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 *656entitled Relief, commencing at Maj. op. 655.

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 decision, but fails to adhere to the categorical-approach analysis of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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” disposition to fohow 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 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, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).

The crime at issue here, entitled “False financial statements,” 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 construing a Connecticut statute that is identical to § 532a(1),3 the BIA held that procuring *657credit 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 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-Garces, 20 I. & N. Dec. 451, 453 (BIA 1992). ¶ The erroneous exposition of the elements of the crime in Kinney is not binding upon us.

Maj. op. at 654. 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 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 Instructions (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 categorical 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 651. 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 *658recognized 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 the causes of the “current economic crisis.” Maj. op. at 652. 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 determine 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 650, implying that the statute was recently enacted to combat credit card fraud “in the modern United States,” Maj. op. at 648, 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 654. 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 intend to pay for the goods he is attempting to obtain. The fact that a person convicted under section 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 648, 649, 650, which is not an accurate categorical description of the elements of this 97-year-old statute, which was enacted decades before the credit card was invented. Whatever else the majority’s fixation on “credit card fraud” as “a modern form of swindle” may be, it decidedly is not the categorical examination of § 532a(l) mandated by Taylor.6

*659“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 necessarily involve evil intent, such as intent to defraud, is not necessarily 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 recognized in In re Kinney, because an individual need not have an evil intent to defraud in making a false statement in violation of the statute, i.e., intent to defraud is not an element of the offense.

Additionally, People v. Hagedorn, 127 Cal.App.4th 734, 25 Cal.Rptr.3d 879 (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 information belonging to another “for any unlawful purpose, including 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 unambiguously 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 requirement 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 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 “inapposite to this petition,” Maj. op. at 654, but it reaches that conclusion, as explained earlier, only by relying on its offhand, single-sentence “determination” that “an element of the California statute is fraud.” Maj. op. at 654.

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

*660Except 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 employees 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 regulations 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 precedential 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.

The decision at issue here was an IJ’s decision which was adopted by one member of the BIA. As the majority concedes, Maj. op. at 650, 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 controlling 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 majority’s ipse dixit, intent to defraud is not an explicit or implicit requirement of § 532a(l). 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 opinion holding that the IJ erred in requiring corroborating evidence in the absence of an explicit adverse credibility finding. Maj. op. at 655. 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)).

. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694(1984).

. The majority mislabels this offense as "credit card fraud,” which it is not. The California Penal Code entitles the section "False financial statements.” 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, 71 S.Ct. 703, 95 L.Ed. 886 (1951) ("The phrase ‘crime involving moral turpitude’ has without exception been construed to embrace fraudulent conduct.”). But, as I explain below, fraud or a fraudulent intent is not an element of this offense.

. Although the majority asserts that In re Kinney contains an "erroneous exposition of the elements of the crime," Maj. op. at 654, it does not contest that the elements of the Con*657necticut statute at issue in In re Kinney are identical to the elements of Cal.Penal Code § 532a(l). 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.

. Note that, while the majority also relies on and quotes this same standard instruction, CALCRIM 2020, see Maj. op. at 655, it carefully avoids mention of the mens rea element of the crime quoted above, which is not an intent to defraud.

. 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 649-53 showing why Tijani was convicted of crimes of fraud.” Maj. op. at 655. 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.

. The majority also makes a half-hearted attempt to invoke the modified categorical approach, Maj. op. at 651-52, 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 categorical approach. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007) (en banc).

. 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 question] to require an intent to defraud, it knew how to so provide.” 25 Cal.Rptr.3d at 885. People v. Hand, 127 Cal.App. 484, 16 P.2d 156 (1932), cited by the majority, exemplifies the California Legislature’s approach. The statute there involved, Cal.Penal Code § 484, unlike § 532a(l), as the majority concedes, "does expressly require an intent to defraud.” Maj. op. at 651.

. 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 653 (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.

. Judge Callahan, in her concurring and dissenting opinion, offers a further 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 661 n.2. The problem with this assertion, although it may be true as a general proposition, is that neither Judge Callahan 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 questions 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).