Tijani v. Eric H. Holder Jr
| Decision Date | 11 March 2010 |
| Docket Number | No. 05-70195.,05-70195. |
| Citation | 598 F.3d 647 |
| Parties | Monsuru Olasumbo TIJANI, Petitioner, v. Eric H. HOLDER Jr.,* Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
* Eric H. Holder, Jr., is substituted for his predecessor, Michael B. Mukasey, as Attorney General of the United States, pursuant to Fed R.App. P. 43(c)(2).
Cecillia D. Wang, San Francisco, CA, for the petitioner.
Ada E. Bosque, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A27-431-266.
Before: JOHN T. NOONAN, A WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.
Opinion by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge CALLAHAN.
Monsuru Olasumbo Tijani, a native and citizen of Nigeria, petitions for a review of a decision of the Board of Immigration Appeals (the BIA), affirming a decision by an immigration judge ordering his removal and denying him asylum. Central to the case is the place of credit in our economy. To the unsophisticated and sometimes to the sophisticate, the nature of credit is a mystery. It is not animal, mineral or vegetable. It is not real property. It is not a chattel. It is not money. Yet it is not a vapor. The one who uses it becomes a debtor, but becomes a debtor empowered to acquire wealth. The one who grants it the creditor, puts his own wealth at risk.
Credit comes into existence through confidence—confidence that one human being may rely on the representations of another human being. On this utterly unmechanical, uniquely human understanding, a credit economy is formed and wealth is created. To exploit, pervert and destroy the confidence that creates credit is a vicious act. The abuse of the distinctively human capacities to reason and to engage in rational speech, using these capacities to harm another human, may well be considered an act of moral turpitude.
That, at least, is the conclusion most people in this country would reach once they knew the facts. Credit is today the most widespread means of acquiring wealth in this country. To suppose that it is not fraud to try to tap into this wealth by lies is to ignore the economic elements of the modern world. Credit card fraud not fraud? No, in the modern United States it is the paradigm of fraud.
Tijani was born in Lagos, Nigeria on October 19, 1965. He entered the United States in 1982 on a student visa. He adjusted his status to lawful permanent resident in 1985. He was a student at California State University at Sacramento from 1982 to 1985 and has held several jobs in information technology and in biomedical laboratories. He is now married to a citizen of the United States.
In 1986, the year after he achieved the status of lawful permanent resident, Tijani was convicted of perjury in violation of Cal.Penal Code § 118 and of grand theft in violation of Cal.Penal Code § 487; he was sentenced to three years probation. The next year, 1987, he was convicted of pass-ing fraudulent checks in violation of Cal.Penal Code § 476a(a) and sentenced to one and one third years imprisonment.
As a result of these felony convictions the Immigration and Naturalization Service (now the Department of Homeland Security (DHS)) placed Tijani in deportation proceedings. He applied for a waiver of inadmissibility, submitting a letter on the letterhead of the Brotherhood of the Cross and Star, with its world headquarters indicated as Calabas, Nigeria, and its local headquarters indicated as Los Angeles. The letter was signed by "Pastor O.J Omogi" and stated that Tijani had been a practicing member of this Christian church for two years. In 1989, an immigration judge granted the waiver.
Two years later, in 1991, Tijani was convicted of violating Cal.Penal Code § 532a(l) by providing false information to obtain credit cards and using the cards to obtain goods; he was sentenced to prison for one and one-third years. One month later, on January 3, 1992, he was again convicted of filing false statements and had his prison sentence doubled.
On June 9, 1999, Tijani was convicted of twelve counts under the same section of the criminal law which he had been found in 1991 and 1992 to have violated; the crimes this time had been committed between June 1996 and July 1998. This time he was sentenced to prison for nine years and ordered to pay $27,793.71 in restitution.
In 2003, Tijani was charged with being removable as an alien convicted of an ag gravated felony and two crimes of moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii), respectively. He applied for asylum, withholding of deportation, and other relief. He testified that, brought up a Muslim, he had become a Christian in 1994 and that, on returning to his mother's village in 1995, to her consternation he revealed his change of religion. She told neighbors, who told the Sharia police, who paid him a visit at her house and reproached him for his apostasy from Islam. He was struck on the head, a blow requiring seventeen stitches to repair and leaving a scar. He was summoned to explain his apostasy in court, but fled Nigeria three days after the incident.
Prior to his removal hearing before the immigration judge in El Centro, California, Tijani filed a pro se motion for change of venue of the removal proceeding to San Francisco. The immigration judge denied his request.1
The immigration judge found the charges against Tijani true, rendering him removable. He found that the 1991 and 1999 convictions were crimes of moral turpitude and that the 1999 conviction was an aggravated felony. The immigration judge further found Tijani's credit card frauds to be particularly serious crimes, hurtful to the credit structure on which the economy of the United States exists. The immigration judge ruled that considering the multiple lies to which his convictions witnessed and also the conflict between his story of his change of religion and the account given in Pastor Omogi's letter, theimmigration judge had "reason not to believe him." The immigration judge did explicitly refuse to rule that Tijani was not credible, reasoning that he could "not find an inconsistency in [Tijani's] testimony... to say that he [was] not credible." At the same time, the immigration judge found "his words deserve no weight, " and described him as the Boy Who Cried Wolf. The judge concluded that Tijani had failed to prove eligibility for asylum, withholding of removal, or relief under the Convention Against Torture ("CAT").2
The BIA, using its streamlined procedure, affirmed the immigration judge's decision without opinion. Tijani petitions for review.
We have jurisdiction to review the questions of law presented by Tijani's petition. Fernandez-Ruiz v. Gonzales, 410 F.3d 58, 5, 586-87 (9th Cir.2005), as adopted by Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir.2006) (en banc). Among these questions are whether Tijani has been convicted of crimes of moral turpitude and whether he was required to corroborate his own testimony.
On this appeal, we must decide, first whether the crimes of Tijani, a lawful permanent resident, made him removable. Second, we must decide whether, if removable, he has established his claim for asylum and other relief.
The Crimes. Tijani's string of crimes consisted in credit card fraud in violation of Cal.Penal Code § 532a(l)—a modern form of swindle particularly tempting because of the ease and the impersonality with which the crime may be carried out. Do they constitute removable offenses? The government argues that the BIA correctly affirmed the IJ's decision holding that Tijani's 1991 and 1999 convictions arc crimes involving moral turpitude. It also argues that the 1999 conviction is an aggravated felony.
To determine whether a conviction constitutes a removable offense, this court applies the approach set out in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Counterfactual and counterintuitive though it often appears to be, we do not consider the particular facts of the convictions. We first ask whether the "full range of conduct" proscribed by Cal.Penal Code § 532a(l) meets the definition of a crime involving moral tuipitude or an aggravated felony. Nicanor-Romero v. Mukasey, 523 F.3d 992, 999 (9th Cir.2008) (). If the crime does prohibit conduct that does not necessarily involve moral turpitude, we turn next to the modified categorical approach, under which "We look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings." Id. at 1007 (citation omitted).
Section 532a(l) provides:
Any person who shall knowingly make or cause to be made, either directly or indirectly or through any agency what-soever, any false statement in writing with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself, or any other person, firm or corporation, in whom he is interested, or for whom he is acting, for the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the execution of a contract of guaranty or suretyship, the discount of an account receivable, or the making, acceptance, discount, sale or indorsement of a bill of exchange, or promissory note, for the benefit of either himself or...
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