Orellana v. Mayorkas

• Decision Date: 28 July 2021
• Docket Number: No. 20-16092,20-16092
• Citation: 6 F.4th 1034
• Parties: Blanca Estella ORELLANA, Plaintiff-Appellant, v. Alejandro MAYORKAS, Secretary of Homeland Security; Tracy Renaud, Acting Director, U.S. Citizenship and Immigration Services; Robert Looney, San Francisco/San Jose District Director, U.S. Citizenship and Immigration Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

6 F.4th 1034

Blanca Estella ORELLANA, Plaintiff-Appellant,

v.Alejandro MAYORKAS, Secretary of Homeland Security; Tracy Renaud, Acting Director, U.S. Citizenship and Immigration Services; Robert Looney, San Francisco/San Jose District Director, U.S. Citizenship and Immigration Services, Defendants-Appellees.

No. 20-16092

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2021 San Francisco, California

Filed July 28, 2021

Kevin M. Crabtree (argued), Fuerza Immigration Lawyers LLP, Oakland, California, for Plaintiff-Appellant.

T. Monique Peoples (argued), Senior Litigation Counsel; Elianis N. Perez, Assistant Director; William C. Peachey, Director, District Court Section; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: M. Margaret McKeown and Sandra S. Ikuta, Circuit Judges, and Joan N. Ericksen,^* District Judge.

IKUTA, Circuit Judge:

The United States Citizenship and Immigration Services (USCIS) denied an application for naturalization because the applicant had been convicted of "an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," 8 U.S.C. § 1101(a)(43)(M)(i), and therefore lacked the "good moral character" required under 8 U.S.C. § 1427(a). This appeal requires us to consider whether a district court reviewing documents in the applicant's challenge to such a denial can consider documents outside of the record in the applicant's prior criminal case. We conclude that under the "circumstance-specific" approach to the monetary threshold in § 1101(a)(43)(M)(i), the district court is not limited to reviewing the record in the applicant's criminal case in determining the "loss to the victim." See Nijhawan v. Holder , 557 U.S. 29, 40, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). Nevertheless, we conclude that the complaint here cannot survive a motion to dismiss, because it does not plausibly allege that "the loss to the victim" of the applicant's criminal offense did not "exceed[ ] $10,000." 8 U.S.C. § 1101(a)(43)(M)(i).

I

According to her complaint, Blanca Orellana is a citizen of El Salvador. She has resided in the United States since 1990 and has been a lawful permanent resident since February 2003.

In February 2002, while working for Ocadian Care Center, Orellana injured her neck, right hand, left hand, right foot, and back. Orellana received emergency room treatment in February 2002, and was subsequently treated by several different physicians. Orellana filed a disability claim with Ocadian, claiming that the injuries she sustained from this incident left her unable to work. Ocadian accepted the claim, and Orellana began receiving temporary disability payments from Ocadian in February 2002. Ocadian also paid for Orellana's ongoing medical treatment, which included therapy for her upper extremities, treatment for her right foot and ankle, and assistive devices (splints for both wrists and an elbow sleeve). As of December 2, 2002, Ocadian had paid $37,957.64. In connection with these injuries, Orellana also filed an application with the Workers’ Compensation Appeal Board (WCAB).

Ocadian's private investigator subsequently discovered that Orellana's claimed disabilities were contradicted by her activities. Surveillance during the period from April 2002 to August 2002 showed that Orellana was continuing to work while receiving disability and workers’ compensation payments, and that she showed no signs of limited movements. In December 2002, Ocadian's insurance company filed a mandatory report of suspected fraud with the local district attorney. In 2003, the district attorney filed a criminal complaint against Orellana. Counts 1 and 2 (which were subsequently dismissed) charged Orellana with making a false statement in support of an insurance claim, Cal. Penal Code § 550(b)(2), and a false statement in support of a claim for workers’ compensation, Cal. Ins. Code § 1871.4(a)(1), respectively. Count 3 charged her with the crime of concealing a material fact "on or about February 20, 2002 and through August 14, 2002," namely, that Orellana "did conceal and knowingly fail to disclose the occurrence of an event and series of events that affected [her] initial and continued right or entitlement to insurance benefits or payments, and the amount of any benefits or payments to which [she] was entitled, to wit: outside employment, sources of income."¹ This nondisclosure violated section 550(b)(3) of the California Penal Code, which makes it "unlawful to do, or to knowingly assist or conspire with any person to ... [c]onceal, or knowingly fail to disclose the occurrence of, an event that affects any person's initial or continued right or entitlement to any insurance benefit or payment, or the amount of any benefit or payment to which the person is entitled."

In May 2003, Orellana pleaded guilty to Count 3, and Counts 1 and 2 were dismissed subject to a Harvey waiver.² She was ordered "to make restitution for damages as to Count(s) 3 in an amount and manner to be determined by the probation officer and ordered by the court," as well as "to make restitution on counts, cases, and uncharged matters dismissed with Harvey waiver."

In connection with the restitution proceedings, Ocadian provided a letter stating that as of August 4, 2003, Ocadian had paid $56,000 for Orellana's claim and had "paid $5,146.00 in legal and investigation fees and $11,609 in temporary disability fees." Orellana was ultimately ordered to pay Ocadian $30,000 in restitution.

In December 2004, the WCAB approved a separate agreement settling Orellana's workers’ compensation claim against Ocadian. Under the agreement, the parties agreed that Orellana's claim against Ocadian would be settled for $42,700. The $30,000 restitution payment to Ocadian would be deducted from this amount.

Years later, Orellana applied for naturalization. In January 2018, the USCIS denied her application based on its determination that Orellana's state conviction for insurance fraud was an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," 8 U.S.C. § 1101(a)(43)(M)(i), which is an "aggravated felony" precluding naturalization, 8 C.F.R. § 316.10(b)(1)(ii).

In September 2019, Orellana filed suit in the district court, seeking to compel the USCIS to adjudicate her then-pending administrative appeal of the denial of her naturalization application. After the USCIS reaffirmed its decision to deny her application for naturalization, Orellana amended her complaint to challenge the USCIS's determination. In the operative complaint, Orellana referenced documents that had not been part of the record in her criminal case. In particular, the complaint relied on a printout that it claimed listed the checks Ocadian sent to Orellana for the period between February 4, 2002 and February 2, 2003. According to the complaint, the printout showed that for the period between February 20, 2002 and August 14, 2002, Ocadian paid Orellana $5,010.98.

Orellana argued that under Nijhawan , the district court could consider any admissible evidence to calculate the loss caused to the victim by the specific conduct underlying the count of conviction. Therefore, she argued that the court should consider the printout setting forth the check payments, even though it had not been part of the criminal record.

The district court dismissed the complaint without prejudice on the ground that Orellana failed to plead facts sufficient to show that she had not been convicted of an offense involving "fraud or deceit in which the loss to the victim or victims exceeds $10,000," 8 U.S.C. § 1101(a)(43)(M)(i), and therefore failed to make a plausible claim that she was eligible for naturalization. In reaching this conclusion, the court rejected Orellana's argument that, under Nijhawan , it could consider the printout purportedly setting forth Ocadian's check payments. The district court reasoned that Nijhawan permitted courts to consider sentencing-related material, but did not allow a court to consider any other admissible evidence, which (in the court's view) would allow a party to relitigate the underlying conviction.

After Orellana informed the court that she did not intend to file an amended complaint, the court entered final judgment, and Orellana brought this appeal.

II

We have jurisdiction to review the district court's judgment under 28 U.S.C. § 1291. See Alocozy v. U.S. Citizenship & Immigr. Servs ., 704 F.3d 795, 796 (9th Cir. 2012). We review de novo the grant of a motion to dismiss. Elmakhzoumi v. Sessions , 883 F.3d 1170, 1172 (9th Cir. 2018).

A

On appeal, Orellana's central argument is that the district court erred in declining to consider the printout, which provided evidence of the payments she received from Ocadian between February 20, 2002 and August 14, 2002. Because Orellana's eligibility for naturalization turns on a showing that her prior conviction is not "an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," 8 U.S.C. § 1101(a)(43)(M)(i), Orellana claims that her additional evidence is crucial to show that the loss to Ocadian did not exceed the statutory amount. Therefore, we first turn to the question whether the district court erred in concluding that even under the "circumstance-specific" approach outlined in Nijhawan , it could review only documents in Orellana's state criminal case records.

We consider this issue in the context of the Supreme Court's evidentiary rules for determining whether a person's prior state conviction qualifies as a generic federal offense described in the relevant federal statute. Section 1101(a)(43)(M)(i) lists such a generic fraud offense. Over the past three decades, the Supreme Court has developed and refined a methodology called the "categorical approach" for making this determination. See Taylor v. United States , 495 U.S. 575,...