Morales-Algria v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JOSE MORALES-ALEGRIA, 
Petitioner, No. 03-73117
v.
 Agency No.
A92-399-656
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 17, 2006—Pasadena, California
Filed June 6, 2006
Before: John T. Noonan, Andrew J. Kleinfeld, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
6169
MORALES-ALEGRIA v. GONZALES 6171
COUNSEL
Adam V. Loiacono, Encino, California, for the petitioner.
6172 MORALES-ALEGRIA v. GONZALES
Peter D. Keisler, Assistant Attorney General, Margaret J.
Perry, Senior Litigation Counsel & Arthur L. Rabin, Trial
Attorney, U.S. Department of Justice, Washington, D.C., for
the respondent.
OPINION
BERZON, Circuit Judge:
The Board of Immigration Appeals (BIA) held that Fran-
cisco Morales-Alegria was removable because he had been
convicted of an “aggravated felony” within the meaning of
Immigration and Nationality Act (INA) section 101(a)
(43)(R), 8 U.S.C. § 1101(a)(43)(R). Morales-Alegria main-
tains that his conviction for forgery under California Penal
Code section 4761 does not qualify as an “aggravated felony.”
He contends that (1) a conviction under section 476 is not
necessarily “an offense relating to . . . forgery” because it
does not require knowledge of the fictitious nature of the
instrument, and (2) the government has not established that he
was sentenced to a term of imprisonment of “at least one
year” for his forgery offense, as § 1101(a)(43)(R) requires.
With respect to Morales-Alegria’s first claim, we hold that
a conviction under section 476 does require knowledge of the
fictitious nature of the instrument and therefore is not broader
than the federal definition of “offense relating to . . . forgery”
on that account. We do not have jurisdiction to consider
Morales-Alegria’s second claim relating to the length require-
ment, because he did not exhaust it before the BIA.
1
References to California Penal Code are to the 2005 version unless oth-
erwise noted.
MORALES-ALEGRIA v. GONZALES 6173
I.
Pursuant to INA section 237(a)(2)(A)(iii), an alien who, at
any time after admission, is convicted of an aggravated felony
— defined to include “an offense relating to . . . forgery . . .
for which the term of imprisonment is at least one year,” 8
U.S.C. § 1101(a)(43)(R) — may be removed from the coun-
try. See 8 U.S.C. § 1227(a)(2)(A)(iii). The government
charged Morales-Alegria, a native and citizen of Guatemala,
with removal for having committed an aggravated felony. The
basis for removal was his prior conviction under California
Penal Code section 476, entitled, “Forgery; fictitious or
altered bills, notes or checks,” which the government stated
satisfied § 1101(a)(43)(R).
After a hearing, the Immigration Judge (IJ) issued an oral
decision holding that Morales-Alegria was removable as
charged, which Morales-Alegria appealed. The BIA dismissed
Morales-Alegria’s appeal, holding his conviction under sec-
tion 476 was an aggravated felony for purposes of
§ 1101(a)(43)(R). Morales-Alegria timely petitioned this
court for review of the BIA’s decision.
We review de novo whether a conviction under state law is
a removable offense. Coronado-Durazo v. INS, 123 F.3d
1322, 1324 (9th Cir. 1997).
II.
[1] Jurisdiction in this case is governed by 8 U.S.C. § 1252,
which limits our jurisdiction over petitions for review of final
orders of removal. See 8 U.S.C. § 1252(a)(2)(C).2 We have
2
8 U.S.C. § 1252(a)(2)(C) provides:
Notwithstanding any other provision of law . . . and except as
provided in subparagraph (D), no court shall have jurisdiction to
review any final order of removal against an alien who is remov-
6174 MORALES-ALEGRIA v. GONZALES
jurisdiction in this case because of the addition of subpara-
graph (D) to 8 U.S.C. § 1252(a)(2) by the REAL ID Act of
2005, Pub. L. No. 109-13, § 106(a)(I)(A)(iii), 119 Stat. 231,
310. Pursuant to this new provision, the jurisdictional limits
imposed by subparagraph (C), precluding review of removal
orders against aggravated felons, do not apply to “review of
constitutional claims or questions of law raised upon a peti-
tion for review.” 8 U.S.C. § 1252(a)(2)(D) (emphasis added).
Whether an offense is an aggravated felony for the purposes
of 8 U.S.C. § 1101(a)(43)(R) is a question of law and there-
fore not subject to the jurisdictional constraints of § 1252(a)
(2)(C). See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th
Cir. 2005) (explaining that after the adoption of the REAL ID
Act, this court has jurisdiction over questions of law, includ-
ing whether an offense is a crime involving moral turpitude);
Martinez-Perez v. Gonzales, 417 F.3d 1022, 1025 (9th Cir.
2005) (noting that whether an offense constitutes an aggra-
vated felony is a question of law); see also Valencia v. Gon-
zales, 439 F.3d 1046, 1048 (9th Cir. 2006) (holding, post
REAL ID Act, that this court has jurisdiction to determine
whether a crime is an aggravated felony, relying on pre-
REAL ID Act cases).
III.
Morales-Alegria argues that section 476 includes a broader
range of conduct than generic “forgery.” Specifically,
Morales-Alegria maintains that an individual may be con-
victed of forgery under Penal Code section 476 without a
showing that she had knowledge of the fictitious nature of the
instrument, while the generic definition of forgery requires
able 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 predicate offenses are, without regard to their
date of commission, otherwise covered by section 1227(a)(2)
(A)(i) of this title.
MORALES-ALEGRIA v. GONZALES 6175
such knowledge. We hold that while the generic definition of
forgery does require such knowledge, so does section 476.
Section 476, therefore, categorically meets the mens rea
requirement for an “offense relating to . . . forgery.”
A.
[2] Morales-Alegria’s prior conviction is considered an
aggravated felony for federal sentencing purposes if it is an
“offense relating to . . . forgery” for which the term of impris-
onment is at least one year. 8 U.S.C. § 1101(a)(43)(R). Con-
gress did not define the phrase “offense relating to . . .
forgery.” To define a provision in a statute describing a class
of prior offenses, we have used one of two methodologies:
[1] If the qualifying offense is described in terms of
a traditional common law crime, then we have
defined the offense in terms of its generic, core
meaning. . . .
[2] If, on the other hand, the qualifying offense is
described in terms that do not embrace a traditional
common law crime, we have employed the ordinary,
contemporary, and common meaning of the statutory
words.
United States v. Corona-Sanchez, 291 F.3d 1201, 1204 (9th
Cir. 2002) (en banc) (internal quotation marks omitted) (quot-
ing United States v. Trinidad-Aquino, 259 F.3d 1140, 1143
(9th Cir. 2001)).3
3
Examples of crimes to which the first methodology applies are “theft”
and “burglary.” See Corona-Sanchez, 291 F.3d at 1204 (construing “theft
offense”); Ye v. INS, 214 F.3d 1128, 1131-32 (9th Cir. 2000) (construing
“burglary offense”). Examples of offenses that lend themselves to the sec-
ond methodology are crimes such as “crime of violence” and “sexual
abuse of a minor.” See Trinidad-Aquino, 259 F.3d at 1144 (construing
“crime of violence”); Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999)
(construing “sexual abuse of a minor”).
6176 MORALES-ALEGRIA v. GONZALES
[3] Forgery offenses developed from the common-law
crime of “larceny.” 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMI-
NAL LAW § 19.7(a), (j)(5) (2d ed. 2003) [hereinafter SUBSTAN-
TIVE CRIMINAL LAW]. We therefore use the first approach and
consider the generic, core meaning of the crime. See Corona-
Sanchez, 291 F.3d at 1204 (using the first approach to define
the generic crime of “theft offense” because the modern crime
developed from the common-law crime of larceny). To do so,
we look to common-law definitions, “the generic sense in
which the term is now used in the criminal codes of most
states,” Taylor v. United States, 495 U.S. 575, 598 (1990), as
well as other circuits’ analyses of the generic offense. See
Corona-Sanchez, 291 F.3d at 1205. Morales-Alegria only dis-
putes the mens rea for the crime of which he was convicted.
Accordingly, we only consider the knowledge and intent
requirements traditionally included in the offense of forgery.
B.
[4] The crime of forgery stems from the related crime of
false pretenses, developed to fill a gap left in the evolution of
the common-law crime of larceny. SUBSTANTIVE CRIMINAL
LAW §§ 19.1(b), 19.2. Common-law larceny was originally
limited to “(1) trespassory (2) taking and (3) carrying away of
the (4) personal property (5) of another (6) with intent to steal
it.” Id. § 19.2. Although “[t]he definition of larceny . . . was
expanded by judicial interpretation to include cases where the
owner merely was deemed to be in possession,” “[b]y the late
18th century, courts were less willing to expand common-law
definitions.” Bell v. United States, 462 U.S. 356, 359 (1983).
As a result, no crime punishing individuals who obtained title
to, rather than only physical possession of, property through
fraudulent means existed under the common-law. Id.; 3
WHARTON’S CRIMINAL LAW § 343 (15th ed. 2005).
[5] The crime of obtaining property by false pretenses was
first created by the English Parliament in 1757 to fill this gap.
The English statute punished those who “knowingly and
MORALES-ALEGRIA v. GONZALES 6177
designedly, by false pretence or pretences, shall obtain from
any person or persons, money, goods, wares or merchandises,
with intent to cheat or defraud any person or persons of the
same.” SUBSTANTIVE CRIMINAL LAW § 19.7(a) (internal quota-
tion marks omitted) (quoting 1757, 30 Geo. II, c.24 (Eng.)).
At least one American jurisdiction recognized the English
offense of “false pretenses” as part of the common-law. Id.
§ 19.7(a) n.4. Most jurisdictions, however, adopted false pre-
tenses as a statutory crime. Although the statutory definition
varies some from jurisdiction to jurisdiction, it generally con-
sists of five elements: “(1) a false representation of a material
present or past fact (2) which causes the victim (3) to pass
title to (4) his property to the wrongdoer, (5) who (a) knows
his representation to be false and (b) intends thereby to
defraud the victim.” SUBSTANTIVE CRIMINAL LAW § 19.7
(emphases added).
Forgery, a crime closely related to false pretenses, is
“aimed primarily at safeguarding confidence in the genuine-
ness of documents relied upon in commercial and business
activity.” Id. § 19.7(j)(5).4 Jurisdictions that recognize forgery
as a common-law crime provide that “the essential elements
of the crime are (1) a false making of some instrument in writ-
ing; (2) a fraudulent intent; [and] (3) an instrument apparently
capable of effecting a fraud.” State v. Wheeler, 20 Or. 192,
195 (1890); see United States v. McGovern, 661 F.2d 27, 29
(3d Cir. 1981). Furthermore, crimes of forgery require that
one have knowledge of the falsity of the document. See, e.g.,
State v. Oliveira, 730 A.2d 20, 25-26 (R.I. 1999) (explaining
4
Unlike false pretenses, however, forgery is committed even if the
forged document is not successfully passed. SUBSTANTIVE CRIMINAL LAW
§ 19.7(j)(5). Blackstone similarly defined forgery as “the fraudulent mak-
ing or alteration of a writing to the prejudice of another man’s right.”
WILLIAM BLACKSTONE, 4 COMMENTARIES *245. One of the principal statutes
Blackstone relied upon to define forgery more specifically requires that
one “forge or make, or knowingly . . . publish or give in evidence, any
forged deed, court roll, or will, with intent to affect the right of real prop-
erty.” Id. (citing 5 Eliz., c. 14 (Eng.)).
6178 MORALES-ALEGRIA v. GONZALES
the common-law elements of forgery); Maloney v. State, 91
Ark. 485, 488 (1909) (explaining the common-law elements
for the crime of “uttering,” or attempting to pass, a forged
document).
[6] State statutory definitions of forgery rarely depart from
common-law definitions, as they “do not repeal the common
law, but merely codify existing case law.” 36 AM. JUR. 2d
Forgery § 3 (2005). Under the modern offense, then, “the
intent to injure or defraud, and proof of a specific intent to
defraud, such as through a showing that the person passing
the instrument knew that it was forged, is essential to a con-
viction of the offense.” Id. § 5 (footnote omitted). The Model
Penal Code recognizes a similar definition:
A person is guilty of forgery if, with purpose to
defraud or injure anyone, or with knowledge that he
is facilitating a fraud or injury to be perpetrated by
anyone, the actor:
(a) alters any writing of another without his author-
ity; or
(b) makes, completes, executes, authenticates, issues
or transfers any writing so that it purports to be the
act of another who did not authorize that act, or to
have been executed at a time or place or in a num-
bered sequence other than was in fact the case, or to
be a copy of an original when no such original
existed; or
(c) utters any writing which he knows to be forged
in a manner specified in paragraphs (a) or (b).5
5
The MPC definition implicitly or explicitly requires knowledge of the
false nature of the document in question. Under subsections (a) and (b),
a person must know that a document is forged if she alters, makes, com-
pletes, executes, authenticates, issues or transfers a writing without autho-
rization and with an intent to defraud or injure or with knowledge that he
or she is facilitating a fraud or injury. Under subsection (c), the crime of
“uttering” explicitly requires knowledge.
MORALES-ALEGRIA v. GONZALES 6179
MODEL PENAL CODE § 224.1(1) (2001) (emphases added).
[7] In short, the common-law and generic state statutory
definitions of “forgery” generally require both an intent to
defraud and knowledge of the fictitious nature of the instru-
ment.
C.
The Third Circuit, in Drakes v. Zimski, 240 F.3d 246 (3d
Cir. 2001), is the only other circuit that has analyzed the men-
tal state requirements of forgery to determine whether an
offense under a state statute constitutes an aggravated felony
for the purposes of § 1101(a)(43)(R). In Drakes, the court
considered a Delaware statute that criminalizes a variety of
acts committed while “intending to defraud, deceive or injure
another person,” Drakes, 240 F.3d at 248 (internal quotation
marks omitted) (quoting DEL. CODE ANN. tit. 11, § 861).
While concluding that the Delaware statute was an offense
“relating to . . . forgery,” Drakes noted that “[c]ourts gener-
ally define traditional common-law forgery as requiring an
intent to defraud[,]” “state forgery statutes frequently cite
intent to defraud as the sole requisite intent,” and federal stat-
utes often require an intent to defraud. Id. at 249; see also
Wright v. United States, 172 F.2d 310, 311 (9th Cir. 1949)
(noting that federal forgery statutes that do not define forgery
should be given their “common, ordinary meaning,” which
requires an “intent to defraud”).
Drakes does not address whether knowledge of the ficti-
tious nature of the instrument is required. “Intent to defraud,”
however, has been interpreted by federal courts as requiring
such knowledge. See United States v. Tarallo, 380 F.3d 1174,
1181 (9th Cir. 2004) (stating that specific intent to defraud, as
required by 18 U.S.C. § 1341, requires knowledge of the fal-
sity of the statements at issue), amended by 413 F.3d 928 (9th
Cir. 2005); Albillo-Figueroa v. INS, 221 F.3d 1070, 1073 (9th
Cir. 2000) (explaining that 18 U.S.C. § 472, which requires an
6180 MORALES-ALEGRIA v. GONZALES
intent to defraud but does not mention “knowledge” of the fal-
sity of the document, requires the latter).
[8] Given that the common-law and modern state statutory
definitions of the mental state requirements for forgery are
consistent with each other, as well as with the federal statutes
reviewed in Drakes, we adopt a generic, core definition of
forgery which requires intent to defraud and includes a mental
state requirement of knowledge of the fictitious nature of the
instrument.
D.
[9] Having derived this definition, we must next determine
whether Morales-Alegria’s prior conviction under California
Penal Code section 476 qualifies as an offense relating to for-
gery. See Taylor, 495 U.S. at 599-602. The threshold inquiry
under Taylor is whether section 476 includes offenses not
included in the generic offense. See id. at 599. If section 476
has the same, or more exacting, requirements as the generic
offense, then “the conviction necessarily implies that the
defendant has been found guilty of all the elements” of the
offense as federally defined. Id. If, on the other hand, we were
to conclude that section 476 is broader than the generic defini-
tion of forgery, we would undertake a second inquiry,
employing a “modified categorical approach.” See Chang v.
INS, 307 F.3d 1185, 1189 (9th Cir. 2002); see generally Shep-
ard v. United States, 125 S. Ct. 1254 (2005); Taylor, 495 U.S.
at 602. A modified categorical approach allows a “limited
examination of documents in the record of conviction to
determine if there is sufficient evidence to conclude that a
defendant was convicted of the elements of the generically
defined crime.” Chang, 307 F.3d at 1189.
[10] The statute that Morales-Alegria was convicted of vio-
lating, California Penal Code section 476, provides:
Every person who makes, passes, utters, or pub-
lishes, with intent to defraud any other person, or
MORALES-ALEGRIA v. GONZALES 6181
who, with the like intent, attempts to pass, utter, or
publish, or who has in his or her possession, with
like intent to utter, pass, or publish, any fictitious or
altered bill, note, or check, purporting to be the bill,
note, or check, or other instrument in writing for the
payment of money or property of any real or ficti-
tious financial institution as defined in Section 186.9
is guilty of forgery.
CAL. PENAL CODE § 476. Section 476 expressly requires an
“intent to defraud” but does not explicitly include a knowl-
edge requirement. California case law, however, generally
construes “intent to defraud” as a specific intent element that
requires “both knowledge of the true facts and an intent to
deceive.” People v. Booth, 48 Cal. App. 4th 1247, 1253
(1996) (emphasis added) (defining “intent to defraud” as used
in CAL. INS. CODE § 1871(a)(1) and (5) (1992) (later codified
at CAL. PENAL CODE § 550(a)(1) and (5)); 1 WITKIN, CALIFOR-
NIA CRIMINAL LAW, ch. II § 8(a) (3d ed. 2000). Section 476’s
requirement of an “intent to defraud” therefore imposes a
standard that includes “knowledge” of the fictitious nature of
the instrument.
In 1998, the California Legislature removed an explicit
“knowledge” requirement from section 476.6 On its face, this
6
Before the 1998 revisions, California Penal Code section 476 provided:
Every person who makes, passes, utters, or publishes, with inten-
tion to defraud any other person, or who, with the like intention,
attempts to pass, utter, or publish, or who has in his possession,
with like intent to utter, pass, or publish, any fictitious bill, note,
or check, purporting to be the bill, note, or check, or other instru-
ment in writing for the payment of money or property of some
bank, corporation, copartnership, or individual, when, in fact,
there is no such bank, corporation, copartnership, or individual in
existence, knowing the bill, note, check, or instrument in writing
to be fictitious, is punishable by imprisonment in the county jail
for not more than one year, or in the state prison.
CAL. PENAL CODE § 476 (West 1988 & Supp. 1997) (emphases added).
6182 MORALES-ALEGRIA v. GONZALES
modification could support Morales-Alegria’s argument that
section 476 does not require knowledge of the falsity of the
document. Upon examination, however, we are convinced
that the deletion did not substantively change the mens rea
requirements of the statute but only conformed the language
of section 476 to that of other similar statutes. In the introduc-
tory section to the bill that amended section 476, the legisla-
tive counsel’s digest states that a purpose of the 1998
amendments was to “generally recast the knowledge and
intent elements of several financial crimes to conform to a
common scheme and each other.” A.B. 2008, 1998 Cal.
Legis. Serv. ch. 468. Significantly, this change took place
after Booth made emphatically clear that the phrase “intent to
defraud” in California statutes included knowledge of the
false nature of the document. See Booth, 48 Cal. App. 4th at
1253. The 1998 amendment, it is evident to us, did not elimi-
nate the knowledge requirement of the statute. Instead, in
light of Booth and to eliminate any confusion, it removed
superfluous language.
[11] The result, then, is that as construed by Booth, the
phrase “intent to defraud” in section 476 requires “both
knowledge of the true facts and an intent to deceive.” Booth,
48 Cal. App. 4th at 1253. So, it embraces the knowledge
requirement for “offenses relating to . . . forgery” under
§ 1101(a)(43)(R). Because in California knowledge of the fal-
sity of the document is “inherent in the concept of intent to
defraud,” see id., the lack of an explicit “knowledge” require-
ment in section 476 does not make that section broader than
the generic, core definition of forgery that we adopt.7 We
7
We note that this case does not present us with a state statute that is
broader than the core federal offense. We therefore are not required to
determine how the additional “relating to” language of 8 U.S.C. § 1101(a)
(43)(R) may widen the scope of offenses to which the aggravated felony
term applies. See Albillo-Figueroa, 221 F.3d at 1073 (holding that a state
conviction for “[p]ossession of counterfeit obligations” was sufficiently
“related to counterfeiting” for the purposes of 8 U.S.C. § 1101(a)(43)(R)
in part because the “relating to” language in the statute evidenced an intent
to cover “a range of activities beyond those of counterfeiting or forgery
itself.”).
MORALES-ALEGRIA v. GONZALES 6183
hold, therefore, that Morales-Alegria’s claim — that his con-
viction under section 476 is not categorically a forgery
offense because the generic definition, but not section 476,
requires a showing of knowledge — fails.
IV. SUFFICIENCY OF THE SENTENCE
Pursuant to INA section 242(d), “[a] court may review a
final order of removal only if [, inter alia,] . . . the alien has
exhausted all administrative remedies available to the alien as
of right.” 8 U.S.C. § 1252(d)(1). Morales-Alegria “cannot sat-
isfy the exhaustion requirement by making a general chal-
lenge 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).
Morales-Alegria contends that his one-year-and-four-month
sentence does not satisfy 8 U.S.C. § 1101(a)(43)(R), which
requires that the offense relating to forgery be one “for which
the term of imprisonment is at least one year.” Citing section
473 of the Penal Code, Morales-Alegria argues that the maxi-
mum sentence he could have received for violating section
476 is one year. See CAL. PENAL CODE § 473 (“Forgery is pun-
ishable by imprisonment in the state prison, or by imprison-
ment in the county jail for not more than one year”). Morales-
Alegria argues that because his sentence exceeded one year,
it must have incorporated unrelated enhancements such as for
recidivism. Therefore, he contends, it is not possible to tell
whether his sentence for forgery was at least one year.
Morales-Alegria did not raise this specific claim before the
BIA. Nowhere in his brief to the BIA did he question the suf-
ficiency of the length of his sentence. We therefore do not
have jurisdiction to resolve this claim. See Zara, 383 F.3d at
931.
V.
We reject Morales-Alegria’s claim that his conviction
under section 476 is not categorically a forgery offense
6184 MORALES-ALEGRIA v. GONZALES
because the generic definition, but not section 476, requires a
showing of knowledge. Morales-Alegria’s claim that his sen-
tence for forgery was not “at least one year” as required by
§ 1101(a)(43)(R) was not raised before the BIA. Morales-
Alegria therefore did not exhaust that claim, and this court
lacks jurisdiction to decide it.
PETITION DENIED.