Vizcarra Ayala v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RAFAEL VIZCARRA-AYALA, 
Petitioner, No. 06-73237
v.
 Agency No.
A92-173-693
MICHAEL B. MUKASEY,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
September 26, 2007—San Francisco, California

Filed January 23, 2008

Before: John R. Gibson**, Marsha S. Berzon, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Berzon

*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
**The Honorable John R. Gibson, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.

1061
 VIZCARRA-AYALA v. MUKASEY 1063

COUNSEL

Michael Adura-Miranda, Erika S. Rivera & Evangeline G.
Abriel, Santa Clara University School of Law, Santa Clara,
California, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Emily Anne
Radford, Assistant Director, & Stephen M. Elliott, Trial
1064 VIZCARRA-AYALA v. MUKASEY
Attorney, U.S. Department of Justice, Washington, DC, for
the respondent.

OPINION

BERZON, Circuit Judge:

Rafael Vizcarra-Ayala (“Vizcarra-Ayala”), a native and cit-
izen of Mexico, challenges the Board of Immigration
Appeals’ (“BIA”) ruling that his forgery conviction under
California Penal Code § 475(c) (“Penal Code § 475(c)”) ren-
ders him an aggravated felon pursuant to Immigration and
Naturalization Act (“INA”) § 101(a)(43)(R), 8 U.S.C.
§ 1101(a)(43)(R). He argues that Penal Code § 475(c) encom-
passes conduct involving real, unaltered documents and thus
is not categorically an offense “relating to . . . forgery” under
INA § 101(a)(43)(R). We agree and grant the petition.

I.

In 2005, Vizcarra-Ayala pleaded guilty to a violation of
Penal Code § 475(c), which provides that “[e]very person
who possesses any completed check, money order, traveler’s
check, warrant or county order, whether real or fictitious, with
the intent to utter or pass or facilitate the utterance or passage
of the same, in order to defraud any person, is guilty of for-
gery.” He was sentenced to two years imprisonment.

The following year, the Department of Homeland Security
(“DHS”) began removal proceedings against Vizcarra-Ayala.
An Immigration Judge (“IJ”) found him removable as an
aggravated felon under INA § 101(a)(43)(R), which provides
that “an offense relating to commercial bribery, counterfeit-
ing, forgery, or trafficking in vehicles the identification num-
bers of which have been altered for which the term of
imprisonment is at least one year” is an aggravated felony.
 VIZCARRA-AYALA v. MUKASEY 1065
Vizcarra-Ayala, pro se throughout the administrative pro-
ceedings, appealed to the BIA. He argued generally that under
the modified categorical approach, Penal Code § 475(c) did
not constitute an aggravated felony. His specific argument,
however, targeted the wrong ground for removal: He argued
that Penal Code § 475(c) was not categorically a “crime of
violence” under INA § 101(a)(43)(F) — a ground on which
the IJ did not rely — because it encompassed aiding and abet-
ting liability.1

In a one-paragraph opinion, the BIA dismissed the appeal.
It found, “[u]pon review of the instant record, . . . that the
Immigration Judge did not err in determining that the respon-
dent’s criminal conviction for forgery in violation of Califor-
nia Penal Code section 475(c), constitutes an aggravated
felony under section 101(a)(43)(R) of the [INA].”

Vizcarra-Ayala petitions this Court for review, arguing that
Penal Code § 475(c) encompasses conduct involving real,
unaltered documents and thus is not categorically an offense
“relating to . . . forgery.”

II.

The INA precludes judicial review over final orders of
removal against any alien removable for having committed an
aggravated felony, except to the extent that the petition for
review raises constitutional claims or questions of law. 8
U.S.C. § 1252(a)(2)(C)-(D). “Whether an offense is an aggra-
vated felony for the purposes of 8 U.S.C. § 1101(a)(43)(R) is
a question of law and therefore not subject to the jurisdic-
tional constraints of § 1252(a)(2)(C).” Morales-Alegria v.
Gonzales, 449 F.3d 1051, 1053 (9th Cir. 2006).
1
At the hearing before the IJ, Vizcarra-Ayala denied removability under
INA § 101(a)(43)(R) but stated no legal basis for the denial.
1066 VIZCARRA-AYALA v. MUKASEY
We conduct de novo review of questions of law. Kanka-
malage v. INS, 335 F.3d 858, 861 (9th Cir. 2003). Although
the BIA’s interpretation of the immigration laws is entitled to
deference, id. at 862, its interpretation of the California Penal
Code — a statute it does not administer — is not. Garcia-
Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003). Conse-
quently, “we apply de novo review to ‘the issue of whether a
particular offense constitutes an aggravated felony.’ ” Ruiz-
Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir. 2004)
(quoting Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th
Cir. 2003)).

III.

[1] We can review a final removal order only after the alien
has exhausted all available administrative remedies. 8 U.S.C.
§ 1252(d)(1). This Court has held that the statutory exhaustion
requirement is jurisdictional and thus “generally bars us, for
lack of subject-matter jurisdiction, from reaching the merits of
a legal claim not presented in administrative proceedings
below.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004).

“A petitioner cannot satisfy the exhaustion requirement by
making a general challenge to the IJ’s decision, but, rather,
must specify which issues form the basis of the appeal.” Zara
v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004). A petitioner
need not, however, raise the precise argument below. In
Zhang v. INS, 388 F.3d 713 (9th Cir. 2004), the petitioner
“explicitly mentioned in his brief to the BIA that he was
requesting reversal of the IJ’s denial of relief under the Con-
vention Against Torture,” although apparently nothing more
was said. Id. at 721. In other words, the specific legal ground
for the challenge was not set forth. Id. This Court found the
claim nonetheless was exhausted:

Zhang’s request was sufficient to put the BIA on
notice that he was challenging the IJ’s Convention
 VIZCARRA-AYALA v. MUKASEY 1067
[Against Torture] determination, and the agency had
an opportunity to pass on this issue. Zhang raised the
issue of Convention relief before the BIA, and our
precedent requires nothing more.

Id. (citation omitted).

[2] Similarly, in Moreno-Morante v. Gonzales, 490 F.3d
1172 (9th Cir. 2007), this Court found the petitioner’s claim
exhausted where he did not make the “precise statutory argu-
ment in the proceedings below [but] . . . did raise his general
argument . . . .” Id. at 1173 n.1 (emphasis in original); see
also Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir.
2006) (where “[p]etitioner’s notice of appeal to the BIA
asserted that the ‘Immigration Judge erred in disregarding that
[Petitioner] entered the United States as a refugee’ . . . , [his]
failure to elaborate on the argument in his brief to the BIA is
immaterial to our jurisdiction” over that claim) (second alter-
ation in original); Cruz-Navarro v. INS, 232 F.3d 1024, 1030
n.8 (9th Cir. 2000) (“[T]he issue in question may have been
argued in a slightly different manner [to the BIA] and still be
preserved for appeal.”). Moreover, pro se claims are con-
strued liberally for purposes of the exhaustion requirement.
Agyeman v. INS, 296 F.3d 871, 878 (9th Cir. 2002) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

[3] Here, Vizcarra-Ayala argued that Penal Code § 475(c)
is not an aggravated felony under the modified categorical
approach. As the only ground upon which the IJ found his
conviction to be an aggravated felony was as an offense relat-
ing to forgery, the BIA had sufficient notice that Vizcarra-
Ayala’s challenge — though directed at a different part of the
aggravated felony definition — was intended to challenge the
ground on which he was ordered removed.

Further, our precedent is quite clear that claims addressed
on the merits by the BIA are exhausted. See Abebe v. Gon-
zales, 432 F.3d 1037, 1040-41 (9th Cir. 2005) (en banc);
1068 VIZCARRA-AYALA v. MUKASEY
Socop-Gonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir. 2001)
(en banc). Here, the BIA did not simply reject the arguments
that Vizcarra-Ayala raised as irrelevant because the IJ did not
find his conviction to be a crime of violence. Instead, it recog-
nized that the issue raised was whether a conviction under
Penal Code § 475(c) constituted an aggravated felony under
INA § 101(a)(43)(R). After conducting an independent review
of the record, it found “that the [IJ] did not err in determining
that the respondent’s criminal conviction for forgery in viola-
tion of California Penal Code section 475(c), constitutes an
aggravated felony under section 101(a)(43)(R) of the [INA].”

[4] The BIA had notice of the claim and ruled on the mer-
its. There was therefore adequate exhaustion.

IV.

The INA defines “aggravated felony” as any one of a series
of offenses, including “an offense relating to . . . forgery . . .
for which the term of imprisonment is at least one year.” INA
§ 101(a)(43)(R). Taylor v. United States, 495 U.S. 575
(1990), provides the analytical framework to determine
whether a conviction is one “relating to . . . forgery.”2 First,
the court determines whether the statute encompasses
offenses that are narrower than or equal to the federal defini-
tion of “an offense relating to . . . forgery.” If so, a conviction
under the state statute necessarily implies that the conviction
is one relating to forgery. Id. at 599. If, however, the statute
is overinclusive, the modified categorical approach permits an
examination of certain documents in the record “to determine
if the record unequivocally establishes that the defendant was
convicted of the generically defined crime . . . .” United States
v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en
2
We give no weight to the fact that the California Penal Code classifies
§ 475(c) as a forgery offense. See Taylor, 495 U.S. at 590-91 (Congress
did not intend the meaning of an offense for sentencing enhancement pur-
poses to depend on the various states’ definitions).
 VIZCARRA-AYALA v. MUKASEY 1069
banc), superseded on other grounds by USSG §2L1.2, cmt. n.
4 (2002).

A. “Offense relating to . . . forgery”

We begin by considering the reach of the phrase “offense
relating to . . . forgery.” Forgery developed from the common-
law crime of larceny and thus should be defined by its “ge-
neric, core meaning.” Morales-Alegria, 449 F.3d at 1054; see
also Corona-Sanchez, 291 F.3d at 1204. To determine this
meaning, “we look to common-law definitions, the generic
sense in which the term is now used in the criminal codes of
most states, as well as other circuits’ analyses of the generic
offense.” Morales-Alegria, 449 F.3d at 1054 (quotations and
citations omitted).

The essential elements of the common law crime of forgery
are “(1) a false making of some instrument in writing; (2) a
fraudulent intent; [and] (3) an instrument apparently capable
of effecting a fraud.” Id. at 1055 (alteration in original) (quot-
ing State v. Wheeler, 20 Or. 192, 195 (1890)). As Vizcarra-
Ayala’s argument targets the false nature of the document, our
discussion of forgery focuses on that element.

Contemporary treatises emphasize that forgery requires the
falsification of a document or instrument. “Forgery is a crime
aimed primarily at safeguarding confidence in the genuine-
ness of documents relied upon in commercial and business
activity. Though a forgery, like false pretenses, requires a lie,
it must be a lie about the document itself: the lie must relate
to the genuineness of the document.” 3 WAYNE R. LAFAVE,
SUBSTANTIVE CRIMINAL LAW § 19.7(j)(5) (2d ed.) [hereinafter
“LAFAVE”] (footnotes omitted). Falsifying the genuineness of
a document is so critical to the offense of forgery that “when
a person writes a letter or completes a loan application or
other instrument and signs it with his own name, he is not
guilty of forgery because a false statement is contained
therein, even if he knew it was false and acted with intent to
1070 VIZCARRA-AYALA v. MUKASEY
defraud.” 4 WHARTON’S CRIMINAL LAW § 487 (15th ed.). The
Model Penal Code echoes this understanding, defining for-
gery, in relevant part, as “alter[ing] any writing of another
without his authority” or making “any writing so that it pur-
ports to be the act of another who did not authorize that act.”
MODEL PENAL CODE § 224.1(1).

[5] Other circuits and the Supreme Court have also con-
cluded that forgery requires the falsification of a document.
See, e.g., Gilbert v. United States, 370 U.S. 650, 658 (1962)
(“Where the ‘falsity lies in the representation of facts, not in
the genuineness of execution,’ it is not forgery.”); United
States v. Hunt, 456 F.3d 1255, 1260-64 (10th Cir. 2006) (con-
cluding, after a lengthy analysis, that “forgery at common law
depends on genuineness of execution, and does not extend to
an agent’s false assertion of authority to act on behalf of his
principal”); United States v. Reagle, 740 F.2d 266, 269 (3d
Cir. 1984) (“[T]his Court has narrowly construed the elements
of forgery to encompass only the false making or alteration of
a writing of legal significance with the intent to defraud.”);
United States v. Jones, 553 F.2d 351, 355 (4th Cir. 1977) (“In
criminal cases the great weight of authority holds false state-
ments in or fraudulent execution of otherwise valid instru-
ments not to be forgery within its common law or unexpanded
meaning.”) (citation omitted); Asher v. United States, 480
F.2d 580, 583 (6th Cir. 1973) (“[I]t has generally been held
that the genuine making of a writing for the purpose of
defrauding another is not forgery.”) (quoting Wright v. United
States, 172 F.2d 310, 311 (9th Cir. 1949)).

[6] This unanimity is significant in part because “[w]e are
. . . mindful of the desirability of a uniform, national defini-
tion.” Corona-Sanchez, 291 F.3d at 1205 (citing Taylor, 495
U.S. at 590-92). In light of this unanimity, it is clear that an
essential element of the generic offense of forgery is the false
making or alteration of a document, such that the document
is not what it purports to be.
 VIZCARRA-AYALA v. MUKASEY 1071
B. California Penal Code § 475(c)

California Penal Code § 475(c) states that “[e]very person
who possesses any completed check, money order, traveler’s
check, warrant or county order, whether real or fictitious,
with the intent to utter or pass or facilitate the utterance or
passage of the same, in order to defraud any person, is guilty
of forgery.” (emphasis added).

Although the government concedes that “use of a false
instrument is a key element of generic forgery,” it argues that
the California statute’s application to “real” instruments
merely includes genuine document forms on which the added
information — the signature, for example — is forged. It
argues that the “real or fictitious” difference to which the Cal-
ifornia statute refers is, for example, between forging a signa-
ture on a real check stolen from a person’s checkbook versus
printing a piece of paper purporting to be another person’s
check. The government is correct that both these acts consti-
tute offenses relating to generic forgery.

[7] California has used Penal Code § 475(c), however, to
prosecute conduct that does not fall within the generic defini-
tion of forgery; namely, possession or use of a genuine instru-
ment with intent to defraud but not to forge. In People v. Viel,
No. D044101, 2005 WL 904806 (Cal. Ct. App. 4th Dist. Apr.
20, 2005) (unpublished),3 Viel lived in an apartment above a
3
With limited exceptions not applicable here, “an opinion of a Califor-
nia Court of Appeal or superior court appellate division that is not certified
for publication or ordered published must not be cited or relied on by a
court or a party in any other action.” Cal. Rule of Court 8.1115.
The unpublished cases discussed here are pertinent, however, only to
show that Penal Code § 475(c) has actually been applied to conduct falling
outside of the generic definition of forgery. The Supreme Court recently
held that such a showing is required. See Gonzales v. Duenas-Alvarez, ___
U.S. ___, 127 S.Ct. 815, 822 (2007) (petitioner must demonstrate “a real-
istic probability, not a theoretical possibility, that the State would apply its
1072 VIZCARRA-AYALA v. MUKASEY
storefront organization called Mongoose Boxing/Any Body
Can Youth Foundation. Id. at *1. She received in the mail a
check for $2,500 made payable to “ABC (Any Body Can).”
According to her testimony, Viel believed it was a reward for
helping a police detective who, not remembering her name,
made the check out to “Any Body.” Id. at *1-*2. The state
argued that she knew the check was not meant for her. In any
event, Viel took the check, unaltered, to a check-cashing busi-
ness and tried to cash it. When asked for identification and a
signature on the back of the check, she provided her own
identification and signature.4 Id. at *1. The jury convicted her
of forgery under Penal Code § 475(c).

These facts would not establish forgery under the generic
definition, as the document was not falsified in any way. Viel
did not alter the identity of the payee. She endorsed the check
with her own name. As the heart of forgery is “a lie about the
document itself,” LAFAVE § 19.7(j)(5), even if Viel knew she
had no right to the check and acted with the intent to defraud,
she did not commit forgery in the generic meaning of the
offense.

statute to conduct that falls outside the generic definition of a crime” by
pointing to cases “in which the state courts in fact did apply the statute in
the special (nongeneric) manner”); see also United States v. Grisel, 488
F.3d 844, 850 (9th Cir. 2007) (en banc). The use of unpublished decisions
for this purpose is warranted. This Court has so held in the analogous con-
text of examining a state’s practice in applying a procedural bar for the
purposes of habeas review. See Powell v. Lambert, 357 F.3d 871, 879 (9th
Cir. 2004) (reviewing state’s published and unpublished decisions in ana-
lyzing application of procedural rule because “it is the actual practice of
the state courts, not merely the precedents contained in their published
opinions, that determine the adequacy of procedural bars preventing the
assertion of federal rights”) (citing Valerio v. Crawford, 306 F.3d 742, 776
(9th Cir. 2002) (en banc)).
4
Although the case does not expressly state the identification and signa-
ture were hers, that is plainly implied. In discussing the evidence of her
intent to defraud, the court makes no mention of any falsity of identifica-
tion or signature. See id. at *6.
 VIZCARRA-AYALA v. MUKASEY 1073
People v. Leonard, No. G032720, 2004 WL 2610365 (Cal.
Ct. App. 4th Dist. Nov. 17, 2004) (unpublished), provides
another example. Leonard was the office manager and trea-
surer at Fullerton Millwork, and in that capacity was an
approved signatory on the company’s checking account. Id. at
*1. Although she was authorized to use company funds only
for office supplies, she wrote several checks for her own per-
sonal use, including one for “cash,” on Fullerton Millwork’s
bank account. Leonard used the proceeds from the “cash”
check to purchase two cashier’s checks payable to her land-
lord or management company for a security deposit and rent.
Those three instruments — the check for “cash” and the two
cashier’s checks — provided the basis for three counts of vio-
lating Penal Code § 475(c). Id. at *1, 3.

Again, there was nothing false about the documents. The
checks were real Fullerton Millwork checks. Leonard’s signa-
ture was genuine. The cashier’s checks were not altered or
falsified. That she knowingly lacked authority to draw com-
pany checks for her personal purposes may have made her
conduct fraud, but not forgery under the generic definition.
See Hunt, 456 F.3d at 1260-64 (a genuine document signed by
an agent acting outside his authority does not fall within the
common law definition of forgery); see also Gilbert, 370 U.S.
at 650-51, 659 (where defendant endorsed a check with
payee’s name and his own signature with the designation
“Trustee,” purporting to be the payee’s authorized agent, it
was not forgery under the common law definition).

[8] These two California cases target conduct that plainly
is not generic forgery. Nor is it an “offense relating to . . . for-
gery.” Courts have not used the phrase “relating to” to extend
INA § 101(a)(43)(R) to offenses not necessitating any proof
of a forgery or inchoate forgery. Instead, “relating to” has
been applied to include activities ancillary to the core offense
— for example, possession of counterfeit or forged docu-
ments, Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir.
2000); Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005);
1074 VIZCARRA-AYALA v. MUKASEY
knowing use of a counterfeit mark, Park v. Attorney General,
472 F.3d 66 (3d Cir. 2006); and forging documents with the
intent to “deceive,” as opposed to the traditional “defraud,”
Drakes v. Zimski, 240 F.3d 246 (3d Cir. 2001). In all of these
instances, the offense required proof of the basic forgery ele-
ment absent in the California statute, namely, a false instru-
ment. Expanding the definition of offenses “relating to”
forgery to include conduct where documents are not altered or
falsified stretches the scope too far. California Penal Code
§ 475(c) is therefore not categorically an offense “relating to
. . . forgery” within the meaning of INA § 101(a)(43)(R).

C. Vizcarra-Ayala’s conduct

Where a prior offense does not categorically meet the req-
uisite “aggravated felony” definition, we apply, in certain cir-
cumstances, the so-called “modified categorical approach” to
determine “if there is sufficient evidence to conclude that a
defendant was convicted of the elements of the generically
defined crime even though his or her statute of conviction was
facially overinclusive.” United States v. Kelly, 422 F.3d 889,
892 (9th Cir. 2005) (quoting Chang v. INS, 307 F.3d 1185,
1189 (9th Cir. 2002)).

Vizcarra-Ayala contends the government has failed to meet
its burden under the modified categorical approach to show
that his conviction necessarily included the requisite elements
of the generic offense of forgery.5 We agree.
5
“When the crime of conviction is missing an element of the generic
crime altogether, we can never find that ‘a jury was actually required to
find all the elements of’ the generic crime.” Navarro-Lopez v. Gonzales,
503 F.3d 1063, 1073 (9th Cir. 2007) (en banc), (citing Li v. Ashcroft, 389
F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., concurring)). While Penal
Code § 475(c) arguably is missing an element of the generic crime of for-
gery — the presence of a fictitious or falsely made document — Vizcarra-
Ayala has not raised this particular argument before the BIA or this court.
We need not decide whether the argument has been exhausted before the
BIA and adequately raised before this court, and if it has, whether it has
merit, because we grant the petition on other grounds which Vizcarra-
Ayala has exhausted before the BIA and the parties have briefed on
appeal.
 VIZCARRA-AYALA v. MUKASEY 1075
[9] To determine the elements of which a particular defen-
dant was convicted, courts can look to “the terms of the
charging document, the terms of a plea agreement or tran-
script of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or
to some comparable judicial record of this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005).

[10] The only judicial record of Vizcarra-Ayala’s convic-
tion the government produced was an Abstract of Judgment.
The Abstract in this case, assuming it may be relied upon,6
provides no indication of the context surrounding Vizcarra-
Ayala’s offense: It states only that Vizcarra-Ayala was con-
victed of violating Penal Code § 475(c), and thus provides no
information regarding whether the conviction involved an
altered or falsified document. Absent evidence that his con-
viction was for an offense relating to forgery within the scope
of INA § 101(a)(43)(R), it cannot be used as a basis of
removal on that ground.

V.

California Penal Code § 475(c) encompasses conduct that
does not “relat[e] to . . . forgery.” As the record does not dem-
onstrate that Vizcarra-Ayala’s conviction was for conduct
relating to forgery, his removal order cannot stand.

The petition is GRANTED.

6
We recently disapproved any use of Abstracts of Judgment in the mod-
ified categorical approach. See United States v. Snellenberger, 493 F.3d
1015, 1020 & n.5 (9th Cir. 2007) (petition for rehearing en banc pending).
Here, however, there is insufficient proof regarding the underlying con-
duct even if we allow use of the Abstract of Judgment.