Daniel Avendano-Silva v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
JUN 17 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL AVENDANO-SILVA; YESICA No. 15-70856
VILLANUEVA-MARTINEZ,
Agency Nos. A200-864-979
Petitioners, A200-864-986
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 13, 2019**
Honolulu, Hawaii
Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit
Judges.
Petitioners Daniel Avendano-Silva and Yesica Villanueva-Martinez seek
review of the Board of Immigration Appeals’ (BIA) final order of removal. We
have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
After presenting fake permanent resident cards in the course of applying for
passports for their three children, the petitioners were convicted of three counts
under 18 U.S.C. § 1542, which criminalizes making false statements in support of
a passport application. The government initiated removal proceedings, and the
petitioners sought cancellation of removal, but both the Immigration Judge and the
BIA denied them that relief after concluding that violations of 18 U.S.C. § 1542qualified as crimes of moral turpitude and therefore rendered the petitioners
ineligible for cancellation.1
We have previously indicated that the crime of making a false statement in a
passport application is a crime of moral turpitude. See Bisaillon v. Hogan, 257
F.2d 435, 437–38 (9th Cir. 1958). That decision, however, pre-dated the Supreme
Court’s delineation of the categorical and modified categorical approaches in
Taylor v. United States, 495 U.S. 575, 599–602 (1990) and subsequent cases. We
have since explained that “[t]o determine whether a conviction is for a crime
involving moral turpitude, we apply the categorical and modified categorical
approaches established by the Supreme Court.” Tall v. Mukasey, 517 F.3d 1115,
1
Because the parties are familiar with the underlying facts of this case,
we recount them only briefly here.
2
1119 (9th Cir. 2008) (quoting Navarro–Lopez v. Gonzales, 503 F.3d 1063, 1067
(9th Cir. 2007) (en banc)).
Applying the categorical approach here, we agree that a conviction under 18
U.S.C. § 1542 constitutes a crime of moral turpitude. The elements of the crime of
making a false statement in a passport application plainly include fraud—e.g.,
making the false statement knowingly and willingly for the purpose of inducing the
government to rely on it and issue a passport. See 18 U.S.C. § 1542. And crimes
that involve fraud categorically qualify as crimes of moral turpitude. See
Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016) (“[F]raud crimes are
categorically crimes involving moral turpitude, simply by virtue of their fraudulent
nature.” (quoting Planes v. Holder, 652 F.3d 991, 997 (9th Cir. 2011))).
Accordingly, the petitioners are barred from seeking cancellation of removal
because they have been convicted of a crime of moral turpitude. 8 U.S.C. §
1229b(b)(1)(c).
PETITION DENIED.
3