FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLORIA IBARRA-HERNANDEZ, No. 11-70739
Petitioner,
Agency No.
v. A095-767-460
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 6, 2014—Phoenix, Arizona
Filed November 5, 2014
Before: Dorothy W. Nelson, Barry G. Silverman,
and Milan D. Smith, Jr., Circuit Judges.
Per Curiam Opinion
2 IBARRA-HERNANDEZ V. HOLDER
SUMMARY*
Immigration
The panel denied Gloria Ibarra-Hernandez’s petition for
review of the Board of Immigration Appeals’ decision finding
her ineligible for cancellation of removal because her
conviction for taking the identity of another involves moral
turpitude.
The panel held that Ibarra-Hernandez’s conviction
pursuant to Arizona Revised Statutes § 13-2008(A) is not a
categorical crime involving moral turpitude, because the
statute is divisible and not every possible variation of the
crime requires proof of fraud. However, applying the
modified categorical approach, the panel found that Ibarra-
Hernandez admitted at her change of plea hearing that she
used a real person’s identity without his knowledge or
consent to obtain employment. The panel held that the BIA
reasonably found that stealing a real person’s identity for the
purpose of obtaining employment is inherently fraudulent,
and that it therefore involves moral turpitude.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IBARRA-HERNANDEZ V. HOLDER 3
COUNSEL
Hugo F. Larios (argued), Tempe, Arizona, for Petitioner.
Dawn S. Conrad (argued) and Luis E Perez, Office of
Immigration Litigation Civil Division, United States
Department of Justice, Washington D.C., for Respondent.
OPINION
PER CURIAM:
Gloria Ibarra-Hernandez, a native and citizen of Mexico,
petitions for review of a final order of removal. The Board of
Immigration Appeals held that petitioner is ineligible for
cancellation of removal because her conviction for taking the
identity of another in violation of Arizona Revised Statutes
§ 13-2008(A) involves moral turpitude under both the
categorical and modified categorical approaches. We hold
that A.R.S. §13-2008(A) is not a categorical crime involving
moral turpitude. The statute is divisible, and not every
possible variation of the crime requires proof of fraud. For
example, under the statute, a defendant can be convicted for
using a fictitious person’s identity with only the intent to
obtain employment, not to defraud. However, petitioner
admitted at the change of plea hearing to using a real
person’s identity, without that person’s knowledge or
consent, to obtain employment. Applying the modified
categorical approach, the Board reasonably held that stealing
a real person’s identity for the purpose of obtaining
employment is inherently fraudulent, and therefore, that it
involves moral turpitude.
4 IBARRA-HERNANDEZ V. HOLDER
I. Background
Petitioner, a native and citizen of Mexico, entered the
United States in 1994 without inspection. On December 17,
2008, she pled guilty pursuant to a written plea agreement to
taking the identity of another in violation of A.R.S. § 13-
2008(A). The relevant version of § 13-2008(A) provides:
A person commits taking the identity of
another person or entity if the person
knowingly takes, purchases, manufactures,
records, possesses or uses any personal
identifying information or entity identifying
information of another person or entity,
including a real or fictitious person or entity,
without the consent of that other person or
entity, with the intent to obtain or use the
other person's or entity's identity for any
unlawful purpose or to cause loss to a person
or entity whether or not the person or entity
actually suffers any economic loss as a result
of the offense, or with the intent to obtain or
continue employment.
A § 13-2008(A) conviction is a Class Four felony. Id. § 13-
2008(E). At the change of plea hearing, petitioner admitted
that she used the Social Security number of an actual person
without his knowledge or permission to get a job at a retail
store from April 9, 2006 to October 8, 2008. On January 21,
2009, the Arizona Superior Court in Maricopa County
sentenced petitioner to 90 days in jail and two years of
supervised probation.
IBARRA-HERNANDEZ V. HOLDER 5
The Department of Homeland Security subsequently
initiated removal proceedings, alleging that petitioner was
inadmissible on two grounds: First, pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i), for being present without being admitted
or paroled; and second, pursuant to 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), for having committed a crime involving
moral turpitude. In addition to rendering an alien removable,
a conviction of a crime involving moral turpitude renders an
alien ineligible for cancellation of removal. 8 U.S.C.
§ 1229b(b)(1)(C). Petitioner applied for cancellation of
removal, admitting that she was removable for having entered
without inspection, but denying that her crime involved moral
turpitude.
Affirming the immigration judge, the Board held that
petitioner was both inadmissible and ineligible for
cancellation of removal because a § 13-2008 conviction
involves moral turpitude. The Board held that the Arizona
statute was categorically a crime involving moral turpitude as
one involving fraud. In the alternative, the Board applied the
modified categorical approach and held that the change-of-
plea colloquy established that petitioner used the Social
Security number of an actual person without his knowledge
or permission to obtain employment. Thus, petitioner
committed fraud when she took and used the identity of
Francisco Mejia, a real person.
II. Jurisdiction
Although we lack jurisdiction to review removal orders
for aliens who have been convicted of certain crimes,
8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to consider
questions of law, including whether a crime involves moral
6 IBARRA-HERNANDEZ V. HOLDER
turpitude. Marmolejo-Campos v. Holder, 558 F.3d 903, 907
(9th Cir. 2009) (en banc).
III. Analysis
The government concedes that the Board erred in ruling
that A.R.S. § 13-2008(A) is categorically a crime involving
moral turpitude. See Descamps v. United States, 133 S. Ct.
2276, 2281–82 (2013). We agree. It is possible to commit a
violation of A.R.S. § 13-2008(A) by using a fictitious
person’s name – say, Mickey Mouse – and a non-existent
Social Security number solely for the purpose of getting a
job, and not with the intent to cause loss to anyone. We thus
agree with the government that § 13-2008(A) is not
categorically a crime involving moral turpitude. We now turn
to the Board’s alternative holding that petitioner’s crime is
one involving moral turpitude under the modified categorical
approach.
The change of plea transcript establishes that petitioner
admitted to taking the Social Security number of a real person
without his knowledge or consent in order to obtain or
maintain employment. Unlike the Mickey Mouse example,
this particular offense was a form of theft involving fraud.
The Board reasonably ruled that petitioner’s conviction was
for a crime involving moral turpitude, rendering her ineligible
for cancellation of removal.
PETITION DENIED.