Reyes Linares-Gonzalez v. Loretta E. Lynch , 823 F.3d 508 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYES ABIGAIL LINARES- No. 12-71142
GONZALEZ, AKA Reyes Abigail
Linares, Agency No.
Petitioner, A075-679-882
v.
LORETTA E. LYNCH, Attorney
General,
Respondent.
MARIBEL PRECIADO, No. 12-73313
Petitioner,
Agency No.
v. A095-759-507
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted
October 20, 2015—Pasadena, California
2 LINARES-GONZALEZ V. LYNCH
Filed March 21, 2016
Before: Harry Pregerson and Consuelo M. Callahan,
Circuit Judges and Stanley Allen Bastian,* District Judge.
Opinion by Judge Callahan
SUMMARY**
Immigration
The panel granted Reyes Linares-Gonzales’ and Maribel
Preciado’s petitions for review of the Board of Immigration
Appeals’ orders finding them ineligible for cancellation of
removal in part because their convictions for identity theft
under California Penal Code §§ 530.5(a) and (d)(2) were
categorical crimes involving moral turpitude.
The panel held that the BIA erred in finding petitioners’
convictions categorical crimes involving moral turpitude,
because violations of CPC §§ 530.5(a) and (d)(2) do not
constitute fraud-based crimes; and nor do they necessarily
involve vile, base, or depraved conduct. The panel remanded
for further proceedings on an open record regarding whether
petitioners meet the requirements for discretionary relief.
*
The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LINARES-GONZALEZ V. LYNCH 3
The panel addressed Linares’ claims for asylum,
withholding of removal, and relief under the Convention
Against Torture in a concurrently-filed memorandum
disposition.
COUNSEL
Elsa Martinez, Los Angeles, California; Maria Teresa
Delgado (argued), Ventura, California, for Petitioner Maribel
Preciado.
Rosana Kit Wai Cheung and Jamie Lefkowitz (argued), Los
Angeles, California, for Petitioner Linares-Gonzalez.
Stuart F. Delery, Assistant Attorney General, Civil Division;
Stephen J. Flynn, Assistant Director; Francis W. Fraser,
Senior Litigation Counsel; Linda Y. Cheng; Annette M.
Wietecha; Jane T. Schaffner (argued); Office of Immigration
Litigation, Washington, D.C., for Respondent.
OPINION
CALLAHAN, Circuit Judge:
Petitioners Reyes Abigail Linares-Gonzales (“Linares”)
and Maribel Preciado (“Preciado”) challenge the denial of
their applications for cancellation of removal. The
immigration judges (“IJ”) denied their applications, and the
Bureau of Immigration Appeals (“BIA”) affirmed, finding,
among other things, that they were ineligible for cancellation
of removal because their convictions for identity theft under
California Penal Code (“CPC”) §§ 530.5(a) and (d)(2) were
4 LINARES-GONZALEZ V. LYNCH
categorical crimes involving moral turpitude (“CIMT”).1 We
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we
grant the petitions.
I
1. Linares-Gonzalez v. Lynch, No. 12-71142
Linares is a native and citizen of Guatemala who arrived
in the United States without inspection in 1998. The
Department of Homeland Security initiated removal
proceedings in September 2004, and Linares eventually filed
an application for special rule cancellation of removal under
the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”)2 as a derivative beneficiary on his father’s
application.3 See Pub. L. No. 105-100, 111 Stat. 2160,
2193–2201 (1997).
1
All references to CPC §§ 530.5(a) and (d)(2) refer to the then-
applicable versions of the statutes at the time of Petitioners’ convictions,
unless noted otherwise. These versions of the statutes were effective from
January 1, 2008 to September 30, 2011.
2
NACARA allows certain classes of aliens to seek “special rule
cancellation of removal” under the less stringent requirements for
cancellation of removal applied before enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009. Aragon-Salazar v. Holder, 769 F.3d 699,
701 (9th Cir. 2014).
3
Linares also applied for asylum, withholding of removal, and relief
under the Convention Against Torture. Linares’ petition with respect to
this relief is addressed in a separate memorandum disposition filed
concurrently with this opinion.
LINARES-GONZALEZ V. LYNCH 5
In October 2008, while these proceedings were ongoing,
Linares pled guilty to three counts of identity theft under CPC
§ 530.5(d)(2), a felony. He received a sentence of 180 days
in jail and 36 months’ probation and was ordered to pay
restitution.4 Linares testified to the immigration judge that he
obtained credit card numbers from about six customers at the
restaurant where he worked, and he gave the numbers to a
friend who paid him $20 for each number. He also testified
that he did not know what his friend did with the numbers,
but he thought that the friend used the numbers “to get
money.” Linares served 122 days of his 180-day sentence.
The IJ denied Linares’ application for cancellation of
removal in June 2010. The IJ held, among other things, that
1) Linares was not eligible for cancellation of removal
because his 2008 identity theft conviction was a categorical
CIMT because it involved an element of fraud and he did not
have 10 years of continuous presence in the United States
following the 2008 conviction; and 2) Linares failed to show
good moral character during the required period of physical
presence because he had four convictions, including three
theft convictions, in the last eight years.
The BIA dismissed Linares’ appeal in August 2011. The
BIA held that 1) Linares was ineligible for the “petty offense
exception” under Immigration and Nationality Act (“INA”)
§ 212(a)(2)(A)(ii)5 because he was convicted of three counts
of identity theft; 2) Linares’ conviction in 2008 for three
4
Linares was convicted for at least three other crimes while his removal
proceedings were pending, including taking a vehicle without the owner’s
consent, burglary, and driving under the influence.
5
INA § 212(a)(2)(A)(ii) was codified at 8 U.S.C. § 1182(a)(2)(A)(ii).
6 LINARES-GONZALEZ V. LYNCH
counts of identity theft was categorically a crime involving
moral turpitude, because “selling, transferring or conveying
the personal identifying information of another knowing that
it will be used for an unlawful purpose . . . involves conduct
that is inherently base, vile, or depraved and contrary to
accepted rules of morality and duties owed between persons
or to society in general”; and 3) CPC § 530.5(d)(2) contains
the requisite scienter required to constitute a CIMT.
Accordingly, the BIA held that Linares had not shown a
“realistic probability” that CPC § 530.5(d)(2) may be applied
to non-turpitudinous conduct.
The BIA held that because Linares had committed a
CIMT, he was subject to the heightened 10-year continuous
presence requirement for special rule cancellation of removal.
The BIA determined that Linares had not met the 10-year
requirement, measured from the time of his identity theft
conviction and rejected Linares’ claim that the 10 years were
measured from the date of his arrival in the United States.
The BIA further held that Linares could not show good moral
character under the catch-all provision of INA § 101(f),
8 U.S.C. § 1101(f) because of his convictions in 2004, 2007,
and 2008.6
2. Preciado v. Lynch, No. 12-73313
Preciado is a native and citizen of Mexico who entered
the United States without inspection in 1990. Preciado pled
guilty to and was convicted for felony identity theft under
6
Linares moved to reconsider, and the BIA denied the motion in March
2012. Among other rulings, the BIA reaffirmed its prior determination
that Linares had not shown 10 years of continuous physical presence or
good moral character after his 2008 conviction.
LINARES-GONZALEZ V. LYNCH 7
CPC § 530.5(a) in September 2008. Under the terms of the
plea agreement, Preciado admitted the allegations of the
complaint and agreed that the statutory maximum prison term
was three years.7 Preciado received a suspended sentence of
120 days in jail and probation for 36 months and was ordered
to pay restitution.
In January 2009, the Department of Homeland Security
began removal proceedings against Preciado, and she filed an
application for cancellation of removal. The IJ denied the
application in November 2010, finding that her identity theft
conviction was a categorical crime involving moral turpitude
that barred relief. In doing so, the IJ noted that in her plea
agreement and conviction, Preciado admitted that she
willfully obtained personal identifying information of the
victim without authorization and used or attempted to use the
information to obtain credit, goods and services, or medical
information in the name of the victim without consent. The
IJ also held that she did not qualify for the petty offense
exception and had not demonstrated good moral character for
the necessary time period.
After the IJ denied relief, and while Preciado’s appeal to
the BIA was pending, her identity theft conviction was
reduced to a misdemeanor by the California Superior Court
in February 2012, pursuant to her motion for expungement.
Before the BIA, Preciado argued that her identity theft
7
The felony complaint alleged that Preciado violated CPC § 530.5(a),
“a Felony,” “[o]n or about June 26, 2004 through June 26, 2007” when
she “did willfully and unlawfully obtain personal identifying information
on Marifie Drabik without authorization, and used that information for an
unlawful purpose and to obtain, and attempt to obtain, credit, goods and
services and medical information in the name of Marifie Drabik without
consent.”
8 LINARES-GONZALEZ V. LYNCH
conviction was subject to the petty offense exception listed at
8 U.S.C. § 1182(a)(2)(A)(ii). Preciado contended that the
petty offense exception applies where the maximum possible
sentence for the applicable offense does not exceed
imprisonment for one year and the alien is not sentenced to a
term of imprisonment in excess of six months. In her view,
because the maximum punishment for CPC § 530.5(a) is
imprisonment in a county jail not to exceed one year, and her
actual sentence was 120 days in jail, the petty offense
exception applied, even if CPC § 530.5(a) was a CIMT.
Preciado also argued that her case should be remanded in
light of the reduction of her felony conviction to a
misdemeanor, which she claimed was additional support for
her contention that she was eligible for the petty offense
exception.
The BIA dismissed Preciado’s appeal in September 2012.
The BIA acknowledged that CPC § 530.5(a) did not require
an intent to defraud. However, the BIA held that CPC
§ 530.5(a) was still a categorical CIMT because there was no
realistic possibility that the applicable statute would be
applied to non-turpitudinous conduct. The BIA reasoned that
there were no cases where CPC § 530.5(a) had been applied
to non-turpitudinous conduct, and identity theft was described
by the statute as an “indisputable evil.”
The BIA also held that the petty offense exception did not
apply, even though her conviction had been reduced to a
misdemeanor, because 1) even if a crime would otherwise
qualify for the petty offense exception, if it is a CIMT it may
still disqualify an applicant from cancellation of removal; and
2) the later reduction of Preciado’s conviction to a
misdemeanor, or even its expungement, did not alter the fact
that she had originally been convicted for a CIMT for which
LINARES-GONZALEZ V. LYNCH 9
a sentence of one year or longer may be imposed. Thus, the
BIA held that Preciado’s identity theft conviction rendered
her ineligible for cancellation of removal.
II
To show his eligibility for cancellation of removal under
8 U.S.C. § 1229b(b), a nonpermanent resident alien must
show that he:
(A) has been physically present in the
United States for a continuous period
of not less than 10 years immediately
preceding the date of such application;
(B) has been a person of good moral
character during such period;
(C) has not been convicted of an offense
under section 1182(a)(2), 1227(a)(2),
or 1227(a)(3) of this title, subject to
paragraph (5); and
(D) establishes that removal would result
in exceptional and extremely unusual
hardship to the alien’s spouse, parent,
or child, who is a citizen of the United
States or an alien lawfully admitted
for permanent residence.
Offenses listed under 8 U.S.C. § 1227(a)(2), which render an
alien ineligible for cancellation of removal under § 1229b(b),
include crimes of moral turpitude. Cf. 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (alien who commits a crime of moral
10 LINARES-GONZALEZ V. LYNCH
turpitude is inadmissible). NACARA imposes similar
requirements for cancellation of removal. See 8 C.F.R.
§ 1240.66.
III
The BIA dismissed Linares’ and Preciado’s appeals based
in part on its determination that both had committed CIMTs,
due to their identity theft convictions under CPC § 530.5.
Both Linares and Preciado argue that their violations of CPC
§ 530.5 were not categorical CIMTs.8
In determining whether the conduct proscribed by the
statute involves moral turpitude, we apply the categorical
approach of Taylor v. United States, 495 U.S. 575, 598–602
(1990), comparing the elements of the state offense to those
of the generic CIMT to determine if there is a categorical
match. See Descamps v. United States, 133 S. Ct. 2276,
2283–86 (2013). To show that a state offense is broader than
the applicable generic crime as defined by federal law, the
defendant or alien must show that there is a “realistic
probability” that the statute would be applied to acts not
covered by the generic federal statute. Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007). To do so, the defendant
or alien “must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the
special (nongeneric) manner for which he argues.” Id.8
The government has not argued, and it does not appear, that CPC
§§ 530.5(a) or (d)(2) are generic “theft” offenses that would render an
alien ineligible for cancellation of removal, because the statutes do not
require that the defendant act with “criminal intent to deprive the owner
of the rights and benefits of ownership.” See United States v. Vidal,
504 F.3d 1072, 1077 (9th Cir. 2007).
LINARES-GONZALEZ V. LYNCH 11
“[T]he federal generic definition of a CIMT is a crime
involving fraud or conduct that 1) is vile, base, or depraved
and 2) violates accepted moral standards.” Saavedra-
Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir. 2010)
(citation omitted); see also Robles-Urrea v. Holder, 678 F.3d
702, 708 (9th Cir. 2012) (CIMTs are generally defined as
crimes that are “inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general.”) (citations
omitted). “[F]raud crimes are categorically crimes involving
moral turpitude, simply by virtue of their fraudulent nature.”
Planes v. Holder, 652 F.3d 991, 997 (9th Cir. 2011). “Non-
fraudulent CIMTs ‘almost always involve an intent to harm
someone,’” Saavedra-Figueroa, 625 F.3d at 626 (quoting
Nunez v. Holder, 594 F.3d 1124, 1131 & n.4 (9th Cir. 2010)),
or “intent to injure, actual injury, or a protected class of
victim,” Turijan v. Holder, 744 F.3d 617, 619 (9th Cir. 2014)
(citation omitted). In determining whether an offense is a
CIMT, the BIA has examined “whether the act is
accompanied by a vicious motive or a corrupt mind” because
“evil or malicious intent is . . . the essence of moral
turpitude.” Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th
Cir. 2012) (citations omitted). We have approved this
approach. Id.Linares and Preciado were convicted under separate but
similar subsections of CPC § 530.5. The then-applicable
version of CPC § 530.5(a) stated:
Every person who willfully obtains personal
identifying information . . . of another person,
and uses that information for any unlawful
purpose, including to obtain, or attempt to
obtain, credit, goods, services, real property,
12 LINARES-GONZALEZ V. LYNCH
or medical information without the consent of
that person, is guilty of a public offense, and
upon conviction therefor, shall be punished by
a fine, by imprisonment in a county jail not to
exceed one year, or by both a fine and
imprisonment, or by imprisonment in the state
prison.
The then-applicable version of CPC § 530.5(d)(2) stated:
Every person who, with actual knowledge that
the personal identifying information . . . of a
specific person will be used to commit a
violation of subdivision (a), sells, transfers, or
conveys that same personal identifying
information is guilty of a public offense, and
upon conviction therefor, shall be punished by
a fine, by imprisonment in the state prison, or
by both a fine and imprisonment.
In essence, § 530.5(a) prohibits someone knowingly
obtaining personal identifying information and using that
information for any unlawful purpose, while § 530.5(d)(2)
prohibits someone transferring that information to someone
else, knowing that the transferee will use it for an unlawful
purpose.
A. CPC §§ 530.5(a) and (d)(2) are not categorical fraud
crimes
The government argues that violations of CPC § 530.5(a)
are inherently fraudulent because “false statements that were
made with the intent of inducing reliance is a form of fraud.”
In its view, the statute requires the perpetrator to willfully and
LINARES-GONZALEZ V. LYNCH 13
unlawfully obtain another person’s identity through false
representations in order to obtain a benefit or something of
value. Thus, the government argues, violations of CPC
§ 530.5(a) are necessarily acts of fraud, even though there is
no explicit fraud element. See Tijani v. Holder, 628 F.3d
1071, 1075–76, 1078 (9th Cir. 2010) (discussing CPC
§ 532a(1), which prohibits making a false statement with the
intent that it be relied on to obtain “delivery of personal
property, the payment of cash, the making of a loan or
credit,” but which does not expressly require intent to
defraud); Blanco v. Mukasey, 518 F.3d 714, 719 (9th Cir.
2008) (“[I]ntent to defraud is implicit in the nature of the
crime when the individual makes false statements in order to
procure something of value, either monetary or non-
monetary.”).
The government’s contention that violations of CPC
§ 530.5(a) are inherently fraudulent is not persuasive.
California appellate courts have specifically stated that CPC
§ 530.5(a) does not require intent to defraud. In People v.
Hagedorn, 127 Cal. App. 4th 734, 741 (2005), the California
Court of Appeal explained that “subdivision (a) clearly and
unambiguously does not require intent to defraud.” The
Hagedorn court noted that another subsection of the identity
fraud statute, which criminalized the acquisition or
possession of personal identifying information but did not
require its use, specifically required intent to defraud.9 The
court indicated that “if the Legislature meant for subdivision
(a) to require an intent to defraud, it knew how to so provide,”
but it viewed the use of personal identifying information “as
9
The Hagedorn court’s statement here appears to refer to § 530.5(d)(1).
Subsections 530.5(c)(1), (c)(2), and (c)(3) also require intent to defraud
and do not require the use of the personal identifying information.
14 LINARES-GONZALEZ V. LYNCH
the more serious offense and worthy of a more expansive
scope” than “mere acquisition or possession.” Id. at 742; see
also People v. Johnson, 209 Cal. App. 4th 800 (2012)
(discussing Hagedorn and explaining that the purpose of the
California identity theft statute is to criminalize the willful
use of another’s personal identifying information, regardless
of whether the user intends to defraud or whether any actual
harm or loss is caused). The same reasoning applies with
equal force to CPC § 530.5(d)(2).
Our prior case law also supports a determination that CPC
§§ 530.5(a) and (d)(2) are not fraud crimes. In Blanco,
518 F.3d at 720, we held that falsely identifying oneself to an
officer under CPC § 148.9(a) is not a categorical CIMT. We
determined the statute only required that a forbidden act was
done deliberately and with knowledge, but not with evil
intent. We further explained that “[f]raud . . . does not equate
with mere dishonesty, because fraud requires an attempt to
induce another to act to his or her detriment. One can act
dishonestly without seeking to induce reliance. Our cases
have therefore recognized fraudulent intent only when the
individual employs false statements to obtain something
tangible.” Id. at 719 (citations omitted). Thus, we held that
a violation of the false identification statute was not a CIMT,
because “[w]hen the only ‘benefit’ the individual obtains is
to impede the enforcement of the law, the crime does not
involve moral turpitude.” Id.; see also Tijani, 628 F.3d at
1075 (“[T]o be inherently fraudulent, a crime must involve
knowingly false representation to gain something of value.”)
(quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1076
(9th Cir. 2007) (en banc)).
Just as the statute in Blanco did not require that the
perpetrator obtain a tangible benefit, CPC §§ 530.5(a) and
LINARES-GONZALEZ V. LYNCH 15
(d)(2) do not require that the perpetrator obtain anything of
value. Rather, they require only that the perpetrator use the
victim’s identifying information for an unlawful purpose, or
transfer the information with the knowledge that it will be
used for an unlawful purpose. Indeed, in In re Rolando S.,
197 Cal. App. 4th 936 (2001), the defendant was convicted
under CPC § 530.5(a) after using the victim’s identifying
information to post obscene messages using the victim’s
Facebook account. Although the defendant in Rolando may
have enjoyed some personal satisfaction from doing so, he
obtained no tangible benefit from his identity theft.
Accordingly, the Rolando defendant did not commit fraud,
showing that CPC § 530.5(a) has been applied to non-
fraudulent conduct.
Given the express holdings of Hagedorn and Johnson that
no fraudulent intent is required and the fact that a person may
violate CPC §§ 530.5(a) and (d)(2) without obtaining any
tangible benefit, we reject the government’s argument that
violations of these subsections are categorical fraud-based
CIMTs.10
10
Both the lack of fraudulent intent and the lack of a requirement that
the defendant obtain something of value distinguish the statutes at issue
from at least two other identity theft statutes we have previously
examined. In Ibarra-Hernandez v. Holder, 770 F.3d 1280, 1281–82 (9th
Cir. 2014), we held that an Arizona identity theft statute was not a
categorical fraud crime because it was possible to commit a violation of
the statute using a fictitious person’s name. However, we agreed with the
BIA that, employing the modified categorical approach and reviewing the
record of conviction, the petitioner’s taking of a Social Security number
of another person to obtain employment was a form of theft involving
fraud. In Juarez-Romero v. Holder, 359 F. App’x 799, 799 (2009), we
held that a Washington identity theft statute was a categorical fraud crime
because it required “the knowing use of another person’s identification to
16 LINARES-GONZALEZ V. LYNCH
B. CPC §§ 530.5(a) and (d)(2) do not necessarily involve
vile, base, or depraved conduct
Even though violations of CPC §§ 530.5(a) and (d)(2) are
not categorical fraud crimes, they may still be categorical
CIMTs if they involve conduct that is vile, base, or depraved
and contrary to the accepted rules of morality and the duties
owed between persons or to society in general. See Robles-
Urrea, 678 F.3d at 708. Preciado relies on Rolando, 197 Cal.
App. 4th 936, to argue that CPC § 530.5(a) has been applied
to conduct that was not vile, base, or depraved, and thus her
conviction was not categorically a CIMT. According to
Preciado, she established the required “realistic probability”
that the statute was applied to non-turpitudinous conduct
because Rolando applied CPC § 530.5(a) to non-fraudulent
conduct that was merely harassing or annoying. Although
Preciado goes too far in describing the conduct at issue in
Rolando as merely annoying or harassing, in light of existing
Ninth Circuit case law, the BIA erred in determining that
violations of CPC §§ 530.5(a) and (d)(2) are categorically
vile, base, and depraved.
In Rolando, the California Court of Appeal affirmed the
defendant’s conviction for identity theft under § 530.5(a) for
obtaining the victim’s identifying information and posting
vulgar messages using her Facebook account. Specifically,
the defendant obtained the victim’s email password to gain
access to her Facebook account, and then posted extremely
crude and offensive messages on two of her male friends’
Facebook “walls” and “altered her profile description in a
vulgar manner.” 197 Cal. App. 4th at 939–42. On appeal, the
obtain something of value . . . with the intent to commit (or to aid and
abet) any crime.”
LINARES-GONZALEZ V. LYNCH 17
defendant argued, among other things, that there was
insufficient evidence that he used the victim’s identifying
information for an unlawful purpose. He claimed that at most
he “possibly defamed” the victim, and that as a civil tort, libel
does not constitute an unlawful purpose under CPC
§ 530.5(a). Id. at 942.
The California Court of Appeal rejected this argument,
holding that “any unlawful purpose” included civil torts, not
strictly criminal conduct. Id. at 943–47. The court explained
that before the statute was amended in 1998, “identity theft
was a misdemeanor crime and had to specifically involve the
perpetrator’s use of the victim’s information ‘to obtain, or
attempt to obtain, credit, goods, or services’ in the name of
the victim without his or her consent.” Id. at 944. By adding
the “for any unlawful purpose” language, the amendment
greatly expanded the range of unlawful purposes for which a
perpetrator could be found guilty of identity theft, as intended
by the legislature.11 Id. at 945 (citations omitted).
The Rolando court noted that the California Supreme
Court has defined the term “unlawful” to include wrongful
conduct that is not criminal, specifically conduct “proscribed
by some constitutional, statutory, regulatory, common law, or
other determinable legal standard.” Id. at 946 (citations
omitted). Thus, if a defendant committed identity theft with
the intent to commit an intentional civil tort, including libel,
he had sufficient intent to be convicted under CPC § 530.5.
Id. at 946–47.
11
The Rolando court also noted that the statute had been amended
several times without the legislature limiting the unlawful purpose
language. Id. at 946.
18 LINARES-GONZALEZ V. LYNCH
The Rolando court then looked at libel under California
law, which is defined as “a false and unprivileged publication
by writing, printing, picture, effigy, or other fixed
representation to the eye, which exposes any person to hatred,
contempt, ridicule, or obloquy, or which causes him to be
shunned or avoided, or which has a tendency to injure him in
his occupation.” Id. at 946–47. The court explained that the
defendant, through his Facebook posts, had “clearly exposed
the victim to hatred, contempt, ridicule and obloquy with his
actions.” Id. at 947.
The Rolando case and the language of the statute show
that the BIA erred in determining that identity theft under
CPC §§ 530.5(a) and (d)(2) is categorically vile, base, or
depraved, and that violations of these subsections are
therefore CIMTs. The statute does not require “intent to
injure, actual injury, or a protected class of victim.” See
Turijan, 744 F.3d at 619 (citation omitted). As discussed in
Johnson, 209 Cal. App. 4th at 818, the identity theft statute
criminalizes the “willful use of another’s personal identifying
information, regardless of whether the user intends to defraud
and regardless of whether any actual harm or loss is caused.”
The statute only requires that the perpetrator use the
information for an unlawful purpose. If, for example, the
perpetrator uses someone’s identifying information to obtain
a credit card but pays off the balance every month, he would
still be guilty of violating CPC § 530.5(a) even if he did not
have any intent to cause harm. He also may not have caused
any actual injury to the victim, and would not have victimized
a member of a special class.12
12
Of course, under this example, the perpetrator would have committed
fraud. This example simply shows that CPC §§ 530.5(a) and (d)(2) do not
require intent to cause harm or actual injury.
LINARES-GONZALEZ V. LYNCH 19
The discussion of the underlying unlawful purpose in
Rolando also tends to show that identity theft is not
categorically vile, base, or depraved. The Rolando court held
that the defendant had used the victim’s identifying
information for an unlawful purpose—libel—because there
was clearly sufficient evidence that the defendant’s posting of
obscene comments in the name of the victim “exposed the
victim to hatred, contempt, ridicule and obloquy with his
actions.” 197 Cal. App. 4th at 946–47. However,
California’s definition of libel neither requires that the
defendant intend to harm the victim nor that the victim is in
fact harmed. Rather, the defendant need only publish
something that is false and unprivileged, without any
requirement regarding the defendant’s intent. Further, the
publication need not actually harm the victim, as it is
sufficient to “have a tendency to injure” the victim in his
occupation, even if no harm actually occurs. Id.
Moreover, Rolando shows that a perpetrator could violate
§ 530.5(a) by using a victim’s personal identifying
information to hijack the victim’s social media accounts and
use his or her accounts to post obscene messages, with only
the intent to annoy. See id. at 947. The court in Rolando held
that the defendant willfully used the victim’s identifying
information for an unlawful purpose because his actions
constituted both libel and a violation of CPC § 653m. Id.
This statute requires that someone “with intent to annoy,
telephones or makes contact by means of an electronic
communication device with another and addresses to or about
the other person any obscene language or any threat to inflict
injury. . . .” Cal. Penal Code § 653m. While the defendant in
Rolando may have actually acted with intent to harm and
appears to have caused significant harm, CPC § 653m’s
language shows that a person need not have an intent to harm
20 LINARES-GONZALEZ V. LYNCH
or actually cause harm in order to violate CPC §§ 530.5(a) or
(d)(2).
It may be the case that most cases of identity theft under
CPC § 530.5 involve the use of identifying information to
obtain credit, goods, or services, which are implicitly
fraudulent uses and therefore morally turpitudinous.
Nevertheless, the lack of any requirement that the defendant
intend to harm the victim or that actual loss occur, and the
fact that the statute does not protect a special class of victims,
shows a realistic probability that CPC §§ 530.5(a) and (d)(2)
could be applied to non-turpitudinous conduct. 13
Accordingly, the BIA erred in holding that these subsections
are categorical CIMTs, and we grant Preciado’s and Linares’
petitions on this ground.14
13
The BIA is correct that CPC § 530.5(d)(2) [and by extension,
§ 530.5(a)] requires that the defendant act with scienter, specifically
“actual knowledge,” because the defendant must willfully obtain the
victim’s identifying information and use it for an unlawful purpose, or
transfer the information knowing that it will be used for an unlawful
purpose. However, this scienter is not enough alone to make these crimes
vile, base, or depraved, absent any requirement of intent to harm, actual
harm, or a special class of victim.
14
We reject Linares’ other arguments in support of his contention that
his identity theft crime was not a categorical CIMT. Linares appears to be
contesting in part the sufficiency of the evidence showing he acted
willfully, though he cannot collaterally attack his state conviction on a
petition for review of the BIA decision. See Leal v. Holder, 771 F.3d
1140, 1148 n.5 (9th Cir. 2014) (rejecting contention that petitioner could
point to the facts of his state case to argue that the offense was not a
CIMT, as the court looks only to the elements of the state offense and “a
petitioner cannot collaterally attack his criminal conviction” by arguing
that there was an inadequate factual basis for the offense). Moreover,
when he pled guilty to violating CPC § 530.5(d)(2), Linares admitted that
he willfully obtained personal identifying information of another person
LINARES-GONZALEZ V. LYNCH 21
IV
Linares’ and Preciado’s petitions for review of the BIA’s
denial of their requests for cancellation of removal are hereby
granted. Because we grant the petitions based on the BIA’s
erroneous determination that Petitioners’ crimes under CPC
§ 530.5 were categorical CIMTs, we do not address the
parties’ arguments on whether the petty offense exception
applies in either case. We also express no opinion on
1) whether CPC §§ 530.5(a) or (d)(2) are divisible such that
the modified categorical approach may apply; 2) assuming
the modified categorical approach applies, whether the record
of conviction shows that Linares or Preciado committed
CIMTs; and 3) whether Petitioners can satisfy the physical
presence and good moral character requirements for
cancellation of removal. Accordingly, we remand for further
proceedings on an open record to determine whether
Petitioners meet the requirements for discretionary relief.
PETITIONS GRANTED.
and that he transferred the information to another person knowing it would
be used for an unlawful purpose.