Morales-Alegria v. Gonzales

• Decision Date: 06 June 2006
• Docket Number: No. 03-73117.,03-73117.
• Citation: 449 F.3d 1051
• Parties: Francisco Jose MORALES-ALEGRIA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

449 F.3d 1051

Francisco Jose MORALES-ALEGRIA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-73117.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 17, 2006.

Filed June 6, 2006.

Adam V. Loiacono, Law Offices of Shawn Sedaghat, Encino, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Margaret J. Perry, Senior Litigation Counsel & Arthur L. Rabin, Trial Attorney, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A92-399-656.

Before JOHN T. NOONAN, ANDREW J. KLEINFELD, and MARSHA S. BERZON, Circuit Judges.

BERZON, Circuit Judge.

The Board of Immigration Appeals (BIA) held that Francisco Morales-Alegria was removable because he had been convicted of an "aggravated felony" within the meaning of Immigration and Nationality Act (INA) section 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R). Morales-Alegria maintains that his conviction for forgery under California Penal Code section 476¹ does not qualify as an "aggravated felony." He contends that (1) a conviction under section 476 is not necessarily "an offense relating to ... forgery" because it does not require knowledge of the fictitious nature of the instrument, and (2) the government has not established that he was sentenced to a term of imprisonment of "at least one year" for his forgery offense, as § 1101(a)(43)(R) requires.

With respect to Morales-Alegria's first claim, we hold that a conviction under section 476 does require knowledge of the fictitious nature of the instrument and therefore is not broader than the federal definition of "offense relating to ... forgery" on that account. We do not have jurisdiction to consider Morales-Alegria's second claim relating to the length requirement, because he did not exhaust it before the BIA.

I.

Pursuant to INA section 237(a)(2)(A)(iii), an alien who, at any time after admission, is convicted of an aggravated felony — defined to include "an offense relating to ... forgery ... for which the term of imprisonment is at least one year," 8 U.S.C. § 1101(a)(43)(R) — may be removed from the country. See 8 U.S.C. § 1227(a)(2)(A)(iii). The government charged Morales-Alegria, a native and citizen of Guatemala, with removal for having committed an aggravated felony. The basis for removal was his prior conviction under California Penal Code section 476, entitled, "Forgery; fictitious or altered bills, notes or checks," which the government stated satisfied § 1101(a)(43)(R).

After a hearing, the Immigration Judge (IJ) issued an oral decision holding that Morales-Alegria was removable as charged, which Morales-Alegria appealed. The BIA dismissed Morales-Alegria's appeal, holding his conviction under section 476 was an aggravated felony for purposes of § 1101(a)(43)(R). Morales-Alegria timely petitioned this court for review of the BIA's decision.

We review de novo whether a conviction under state law is a removable offense. Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir.1997).

II.

Jurisdiction in this case is governed by 8 U.S.C. § 1252, which limits our jurisdiction over petitions for review of final orders of removal. See 8 U.S.C. § 1252(a)(2)(C).² We have jurisdiction in this case because of the addition of subparagraph (D) to 8 U.S.C. § 1252(a)(2) by the REAL ID Act of 2005, Pub.L. No. 109-13, § 106(a)(I)(A)(iii), 119 Stat. 231, 310. Pursuant to this new provision, the jurisdictional limits imposed by subparagraph (C), precluding review of removal orders against aggravated felons, do not apply to "review of constitutional claims or questions of law raised upon a petition for review." 8 U.S.C. § 1252(a)(2)(D) (emphasis added). Whether an offense is an aggravated felony for the purposes of 8 U.S.C. § 1101(a)(43)(R) is a question of law and therefore not subject to the jurisdictional constraints of § 1252(a) (2)(C). See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir.2005) (explaining that after the adoption of the REAL ID Act, this court has jurisdiction over questions of law, including whether an offense is a crime involving moral turpitude); Martinez-Perez v. Gonzales, 417 F.3d 1022, 1025 (9th Cir. 2005) (noting that whether an offense constitutes an aggravated felony is a question of law); see also Valencia v. Gonzales, 439 F.3d 1046, 1048 (9th Cir.2006) (holding, post REAL ID Act, that this court has jurisdiction to determine whether a crime is an aggravated felony, relying on pre-REAL ID Act cases).

III.

Morales-Alegria argues that section 476 includes a broader range of conduct than generic "forgery." Specifically, Morales-Alegria maintains that an individual may be convicted of forgery under Penal Code section 476 without a showing that he had knowledge of the fictitious nature of the instrument, while the generic definition of forgery requires such knowledge. We hold that while the generic definition of forgery does require such knowledge, so does section 476. Section 476, therefore, categorically meets the mens rea requirement for an "offense relating to ... forgery."

A.

Morales-Alegria's prior conviction is considered an aggravated felony for federal sentencing purposes if it is an "offense relating to . . . forgery" for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(R). Congress did not define the phrase "offense relating to ... forgery." To define a provision in a statute describing a class of prior offenses, we have used one of two methodologies:

[1] If the qualifying offense is described in terms of a traditional common law crime, then we have defined the offense in terms of its generic, core meaning... .

[2] If, on the other hand, the qualifying offense is described in terms that do not embrace a traditional common law crime, we have employed the ordinary, contemporary, and common meaning of the statutory words.

United States v. Corona-Sanchez, 291 F.3d 1201, 1204 (9th Cir.2002) (en banc) (internal quotation marks omitted) (quoting United States v. Trinidad-Aquino, 259 F.3d 1140, 1143 (9th Cir.2001)).³

Forgery offenses developed from the common-law crime of "larceny." 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 19.7(a), (j)(5) (2d ed.2003)[hereinafter SUBSTANTIVE CRIMINAL LAW]. We therefore use the first approach and consider the generic, core meaning of the crime. See Corona-Sanchez, 291 F.3d at 1204 (using the first approach to define the generic crime of "theft offense" because the modern crime developed from the common-law crime of larceny). To do so, we look to common-law definitions, "the generic sense in which the term is now used in the criminal codes of most states," Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), as well as other circuits' analyses of the generic offense. See Corona-Sanchez, 291 F.3d at 1205. Morales-Alegria only disputes the mens rea for the crime of which he was convicted. Accordingly, we only consider the knowledge and intent requirements traditionally included in the offense of forgery.

B.

The crime of forgery stems from the related crime of false pretenses, developed to fill a gap left in the evolution of the common-law crime of larceny. SUBSTANTIVE CRIMINAL LAW §§ 19.1(b), 19.2. Common-law larceny was originally limited to "(1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it." Id. § 19.2. Although "[t]he definition of larceny . . . was expanded by judicial interpretation to include cases where the owner merely was deemed to be in possession," "[b]y the late 18th century, courts were less willing to expand common-law definitions." Bell v. United States, 462 U.S. 356, 359, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). As a result, no crime punishing individuals who obtained title to, rather than only physical possession of, property through fraudulent means existed under the common-law. Id.; 3 WHARTON'S CRIMINAL LAW § 343 (15th ed.2005).

The crime of obtaining property by false pretenses was first created by the English Parliament in 1757 to fill this gap. The English statute punished those who "knowingly and designedly, by false pretence or pretences, shall obtain from any person or persons, money, goods, wares or merchandises, with intent to cheat or defraud any person or persons of the same." SUBSTANTIVE CRIMINAL LAW § 19.7(a) (internal quotation marks omitted) (quoting 1757, 30 Geo. II, c. 24 (Eng.)). At least one American jurisdiction recognized the English offense of "false pretenses" as part of the common-law. Id. § 19.7(a) n.4. Most jurisdictions, however, adopted false pretenses as a statutory crime. Although the statutory definition varies some from jurisdiction to jurisdiction, it generally consists of five elements: "(1) a false representation of a material present or past fact (2) which causes the victim (3) to pass title to (4) his property to the wrongdoer, (5) who (a) knows his representation to be false and (b) intends thereby to defraud the victim." Id. § 19.7 (emphases added).

Forgery, a crime closely related to false pretenses, is "aimed primarily at safeguarding confidence in the genuineness of documents relied upon in commercial and business activity." Id. § 19.7(j)(5).⁴ Jurisdictions that recognize forgery as a common-law crime provide that "the essential elements of the crime are (1) a false making of some instrument in writing; (2) a fraudulent intent; [and] (3) an instrument apparently capable of effecting a fraud." State v. Wheeler, 20 Or. 192, 195, 25 P. 394 (1890); see United States v. McGovern, 661 F.2d 27, 29 (3d Cir.1981). Furthermore, crimes of forgery require that one have knowledge of the falsity of the document. See, e.g., State v. Oliveira, 730 A.2d 20, 25-26 (R.I.1999) (explaining the common-law elements of forgery); Maloney v. State, 91 Ark. 485, 488, 121 S.W. 728 (1909) (explaining the common-law elements for the...