Ho Sang Yim v. Barr, No. 17-70624 (9th Cir. 2020)
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The Ninth Circuit held that the BIA reasonably interpreted "perjury," as used in 8 U.S.C. 1101(a)(43)(S), to mean an offense where "an offender make[s] a material false statement knowingly or willfully while under oath or affirmation [or penalty of perjury] where an oath is authorized or required by law." Given this definition, the panel held that perjury under section 118(a) of the California Penal Code is an "aggravated felony" because it is "an offense relating to . . . perjury."
Petitioners, in three separate petitions for review, were convicted of perjury under section 118(a) and then suffered adverse immigration consequences on the ground that each had committed an "aggravated felony," namely, an "an offense relating to . . . perjury" under section 1101(a)(43)(S). The panel applied the categorical approach and held that section 118(a) is a categorical match with the BIA's generic definition of perjury, meaning that they cover the same amount of conduct. The panel rejected petitioners' claims to the contrary and held that section 118(a) is an "offense" relating to . . . perjury" under section 1101(a)(43)(S). The panel disposed of the petitions and any remaining arguments in concurrently filed memorandum dispositions.
Court Description: Immigration. On petitions for review brought by Ho Sang Yim, Orlando Velasquez Garcia, and Raul Borges Borba-Cardoso, the panel deferred to the Board of Immigration Appeals’ interpretation of “perjury,” as used in the aggravated felony definition of 8 U.S.C. § 1101(a)(43)(S), and held that perjury under section 118(a) of the California Penal Code is an aggravated felony. Each of the three petitioners was convicted of perjury under section 118(a) of the California Penal Code and then suffered adverse immigration consequences on the ground that he had committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(S), which includes “an offense relating to . . . perjury.” Applying the three-step categorical approach, the panel first explained that the BIA had interpreted the generic *** The Honorable Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designation. 4 YIM V. BARR definition of “perjury” to require that an offender (1) make a material false statement (2) knowingly or willfully (3) while under oath or affirmation or penalty of perjury (4) where an oath is authorized or required by law. The panel deferred to the BIA’s determination, explaining that the BIA had surveyed the definitions of perjury recognized at common law, codified in state and federal statutes, and adopted by the Model Penal Code, and that the BIA reasonably settled on a definition compatible with those sources. The panel also rejected the argument that it was not reasonable for the BIA to omit a requirement that a statement be made in an official proceeding, explaining that the federal perjury statute supports the BIA’s omission of a “proceeding” requirement, and that the BIA was not bound to adopt the definition used by a majority of the states. At the second step of the categorical approach, the panel concluded that the elements of perjury under section 118(a) are: (1) a willful statement, (2) either (a) under oath in any of the cases in which the oath may be administered or (b) in writing under penalty of perjury in circumstances permitted by law, (3) of any material matter, and (4) which the person knows to be false. At the third step, the panel concluded that the elements of section 118(a) and the elements of the generic federal definition are a categorical match. First, the panel concluded that there was no meaningful difference between section 118(a)’s requirement of “willful” intent and the BIA’s requirement of “knowingly or willfully.” Second, with respect to the false-statement requirement, Borba argued that a person could be convicted under section 118(a) without making a literally false statement because YIM V. BARR 5 California law provides that an “unqualified statement of that which one does not know to be true is the equivalent to a statement of that which one knows to be false.” The panel rejected that argument, concluding that the phrase “false statement” in the BIA’s definition includes statements made by a declarant who is entirely ignorant of the statement’s truth or falsity. Third, the panel considered the contention that section 118(a) criminalizes more conduct than the BIA’s generic definition because, in California, it is no defense that the accused did not know the materiality of the false statement. Rejecting that argument, the panel explained that the BIA’s definition is in accord with the uniform principle that the declarant need not know the statement is material. Finally, the panel considered the requirement that an oath, affirmation, or declaration under penalty of perjury be authorized or permitted by law. The panel rejected Yim’s contention that there is a difference between being “authorized by law,” as provided by section 118(a), and being “permitted by law,” as provided by the BIA’s generic definition. The panel explained that, even if there is some semantic different between the terms, Yim failed to establish a “realistic probability” that section 118(a) is applied more broadly than the generic offense. Petitioners also argued that the offenses are not a categorical match because California law recognizes two affirmative defenses to perjury that are not incorporated into the federal generic offense. The panel rejected this contention, explaining that the existence or non-existence of affirmative defenses is irrelevant to the categorical approach, 6 YIM V. BARR and that neither of the statutes relied on by petitioners alter the statutory definition set forth in section 118(a).
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