and Submitted November 15, 2019 Pasadena, California
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.
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.
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
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.
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.
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.
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.
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.
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.
Jauregui-Cardenas petitions for review of a final order of
removal, arguing the Board of Immigration Appeals
("BIA") erred in holding that she is an
inadmissible alien who is not eligible for discretionary
relief. The BIA concluded Jauregui-Cardenas is ineligible for
cancellation of removal because her conviction for using
false documents to conceal citizenship, in violation of
California Penal Code ("CPC") § 114,
categorically qualifies as an aggravated felony and
alternatively, a crime involving moral turpitude
("CIMT"). Because the BIA erred in concluding that
a conviction under CPC ...