PEDRO VASQUEZ-BORJAS V. MERRICK GARLAND, No. 17-70867 (9th Cir. 2022)
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Petitioner was convicted of forgery under Section 472 for possession of a counterfeit government seal. The Board of Immigration Appeals concluded that this conviction was a crime involving moral turpitude that made him ineligible for cancellation of removal. Petitioner argued that intent to defraud is not a required element under Section 472, and therefore, his forgery conviction was not a categorical crime involving moral turpitude.
The Ninth Circuit denied in part and dismissed in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals, the court held that a forgery under California Penal Code Section 472 is a crime involving moral turpitude.
The court considered the elements of Section 472 and concluded that California law does not support Petitioner’s reading of the statute. The court explained that it is reasonable to read the statutory text as requiring that all the prohibited acts be done “with the intent to defraud another,” and that no California court has held that Section 472 has separate clauses or that the intent-to-defraud element is limited to specific clauses or actions. The court also explained that California caselaw establishes that forgery requires intent to defraud and that California’s pattern jury instructions confirm that conclusion.
Finally, Petitioner contended that his argument to the BIA that his conviction did not render him inadmissible was sufficient to alert the BIA to the relevance of the petty offense exception. The court concluded that the record belied that assertion, noting that the BIA did not read Petitioner’s brief as raising that assertion.
Court Description: Immigration Denying in part and dismissing in part Pedro Antonio Vasquez-Borjas’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a forgery under California Penal Code § 472 is a crime involving moral turpitude. Vasquez-Borjas was convicted of forgery under Section 472 for possession of a counterfeit government seal—a Social Security card that he knew was fake. The BIA concluded that this conviction was a crime involving moral turpitude that made him ineligible for cancellation of removal. Vasquez-Borjas argued that intent to defraud is not a required element under Section 472, and therefore, his forgery conviction was not a categorical crime involving moral turpitude. Specifically, Vasquez-Borjas argued that Section 472 is organized into three clauses and that intent to defraud is not an element of the so-called “possession” clause under which he was convicted. Applying the categorical approach, the panel considered the elements of Section 472 and concluded that California law does not support Vasquez-Borjas’s reading of the statute. The panel explained that it is reasonable to read the statutory text as requiring that all the prohibited acts be done “with the intent to defraud another,” and that no California court has held that Section 472 has separate clauses or that the intent-to-defraud element is limited to specific clauses or VASQUEZ-BORJAS V. GARLAND 3 actions. The panel also explained that California caselaw establishes that forgery requires intent to defraud and that California’s pattern jury instructions confirm that conclusion. The panel compared the elements of Section 472 to the generic federal offense. The panel explained that the court’s caselaw establishes that the generic federal definition of forgery includes fraudulent intent and, therefore, it is a crime involving moral turpitude. Because California requires proof of intent to defraud for all Section 472 offenses, the panel concluded that Section 472 is a categorical match with the federal definition of forgery, and that the BIA did not err in concluding that a Section 472 conviction is for a crime involving moral turpitude. Vasquez-Borjas argued that, even if he was convicted of a crime involving moral turpitude, he was eligible for cancellation of removal under 8 U.S.C. § 1182(a)(2)(A)(ii)—the petty-offense exception. Vasquez- Borjas did not dispute that he failed to raise this issue in his immigration proceedings, but made three arguments for why it was exhausted. First, Vasquez-Borjas argued that the court could address the issue because the BIA addressed it on the merits. The panel rejected that contention, explaining that the BIA merely noted that Vasquez-Borjas had not made any argument related to the petty-offense exception and that it appeared that the exception would not apply. Second, Vasquez-Borjas argued that his case was like Abebe v. Gonzales, 432 F.3d 1037 (9th Cir. 2005) (en banc), where the court concluded that an issue raised to the IJ, but not to the BIA, was exhausted because the BIA affirmed the IJ’s entire decision under Matter of Burbano, 20 I. & N. Dec. 872 4 VASQUEZ-BORJAS V. GARLAND (BIA 1994). The panel concluded that the cases were not analogous, explaining that the IJ here did not address the petty-offense exception, and the BIA indicated that it considered only the IJ’s conclusion that Vasquez-Borjas was ineligible for cancellation of removal due to his conviction. Finally, Vasquez-Borjas contended that his argument to the BIA that his conviction did not render him inadmissible was sufficient to alert the BIA to the relevance of the petty offense exception. The panel concluded that the record belied that assertion, noting that the BIA did not read Vasquez-Borjas’s brief as raising the exception and nothing in the record demonstrated that the BIA’s observation was incorrect.
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