The panel also concluded CPC § 114 is not divisible, noting that there are no subsections or separate elements expressed in the statute that could be independently proven. Thus, the panel concluded that the application of the modified categorical approach would be improper, explaining that the inquiry ends here with the state statute of conviction being broader than its federal counterpart and thus, not a match for an aggravated felony.
The panel further held that CPC § 114 is not a CIMT. In so concluding, the panel observed that this court has defined a CIMT as an offense involving either fraud or base, vile, and depraved conduct that shocks the public conscience, and that a state conviction qualifies as a fraudulent CIMT when the intent to defraud is explicit in the statutory definition of the crime or implicit in the nature of the crime. Looking to CPC § 114, the panel noted that a violation occurs when a person has specific intent to use any false document to conceal his or her citizenship for any reason, and therefore, intent to defraud is not explicit in the definition.
Considering whether the crime is inherently fraudulent, the panel observed that this court has held that intent to defraud is implicit in the nature of the crime when the individual makes false statements in order to procure something of value, either monetary or non-monetary. Here, the panel explained that CPC § 114 does not require that there be any specific benefit to any specific person-it permits conviction simply for the use of a document to show another that the holder is a legal resident, even where that representation does not incur any benefit to the defendant. Accordingly, the panel held that because CPC § 114 does not require fraudulent intent, it is overbroad, and therefore, not categorically a CIMT.
Concurring, Judge Berzon wrote that she concurred in the majority opinion in full, but wrote separately to reiterate her view that the phrase, "crime involving moral turpitude" is unconstitutionally vague. Observing that persistent efforts have failed to establish a standard of what a crime involving moral turpitude is, Judge Berzon wrote that it is time to revisit whether this phrase is unconstitutionally vague.
WHALEY, DISTRICT JUDGE.
Maria Jauregui-Cardenas petitions for review of a final order of removal...
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