Felipe Espino-Castillo v. Eric Holder, Jr. , 770 F.3d 861 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIPE ESPINO-CASTILLO, No. 13-70756
Petitioner,
Agency No.
v. A205-414-449
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 11, 2014—San Francisco, California
Filed October 29, 2014
Before: J. Clifford Wallace, Mary M. Schroeder,
and William A. Fletcher, Circuit Judges.
Opinion by Judge Schroeder
2 ESPINO-CASTILLO V. HOLDER
SUMMARY*
Immigration
The panel denied Felipe Espino-Castillo’s petition for
review of the Board of Immigration Appeals’ decision finding
that his state law forgery conviction qualified as a crime
involving moral turpitude.
The panel held that petitioner’s conviction under Arizona
Revised Statutes § 13-2002 constituted a categorical crime
involving moral turpitude because the statute criminalizes
conduct that constitutes fraud. The panel held that the
exception in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir.
2000), to the clearly established rule that a fraud conviction
is a CIMT did not apply to this offense, where the underlying
conduct involved the use of false information to obtain
employment.
COUNSEL
Hugo F. Larios (argued), Hugo F. Larios Law, PLLC, Tempe,
Arizona, for Petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Blair T. O’Connor, Assistant Director, Office of Immigration
Litigation, Edward C. Durant and Jonathan Robbins (argued),
United States Department of Justice, Washington, D.C. for
Respondent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ESPINO-CASTILLO V. HOLDER 3
OPINION
SCHROEDER, Circuit Judge:
In this petition for review of a Board of Immigration
Appeals’ (“BIA”) order of removal, the novel question is
whether Congress has exempted state fraud convictions from
characterization as crimes involving moral turpitude, when
the underlying conduct involved fraud in an application for
employment. We hold Congress has not.
Petitioner relies on our decision in Beltran-Tirado v. INS,
213 F.3d 1179 (9th Cir. 2000), where we considered an
amendment to the social security laws that granted immunity
from prosecution for longstanding resident aliens who used
a false social security number to obtain employment. We
held the amendment expressed congressional intent that such
conduct did not establish moral turpitude for immigration
purposes. We have never applied Beltran-Tirado’s holding
outside the social security context. We therefore deny the
petition.
BACKGROUND
Petitioner Felipe Espino-Castillo is a native and citizen of
Mexico who entered the United States in approximately 1992
without admission or parole. He has lived in this country
continuously since that time. In 2012, he was convicted in
the Superior Court of Maricopa County, Arizona, of two
counts of forgery in violation of Arizona Revised Statutes
§ 13-2002. Petitioner was promptly charged in immigration
proceedings with being an alien who has been convicted of a
crime involving moral turpitude (“CIMT”) under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). He admitted his removability under a
4 ESPINO-CASTILLO V. HOLDER
different provision, but denied that he had been convicted of
a CIMT and argued he was therefore eligible for cancellation
of removal. See 8 U.S.C. § 1229b(b)(1)(C) (barring aliens
convicted of a CIMT from cancellation of removal).
The Immigration Judge denied the application for
cancellation in November 2012, finding that he was ineligible
for such relief because his forgery conviction constituted a
CIMT. The BIA affirmed, and this petition for review
followed. Whether a conviction is a CIMT is a question of
law which this court has jurisdiction to review de novo. See
Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir.
2009).
Petitioner was convicted under section 13-2002 of the
Arizona Revised Statutes, which provides in relevant part:
[A] person commits forgery if, with intent to
defraud, the person:
1. Falsely makes, completes, or alters a
written instrument; or
2. Knowingly possesses a forged instrument;
or
3. Offers or presents, whether accepted or not,
a forged instrument that contains false
information.
Ariz. Rev. Stat. § 13-2002(A) (2014) (emphasis added). The
statute criminalizes conduct that constitutes fraud. Petitioner
does not now dispute the proposition that fraud is generally
a CIMT. We have repeatedly recognized the “longstanding
ESPINO-CASTILLO V. HOLDER 5
rule that crimes that have fraud as an element . . . are
categorically crimes involving moral turpitude.” Planes v.
Holder, 652 F.3d 991, 997–98 (9th Cir. 2011); see, e.g.,
Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993). The only
issue on appeal is whether, under this court’s decision in
Beltran-Tirado, petitioner’s conviction should not be
considered a CIMT because the underlying conduct involved
the use of false information to obtain employment.
DISCUSSION
In Beltran-Tirado, the petitioner had been convicted in
federal court of using a false social security number in
violation of the predecessor to 42 U.S.C. § 408(a)(7)(B).
213 F.3d at 1182. For nineteen years she had used a social
security card, found on a bus, to establish credit and obtain
employment, until her income brought her to the attention of
federal authorities. Id. When faced with deportation
proceedings in 1993, Beltran sought to apply for relief under
the registry statute, 8 U.S.C. § 1259. Id. That statute was
enacted to provide relief to persons who had resided in the
United States for a long period of time and possessed “good
moral character.” Id. at 1183. The BIA denied the
application on the ground that her fraud conviction was a
CIMT that prevented her from showing good moral character.
Id.On review of the BIA order, this court held that Beltran’s
conviction was not a CIMT. Id. at 1184. We did so by
looking at a 1990 amendment to § 408 that exempted a
category of aliens from prosecution for the crime of using a
false social security number. Id. at 1183–84; 42 U.S.C.
§ 408(e) (2012) (previously numbered § 408(d)). Those
exempted were persons who had been granted permanent
6 ESPINO-CASTILLO V. HOLDER
resident status under longstanding amnesty or registry
statutes. Id. at 1183–84. The legislative history of the 1990
amendment indicated that Congress intended the exemption
to include persons who used a false social security number in
order to obtain employment. Id.
Although the amendment did not exempt Beltran herself
from prosecution, because she could not meet the deadline for
registration, we concluded that the amendment was indicative
of a somewhat broader congressional intent. Id. at 1184. We
said “that § 408(d) and the accompanying legislative history
express Congress’s intent that the crimes of which Beltran
was convicted do not establish ‘moral turpitude.’” Id. at
1184.
Beltran-Tirado is grounded in the history and purpose of
§ 408, the specific federal social security statute under which
Beltran had been convicted. We have never overruled
Beltran-Tirado, but we have never cited its holding for any
purpose beyond the application of that specific statute. Both
before and after Beltran-Tirado, we have expressly and
repeatedly rejected the argument that fraud crimes are not per
se CIMTs. See, e.g., Planes, 652 F.3d at 997–98; Navarro-
Lopez v. Gonzales, 503 F.3d 1063, 1074–75 (9th Cir. 2007)
(en banc) (Reinhardt, J., concurring for a majority), overruled
on other grounds by United States v. Aguila-Montes de Oca,
655 F.3d 915 (9th Cir. 2010).
Other circuits have refused to follow Beltran-Tirado in
any context. See Lateef v. Dep’t of Homeland Sec., 592 F.3d
926, 930–31 (8th Cir. 2010) (declining to follow Beltran-
Tirado because its holding extended § 408(d) beyond its plain
statutory terms); Serrato-Soto v. Holder, 570 F.3d 686, 692
(6th Cir. 2009) (declining to follow Beltran-Tirado in holding
ESPINO-CASTILLO V. HOLDER 7
that a state conviction for using false social security number
a CIMT); Hyder v. Keisler, 506 F.3d 388, 393 (5th Cir. 2007)
(“We decline to follow Beltran-Tirado in exempting social
security number misuse from CIMT status . . . . [I]n Beltran-
Tirado, the Ninth Circuit appears to have expanded a narrow
exemption beyond what Congress intended.”).
Moreover, we doubt we could now expand the reasoning
of Beltran-Tirado beyond its original scope, even if we
wanted to. That is because the inquiry in which petitioner
asks us to engage involves examination of the circumstances
surrounding petitioner’s particular conviction. Because a
conviction under Ariz. Rev. Stat. § 13-2002(A) requires
intent to defraud, the Supreme Court’s recent decision in
Descamps v. United States, 133 S. Ct. 2276 (2013), forecloses
any such inquiry.
To determine whether a petitioner’s conviction is a
CIMT, the court applies the categorical and modified
categorical approaches articulated by the Supreme Court in
Taylor v. United States, 495 U.S. 575, 599–602 (1990).
Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir. 2008). A
court must apply the categorical approach unless the statute
in question is divisible and proscribes multiple alternative
elements, some of which would qualify as a CIMT and some
of which would not. See Descamps, 133 S. Ct. at 2284–85.
A court may not apply the modified categorical approach “if
the statute proscribes only conduct that involves moral
turpitude.” Mendoza v. Holder, 623 F.3d 1299, 1303 (9th
Cir. 2010). In Descamps, the Supreme Court emphasized the
necessity of looking to the elements of the crime under the
categorical approach, rather than to the underlying
circumstances or motivations. See id. at 2285. The Court
said that a “circumstance-specific review is just what the
8 ESPINO-CASTILLO V. HOLDER
categorical approach precludes.” Id. at 2292. Because the
petitioner here was convicted under a statute that proscribes
only morally turpitudinous conduct, we cannot look to the
underlying circumstances of his crime.
Accordingly, because Beltran-Tirado’s holding depended
upon the history of the specific statutory provision involved
in that case, and not a garden-variety state fraud statute like
the one involved here, Beltran-Tirado is by its terms
inapplicable to petitioner’s case. Further, the circumstance-
specific approach that Beltran-Tirado took is now in tension
with intervening and controlling Supreme Court authority.
The case now stands, at best, as an isolated exception to the
prevailing rule that a conviction for a fraud offense is
categorically a crime involving moral turpitude. “Such has
been the clearly established rule with respect to fraud since at
least 1951.” Navarro-Lopez, 503 F.3d at 1074 (Reinhardt, J.,
concurring for a majority).
The petition for review is DENIED.