Tijani v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MONSURU OLASUMBO TIJANI,  No. 05-70195
Petitioner,
Agency No.
v.
 A27-431-266
ERIC H. HOLDER JR.,* Attorney
ORDER AND
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued November 20, 2007
Submitted February 10, 2008
San Francisco, California

Filed December 6, 2010

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

*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).

19373
19376 TIJANI v. HOLDER

COUNSEL

Cecillia D. Wang, San Francisco, California, for the peti-
tioner.

Ada E. Bosque, Washington, D.C., for the respondent.

ORDER

The Opinion filed March 11, 2010 is withdrawn. A new
Opinion is filed herewith.

With the new Opinion, the government’s petition for panel
rehearing is DENIED. Judge Callahan would grant the gov-
ernment’s petition for rehearing.

The panel votes to deny Tijani’s petition for panel rehear-
ing. Judge Callahan votes to deny the petition for rehearing en
banc and Judge Noonan so recommends. Judge Tashima rec-
ommends granting the petition for rehearing en banc.
 TIJANI v. HOLDER 19377
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote
whether to rehear the matter en banc. Fed. R. App. P. 35.

Tijani’s petition for rehearing is DENIED and his petition
for rehearing en banc is DENIED.

No further petitions for rehearing and for rehearing en banc
will be entertained.

OPINION

NOONAN, Circuit Judge:

Monsuru Olasumbo Tijani, a native and citizen of Nigeria,
petitions for a review of a decision of the Board of Immigra-
tion Appeals (the BIA), affirming a decision by an immigra-
tion 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 vege-
table. 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 — confi-
dence 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 con-
fidence 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.
19378 TIJANI v. HOLDER
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.

FACTS

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 per-
manent 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 proba-
tion. The next year, 1987, he was convicted of passing fraudu-
lent 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 Services (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(1) by providing false information to
 TIJANI v. HOLDER 19379
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.

PROCEEDINGS

In 2003, Tijani was charged with being removable as an
alien convicted of an aggravated 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 deporta-
tion, 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
1
Tijani argues that the BIA violated his due process rights by (1) deny-
ing his motion to transfer venue and (2) using the streamlined procedure
to affirm the immigration judge’s decision. Neither claim has merit. This
court has held that streamlining does not violate an alien’s due process
rights. Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003). As
to the motion to transfer venue, Tijani has not established that the proceed-
ings were so “fundamentally unfair” that he was, in effect, “prevented
from reasonably representing his case.” See Colmenar v. INS, 210 F.3d
967, 971 (9th Cir. 2000).
19380 TIJANI v. HOLDER
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 particu-
larly 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, the immigration 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 judge also held that if Tijani was eligible for
asylum, asylum was denied as a matter of discretion.

The BIA, using its streamlined procedure, affirmed the
immigration judge’s decision without opinion. Tijani petitions
for review.

JURISDICTION

We have jurisdiction to review the questions of law pres-
ented by Tijani’s petition. Fernandez-Ruiz v. Gonzales, 410
F.3d 585, 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.
2
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, art. 9, opened for signature Dec. 10, 1984,
231465 U.N.T.S. 85.
 TIJANI v. HOLDER 19381
ANALYSIS

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 estab-
lished his claim for relief.

The Crimes. Tijani’s string of crimes consisted in credit
card fraud in violation of Cal. Penal Code § 532a(1) — a
modern form of swindle particularly tempting because of the
ease and the impersonality with which the crime may be car-
ried out. Do they constitute removable offenses? The govern-
ment argues that the BIA correctly affirmed the IJ’s decision
holding that Tijani’s 1991 and 1999 convictions are crimes
involving moral turpitude. It also argues that the 1999 convic-
tion is an aggravated felony.

[1] 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 (1990); Gonzales v.
Duenas-Alvarez, 549 U.S. 183 (2007). Counterfactual and
counterintuitive though it often appears to be, we do not con-
sider the particular facts of the convictions. We first ask
whether the “full range of conduct” proscribed by Cal. Penal
Code § 532a(1) meets the definition of a crime involving
moral turpitude or an aggravated felony. Nicanor-Romero v.
Mukasey, 523 F.3d 992, 999 (9th Cir. 2008) (“The issue is not
whether the actual conduct constitutes a crime involving
moral turpitude, but rather, ‘whether the full range of conduct
encompassed by the statute constitutes a crime of moral turpi-
tude’ ”). If the crime does prohibit conduct that does not nec-
essarily involve moral turpitude, we turn next to the modified
categorical approach, under which “We look beyond the lan-
guage of the statute to a narrow, specified set of documents
that are part of the record of conviction, including the indict-
ment, the judgment of conviction, jury instructions, a signed
guilty plea, or the transcript from the plea proceedings.” Id.
at 1007 (citation omitted).
19382 TIJANI v. HOLDER
Section 532a(1) provides:

Any person who shall knowingly make or cause to
be made, either directly or indirectly or through any
agency whatsoever, 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 indorse-
ment of a bill of exchange, or promissory note, for
the benefit of either himself or such person, firm or
corporation shall be guilty of a public offense.

[2] Tijani has argued that his convictions do not constitute
crimes involving moral turpitude. His argument appears fore-
closed by the frauds of which he stands convicted. The law is
that “to be inherently fraudulent, a crime must involve know-
ingly false representation to gain something of value.”
Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1076 (9th Cir.
2007) (en banc).

[3] When this standard is applied, any conviction under the
California statute involves fraud; that is, the crime is commit-
ted by making a false statement with the intent that it be relied
upon to obtain “the delivery of personal property, the payment
of cash, the making of a loan or credit . . . .” Cal. Penal Code
§ 532a(1). Fraud is implicit in the nature of a crime under sec-
tion 532a(1). The statute of conviction does not explicitly list
intent to defraud as an element. But we have held that “[e]ven
if intent to defraud is not explicit in the statutory definition,
a crime nevertheless may involve moral turpitude if such
intent is implicit in the nature of the crime.” Carty v. Ashcroft,
 TIJANI v. HOLDER 19383
395 F.3d 1081, 1084 (9th Cir. 2005). A crime under § 532a(1)
is committed only when a person by a knowing falsehood
obtains property, money, or credit. The fraudster intentionally
seeks and obtains something of value by means of his misrep-
resentation. See Tall v. Muskasey, 517 F.3d 1115, 1119 (9th
Cir. 2008).

Our dissenting colleague makes this argument as to the ele-
ments of the California crime:

As the BIA recognized in In re Kinney: “The
intent that the false statement be relied upon is not
necessarily an intent to do evil or work fraud
because . . . one who intends that there be reliance
upon his false statement may nevertheless also
intend to pay for the goods he is attempting to
obtain.” 10 I. & N. Dec. at 549 (citations omitted).

The same benevolent interpretation could be extended to a
borrower misrepresenting his credit-worthiness to a bank to
get a loan: “I’ll get rich and pay it all back, the bank will ben-
efit by my chicanery.” No court would accept such a defense.
The intent of the fraudster is evil: to get what he has no right
to get. The California Court of Appeal has rejected this same
defense in analyzing California’s law of false pretenses,
which does explicitly require an intent to defraud:

[T]he fraudulent intent contemplated by the statute
is the intent by the use of false representations to
induce another to part with his property when other-
wise he would not have done so . . . therefore, when
the property is obtained under such circumstances,
neither the promise to repay, the intention at the time
to make the aggrieved party whole, nor repayment,
will relieve the false and fraudulent act in obtaining
the property of its criminality.
19384 TIJANI v. HOLDER
People v. Hand, 16 P.2d 156, 158 (Cal. Ct. App. 1932), citing
People v. Wieger, 100 Cal. 352 (1893) and People v. Bow-
man, 142 P. 495 (Cal. Ct. App. 1914).

Even if we were to accept the dissent’s argument, it would
be inapplicable in Tijani’s case under the modified categorical
approach. The mistaken argument is that Tijani’s conviction
did not necessarily require an intent to defraud. The informa-
tion filed in Tijani’s 1999 case shows that he was charged
specifically with making false statements to procure “the
extension of credit,” not goods or cash. Two assumptions are
concealed in dissent’s argument where it is applied to a credit-
seeker: (1) that the lying credit-seeker has not obtained some-
thing of value when he gets credit and (2) that the lying
credit-seeker harbors no evil intent to deprive the creditor of
anything. Each assumption is fallacious.

Creditors, like investors, transact in risk. An investor who,
as a result of a person’s misrepresentations, receives a riskier
asset than he bargained for, has suffered measurable and fore-
seeable economic harm, and is the victim of fraud. Similarly,
the creditor who is induced through misrepresentations to give
credit suffers measurable and foreseeable harm the moment
the creditor enters into the transaction with the fraudster.

The harm is inflicted regardless of whether the customer
intends to make timely payments or whether or not he eventu-
ally makes them. The creditor’s contract with the customer
has more than one parameter. Creditors extend a particular
line of credit, including a specific credit limit, a specific inter-
est rate, and particular provisions for late fees and penalties,
based on the calculated credit-worthiness of a specific cus-
tomer. A credit-seeker who misrepresents his credit-
worthiness does so precisely with the intent of receiving a
higher credit limit, a lower interest rate, lower monthly pay-
ments, and more favorable late-fee and penalty provisions
than he otherwise would — at the expense of the creditor. The
creditor, in this situation, receives a riskier and less valuable
 TIJANI v. HOLDER 19385
investment than that bargained for, and therefore suffers mea-
surable and foreseeable economic harm. He has been
defrauded.

The current economic crisis highlights the full impact of
the misrepresentation of risk in the credit market. The impact
is on creditors, consumers, and on the economy. When credi-
tors take on too many risky contracts, whether due to their
own carelessness or the misrepresentations of their customers,
they are likely to suffer enormous economic harm, and the
resulting effects on society can be devastating. Any assess-
ment of the pecuniary harm suffered by the creditor of a
fraudster will be incomplete if it is divorced from these eco-
nomic realities.

[4] In a word, to induce a creditor into a risky contract
through misrepresentation, on terms to which the creditor
would not have agreed if he had not been duped, is to commit
fraud on the creditor. Precisely this type of conduct is prohib-
ited under § 532a(1). Tijani’s conduct was “inherently fraudu-
lent.”

Further fraud is committed when the fraudster uses his
fraudulently-obtained credit card to obtain goods. The seller
of the goods is now the victim. The seller parts with property
in return for a representation of credit to which the fraudster
has no right. The harm is tangible and immediate.

[5] The argument might be advanced that fraudulently
using the card to obtain goods is not fraud on the merchant
because he will be paid by the issuer of the card. But at the
moment the merchant delivers the goods, he has parted with
property on the basis of a lie: that is the fraud. That the mer-
chant will be reimbursed is no more relevant than is insurance
to the victim of a theft; the reimbursement does not mean that
the victim was not deprived of his property. What is secured
by the fraudster is the property he purchases. To argue that it
is not fraud to obtain property by falsehood if one harbors the
19386 TIJANI v. HOLDER
intent to pay for it at some future time is to suppose that any
prosecution for fraud could be defeated by the swindler say-
ing “I intended to pay all along and will now do so.” We held
in a federal case involving fraud: “While an honest, good-
faith belief in the truth of the misrepresentations may negate
intent to defraud, a good-faith belief that the victim will be
repaid and will sustain no loss is no defense at all.” United
States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986).

When argument suggests that an intent to repay is a defense
to a charge of fraud, it confuses a practical possibility with a
legal defense. Of course if the fraudster does in fact pay his
bills, he is probably not going to be prosecuted. Who would
turn him in? His upright intent to repay does not absolve him
of the lie by which he obtained what was not his. It is con-
tended that the creditor could benefit from the fraud when the
honest fraudster paid up. But no sane giver of credit would
want to be lied to and be persuaded to make credit available
or to deliver his goods on the basis of the lie. Any benefit that
came from the fraudster turning honest would be a matter of
chance.

It is argued that our reading of § 532a(1) makes another
section of the same statute, 532(a), redundant. This section
criminalizes the act of one who “knowingly or designedly, by
any false or fraudulent representation or pretense, defrauds
any other person of money, labor, or property, whether real or
personal . . . and thereby fraudulently gets possession of
money or property, or obtains the labor or service of another
. . . .” Cal. Penal Code § 532(a). This statute does not specify
fraud in obtaining credit. Therefore, § 532(a) is not otiose. It
criminalizes only fraud to obtain labor, money or property.
Section 532a(1) aims at fraud in obtaining credit.

Tijani cites People v. Hagedorn, 127 Cal. App. 4th 734
(Cal. Ct. App. 2005), applying Cal. Penal Code § 530.5(a)
which criminalizes the use of another person’s identity “for
any unlawful purpose, including to obtain, or attempt to
 TIJANI v. HOLDER 19387
obtain, credit, goods, services, real property, or medical infor-
mation . . . .” For conviction under the statute, the court held
an intent to defraud was not necessary. Id. at 742. But this
case merely shows that identity theft is a crime that may not
involve fraud. The statute criminalizes identity theft for “any
unlawful purpose.”

Barry v. Am. Express Publ’g, Inc., 54 Cal. Rptr. 3d 91, 94
(Ct. App. 2007) is worth comment. The question in this civil
suit was whether a credit card was covered by the Consumer
Legal Remedies Act (CLRA), Cal. Civil Code § 1750 et seq.
The court held that the card fell neither within the definition
of goods nor services, the two types of property protected by
the CLRA. The court further noted that the legislature had
dropped “money” and “credit” from what the CLRA pro-
tected. Barry does not show that credit is valueless in Califor-
nia; rather, the case establishes that credit is a distinct kind of
valuable.

Tijani calls our attention to Hirsch v. INS, 308 F.2d 562
(9th Cir. 1962), which distinguished a fraudulent statement
from a false one. The distinction is that a false statement
could be made without the intent to induce reliance. The dis-
tinction does not help Tijani. Section 532a(1) prohibits only
false statements made in the expectation that credit or prop-
erty will be given in reliance on them. Tijani’s false state-
ments were made for that purpose.

Marmolejo-Campos. Finally, we disagree with Judge
Tashima’s assertion that our recent decision in Marmolejo-
Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc)
requires that we direct the BIA to adhere to its decision in In
re Kinney, 10 I & N Dec. 548 (1964). Our decision in
Marmolejo-Campos is inapposite to this petition and the con-
trary suggestion opens the door to considerable mischief.
Marmolejo-Campos concerned the deference this court should
give a BIA opinion when reviewing a challenge to a BIA
decision. We clarified that, pursuant to Chevron U.S.A. Inc. v.
19388 TIJANI v. HOLDER
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), “where
. . . the board determines that certain conduct is morally turpi-
tudinous in a precedential decision, we apply Chevron defer-
ence.” 558 F.3d at 911. We concluded that “once the elements
of the petitioner’s offense are established, our review of the
BIA’s determination that such offense constitutes a ‘crime of
moral turpitude’ is governed by the same traditional principles
of administrative deference we apply to the Board’s interpre-
tation of other ambiguous terms in the INA.” Id.

The first step is that “the elements of the petitioner’s
offense be established.” To establish the elements is to con-
strue the statute of conviction. As we said:

[1] The first inquiry requires the BIA to construe
a state criminal statute. As the BIA has no statutory
expertise in such state law matters, we review de
novo its determination of the elements of the offense
for which the petitioner was convicted. [2] The sec-
ond inquiry requires the BIA to construe the INA by
defining a particular removable offense and applying
that definition to a petitioner’s state conviction. If, in
resolving the second issue, the BIA has interpreted
an ambiguous INA statutory term, and rendered its
interpretation in a precedential decision intended to
carry the force of law, we defer under Chevron
U.S.A [ ], to the BIA’s definition so long as it is rea-
sonable.

See Fregozo v. Holder, 576 F.3d 1030, 1034-35 (9th Cir.
2009) (citing Marmolejo-Campos) (citations and internal quo-
tations omitted).

As the Marmolejo-Campos court explained:

It is well established that we give no deference to
the BIA’s answer to the first question. The BIA has
no special expertise by virtue of its statutory respon-
 TIJANI v. HOLDER 19389
sibilities in construing state or federal criminal stat-
utes and, thus, has no special administrative
competence to interpret the petitioner’s statute of
conviction. As a consequence, we review the BIA’s
finding regarding the specific act for which the peti-
tioner was convicted de novo.

Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.
2009)

Deference is not due the agency in construing state law. We
determine that an element of the California statute is fraud.
Once that is determined, the conclusion is clear: “Crimes
involving fraud are considered to be crimes involving moral
turpitude.” See Matter of Correa-Garcia, 20 I. & N. Dec. 451,
453 (BIA 1992).

The erroneous exposition of the elements of the crime in
Kinney is not binding upon us. Kinney contains the proposi-
tion that credit card fraud is not fraud because the fraudster
might harbor the intent to repay the credit he fraudulently
requires. That proposition, as our preceding analysis has dem-
onstrated, is contrary to the law. Moral turpitude attaches to
the fraud. “Without exception, federal and state courts have
held that a crime in which fraud is an ingredient involves
moral turpitude.” Jordan v. De George, 341 U.S. 223, 227
(1951).

The dissent [page 19394] observes that the majority’s anal-
ysis is “contained in three sentences” and that the analysis is
not “a reasoned analysis; it is patently ipse dixit.” These com-
ments appear to be made without acknowledgment of the
analysis in the majority opinion pages 19380-87 showing why
Tijani was convicted of crimes of fraud. The dissent does not
note that the first step specified in Marmolejo-Compos is for
us to establish the elements of the offense. Our interpretation
of Marmolejo is no canard, i.e. “a false or fabricated report.”
Our interpretation simply repeats what the en banc court said.
19390 TIJANI v. HOLDER
Intent to repay is not recognized as a defense by any Cali-
fornia case we have been able to find or by California Model
Jury Instructions for crimes charged under Penal Code § 532a.
They read:

To prove that the defendant is guilty of this crime,
the People must prove that: . . . The defendant (made
the statement/[or] caused the statement to be made)
to obtain the (delivery of personal property[,]/[or]
payment of cash[,]/[or] making of a loan[,]/[or]
extension of credit[,]/[or] execution of a contract of
guaranty or suretyship[,]/[or] discount of an account
receivable[,]/[or] making, acceptance, discount, sale,
or endorsement of a bill of exchange or promissory
note) for ((his/her) benefit/the benefit of the (other
person/corporation)).

Judicial Council of Cal. Crim. Jury Instructions No. 2020
(emphasis added).

Nowhere is there an instruction stating that an intent to
repay is a defense.

[6] Relief. Tijani has a fallback: he seeks asylum, with-
holding of deportation, or CAT relief. There are reasons, set
out strongly by Judge Callahan, for doubting Tijani’s credibil-
ity in making these claims. Compelled by precedent, we none-
theless accept his story. The immigration judge found that
“the weight of his words is not sufficient to carry his burden
of proving eligibility for asylum.” But the immigration judge
explicitly refused to find Tijani not credible. Precedent holds
that an adverse credibility finding does not require the recita-
tion of a particular formula, yet the finding must be “explicit.”
Mansour v. Aschcroft, 390 F.3d 667, 671-72 (9th Cir. 2004).
Absent such explicit finding, an immigration judge cannot
require corroboration evidence. Kataria v. INS, 232 F.3d
1107, 1113 (9th Cir. 2000).
 TIJANI v. HOLDER 19391
The Real ID Act of 2005 has remedied part of the problem
created by our precedent. It permits an immigration judge to
ask for corroboration of otherwise credible testimony. 8
U.S.C. § 1158(b)(1)(B)(ii). The proceedings in this case
began before the effective date of the new law and are there-
fore not governed by it. Sandoval-Lua v. Gonzalez, 499 F.3d
1121, 1132, n.10 (9th Cir. 2007).

Scope of Remand

[7] Accordingly, we must remand to the agency to address
the question of whether Tijani is entitled to relief. But Tijani
has not preserved all of his claims. Fairly read, we have no
doubt that the IJ’s decision denied Tijani asylum as a matter
of discretion. Tijani failed to argue before the BIA or in his
opening brief before this court that the exercise of discretion
was error. We lack jurisdiction to review legal claims not
presented in an alien’s administrative proceedings before the
BIA. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Moreover, we generally will not take up arguments not raised
in an alien’s opening brief before this court. Perezo v.
Mukasey, 512 F.3d 1163, 1165 n.5 (9th Cir. 2008). Because
both bars apply here, we do not review the IJ’s discretionary
denial of asylum to Tijani and so the IJ’s and the BIA’s denial
of asylum stands.

We remand to the BIA for consideration of Tijani’s other
claims for withholding of deportation and CAT relief.

AFFIRMED in part, REVERSED in part, and
REMANDED. Each party shall bear its own costs.
19392 TIJANI v. HOLDER
TASHIMA, Circuit Judge, concurring in part and dissenting
in part:

Because the majority employs an unauthorized non-
categorical mode of analysis in concluding that the petitioner
was convicted of a crime involving moral turpitude
(“CIMT”), I respectfully dissent from the majority opinion,
except for the section entitled Relief, commencing at Maj. op.
19390.

In open defiance of our recent en banc holding in
Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir.
2009) (en banc), that the determination of whether a crime is
a CIMT is committed to the Board of Immigration Appeals
(“BIA”), the majority refuses to grant the BIA’s published,
precedential decision that the crime involved here is not a
CIMT the deference to which it is entitled and, instead, makes
its own free-wheeling determination that the crime involved
is a CIMT. It not only ignores the BIA’s precedential deci-
sion, but fails to adhere to the categorical-approach analysis
of Taylor v. United States, 495 U.S. 575 (1990). It ignores the
accepted elements of the offense, concocts its own version of
what offenses the crime categorically includes, and pays no
attention to the state courts’ interpretation of the elements that
constitute the crime.

Granting the BIA’s decision the deference that it is owed,
and requiring the BIA in a one-member, “streamlined” dispo-
sition to follow its own binding precedent, I would hold that
petitioner Monsuru Olasumbo Tijani is not removable and
grant the petition for review.

The pivotal issue in this case is whether a violation of Cal.
Penal Code § 532a(1) is a CIMT. We recently held, en banc,
that the BIA’s precedential decision determining that a crime
is or is not a CIMT is entitled to Chevron1 deference. See
1
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984).
 TIJANI v. HOLDER 19393
Marmolejo-Campos, 558 F.3d at 910-11. We there held that
the BIA’s precedential determination of whether an offense
meets the INA’s definition of moral turpitude “is precisely the
type of agency action the Supreme Court instructs is entitled
to Chevron deference.” Id. at 910 (citing INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (1999)).

The crime at issue here, entitled “False financial state-
ments,” provides in relevant part:

Any person who shall knowingly make or cause to
be made, either directly or indirectly or through any
agency whatsoever, 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 . . . 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 [ ] himself . . . shall be guilty
of a public offense.

Cal. Penal Code § 532a(1).2 In In re Kinney, 10 I. & N. Dec.
548 (BIA 1964), a published, precedential opinion, in constru-
ing a Connecticut statute that is identical to § 532a(1),3 the
2
The majority mislabels this offense as “credit card fraud,” which it is
not. The California Penal Code entitles the section “False financial state-
ments.” Thus, by mislabeling the offense, the majority prejudges the issue
of whether it is a CIMT, because all fraud offenses are CIMTs. See Jordan
v. DeGeorge, 341 U.S. 223, 232 (1951) (“The phrase ‘crime involving
moral turpitude’ has without exception been construed to embrace fraudu-
lent conduct.”). But, as I explain below, fraud or a fraudulent intent is not
an element of this offense.
3
Although the majority asserts that In re Kinney contains an “erroneous
exposition of the elements of the crime,” Maj. op. at 19389, it does not
19394 TIJANI v. HOLDER
BIA held that procuring credit by way of a false statement is
not morally turpitudinous. That should be the end of our
inquiry.

But in its perplexing interpretation of Chevron deference,
the majority collapses the CIMT determination into the Taylor
analysis of the elements of the offense. The majority’s entire
“analysis” is contained in three sentences:

Deference is not due the agency in construing
state law. We determine that an element of the Cali-
fornia statute is fraud. Once that is determined the
conclusion is clear: “Crimes involving fraud are con-
sidered to be crimes involving moral turpitude.” See
Matter of Correa-Garcia, 20 I. & N. Dec. 451, 453
(BIA 1992). ¶ The erroneous exposition of the ele-
ments of the crime in Kinney is not binding upon us.

Maj. op. at 19389. But this interpretation of the statute is not
a reasoned analysis; it is patently ipse dixit. Moreover, it is the
majority’s “exposition of the elements of the crime” that is
erroneous. It is also inconsistent with a Taylor categorical
inquiry because fraudulent intent is not an element of the
crime. Under California’s standard jury instructions, the only

contest that the elements of the Connecticut statute at issue in In re Kinney
are identical to the elements of Cal. Penal Code § 532a(1). The statute at
issue in In re Kinney provided:
Any person who knowingly makes or causes to be made, either
directly or indirectly or through any agency, any false statement
in writing, with intent that it shall be relied upon, concerning the
financial condition or means or ability to pay of himself . . . for
the purpose of procuring . . . the delivery of personal property,
the payment of cash, the making of a loan or credit, the extension
of credit . . . shall be fined two thousand dollars or imprisoned
not more than five years or both.
In re Kinney, 10 I. & N. Dec. at 548-49 (quoting Conn. Gen. Stat. § 8698
(1949 Revision)). A comparison of the two statutes quickly reveals that
they are, for all relevant purposes, identical.
 TIJANI v. HOLDER 19395
intent required for a conviction under § 532a(1) is that the
defendant “intended that the statement be relied on.” CAL-
CRIM 2020, 2 Judicial Council of Cal., Criminal Jury Instruc-
tions (2009).4 When the crime at issue requires an intent to
defraud, as in forgery, the Cal. Judicial Council Criminal Jury
Instructions clearly require a fraud instruction, i.e., that
“[s]omeone intends to defraud if he or she intends to deceive
another person either to cause a loss of something of value,
or cause damage to, a legal, financial, or property right.”
CALCRIM 1901. Thus, the majority’s conclusory statement
that “[w]e determine that an element of the California statute
is fraud,” is clearly contrary to California’s construction of its
own law and is unsupported by any California case or stan-
dard jury instruction. It does not conform to Taylor’s categori-
cal approach. The majority simply refuses to accept the
elements of the offense as defined by California law.

As the BIA recognized in In re Kinney: “The intent that the
false statement be relied upon is not necessarily an intent to
do evil or work fraud because . . . one who intends that there
be reliance upon his false statement may nevertheless also
intend to pay for the goods he is attempting to obtain.” 10 I.
& N. Dec. at 549 (citations omitted). The majority labels this
as a “benevolent interpretation” and asserts that “[n]o court
would accept such a defense.” Maj. op. at 19383. But it is
exactly the “defense” that is accepted by the California courts
in California’s standard jury instructions; moreover, it is also
exactly how the BIA, pursuant to its discretion recognized by
Marmolejo-Campos, interprets the statute.

Rather than making the categorical inquiry mandated by
Taylor, the majority constructs an elaborate apologia of Wall
Street and the banking industry and engages in speculation on
4
Note that, while the majority also relies on and quotes this same stan-
dard instruction, CALCRIM 2020, see Maj. op. at 19390, it carefully
avoids mention of the mens rea element of the crime quoted above, which
is not an intent to defraud.
19396 TIJANI v. HOLDER
the causes of the “current economic crisis.” Maj. op. at 19385.
These ruminations, however, have nothing to do with the
question at hand and do not move us forward in the task with
which we are charged: To examine the statute and to deter-
mine whether that statute, as construed by the California
courts, is categorically a CIMT.5

The majority’s subjective, non-categorical approach to
interpreting the statute begins with its characterization of the
crime as “a modern form of swindle,” Maj. op. at 19381,
implying that the statute was recently enacted to combat
credit card fraud “in the modern United States,” Maj. op. at
19378, ignoring that the statute was enacted in 1913. See 1913
Cal. Stat. c. 251, p. 437, § 1. It then concludes by stating that
“[t]he erroneous exposition of the elements of the crime in
Kinney is not binding upon us.” Maj. op. at 19389. But the
majority simply misreads In re Kinney. In re Kinney accepts
the crime as defined by state law. What it concludes is that the
intent required by the statute does not amount to fraud. After
agreeing with government counsel that the statute, like the
California statute, “requires the false statement to be made
with intent that it be relied upon,” the BIA goes on to observe:

The intent to which moral turpitude adheres, is the
intent to do evil or work fraud—this intent is absent
in section 8698. The intent that the false statement be
relied upon is not necessarily an intent to do evil or
work fraud because as the special inquiry officer has
pointed out, one who intends that there be reliance
upon his false statement may nevertheless also
5
The majority complains that my characterization of its “determination”
that “an element of the California statute is fraud” ”is patently ipse dixit”
does not “acknowledge[ ] the analysis in the majority opinion pages
19380-87 showing why Tijani was convicted of crimes of fraud.” Maj. op.
at 19389. Obviously, however, those subjective ruminations, wholly
divorced from the elements of § 532a(1) and unsupported by any citation
to directly applicable California authority, are not an objective categorical
analysis of the elements of the offense mandated by Taylor.
 TIJANI v. HOLDER 19397
intend to pay for the goods he is attempting to
obtain. The fact that a person convicted under sec-
tion 8698, intended to commit fraud, does not make
a conviction under the section one involving moral
turpitude. It is the moral obliquity of the crime and
not of the individual that is the test under the law.

In re Kinney, 10 I. & N. Dec. at 549.

The majority also insists on labeling a violation of
§ 532a(1) as “credit card fraud,” e.g., Maj. op. at 19378,
19380, 19381, which is not an accurate categorical descrip-
tion of the elements of this 97-year-old statute, which was
enacted decades before the credit card was invented. What-
ever else the majority’s fixation on “credit card fraud” as “a
modern form of swindle” may be, it decidedly is not the cate-
gorical examination of § 532a(1) mandated by Taylor.6

“The essence of moral turpitude is an evil or malicious
intent.” In re Phong Nguyen Tran, 21 I. & N. Dec. 291, 293
(BIA 1996). Fraud is a crime of moral turpitude because evil
intent is inherent in an intent to defraud. Goldeshtein v. INS,
8 F.3d 645, 647 (9th Cir. 1993); compare Hirsch v. INS, 308
F.2d 562, 567 (9th Cir. 1962) (“A crime that does not neces-
sarily involve evil intent, such as intent to defraud, is not nec-
essarily a crime involving moral turpitude.”). The evil intent
inherent in an intent to defraud is simply missing where intent
to deprive another of property is not an element of the
offense. Thus, the crime of procuring credit by the use of a
false statement is not categorically fraudulent, as the BIA rec-
ognized in In re Kinney, because an individual need not have
6
The majority also makes a half-hearted attempt to invoke the modified
categorical approach, Maj. op. at 19384, but this attempt is as deficient as
its categorical-approach analysis in that it also completely ignores the
mens rea element of the offense. Moreover, because intent to defraud is
a “missing element,” it cannot be supplied by turning to the modified cate-
gorical approach. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073
(9th Cir. 2007) (en banc).
19398 TIJANI v. HOLDER
an evil intent to defraud in making a false statement in viola-
tion of the statute, i.e., intent to defraud is not an element of
the offense.

Additionally, People v. Hagedorn, 25 Cal. Rptr. 3d 879
(Ct. App. 2005), evinces the California courts’ reluctance to
read an intent to defraud into a statute that does not include
it on its face. The statute there in question, an identity theft
statute, criminalizes the use of personal identifying informa-
tion belonging to another “for any unlawful purpose, includ-
ing to obtain, or attempt to obtain, credit, goods, services, real
property, or medical information.” Cal. Penal Code
§ 530.5(a). The court held that the statute “clearly and unam-
biguously does not require an intent to defraud.” Hagedorn,
25 Cal. Rptr. 3d at 885. Hagedorn clearly illustrates that
under the California courts’ mode of analysis, a fraud require-
ment will not be implied into a statute that does not contain
a fraud element on its face.7

Thus, reading § 532a(1) as not categorically including an
intent to defraud is consistent with California law,8 as well as
7
Moreover, the California Legislature has been explicit that when it
intends fraud to be an element of an offense it includes it in the statute.
See, e.g., Cal. Penal Code § 470(d) (forgery includes “with intent to
defraud” as an element); Cal. Penal Code § 476a(a) (check kiting) (same);
Cal. Penal Code § 548(a) (insurance fraud) (same). As the court observed
in Hagedorn, “Obviously, if the Legislature meant for [the statute in ques-
tion] to require an intent to defraud, it knew how to so provide.” 25 Cal.
Rptr. 3d at 885. People v. Hand, 16 P.2d 156 (Cal. Ct. App. 1932), cited
by the majority, exemplifies the California Legislature’s approach. The
statute there involved, Cal. Penal Code § 484, unlike § 532a(1), as the
majority concedes, “does expressly require an intent to defraud.” Maj. op.
at 19383.
8
Although the majority purports to address why Tijani cited Hagedorn,
noting that “the court held that intent to defraud was not necessary” for a
conviction under Cal. Penal Code § 530.5(a), Maj. op. at 19387 (citing
Hagedorn, 25 Cal. Rptr. 3d at 885), it does not respond to my reason for
citing the case — that Hagedorn’s mode of analysis demonstrates that
California courts do not read an intent to defraud into a statute that does
not include such a requirement on its face.
 TIJANI v. HOLDER 19399
with the BIA’s reasonable interpretation to which we must
defer. The majority’s refusal to grant Chevron deference to In
re Kinney and accept it as binding flies in the face of our
recent en banc decision in Marmolejo-Campos. Under
Marmolejo-Campos, we have no authority to ignore In re
Kinney, as the majority purports to do.

The majority characterizes Marmolejo-Campos as “inappo-
site to this petition,” Maj. op. at 19387, but it reaches that
conclusion, as explained earlier, only by relying on its off-
hand, single-sentence “determination” that “an element of the
California statute is fraud.” Maj. op. at 19389.

Under our case law, like any other court or agency, the
BIA, too, must follow the law. The BIA’s own regulations
provide:

Except as Board decisions may be modified or
overruled by the Board or the Attorney General,
decisions of the Board, and decisions of the Attorney
General, shall be binding on all officers and employ-
ees of the Department of Homeland Security or
immigration judges in the administration of the
immigration laws of the United States.

8 C.F.R. § 1003.1(g).

As we explained in Hernandez v. Ashcroft, 345 F.3d 824,
846 (9th Cir. 2003), the BIA cannot simply ignore its own
long-established precedent. We emphasized that “the regula-
tions themselves limit the BIA’s discretion to operating within
the law.” Id. (discussing § 1003.1). Thus, we held, “[a] non-
precedential decision by the BIA in defiance of its own prece-
dential case law simply cannot be classified as discretionary.”
Id. In short, the “BIA has no discretion to make a decision
that is contrary to law.” Id.
19400 TIJANI v. HOLDER
The decision at issue here was an IJ’s decision which was
adopted by one member of the BIA. As the majority con-
cedes, Maj. op. at 19380, this was a “streamlined” decision,
i.e., a decision by one member in which the BIA agrees with
the result but does not endorse the reasoning. See 8 C.F.R.
§ 1003.1(e)(4); Falcon-Carriche v. Ashcroft, 350 F.3d 845,
849 (9th Cir. 2003). Thus, the majority’s rejection of the con-
trolling force of Marmolejo-Campos and, through it, of In re
Kinney, is without foundation.9

Tijani was not convicted of a CIMT. Contrary to the major-
ity’s ipse dixit, intent to defraud is not an explicit or implicit
requirement of § 532a(1). Moreover, the BIA has reasonably
determined in a precedential decision that this crime is not
morally turpitudinous and, under Marmolejo-Campos, we
owe deference to the BIA’s determination.

Because Tijani has not committed a removable offense, I
would hold that he is not removable and grant the petition.

*****

Alternatively, I concur in that portion of the majority opin-
9
Judge Callahan, in her concurring and dissenting opinion, offers a fur-
ther reason for distinguishing In re Kinney and Marmolejo-Campos. She
states that “Marmolejo-Campos, like all other cases following Chevron,
recognizes that an agency may develop its positions through a ‘process of
case-by-case adjudication.’ 558 F.3d at 908. This process inherently
allows for differences over a period of forty-five years. The agency
decision-making process envisioned by Congress allows for change over
time, and nothing in Chevron or Marmolejo-Campos supports this court
insisting that the BIA adhere to a forty-five year old precedent.” Callahan
concur. and diss. op. at 4095 n.2. The problem with this assertion,
although it may be true as a general proposition, is that neither Judge Cal-
lahan nor the majority cites or identifies any precedential case of the BIA
(or any circuit) in the 45 years since In re Kinney was decided that ques-
tions Kinney. And, of course, the one-member, streamlined adoption of the
IJ’s decision in this case is not entitled to Chevron deference. See
Miranda-Alvarado v. Gonzales, 449 F.3d 915, 924 (9th Cir. 2006).
 TIJANI v. HOLDER 19401
ion holding that the IJ erred in requiring corroborating evi-
dence in the absence of an explicit adverse credibility finding.
Maj. op. at 19390-91. I would add only that on remand, under
the cases cited in the majority opinion, when evaluating
Tijani’s claims for relief from removal, the IJ must credit
Tijani’s testimony as true. See Mansour v. Ashcroft, 390 F.3d
667, 672 (9th Cir. 2004) (“In the absence of an explicit
adverse credibility finding, we must assume that [Petitioner’s]
factual contentions are true.”) (quoting Kataria v. INS, 232
F.3d 1107, 1114 (9th Cir. 2000))).

CALLAHAN, Circuit Judge, concurring and dissenting:

Nonsuro Olasumbo Tijani, a native and citizen of Nigeria,
has been convicted on four separate occasions for crimes of
dishonesty and financial fraud: in 1986 for perjury, in 1987
for passing fraudulent checks, in 1991 for providing false
information to obtain credit cards in violation of California
Penal Code § 532, and in 1999 on twelve counts of again vio-
lating § 532(a)(1) by providing false information to obtain
credit cards and using the cards to obtain goods. The govern-
ment, most reasonably, seeks to remove Tijani to Nigeria. I
would affirm the decision by the Board of Immigration
Appeals (“BIA”) to deny Tijani relief.

I agree with Judge Noonan that Tijani was convicted of a
crime involving moral turpitude.1 I also agree, albeit for
slightly different reasons than expressed by Judge Noonan,
that our opinion in Marmolejo-Campos v. Holder, 558 F.3d
903 (9th Cir. 2009) (en banc) does not require that we direct
the BIA to adhere to its decision in In re Kinney, 10 I & N
Dec. 548 (1964).2
1
I also agree that neither of Tijani’s due process claims have any merit.
2
Even if In re Kinney were not distinguishable as set forth in Judge
Noonan’s opinion, there are two features of Marmolejo-Campos that ren-
19402 TIJANI v. HOLDER
However, I do not agree that because the Immigration
Judge (“IJ”) may not have explicitly stated that Tijani was not
credible, Tijani must be presumed to be credible, or that the
IJ could not require that Tijani corroborate his unsupported
testimony. At the very least, my colleagues needlessly pro-
long Tijani’s removal proceedings. The greater harm, how-
ever, lies in their reliance on technicalities to overcome the
reality of the situation and to defeat the purpose and letter of
our precedents.

Because Judge Noonan and I agree that Tijani is remov-
able, Tijani would only be entitled to relief if he made the req-
uisite showings for asylum, withholding of removal, or
protection against torture. However, Tijani’s eligibility for
these forms of relief depends on his credibility. I read the
record to show that the IJ held that Tijani was not credible and
to contain substantial evidence supporting that determination.
Moreover, the IJ properly held that Tijani had not carried his
burden to show eligibility for asylum, withholding of
removal, or protection against torture because he failed to
proffer any evidence to support his incredible testimony.

A. The Immigration Judge’s Opinion

The best evidence that the IJ found that Tijani was not
credible is the IJ’s decision. The IJ wrote:

The respondent was admitted into the United
States in 1985. The court finds the situation with the

der it inapposite to the case at bar. First, the issue is what deference this
court should give to an agency decision, not what deference an agency is
required to give to its own precedent. See United States v. Mead, 533 U.S.
218, 229 (2001). Second, Marmolejo-Campos, like all the other cases fol-
lowing Chevron, recognizes that an agency may develop its positions
through a “process of case-by-case adjudication.” 558 F.3d at 908. This
process inherently allows for differences over a period of forty-five years.
The agency decision-making process envisioned by Congress allows for
change over time, and nothing in Chevron or Marmolejo-Campos supports
this court insisting that the BIA adhere to a forty-five year old precedent.
 TIJANI v. HOLDER 19403
respondent analogous to that of the boy who cried
wolf. In 1986 the respondent was convicted of per-
jury. Perjury is a crime under Section 118 of the Cal-
ifornia Penal Code, which is essentially a crime for
lying. In 1986 when the respondent in essence cried
wolf a Judge in a court found that he did in fact lie
and he was convicted and sentence[d] to 36 months
probation. At the same time the respondent indicated
his willingness to violate law and his lack of charac-
ter by also being convicted of grand theft. As men-
tioned above, it is not clear whether the respondent
has two perjury convictions or one perjury convic-
tion, two grand theft convictions or one. It is respon-
dent’s burden of proof.

In 1987 the respondent was convicted of insuffi-
cient funds under Section 476A. This is the second
time the respondent cried wolf. Again, a Judge was
called upon to determine whether the respondent’s
statements were true or not. The respondent wrote a
check representing that he had funds in an account
necessary to cover the expenses. He knowingly did
not have the funds and therefore he was sentenced to
16 months in prison. This is the second time a Judge
has found the respondent has not told the truth.

In 1989 the respondent was in removal proceed-
ings by the foreign Immigration Judge. The respon-
dent submitted or had submitted on his behalf by his
legal representative, who he was friendly enough
with to attend church together, a letter to the Judge.
The letter to the Judge is from a pastor. The letter
represents that the respondent is a Christian and that
he provided numerous dedicated services. The letter
represents that respondent attended the church for
two years. The letter provided the respondent had
become a member of that church. The respondent
now testifies that this letter that was sent to the Judge
19404 TIJANI v. HOLDER
on his behalf is a lie. The respondent represents how
that letter was written and he does not recall having
seen the letter.

In 1991 the respondent picked up a conviction for
filing financial statements. In this case the respon-
dent lied, used a fictitious name, fictitious social
security number, fictitious business name and busi-
ness address and falsely represented himself to be
another person. In essence the respondent lied about
his own identity. The respondent did so in such a
manner that it was relied upon by Sears to extend
benefits to him for which he was not entitled. This
is the third time the respondent cried wolf. Again, a
Judge was called upon and found that the respondent
had in fact lied and the cry of wolf was not true. The
Judge, as a result, sentenced the respondent to two
years, 4 months in prison. 16 months for the lie and
1 year for the prior lies. Exhibit 3 reflects the respon-
dent has another conviction, on January 23, 1992 in
Santa Barbara, California for false financial state-
ments. This was found to be the basis to sustain a
one year prison enhancement. This is another
instance, and in fact the fourth in the United States,
where the respondent cried wolf and a Judge was
called upon and determined that the respondent had
lied again and this time the respondent was given
appropriate sanctions.

The respondent is now in front of me on 12 counts
of again lying. The respondent was convicted in
1999 on 12 different counts of filing false financial
statements. These lies occurred between 1996 and
1998. This is another 12 instances where the respon-
dent cries wolf. And each time the Court and a Judge
is required to come in and in each of these 12
instances that were alleged, the Judge found that the
 TIJANI v. HOLDER 19405
respondent had lied and this time imposed 9 years in
prison.

The respondent in front of me has testified in 1994
he was in college and that he decided to convert to
Christianity. The respondent acknowledges that the
Christian faith has as one of its [tenets, thou] shall
not steal. The respondent based upon the record has
committed numerous offenses of this section. The
Court finds that this, at a minimum draws into ques-
tion whether the respondent holds this faith. The
Court also find[s] the fact that the respondent previ-
ously has been in front of an immigration judge and
someone on behalf of the respondent has submitted
a very detailed letter written directly to the Judge
saying the respondent had been a Christian and part
of the Christian sect of Brotherhood of the Cross and
Star [in] 1999 [sic]. Accordingly take notice, Judge
Peters granted the respondent relief on May 12,
1989. The case before Judge Peters began in 1987.
The respondent, however, distances himself from
this letter saying he does not recall it and that it is
not true. If it is not respondent in this case who is not
telling the truth, someone is submitting lies to the
Judge on his behalf.

Now the respondent is coming before this Court.
The respondent is requesting asylum in the United
States. Although the respondent or someone in his
behalf testified that he became a Christian in 1987
and submitted details regarding his practice and
church attendance as well as his character during the
two year period of [1987 to 1989] when he was
allegedly a member of this Christian sect of Brother-
hood of the Cross and Star. Respondent has testified
to the contrary today that he did not become a Chris-
tian until 1994 when he was in college.
19406 TIJANI v. HOLDER
The respondent is claiming that he would be per-
secuted and tortured upon return to Nigeria because
of the fact that he [has] changed his religion. This
time the respondent is not crying wolf. Instead on
this occasion the respondent is crying an alligator is
present. The respondent would like the United States
and its Government to run and give him the neces-
sary relief and believe him. The Court, however,
finds that after a conviction for perjury, after false
statements have been submitted to an Immigration
Judge regarding the respondent in the past, the fact
that the record contains conflicting evidence as to
when the respondent did become [a] Christian, even
if [he] did and based upon this case that the Court
has reason not to believe the respondent this time.
The 9th Circuit Court of Appeals has held that it is
not necessary to corroborate one[’s] testimony if it is
specific, credible and direct. This Court, however,
finds for the reasons set forth above that there are a
number of deficiencies in the respondent’s testi-
mony. The Court also finds that when the little boy
comes 16 times and cries wolf and each time it is
verified beyond a doubt that he is telling a lie, the
17th time that he cries [that] he is afraid of an alliga-
tor, that it is reasonable for the trier [of] fact, in this
case myself, not to [believe] him. This Court is not
going to specifically find for the record that the
respondent is not credible because the Court cannot
point to a single inconsistency in the record other
than the fact that the respondent claims that in 1994
he was a Christian, although it appears that it has
been represented to an Immigration Judge before,
that occurred in 1987. But the Court finds based
upon the respondent’s past lengthy detailed record of
lying in this country, which has occurred on [a] con-
tinuous and regular basis that the words of this
respondent simply deserve no weight. This Court is
not, after 16 occasions of crying wolf, going to
 TIJANI v. HOLDER 19407
believe the respondent at this time when he claims a
different harm that necessitating asylum without
requiring some type of corroboration. In essence
what the Court is saying then is while it cannot find
an inconsistency in the respondent’s testimony at
this time to say that he is not credible, it finds that
the weight of his words is not sufficient to carry his
burden of proving eligibility for asylum. If the boy
comes and claims alligator, this Court cannot say
that after 16 prior lies that there is any way to deem
the statement there is an alligator to be inconsistent.
The Court, however, finds that the weight of those
words, there is an alligator after 16 occasions of
finding beyond a doubt that there is [a] lie sufficient
to say to the boy well if there is an alligator this
time, you need to prove it to me and demonstrate
that your words are true. The Court simply finds that
the respondent has not done so and has failed to meet
his burden of proof.

B. The IJ adequately explained his determination that
Tijani was notcredible

Even though the IJ’s perspective is certainly reasonable, if
not compelling, my colleagues read the IJ’s decision as insuf-
ficiently explicit to be a credibility determination. As author-
ity they cite the statement in Mansour v. Ashcroft, 390 F.3d
667, 671 (9th Cir. 2004), that the Ninth Circuit “does not per-
mit implicit adverse credibility determinations.”

First, there is nothing implicit about the IJ’s determination.
He finds that because Tijani has been found by judges to have
lied on 16 prior occasions, he is not credible. The IJ con-
cluded that “based upon the respondent’s past lengthy detailed
record of lying in this country, which has occurred on a con-
tinuous and regular basis that the words of this respondent
simply deserve no weight.” Perhaps if the IJ had said no
more, he would have been affirmed. The IJ, however, admit-
19408 TIJANI v. HOLDER
ted that on Tijani’s seventeenth incredible claim, the only spe-
cific inconsistency he found was Tijani’s prior representation
(on which he was granted relief) that he had converted to
Christianity in 1987 or 1988, rather than 1994, as he now
claims. This too should be enough to deny Tijani relief. See
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (“To
reverse the BIA finding we must find that the evidence not
only supports that conclusion, but compels it.”) (emphasis in
original). The majority opinion, however, seems to hold that
because the IJ fails to find a more specific inconsistency in
Tijani’s claim of religious persecution in Nigeria, we are
bound by our precedent to accept Tijani’s representations as
true. In other words, if an applicant spins a sufficiently clever
yarn for which there is no direct contrary evidence, it must be
accepted as true.3 I do not read our precedent as compelling
this conclusion.
3
This case presents a similar situation to that to which then Judge, now
Chief Judge, Kozinski dissented in Kumar v. Gonzales, 444 F.3d 1043,
1060-61 (9th Cir. 2006) (Kozinski, J., dissenting), where he wrote:
The larger problem with the majority’s opinion is its know-it-all
approach, an error oft repeated when our circuit reviews immi-
gration cases in which an IJ has made an adverse credibility
determination. First, the majority lays out the applicant’s story as
if it were the gospel truth, making it seem like denial of rehearing
will cause a huge miscarriage of justice. Then the majority picks
apart the IJ’s findings piece by piece, scrutinizing his every sen-
tence as if it is completely unconnected to the rest of his opinion.
Don’t agree with the IJ that the applicant is lying? Not to worry;
just label the IJ’s finding “speculation and conjecture.” . . . Find-
ing it difficult to dispute that the applicant is lying? No problem;
just label the inconsistencies “minor,” or “merely incidental to
[the] asylum claim.” . . . The net effect is that any asylum appli-
cant who is a skillful enough liar — and many who aren’t —
must be believed no matter how implausible or farfetched their
story . . . . It also means that IJs, who are doubtless chary of being
vilified by august court of appeals judges, become even more
reluctant to make adverse credibility findings, even when they
have good reason to believe the asylum applicant is lying.
(footnote and internal citations omitted).
 TIJANI v. HOLDER 19409
Admittedly, our opinions have not been a model of clarity
or consistency. In Jibril v. Gonzales, 423 F.3d 1129, 1135
(9th Cir. 2005), we explained:

Under our case law, testimony that is “implausible in
light of the background evidence,” Chebchoub v.
INS, 257 F.3d 1038, 1043 (9th Cir. 2001) (emphasis
added), can support an adverse credibility finding.
For example, a finding made by an IJ that a petition-
er’s testimony is implausible given the evidence in
a Country Report or other objective evidence in the
record is accorded deference. However, when an IJ
finds a petitioner’s testimony implausible based
solely on “conjecture and speculation” that the testi-
mony, though uncontroverted by any evidence that
the IJ can point to in the record, is inherently unbe-
lievable, then that “finding” should not automatically
be accorded deference. See Vera-Villegas v. INS, 330
F.3d 1222, 1231 (9th Cir. 2003) (“The IJ’s view was
based on mere speculation and conjecture, and . . .
conjecture is not a substitute for substantial evi-
dence.”) (quotation marks omitted).

Although “speculation and conjecture” alone cannot
sustain an adverse credibility finding, an IJ must be
allowed to exercise common sense in rejecting a
petitioner’s testimony even if the IJ cannot point to
specific, contrary evidence in the record to refute it.
Without such latitude, IJs would be bound to credit
even the most outlandish testimony as long as it was
internally consistent and not contradicted by inde-
pendent evidence in the record. Unfortunately, a sur-
vey of our precedent reveals no consistent line that
has been drawn between an IJ’s legitimate applica-
tion of common sense, on the one hand, and an IJ’s
reliance on “speculation or conjecture” in determin-
ing that a fact alleged by a petitioner is implausible
on the other.
19410 TIJANI v. HOLDER
It appears that a critical line regarding deference to an IJ’s
determination that an applicant is not credible is whether the
determination is based on “speculation or conjecture” or on
compelling background evidence. In Mansour, we declined to
defer to the IJ’s ambiguous adverse credibility determination
because it was based on concerns as to inconsistencies in the
evidence and questions as to whether the petitioner had pro-
vided false information.4 Mansour, 390 F.3d at 671. Similarly,
in Kataria v. INS, 232 F.3d 1107, 1111-13 (9th Cir. 2000), the
IJ did not make an explicit adverse credibility determination,
but expressed concerns about mistakes in Kataria’s applica-
tion and inconsistencies in the evidence concerning his reli-
gion and where he lived, which he failed to address by
submitting supporting evidence.

In the case at bar, the IJ was not concerned so much with
inconsistencies in Tijani’s actual testimony or mistakes in his
application but with the facts that: (1) on numerous prior
occasions, Tijani had been judicially determined to have lied
and had been criminally convicted for his lies; and (2) Tijani
testified that he had not converted to Christianity until 1994
although in 1989, a prior IJ had granted Tijani adjustment of
status based on his representation that he had converted to
Christianity in 1987. This irrefutable “background” informa-
tion suggests that no fact-finder should be compelled to
accept Tijani’s unsupported testimony as true.

C. The IJ properly denied Tijani relief because he failed
to proffer any corrobative evidence

I do not read our precedent as prohibiting the IJ in this case,
where substantial evidence undermined the petitioner’s credi-
bility, from requiring that Tijani provide supporting evidence
of his claim of religious persecution. Our rule is that “the BIA
4
The panel, however, ultimately found that even accepting Mansour’s
testimony as true, he had not demonstrated past persecution. Mansour, 390
F.3d at 673.
 TIJANI v. HOLDER 19411
may not require independent corroborative evidence from an
asylum applicant who testifies credibly in support of his
application.” Kataria, 232 F.3d at 113. This rule, however,
turns on a determination that an applicant’s testimony is cred-
ible. We explained in Chebchoub:

“Because asylum cases are inherently difficult to
prove, an applicant may establish his case through
his own testimony alone.” . . . That is, Chebchoub’s
testimony, if credible, may be sufficient to sustain
his burden of proof without corroboration. . . . How-
ever, 8 C.F.R. § 208.13 plainly indicates that if the
trier of fact either does not believe the applicant or
does not know what to believe, the applicant’s fail-
ure to corroborate his testimony can be fatal to his
asylum application. Thus, the regulations unambigu-
ously contemplate cases where an applicant’s testi-
mony alone will not satisfy his burden of proof.

257 F.3d at 1042 (internal citations omitted).

This case presents an instance where an applicant, who has
been criminally convicted at least three times for lying, seeks
asylum on the basis of his testimony alleging religious perse-
cution which is inconsistent with the position he successfully
presented to an IJ ten years earlier and for which he offers no
corroborative evidence. Under these relatively unique circum-
stances, the IJ could not know “what to believe,” and thus,
even if not compelled to request corroborative evidence, can-
not be faulted for doing so.

Finally, I note that our rulings that an IJ must make an
explicit adverse credibility determination and that credible
evidence may be sufficient to support an asylum claim are
based on sound concerns that are not applicable here. The IJ’s
determination that Tijani is not credible was not based on
speculation or conjecture,5 nor did the request for corroborat-
5
For example, in Shoafera v. INS, 228 F.3d 1070, 1074 n.3 (9th Cir.
2000), which is cited in Mansour, 390 F.3d at 671, in support of the rule
19412 TIJANI v. HOLDER
ing evidence seek information that was presumptively beyond
Tijani’s reach.6 Instead, the IJ simply refused to accept the

against implied adverse credibility determinations, the court explained:
As we explained in Canjura-Flores v. INS, 784 F.2d 885, 888-89
(9th Cir. 1985), without an adverse credibility finding we accept
a petitioner’s testimony as credible because “[a]ny other rule
would put us in the position of second-guessing the credibility of
the petitioner on appeal when no doubts have been raised by the
Immigration Judge or the Board.” Consequently, the IJ “must
have ‘a legitimate articulable basis to question the petitioner’s
credibility,’ ” and must express “a specific, cogent reason for any
stated disbelief.” Garrovillas [v. INS], 156 F.3d [1010] at 1013
[(9th Cir. 1998)] (emphasis added) . . . . Indeed, any such reasons
for doubting a petitioner’s credibility must be “substantial and
must bear a legitimate nexus to the finding.” Id. (citation omit-
ted); Akinmade v. INS, 196 F.3d 951, 954 (9th Cir. 1999); Turcios
v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987). “Generalized state-
ments that do not identify specific examples of evasiveness or
contradiction in the petitioner’s testimony” are insufficient. Gar-
rovillas, 156 F.3d at 1013.
Here, the IJ had “a legitimate articulable basis for questioning” Tijani’s
credibility, the IJ explicitly stated his reasons, the reasons are substantial,
and they bear a legitimate nexus to the IJ’s fact-finding mission.
6
For example, in Smolniakova v. Gonzales, 422 F.3d 1037, 1047 (9th
Cir. 2005), we held that the IJ committed legal error in holding that
“Smolniakova’s credibility was undermined by her failure to corroborate
her testimony about the May 1991 attack with a letter from the stranger
who witnessed the assault.” The court held that “it is unreasonable to
expect Smolniakova to have obtained a corroborating letter from an
unidentified stranger.” Id. Similarly, in Bolanos-Hernandez v. INS, 767
F.2d 1277, 1285 (9th Cir. 1984), we held that an applicant cannot be
required to present independent corroborative evidence of a specific threat
to his life, and concluded that “[a]uthentic refugees rarely are able to offer
direct corroboration of specific threats.”
Here, however, the IJ only sought some corroboration of Tijani’s claim
that he was attacked and injured while visiting his mother in Nigeria
because of his conversion to Christianity. The corroboration could have
been in the form of a letter or affidavit from his mother or his brother, or
hospital records, or even statements from acquaintances that Tijani had the
injury when he returned to the United States. Tijani offered no evidence
of his claim other than his word, but due to his past misrepresentations,
his word is not entitled to any presumption of credibility.
 TIJANI v. HOLDER 19413
unsupported testimony of an applicant who has several crimi-
nal convictions for lying and who proffered a claim of reli-
gious persecution that was inconsistent with the claim he had
presented to an IJ ten years earlier. Because Tijani’s unsup-
ported testimony was not entitled to any presumption of credi-
bility, I would find that the IJ did not err in requiring that he
produce some corroborative evidence.

This case tests the extremes to which our precedent can be
stretched. My colleagues appear to reason that because the
IJ’s adverse credibility determination was not sufficiently
explicit, Tijani’s testimony must be taken as true, and that
because his testimony must be accepted as true, the IJ could
not require corroborative evidence. In other words, contrary
to the fable, in the Ninth Circuit, it does not matter how often
an asylum applicant cries wolf, each new cry for relief must
be treated as true because to do otherwise is arguably specula-
tive and conjectural.7 Even assuming that our precedent could
be stretched to this point, I dissent because it should not be.

D. Conclusion

Tijani has been convicted of four crimes since he came to
the United States. After the first two, he prevailed upon an IJ
to grant him a waiver of deportation because he had converted
to Christianity and feared persecution if he returned to Nige-
ria. Tijani continued to commit frauds and after two more
convictions, the government again sought his removal to
Nigeria. Tijani now claims, based only on his unsupported
testimony, that he became a Christian in 1994, and that when
he visited his mother in Nigeria in 1995 and told her he had
7
It should be remembered that in the fable, the last time the boy cried
wolf there really was a wolf, but the people ignored the cry. Thus, if those
who had heard the call had not discounted the cry based on past events and
had investigated the last cry, the boy might have been saved. The moral,
however, is that society does not have any obligation to investigate the
unsupported claim of a person who has repeatedly confirmed that he is a
liar.
19414 TIJANI v. HOLDER
converted to Christianity, he was attacked and injured by “a
group of Sharia police officers and regular civil police offi-
cers.” I agree with the IJ that Tijani’s record of lying to the
courts in this country coupled with his revision of when he
allegedly became a Christian is sufficient to strip his testi-
mony of any credibility. Accordingly, the IJ properly required
Tijani to provide some corroboration of his testimony, and
properly denied him relief when he failed to do so. The peti-
tion for review should be denied.