Notash v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KYKHOSRO NOTASH, 
Petitioner, No. 03-72116
v.
 Agency No.
A46-115-800
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
January 10, 2005—San Francisco, California

Filed November 2, 2005

Before: John T. Noonan, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Tashima

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).

15021
15024 NOTASH v. GONZALES

COUNSEL

Dorothea P. Kraeger, Phoenix, Arizona, for the petitioner.**

Regina Byrd, Civil Division, U.S. Department of Justice,
Washington, D.C., for the respondent.

OPINION

TASHIMA, Circuit Judge:

Kykhosro Notash, a native and citizen of Iran, petitions for
review of a decision of the Board of Immigration Appeals
(“BIA”), affirming without opinion the decision of the Immi-
gration Judge (“IJ”). The IJ concluded that Notash’s convic-
tion for attempted entry of goods by means of a false
statement, in violation of 18 U.S.C. § 542, constituted a crime
of moral turpitude for purposes of Immigration and National-
ity Act (“INA”) § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)
(A)(i). The IJ consequently found Notash removable, but
granted voluntary departure in lieu of removal pursuant to
INA § 240B, 8 U.S.C. § 1229c. For the reasons explained
below, we grant the petition.

**Concurrently with the filing of this opinion, we grant Ms. Kraeger’s
motion to withdraw as counsel of record for petitioner.
 NOTASH v. GONZALES 15025
BACKGROUND

Notash was admitted to the United States in October 1997.
The Notice to Appear charged that Notash committed the
offense of attempted entry of goods by means of a false state-
ment, in violation of 18 U.S.C. § 542.1 Notash conceded the
conviction. His sole contention is that the conviction was not
for a crime involving moral turpitude; therefore, that the con-
viction did not render him deportable pursuant to INA
§ 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).

At his hearing before the IJ, Notash explained that, when
completing his customs declaration form, he had left a line
relating to foreign goods blank because he was not sure how
to declare the items. Customs officials thought that he was
attempting to avoid payment of duty on the goods and
charged him under 18 U.S.C. § 542. Notash, however, paid
the duty and received the items back.

Notash thus argued that his conviction was not for a crime
involving moral turpitude. He contended that, although crimes
involving fraud generally are considered to involve moral tur-
pitude, crimes involving false statements are not categorically
considered to involve moral turpitude. He further argued that,
unlike cases involving moral turpitude, his offense did not
involve “clear deceit” and an attempt to obtain a property
interest to which he was not entitled.

The IJ rejected Notash’s arguments. The IJ stated that con-
viction under § 542 required an attempt to “deprive the United
States of revenue by fraud or false statement or engage in a
willful act or omission by which the United States may be
deprived of lawful duties.” Reasoning that “[f]raud and mali-
ciousness are inherent in these offenses,” the IJ concluded that
1
The Notice To Appear states that Notash was convicted of this offense
on September 27, 1997, although that date clearly is wrong and probably
should be September 27, 1999.
15026 NOTASH v. GONZALES
Notash’s conviction was a crime involving moral turpitude
because “[e]vil intent is the very essence of moral turpitude.”
The IJ accordingly concluded that Notash was removable.
The BIA affirmed without opinion, pursuant to 8 C.F.R.
§ 1003.1. Notash filed a timely petition for review.

JURISDICTION

[1] Our jurisdiction rests on INA § 242, 8 U.S.C. § 1252.
Section 1252(a)(2)(C) limits this court’s jurisdiction over
petitions for review of final orders of removal based on cer-
tain enumerated crimes. It provides, in part, that,

except as provided in subparagraph (D), no court
shall have jurisdiction to review any final order of
removal against an alien who is removable by reason
of having committed a criminal offense covered in
section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or
(D) of this title, or any offense covered by section
1227(a)(2)(A)(ii) of this title for which both predi-
cate offenses are, without regard to their date of
commission, otherwise covered by section
1227(a)(2)(A)(i) of this title.

8 U.S.C. § 1252(a)(2)(C). Subparagraph (D) was added in
May 2005 by the REAL ID Act of 2005, Pub. L. No. 109-13,
119 Stat. 231. It provides, in part, that the limits on judicial
review found in subparagraph (C) do not preclude “review of
constitutional claims or questions of law raised upon a peti-
tion for review filed with an appropriate court of appeals in
accordance with this section.” 8 U.S.C. § 1252(a)(2)(D).

[2] The determination of whether an offense is a crime
involving moral turpitude is a question of law and accordingly
is not subject to the jurisdiction-stripping provision of
§ 1252(a)(2)(C). See Carty v. Ashcroft, 395 F.3d 1081, 1083
(9th Cir. 2005), (stating that “[w]hether a state statutory crime
necessarily involves moral turpitude is a question of law, sub-
 NOTASH v. GONZALES 15027
ject to de novo review”), cert. denied, ___ S. Ct. ___, 73
U.S.L.W. 3725 (U.S. Oct. 3, 2005); Goldeshtein v. INS, 8
F.3d 645, 647 n.4 (9th Cir. 1993) (stating that “[w]hether a
statute defines a crime involving moral turpitude is a question
of law”). Thus, we have jurisdiction over Notash’s petition for
review under INA § 242(b)(1), 8 U.S.C. § 1252(b)(1).

STANDARD OF REVIEW

Because the BIA affirmed the decision of the IJ without
opinion, we review the decision of the IJ. Ndom v. Ashcroft,
384 F.3d 743, 750 (9th Cir. 2004). “ ‘The question of whether
a conviction under federal law is a deportable offense is
reviewed de novo.’ ” Randhawa v. Ashcroft, 298 F.3d 1148,
1151 (9th Cir. 2002) (quoting Albillo-Figueroa v. INS, 221
F.3d 1070, 1072 (9th Cir. 2000)).

DISCUSSION

I.

The Immigration and Naturalization Service (“INS”)2 con-
tends that Notash failed to raise below the issue he raises in
his petition for review and that he accordingly has waived the
issue. Generally, we lack jurisdiction over claims that the
petitioner fails to present to the IJ or the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (discussing the
requirement of administrative exhaustion found in 8 U.S.C.
§ 1252(d)). However, the INS’ contention, as well as its com-
plete failure to address Notash’s arguments on the merits, is
difficult to understand. Notash argued before the IJ that,
although he admitted the factual allegations of the charge, the
crime did not involve moral turpitude. He also argued to the
BIA that his crime did not involve moral turpitude.
2
The INS has been abolished and its functions transferred to the Depart-
ment of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2142 (2002), 6 U.S.C. §§ 101-557. We will refer
to the government agency as the INS.
15028 NOTASH v. GONZALES
The INS contends that the IJ found that Notash was con-
victed under the first paragraph of 18 U.S.C. § 542 and that
Notash did not challenge that finding below. Notash does
argue that the IJ should have considered the second paragraph
of the statute. He also argues, however, as he did before the
IJ and the BIA, that crimes involving false statements are not
categorically crimes involving moral turpitude. He has not
waived the issue; he raised it sufficiently below. We therefore
address the merits of his claim.

II.

[3] INA § 237 defines classes of removable aliens and
makes removable an alien who “is convicted of a crime
involving moral turpitude within five years . . . after the date
of admission” and “is convicted of a crime for which a sen-
tence of one year or longer may be imposed.” 8 U.S.C.
§ 1227(a)(2)(A)(i). In determining whether a conviction con-
stitutes a removable offense, we apply the categorical
approach, looking only to the statutory definition of the
offense. Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.
2004). If it is not clear from the statutory definition whether
the offense is a qualifying offense, we apply the modified cat-
egorical approach, in which we “may look beyond the lan-
guage of the statute to a narrow, specified set of documents
that are part of the record of conviction.” Id. Those documents
include “ ‘the state charging document, a signed plea agree-
ment, jury instructions, guilty pleas, transcripts of a plea pro-
ceeding and the judgment.’ ” Ferreira v. Ashcroft, 390 F.3d
1091, 1095 (9th Cir. 2004) (quoting Hernandez-Martinez v.
Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003)); cf. Shepard
v. United States, 125 S. Ct. 1254, 1263 (2005) (holding that
a sentencing court may look only to the charging document,
the plea agreement, and the plea colloquy in determining
whether a guilty plea to burglary constituted a predicate
offense for purposes of the Armed Career Criminal Act). If
the record of conviction does not establish that the offense is
a qualifying offense, the government has failed to meet its
 NOTASH v. GONZALES 15029
burden, and the offense may not be used as a basis for
removal. Ferreira, 390 F.3d at 1095; Tokatly, 371 F.3d at
620-21.

III.

Notash was convicted under 18 U.S.C. § 542, which pro-
vides, in pertinent part:

Whoever enters or introduces, or attempts to enter or
introduce, into the commerce of the United States
any imported merchandise by means of any fraudu-
lent or false invoice, declaration, affidavit, letter,
paper, or by means of any false statement, written or
verbal, or by means of any false or fraudulent prac-
tice or appliance, or makes any false statement in
any declaration without reasonable cause to believe
the truth of such statement, or procures the making
of any such false statement as to any matter material
thereto without reasonable cause to believe the truth
of such statement, whether or not the United States
shall or may be deprived of any lawful duties; or

Whoever is guilty of any willful act or omission
whereby the United States shall or may be deprived
of any lawful duties accruing upon merchandise
embraced or referred to in such invoice, declaration,
affidavit, letter, paper, or statement, or affected by
such act or omission —

Shall be fined for each offense under this title or
imprisoned not more than two years, or both.

18 U.S.C. § 542.

[4] The first paragraph of the statute criminalizes certain
false or fraudulent statements, without regard to whether
those statements will result in a loss of revenue to the United
15030 NOTASH v. GONZALES
States. By contrast, the second paragraph criminalizes “any
willful act or omission” that may deprive the United States of
revenue, whether or not those acts are false or fraudulent.

[5] The record contains no evidence that indicates under
which paragraph Notash was convicted. Because the govern-
ment bears the burden of proving “ ‘by clear, unequivocal,
and convincing evidence that the facts alleged as grounds for
deportation are true,’ ” Hernandez-Guadarrama v. Ashcroft,
394 F.3d 674, 679 (9th Cir. 2005) (quoting Gameros-
Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989)), the
order of removal may be upheld only if a conviction under
either prong of § 542 would qualify as a crime involving
moral turpitude. We conclude that a conviction under the sec-
ond paragraph of § 542 would not categorically qualify as a
crime involving moral turpitude. Because of our conclusion
regarding the second paragraph of § 542, it is unnecessary for
us to address whether the first paragraph is categorically a
crime involving moral turpitude.3

[6] “To involve moral turpitude, intent to defraud must be
an ‘essential element’ of [Notash’s] conviction.” Carty, 395
F.3d at 1084 (quoting Goldeshtein, 8 F.3d at 647); see also
Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978) (“A
crime having as an element the intent to defraud is clearly a
crime involving moral turpitude.”). Unlike the first paragraph,
the second paragraph of § 542 does not require a false or
fraudulent statement, which could indicate an intent to
defraud. The IJ therefore relied on the fact that a conviction
under the second paragraph requires willfulness, which he
equated with evil intent.

[7] We have stated, however, that “[t]he word ‘wilful’
3
Contrary to the position of both Notash and the INS, the IJ did not
focus solely on the first paragraph of the statute. Our review of the record
reveals that the IJ found that a conviction under either paragraph of the
statute would constitute a crime involving moral turpitude.
 NOTASH v. GONZALES 15031
means no more than that the forbidden act is done deliberately
and with knowledge.” Hirsch v. INS, 308 F.2d 562, 567 (9th
Cir. 1962). Thus, in Hirsch, we held that a conviction for will-
fully and knowingly making false and fraudulent statements
on a shipper’s export declaration did not constitute a crime
involving moral turpitude. Id.; see also Goldeshtein, 8 F.3d at
648 (rejecting the INS’ argument that “evil intent exists if a
conviction requires proof that a defendant did a forbidden act
‘willfully’ ”). Similarly, in Goldeshtein, we held that a con-
viction for willfully violating 31 U.S.C. § 5324(a)(3), which
proscribes structuring a financial transaction for the purpose
of evading federal reporting laws, “does not establish the evil
intent required for a crime of moral turpitude.” Goldeshtein,
8 F.3d at 648. Willfullness alone accordingly does not cate-
gorically indicate an intent to defraud.

[8] “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, 395 F.3d at 1084 (quoting Goldeshtein,
8 F.3d at 648) (alteration in original). In Carty, the petitioner
was convicted of willful failure to file state income taxes, a
conviction requiring the government to prove specific intent
to evade taxes. Unlike Goldeshtein, “where the court found
that willfully structuring transactions did not inherently
involve fraud because it only deprived the government of
information and did not obtain anything from the govern-
ment,” Carty “attempted to deprive the government of
revenue—or, in other words, to obtain a free pass on taxes.”
Id.; see also id. at 1085 (reasoning that “the terms ‘evasion’
and ‘fraud’ have been treated interchangeably by California
and the federal government”).

[9] Unlike Carty, where the statute of conviction explicitly
required the intent to evade taxes, § 542 does not require an
intent to deprive the United States of revenue. Intent to
defraud accordingly is neither explicit nor implicit in the
nature of the crime. We therefore disagree with the IJ’s con-
15032 NOTASH v. GONZALES
clusion that a conviction under this paragraph categorically is
a crime involving moral turpitude.

Jordan v. De George, 341 U.S. 223 (1951), and Matter of
Flores, 17 I. & N. Dec. 225 (BIA 1980), on which the IJ
relied, are distinguishable. There was no question of an intent
to defraud in Jordan, where the alien was twice convicted of
violating 18 U.S.C. § 371.4 Both charges included the intent
to defraud the United States of tax. See Jordan, 341 U.S. at
224-25 (stating that the alien was charged, first, with possess-
ing alcohol “with intent to sell it in fraud of law and evade the
tax thereon” and with concealing liquor “with intent to
defraud the United States of the tax thereon,” and then with
conspiring to “unlawfully, knowingly, and willfully defraud
the United States of tax on distilled spirits”).

Flores similarly involved a conviction for violating 18
U.S.C. § 371, as well as 18 U.S.C. § 1426(b), for uttering and
selling false and counterfeit papers relating to registry of
aliens, knowing the papers to be false or counterfeited. The
BIA reasoned, first, that the alien’s § 371 conviction did not
involve moral turpitude because he “was convicted under that
clause of the statute which merely prohibits any offense
against the United States”; the intent to defraud the United
States thus was not required for conviction. Flores, 17 I. & N.
Dec. at 228. The BIA did conclude that the violation of 18
U.S.C. § 1426(b) was a crime involving moral turpitude
because it involved “a deliberate deception of the government
and an impairment of its lawful functions.” Id. at 230. Unlike
§ 1426(b), however, which requires knowledge that the regis-
try papers are false, § 542 does not require knowledge that the
statement is false. Section 542 requires only that the defen-
dant lack “reasonable cause to believe the truth of such state-
ment” for a conviction under the first paragraph. 18 U.S.C.
§ 542. The second paragraph contains no intent requirement.
4
18 U.S.C. § 371 proscribes a conspiracy “either to commit any offense
against the United States, or to defraud the United States.”
 NOTASH v. GONZALES 15033
Cf. Matter of Balao, 20 I. & N. Dec. 440, 443 (BIA 1992)
(holding that an alien’s state conviction for issuing worthless
checks was not a crime involving moral turpitude because,
although the statute spoke of “the ‘knowing’ issuance of bad
checks,” it did not “expressly require intent to defraud as an
element of the crime”).

[10] Section 542 accordingly is overly inclusive because it
criminalizes conduct that does not qualify as a crime involv-
ing moral turpitude. We accordingly must proceed to the
modified categorical approach, which involves examining the
record of conviction. See Tokatly, 371 F.3d at 620 (stating
that if it is “not clear from the statutory definition of the prior
offense whether that offense constitutes a removable offense,”
we apply the modified categorical approach).

[11] Unfortunately, none of the documents that may be
examined under the modified categorical approach are in the
record. See Ferreira, 390 F.3d at 1095 (stating that the record
of conviction includes the state charging document, a signed
plea agreement, jury instructions, guilty pleas, transcripts of
a plea proceeding, and the judgment); see also Shepard, 125
S. Ct. at 1263. The only evidence in the record of Notash’s
conviction is the Notice to Appear, which states that, “on Sep-
tember 27, 1997, [Notash was] convicted in the United States
District Court, Northern District of Texas for the offense of
Count 2: Attempted Entry of Goods by Means of False State-
ment, committed on or about March 16, 1998 in violation of
18 USC 542.” The government accordingly has failed to meet
its burden of proving that the offense for which Notash was
convicted “constitutes a predicate offense, and the conviction
may not be used as a basis for removal.” Tokatly, 371 F.3d at
620-21; see also Ferreira, 390 F.3d at 1095 (“If the record of
conviction does not establish that the offense the petitioner
committed qualifies as an aggravated felony, the government
has not met its burden of proving that the defendant commit-
ted an aggravated felony.”).
15034 NOTASH v. GONZALES
CONCLUSION

Notash’s conviction under § 542 is not an offense involving
moral turpitude because the record does not disclose under
which paragraph he was convicted, and a conviction can be
obtained under the second paragraph without proof of evil
intent or intent to defraud. His conviction therefore does not
categorically qualify as a crime involving moral turpitude.
Further, the government has failed to meet its burden under
the modified categorical approach.

PETITION FOR REVIEW GRANTED.