Vizcarra-Ayala v. Mukasey

• Citation: 514 F.3d 870
• Decision Date: 23 January 2008
• Docket Number: No. 06-73237.,06-73237.
• Parties: Rafael VIZCARRA-AYALA, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

514 F.3d 870

Rafael VIZCARRA-AYALA, Petitioner, v. Michael B. MUKASEY,^* Attorney General, Respondent.

No. 06-73237.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 26, 2007.

Filed January 23, 2008.

Michael Adura-Miranda, Erika S. Rivera & Evangeline G. Abriel, Santa Clara University School of Law, Santa Clara, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Emily Anne Radford, Assistant Director, & Stephen M. Elliott, 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. A92-173-693.

Before: JOHN R. GIBSON^**, MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.

BERZON, Circuit Judge:

Rafael Vizcarra-Ayala ("Vizcarra-Ayala"), a native and citizen of Mexico, challenges the Board of Immigration Appeals' ("B IA") ruling that his forgery conviction under California Penal Code § 475(c) ("Penal Code § 475(c)") renders him an aggravated felon pursuant to Immigration and Naturalization Act ("INA") § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R). He argues that Penal Code § 475(c) encompasses conduct involving real, unaltered documents and thus is not categorically an offense "relating to . . . forgery" under INA § 101(a)(43)(R). We agree and grant the petition.

I.

In 2005, Vizcarra-Ayala pleaded guilty to a violation of Penal Code § 475(c), which provides that "[e]very person who possesses any completed check, money order, traveler's check, warrant or county order, whether real or fictitious, with the intent to utter or pass or facilitate the utterance or passage of the same, in order to defraud any person, is guilty of forgery." He was sentenced to two years imprisonment.

The following year, the Department of Homeland Security ("DHS") began removal proceedings against Vizcarra-Ayala. An Immigration Judge ("IJ") found him removable as an aggravated felon under INA § 101(a)(43)(R), which provides that "an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year" is an aggravated felony.

Vizcarra-Ayala, pro se throughout the administrative proceedings, appealed to the BIA. He argued generally that under the modified categorical approach, Penal Code § 475(c) did not constitute an aggravated felony. His specific argument, however, targeted the wrong ground for removal: He argued that Penal Code § 475(c) was not categorically a "crime of violence" under INA § 101(a)(43)(F)—a ground on which the IJ did not rely— because it encompassed aiding and abetting liability.¹

In a one-paragraph opinion, the BIA dismissed the appeal. It found, "[u]pon review of the instant record, . . . that the Immigration Judge did not err in determining that the respondent's criminal conviction for forgery in violation of California Penal Code section 475(c), constitutes an aggravated felony under section 101(a)(43)(R) of the [INA]."

Vizcarra-Ayala petitions this Court for review, arguing that Penal Code § 475(c) encompasses conduct involving real, unaltered documents and thus is not categorically an offense "relating to . . . forgery."

II.

The INA precludes judicial review over final orders of removal against any alien removable for having committed an aggravated felony, except to the extent that the petition for review raises constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C)-(D). "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)." Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir.2006).

We conduct de novo review of questions of law. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). Although the BIA's interpretation of the immigration laws is entitled to deference, id. at 862, its interpretation of the California Penal Code—a statute it does not administer —is not. Garcia-Lopez v. Ashcroft 334 F.3d 840, 843 (9th Cir.2003). Consequently, "we apply de novo review to `the issue of whether a particular offense constitutes an aggravated felony.'" Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir. 2004) (quoting Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717(9th Cir.2003)).

III.

We can review a final removal order only after the alien has exhausted all available administrative remedies. 8 U.S.C. § 1252(d)(1). This Court has held that the statutory exhaustion requirement is jurisdictional and thus "generally bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below." Barron v. Ashcroft, 358 F.3d 674, 678(9th Cir.2004).

"A petitioner cannot satisfy the exhaustion requirement by making a general challenge to the IJ's decision, but, rather, must specify which issues form the basis of the appeal." Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004). A petitioner need not, however, raise the precise argument below. In Zhang v. INS, 388 F.3d 713 (9th Cir.2004), the petitioner "explicitly mentioned in his brief to the BIA that he was requesting reversal of the IJ's denial of relief under the Convention Against Torture," although apparently nothing more was said. Id. at 721. In other words, the specific legal ground for the challenge was not set forth. Id. This Court found the claim nonetheless was exhausted:

Zhang's request was sufficient to put the BIA on notice that he was challenging the IJ's Convention [Against Torture] determination, and the agency had an opportunity to pass on this issue. Zhang raised the issue of Convention relief before the BIA, and our precedent requires nothing more.

Id. (citation omitted).

Similarly, in Moreno-Morante v. Gonzales, 490 F.3d 1172 (9th Cir.2007), this Court found the petitioner's claim exhausted where he did not make the "precise statutory argument in the proceedings below [but] . . . did raise his general argument. . . ." Id. at 1173 n. 1 (emphasis in original); see also Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir.2006) (where "[p]etitioner's notice of appeal to the BIA asserted that the `Immigration Judge erred in disregarding that [Petitioner] entered the United States as a refugee' [his] failure to elaborate on the argument in his brief to the BIA is immaterial to our jurisdiction" over that claim) (second alteration in original); Cruz-Navarro v. INS, 232 F.3d 1024, 1030 n. 8 (9th Cir.2000) ("[T]he issue in question may have been argued in a slightly different manner [to the BIA] and still be preserved for appeal."). Moreover, pro se claims are construed liberally for purposes of the exhaustion requirement.` Agyeman v. INS, 296 F.3d 871, 878 (9th Cir.2002) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).

Here, Vizcarra-Ayala argued that Penal Code § 475(c) is not an aggravated felony under the modified categorical approach. As the only ground upon which the IJ found his conviction to be an aggravated felony was as an offense relating to forgery, the BIA had sufficient notice that Vizcarra-Ayala's challenge—though directed at a different part of the aggravated felony definition—was intended to challenge the ground on which he was ordered removed.

Further, our precedent is quite clear that claims addressed on the merits by the BIA are exhausted. See Abebe, v. Gonzales, 432 F.3d 1037, 1040-41 (9th Cir. 2005) (en banc); Socop-Gonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir.2001) (en banc). Here, the BIA did not simply reject the arguments that Vizcarra-Ayala raised as irrelevant because the IJ did not find his conviction to be a crime of violence. Instead, it recognized that the issue raised was whether a conviction under Penal Code § 475(c) constituted an aggravated felony under INA § 101(a)(43)(R). After conducting an independent review of the record, it found "that the [IJ] did not err in determining that the respondent's criminal conviction for forgery in violation of California Penal Code section 475(c), constitutes an aggravated felony under section 101(a)(43)(R) of the [INA]."

The ETA had notice of the claim and ruled on the merits. There was therefore adequate exhaustion.

IV.

The INA defines "aggravated felony" as any one of a series of offenses, including "an offense relating to . . . forgery . . . for which the term of imprisonment is at least one, year." INA § 101(a)(43)(R). Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), provides the analytical framework to determine whether a conviction is one "relating to . . . forgery."² First, the court determines whether the statute encompasses offenses that are narrower than or equal to the federal definition of "an offense relating to . . . forgery." If so, a conviction under the state statute necessarily implies that the conviction is one relating to forgery. Id. at 599, 110 S.Ct. 2143. If, however, the statute is overinclusive, the modified categorical approach permits an examination of certain documents in the record "to determine if the record unequivocally establishes that the defendant was convicted of the generically defined crime. . . ." United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc), superseded on other grounds by USSG § 2L1.2, cmt. n. 4 (2002).

A. "Offense relating to . . . forgery"

We begin by considering the reach of the phrase "offense relating to . . . forgery." Forgery developed from the commonlaw crime of larceny and thus should be defined by its "generic, core meaning." Morales-Alegria, 449 F.3d at 1054; see also Corona-Sanchez, 291 F.3d at 1204. To determine this meaning, "we look to common-law definitions, the generic sense in which the term is now used in the criminal codes of most states, as well as other circuits' analyses of the generic offense." Morales-Alegria, 449...