Ho Yim v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HO SANG YIM, AKA Alez Suk Peter No. 17-70624
Yim Yoon,
Petitioner, Agency No.
A037-993-102
v.
WILLIAM P. BARR, Attorney
General,
Respondent.
ORLANDO VELASQUEZ GARCIA, No. 17-70670
Petitioner,
Agency No.
v. A073-986-839
WILLIAM P. BARR, Attorney
General,
Respondent.
2 YIM V. BARR
RAUL BORGES BORBA-CARDOSO, No. 17-70742
Petitioner,
Agency No.
v. A030-861-138
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Yim v. Barr, 17-70624
Argued and Submitted June 5, 2020
Pasadena, California
Velasquez Garcia v. Barr, 17-70670
Submitted June 5, 2020*
Pasadena, California
Borba-Cardoso v. Barr, 17-70742
Submitted June 5, 2020**
Pasadena, California
Filed August 25, 2020
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
YIM V. BARR 3
Before: Consuelo M. Callahan and Sandra S. Ikuta, Circuit
Judges, and Cathy Ann Bencivengo,*** District Judge.
Opinion by Judge Ikuta
SUMMARY****
Immigration
On petitions for review brought by Ho Sang Yim,
Orlando Velasquez Garcia, and Raul Borges Borba-Cardoso,
the panel deferred to the Board of Immigration Appeals’
interpretation of “perjury,” as used in the aggravated felony
definition of 8 U.S.C. § 1101(a)(43)(S), and held that perjury
under section 118(a) of the California Penal Code is an
aggravated felony.
Each of the three petitioners was convicted of perjury
under section 118(a) of the California Penal Code and then
suffered adverse immigration consequences on the ground
that he had committed an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(S), which includes “an offense relating to . . .
perjury.”
Applying the three-step categorical approach, the panel
first explained that the BIA had interpreted the generic
***
The Honorable Cathy Ann Bencivengo, United States District
Judge for the Southern District of California, 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.
4 YIM V. BARR
definition of “perjury” to require that an offender (1) make a
material false statement (2) knowingly or willfully (3) while
under oath or affirmation or penalty of perjury (4) where an
oath is authorized or required by law. The panel deferred to
the BIA’s determination, explaining that the BIA had
surveyed the definitions of perjury recognized at common
law, codified in state and federal statutes, and adopted by the
Model Penal Code, and that the BIA reasonably settled on a
definition compatible with those sources. The panel also
rejected the argument that it was not reasonable for the BIA
to omit a requirement that a statement be made in an official
proceeding, explaining that the federal perjury statute
supports the BIA’s omission of a “proceeding” requirement,
and that the BIA was not bound to adopt the definition used
by a majority of the states.
At the second step of the categorical approach, the panel
concluded that the elements of perjury under section 118(a)
are: (1) a willful statement, (2) either (a) under oath in any of
the cases in which the oath may be administered or (b) in
writing under penalty of perjury in circumstances permitted
by law, (3) of any material matter, and (4) which the person
knows to be false.
At the third step, the panel concluded that the elements of
section 118(a) and the elements of the generic federal
definition are a categorical match. First, the panel concluded
that there was no meaningful difference between section
118(a)’s requirement of “willful” intent and the BIA’s
requirement of “knowingly or willfully.”
Second, with respect to the false-statement requirement,
Borba argued that a person could be convicted under section
118(a) without making a literally false statement because
YIM V. BARR 5
California law provides that an “unqualified statement of that
which one does not know to be true is the equivalent to a
statement of that which one knows to be false.” The panel
rejected that argument, concluding that the phrase “false
statement” in the BIA’s definition includes statements made
by a declarant who is entirely ignorant of the statement’s
truth or falsity.
Third, the panel considered the contention that section
118(a) criminalizes more conduct than the BIA’s generic
definition because, in California, it is no defense that the
accused did not know the materiality of the false statement.
Rejecting that argument, the panel explained that the BIA’s
definition is in accord with the uniform principle that the
declarant need not know the statement is material.
Finally, the panel considered the requirement that an oath,
affirmation, or declaration under penalty of perjury be
authorized or permitted by law. The panel rejected Yim’s
contention that there is a difference between being
“authorized by law,” as provided by section 118(a), and being
“permitted by law,” as provided by the BIA’s generic
definition. The panel explained that, even if there is some
semantic different between the terms, Yim failed to establish
a “realistic probability” that section 118(a) is applied more
broadly than the generic offense.
Petitioners also argued that the offenses are not a
categorical match because California law recognizes two
affirmative defenses to perjury that are not incorporated into
the federal generic offense. The panel rejected this
contention, explaining that the existence or non-existence of
affirmative defenses is irrelevant to the categorical approach,
6 YIM V. BARR
and that neither of the statutes relied on by petitioners alter
the statutory definition set forth in section 118(a).
COUNSEL
Robert G. Berke (argued), Berke Law Offices Inc., Canoga
Park, California, for Petitioner Ho Sang Yim.
Alejandro Garcia, Commerce, California, for Petitioner
Orlando Velasquez Garcia.
Mario Acosta Jr., Law Offices of Mario Acosta Jr., Los
Angeles, California, for Petitioner Raul Borges Borba-
Cardoso.
Jessica A. Dawgert (argued), M. Jocelyn Lopez Wright, Song
E. Park, and Andrew N. O’Malley, Senior Litigation Counsel;
Keither I. McManus, Assistant Director; John F. Stanton,
Trial Attorney; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
YIM V. BARR 7
OPINION
IKUTA, Circuit Judge:
We hold that the Board of Immigration Appeals (BIA)
reasonably interpreted “perjury,” as used in 8 U.S.C.
§ 1101(a)(43)(S), to mean an offense where “an offender
make[s] a material false statement knowingly or willfully
while under oath or affirmation [or penalty of perjury] where
an oath is authorized or required by law.” Matter of
Alvarado, 26 I. & N. Dec. 895, 901 & n.11 (BIA 2016).
Given this definition, we hold that perjury under section
118(a) of the California Penal Code is an “aggravated felony”
because it is “an offense relating to . . . perjury.” 8 U.S.C.
§ 1101(a)(43)(S).
I
This opinion addresses issues raised in three separate
petitions for review: Yim v. Barr, No. 17-70624; Velasquez
Garcia v. Barr, No. 17-70670; and Borba-Carodoso v. Barr,
No. 17-70742. Each of the petitioners was convicted of
perjury under section 118(a) of the California Penal Code and
then suffered adverse immigration consequences on the
ground that he had committed an “aggravated felony,”
namely, an “an offense relating to . . . perjury.” 8 U.S.C.
§ 1101(a)(43)(S). The petitioners contend that perjury under
section 118(a) is not an “aggravated felony” because it is not
“an offense relating to . . . perjury.” Id. We briefly
summarize the facts relevant to each petition before
addressing the petitioner’s arguments.
8 YIM V. BARR
A
Raul Borges Borba-Cardoso, a native and citizen of
Portugal, was admitted to the United States as a lawful
permanent resident in 1975. In 2004, Borba was convicted of
perjury in violation of section 118(a) for testifying falsely
during a judicial proceeding, and he was sentenced to three
years in prison. The Department of Homeland Security
(DHS) initiated removal proceedings on the ground that
Borba had been convicted of an “aggravated felony.” An
immigration judge (IJ) found Borba removable as charged,
and the BIA affirmed.
B
Orlando Velasquez Garcia is a native and citizen of
Guatemala. He came to the United States on June 18, 1990.
Once here, he amassed a significant criminal record,
including a conviction for perjury in violation of section
118(a) for providing false information, under penalty of
perjury, to the California Department of Motor Vehicles. In
2009, DHS charged Velasquez as removable on the ground
that he was an alien “present in the United States without
being admitted or paroled, or who arrived in the United States
at any time or place other than as designated by the Attorney
General.” 8 U.S.C. § 1182(a)(6)(A)(i).
An IJ found Velasquez removable as charged and denied
Velasquez’s requests for asylum, cancellation of removal,
withholding of removal, and protection under the Convention
Against Torture (CAT). The IJ ruled that Velasquez’s perjury
conviction was an “aggravated felony,” rendering him
ineligible for asylum and cancellation of removal, and the IJ
denied Velasquez’s requests for withholding of removal and
YIM V. BARR 9
CAT protection on the ground that Velasquez had not made
the requisite showing. The BIA affirmed.
C
Ho Sang Yim is a native and citizen of South Korea. He
was admitted to the United States as a lawful permanent
resident on June 3, 1983. In March 2010, Yim was arrested
pursuant to a four-count complaint charging grand theft auto,
identity theft, falsifying financial statements, and perjury.
Yim, like Velasquez, was charged with providing false
information, under penalty of perjury, to the California
Department of Motor Vehicles. Yim eventually pleaded nolo
contendere to one count of perjury in violation of section
118(a), and in December 2011, DHS charged Yim as
removable for having committed an “aggravated felony.” An
IJ found Yim removable as charged, and the BIA affirmed.
II
The term “aggravated felony” covers “offense[s] relating
to . . . perjury . . . for which the term of imprisonment is at
least one year.” 8 U.S.C. § 1101(a)(43)(S). An alien
convicted of an “aggravated felony” is removable, 8 U.S.C.
§ 1227(a)(2)(A)(iii), and is also ineligible for asylum,
8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i), and cancellation of
removal, 8 U.S.C. § 1229b(a)(3). The question here is
whether perjury under section 118(a) of the California Penal
Code is “an offense relating to . . . perjury.” 8 U.S.C.
§ 1101(a)(43)(S). To answer this question, we apply the
categorical approach from Taylor v. United States, 495 U.S.
10 YIM V. BARR
575 (1990).1 The categorical approach prescribes a three-step
process for determining whether an offense is an “aggravated
felony.”
First, we must identify the elements of the generic federal
offense, Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081
(9th Cir. 2008), in this case, “perjury,” 8 U.S.C.
§ 1101(a)(43)(S). We “defer to the BIA’s articulation of the
generic federal definition ‘if the statute is silent . . . and the
BIA’s interpretation is based on a permissible construction of
the statute.’” Renteria-Morales, 551 F.3d at 1081 (quoting
Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005));
cf. United States v. Garcia-Santana, 774 F.3d 528, 542–43
(9th Cir. 2014). An interpretation is permissible so long as it
is not “clearly contrary to the plain meaning of the statute.”
Parilla, 414 F.3d at 1041.
Second, we must identify the elements of the specific
crime of conviction, Renteria-Morales, 551 F.3d at 1081,
here, section 118(a) of the California Penal Code, Cal. Penal
Code § 118(a). In doing so, we will “not defer to the BIA’s
interpretation of state law,” Renteria-Morales, 551 F.3d at
1081, because the BIA “has no special expertise . . . in
construing state . . . statutes,” Marmolejo-Campos v. Holder,
558 F.3d 903, 907 (9th Cir. 2009) (en banc). To determine
the elements of a state statute, “we may consider the
interpretation of the statute provided by state courts.” United
States v. Perez, 932 F.3d 782, 785 (9th Cir. 2019).
1
Because we conclude that all of the conduct criminalized by section
118(a) constitutes “an offense relating to . . . perjury,” we need not apply
the modified categorical approach. See, e.g., Shepard v. United States,
544 U.S. 13, 25–26 (2005).
YIM V. BARR 11
Third, we compare the statute of conviction to the generic
federal offense to determine “whether the specific crime of
conviction meets the . . . definition of an aggravated felony.”
Renteria-Morales, 551 F.3d at 1081. Here, unlike in other
cases, the state offense need not criminalize the same amount
of conduct (or less) as the generic offense, because the INA
refers to “an offense relating to . . . perjury.” 8 U.S.C.
§ 1101(a)(43)(S) (emphasis added); see, e.g., United States v.
Sullivan, 797 F.3d 623, 638 (9th Cir. 2015); United States v.
Sinerius, 504 F.3d 737, 743 (9th Cir. 2007). As we have
recognized, the phrase “relating to,” when used in this
context, indicates that Congress intended to “cover[] a range
of activities beyond” just the generic offense. Albillo-
Figueroa v. I.N.S., 221 F.3d 1070, 1073 (9th Cir. 2000).
Therefore, the statute of conviction need only “stand[] in
some relation, bear[] upon, or [be] associated with th[e]
generic offense.” Sinerius, 504 F.3d at 743.
A
We begin with the first step of the categorical approach,
which is to identify the elements of the generic crime of
“perjury,” as it is used in 8 U.S.C. § 1101(a)(43)(S), with due
deference to the BIA. See Renteria-Morales, 551 F.3d
at 1086. We presume that Congress intended the terms of a
statute, including a list of offenses, to have their
“contemporary meaning.” Taylor, 495 U.S. at 598. The
definition of the relevant offense in another section of the
United States Code provides strong evidence as to Congress’s
intent, given Congress’s presumed familiarity with that
definition. See, e.g., Esquivel-Quintana v. Sessions, 137 S.
Ct., 1562, 1570–71 (2017). Accordingly, the BIA may “rely
to a significant degree on the Federal definition of an offense,
where available.” Matter of M-W-, 25 I. & N. Dec. 748, 752
12 YIM V. BARR
n.5 (BIA 2012) (citation omitted); see Renteria-Morales,
551 F.3d at 1086 (holding that “the BIA acted reasonably in
deriving the definition of ‘obstruction of justice’ for purposes
of § 1101(a)(43)(S) from the body of federal statutes
imposing criminal penalties on obstruction-of-justice
offenses”). Although probative, a parallel federal offense
might not provide “the complete or exclusive definition” of
a generic offense, Esquivel-Quintana, 137 S. Ct. at 1571; cf.
Garcia-Santana, 774 F.3d at 535, and so a multi-
jurisdictional analysis “can be useful insofar as it helps shed
light on the common understanding and meaning of the
federal provision being interpreted,” even though undertaking
such an analysis is “not required by the categorical
approach,” Esquivel-Quintana, 137 S. Ct. at 1571 n.3
(citation omitted).2 In addition to state criminal codes, the
Model Penal Code and scholarly commentary may shed light
on the contemporary meaning of a term. See, e.g., Taylor,
495 U.S. at 580; Garcia-Santana, 774 F.3d at 534.
1
Given our deference to the BIA’s definition of generic
federal offenses, see, e.g., Renteria-Morales, 551 F.3d
at 1081, we begin by recounting the development of the
BIA’s definition of “perjury.” Before December 29, 2016,
the BIA concluded that the federal perjury statute, 18 U.S.C.
§ 1621, established the generic definition of “perjury,” as
used in 8 U.S.C. § 1101(a)(43)(S). See In Re Martinez-
2
To the extent we have implied that the categorical approach requires
a multi-jurisdictional analysis, see, e.g., Garcia-Santana, 774 F.3d at 534,
that guidance has been superseded by Esquivel-Quintana, 137 S. Ct.
at 1571 n.3. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en
banc).
YIM V. BARR 13
Recinos, 23 I. & N. Dec. 175, 177 (BIA 2001). Because the
BIA determined that the federal perjury statute and section
118(a) of the California Penal Code were “essentially the
same,” section 118(a) qualified as an “offense relating to . . .
perjury.” Id. We then held that this interpretation was not
entitled to deference on the ground that the BIA had failed to
perform a survey to determine the “contemporary usage” of
the term “perjury.” Yim v. Lynch, 610 F. App’x 672, 673 (9th
Cir. 2015). Accordingly, we remanded to the BIA with
instructions that it survey definitions of perjury codified in
state statutes, adopted by the Model Penal Code, and
endorsed by scholarly commentary. See id. at 672–73 (citing
Garcia-Santana, 774 F.3d at 534).
In a subsequent opinion, Matter of Alvarado, the BIA
surveyed the sources mentioned above. 26 I. & N. Dec. 895,
898–900 (BIA 2016). It first looked to the common-law
definition of perjury. Id. at 898. “At common law, perjury
was defined as ‘a crime committed when a lawful oath is
administered, in some judicial proceeding, to a person who
swears willfully, absolutely, and falsely, in a matter material
to the issue or point in question.” Id. (quoting 4 William
Blackstone, Commentaries on the Laws of England, 136–37
(1769)). The BIA reasonably recognized, however, that the
common-law definition of perjury was merely a starting point
for defining “perjury,” as used in 8 U.S.C. § 1101(a)(43)(S).
See, e.g., Taylor, 495 U.S. at 593 (rejecting the argument that
burglary carried its common-law meaning because “[o]nly a
few States retain the common-law definition, or something
closely resembling it”); Garcia-Santana, 774 F.3d at 539
(rejecting the argument that “conspiracy” carried its common-
law meaning because only a small minority of jurisdictions
retained “the common-law definition of conspiracy,” which
did not require an overt act).
14 YIM V. BARR
The BIA then considered the Model Penal Code and
explained that it “slightly expanded the common law
definition of perjury by proscribing false statements made ‘in
any official proceeding,’ not just those made in ‘judicial’
proceedings.” Matter of Alvarado, 26 I. & N. Dec. at 898
(citing Model Penal Code § 241.1(1) (1985)). Specifically,
“[a] person is guilty of perjury . . . if in any official
proceeding he makes a false statement under oath or
equivalent affirmation, or swears or affirms the truth of a
statement previously made, when the statement is material
and he does not believe it to be true.” Model Penal Code
§ 241.1(1). The Model Penal Code broadly defines an
“official proceeding” as “a proceeding heard or which may be
heard before any legislative, judicial, administrative or other
governmental agency or official authorized to take evidence
under oath, including any referee, hearing examiner,
commissioner, notary or other person taking testimony or
deposition in connection with any such proceeding.” Model
Penal Code § 240.0(4). Thus, by proscribing false statements
made “in any official proceeding,” a perjury offense could
occur “before any legislative, judicial, administrative or other
governmental agency or official authorized to take evidence
under oath.” Matter of Alvarado, 26 I. & N. Dec. at 898
(quoting Model Penal Code § 240.0(4)).
After consulting the Model Penal Code, the BIA
explained that “States’ perjury laws have many similarities to
the common law and Model Penal Code definitions.” Id. At
the time the phrase “an offense relating to . . . perjury” was
added to 8 U.S.C. § 1101(a)(43)(S) in 1996, the majority of
states defined perjury to require, at the least, “(1) a material
(2) false statement (3) made knowingly or willfully (4) while
under oath, affirmation, or under penalty of perjury.” Id.YIM V. BARR 15
(footnote omitted).3 In addition to these elements, the
majority of states also “required that the witness take [an]
oath in an ‘official proceeding,’ or in a proceeding where an
oath was either ‘required or authorized by law.’” Id. at 899(footnotes omitted) (collecting statutes).
Finally, the BIA consulted the federal perjury statute,
18 U.S.C. § 1621. Id. at 900. In 1996, as now, the statute
provided,
Whoever—
(1) having taken an oath before a competent
tribunal, officer, or person in any case in
which a law of the United States authorizes an
oath to be administered, that he will testify,
declare, depose, or certify truly, or that any
written testimony, declaration, deposition, or
certificate by him subscribed is true, willfully
and contrary to such oath states or subscribes
any material matter which he does not believe
to be true; or
(2) in any declaration, certificate, verification,
or statement under penalty of perjury as
permitted under section 1746 of title 28,
3
The BIA explained that “[s]ome States had a ‘knowing’ mens rea in
their perjury statutes, while others included a ‘willful’ requirement.”
Matter of Alvarado, 26 I. & N. Dec. at 898 n.5. But “these states of mind
are not meaningfully distinguishable because courts have uniformly
interpreted the willfulness requirement of perjury to mean that the
defendant knowingly made the false statement.” Id. (citing Bronston v.
United States, 409 U.S. 352, 359 (1973); Matter of Esqueda, 20 I. & N.
Dec. 850, 858 (BIA 1994); Model Penal Code § 2.02(8)).
16 YIM V. BARR
United States Code, willfully subscribes as
true any material matter which he does not
believe to be true;
is guilty of perjury.
Pub. L. No. 94-550, § 2, 90 Stat. 2534, 2534–35 (1976)
(codified at 18 U.S.C. § 1621). The federal statute, like some
state statutes, broadly extends to “unsworn declarations
prepared under penalty of perjury.” Scott Mah et al., Perjury,
57 Am. Crim. Law Rev. 1115, 1117 (2020) (citing 18 U.S.C.
§ 1621(2)). The BIA reasonably “presume[d] that Congress
was familiar with 18 U.S.C. § 1621 when it enacted [8 U.S.C.
§ 1101(a)(43)(S)].” Matter of Alvarado, 26 I. & N. Dec.
at 900 (citing Miles v. Apex Marine Corp., 498 U.S. 19, 32
(1990)).
Having surveyed the relevant authorities, the BIA
concluded that “the generic definition of the term ‘perjury’ in
[8 U.S.C. § 1101(a)(43)(S)] requires that an offender
[1] make a material false statement [2] knowingly or willfully
[3] while under oath or affirmation [or penalty of perjury]
[4] where an oath is authorized or required by law.” Id.at 901 & n.11. The definition “incorporates false statements
made orally and in writing under penalty of perjury.” Id.at 901 n.11. The BIA’s definition does not require that the
relevant statement be made in a proceeding. Id. at 899–900
(footnotes omitted).
We conclude that this is a “permissible construction of the
statute.” Parrilla, 414 F.3d at 1041 (citation omitted). The
BIA surveyed the definitions of perjury recognized at
common law, “codified in state and federal statutes,” and
“adopted by the Model Penal Code,” Garcia-Santana,
YIM V. BARR 17
774 F.3d at 534, and the BIA reasonably settled on a
definition of perjury compatible with these sources. As such,
the BIA’s definition of perjury is not “clearly contrary to the
plain meaning of the statute.” Parrilla, 414 F.3d at 1041.
Therefore, we defer to the BIA’s determination.
2
In arguing against this conclusion, Yim contends that it
was not reasonable for the BIA to omit a requirement that a
statement be made in an “official proceeding” or a
“proceeding where an oath [is] either ‘required or authorized
by law.’” To support this, Yim points to the fact that the BIA
“identified only seven states as not requiring that the oath be
made in a proceeding.”
We reject this argument. First, the federal perjury statute,
18 U.S.C. § 1621, supports the BIA’s omission of a
“proceeding” requirement. Section 1621(2) provides that a
person is guilty of perjury if he “willfully subscribes as true
any material matter which he does not believe to be true” “in
any declaration, certificate, verification, or statement under
penalty of perjury as permitted under section 1746 of title 28,
United States Code.” 18 U.S.C. § 1621(2).4 Section 1621(2)
does not require that the statement be made in a
“proceeding,” and the BIA could reasonably rely on
18 U.S.C. § 1621 “to discern the elements of generic
4
Section 1746 sets forth the required form for declarations under
penalty of perjury when, “under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to law, any matter
is required or permitted to be supported, evidenced, established, or proved
by the sworn declaration, verification, certificate, statement, oath, or
affidavit, in writing of the person making the same.” 28 U.S.C. § 1746.
18 YIM V. BARR
perjury.” Matter of Alvarado, 26 I. & N. Dec. at 900 (citation
omitted).5 In fact, it would be unreasonable for the generic
definition of perjury to include a “proceeding” requirement,
as Yim contends, because then conduct that meets Congress’s
definition of “perjury” for 18 U.S.C. § 1621(2) would not
constitute “perjury” under 8 U.S.C. § 1101(a)(43)(S). We
typically interpret statutes in a way that avoids such
incongruity. See Digital Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 879 (1994) (“[C]ourts should construe statutes
. . . to foster harmony with other statutory and constitutional
law.”). Thus, although the federal perjury statute might not
supply the “complete or exclusive definition” of “perjury,”
Esquivel-Quintana, 137 S. Ct. at 1571, it strongly supports
the BIA’s decision to omit a proceeding requirement, see
Renteria-Morales, 551 F.3d at 1086 (holding that “the BIA
acted reasonably in deriving the definition of ‘obstruction of
justice’ for purposes of § 1101(a)(43)(S) from the body of
federal statutes imposing criminal penalties on obstruction-
of-justice offenses”).
Second, in discerning Congress’s intent, the BIA may
survey a variety of sources and it is not bound to adopt the
definition of an offense used by a majority of the states.
5
To the extent Yim argues that the federal perjury statute, 18 U.S.C.
§ 1621, includes a proceeding requirement, he is mistaken. Section
1621(2) extends to “unsworn declarations prepared under penalty of
perjury,” Scott Mah et al., Perjury, 57 Am. Crim. Law Rev. 1115, 1117
(2020) (citing 18 U.S.C. § 1621(2)), which do not need to be prepared in
connection with a “proceeding,” see 28 U.S.C. § 1746; United States v.
Gomez-Vigil, 929 F.2d 254, 258 (6th Cir. 1991) (“Section 1746 authorizes
the use of unsworn declarations under penalty of perjury, rather than
sworn declarations under oath, whenever the law, rule, regulation, or order
or requirement permits the matter to be supported, evidenced, established
or proved by sworn declaration.”).
YIM V. BARR 19
Indeed, the BIA need not in engage in a multi-jurisdictional
analysis at all. Esquivel-Quintana, 137 S. Ct. at 1571 n.3; cf.
Garcia-Santana, 774 F.3d at 534. Here, the BIA reasonably
placed significant weight on the federal definition of perjury,
Matter of Alvarado, 26 I. & N. Dec. at 900, and confirmed
the reasonableness of this choice by identifying a number of
states that likewise do not include a “proceeding” requirement
in their definition of perjury.6 The BIA reasonably
considered these definitions as evidencing the
contemporaneous understanding of the elements of perjury
and bolstering its conclusion regarding congressional intent.
See Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152–53
(9th Cir. 2008) (en banc) (bolstering its interpretation of the
generic offense of “sexual abuse of a minor” by “survey[ing]
current criminal law,” even though it was “unnecessary” to do
so because Congress had defined “sexual abuse of a minor”
in a parallel federal offense), overruled on other grounds as
recognized by United States v. Rivera-Constantino, 798 F.3d
900, 904 (9th Cir. 2015).
3
Velasquez argues that the BIA’s interpretation is
unreasonable because the BIA’s decision to “survey the
contemporary definition of perjury [was] unexplained” and
“there is no evidence that Congress intended anything other
than the federal definition of perjury under 18 U.S.C.
§ 1621.” We reject these arguments. The BIA surveyed
contemporary definitions of perjury because we told it to do
6
See Alaska Stat. Ann. §§ 11.56.200, 11.56.240; Ariz. Rev. Stat.
Ann. § 13-2702; Cal. Penal Code § 118(a); Iowa Code Ann. §§ 622.1,
720.2; Nev. Rev. Stat. Ann. § 199.145; R.I. Gen. Laws Ann. § 11-33-1;
Tenn. Code Ann. § 39-16-702.
20 YIM V. BARR
so, see Yim, 610 F. App’x at 672–73, and such a survey can
“aid [the] interpretation” of a generic offense by “offering
useful context,” see Esquivel-Quintana, 137 S. Ct. at 1571
n.3.
4
In sum, we “may not supply the interpretation of the
statute we think best (as we would without an agency
pronouncement)” and must instead ask whether the BIA’s
interpretation of perjury was “based on a permissible
construction of the statute.” Marmolejo-Campos, 558 F.3d
at 908 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 843 (1984)). The BIA’s
approach to determining the elements of the generic offense
of perjury was consistent with Supreme Court guidance as
well as our own: the BIA surveyed relevant sources and
settled on a definition of perjury that was consistent with the
federal perjury statute and a number of state criminal codes.
Because the BIA’s definition is “not clearly contrary to the
plain meaning of the statute,” Parrilla, 414 F.3d at 1041, we
conclude that it is entitled to deference.
B
Having accepted the BIA’s definition of the generic
offense, we now turn to the second step of the categorical
approach and ascertain the elements of the state statute of
conviction. Section 118(a) provides:
[1] Every person who, having taken an oath
that he or she will testify, declare, depose, or
certify truly before any competent tribunal,
officer, or person, in any of the cases in which
YIM V. BARR 21
the oath may by law of the State of California
be administered, willfully and contrary to the
oath, states as true any material matter which
he or she knows to be false, and [2] every
person who testifies, declares, deposes, or
certifies under penalty of perjury in any of the
cases in which the testimony, declarations,
depositions, or certification is permitted by
law of the State of California under penalty of
perjury and willfully states as true any
material matter which he or she knows to be
false, is guilty of perjury.
Cal. Penal Code § 118(a).
By its terms, section 118(a) criminalizes both oral and
written perjury. Matter of Alvarado, 26 I. & N. Dec. at 901
(citing Rivera v. Lynch, 816 F.3d 1064, 1071–72 (9th Cir.
2016)). For oral perjury cases, the elements of a section
118(a) offense are: “a [1] willful statement, [2] under oath,
[3] of any material matter [4] which the witness knows to be
false.” Rivera, 816 F.3d at 1072 (quoting Chein v. Shumsky,
373 F.3d 978, 983 (9th Cir. 2004)).7 For written perjury
cases, the false statement must be “in writing under penalty
of perjury” in circumstances “permitted by law,” as opposed
7
See also Cal. Jury Inst. Crim. (CALJIC) No. 7.20 (“Every person
who, [1] having taken an oath to (testify, declare, etc.) truly before any
competent tribunal, officer, or person, in any of the cases in which the
oath may by law be administered, [2] willfully and contrary to the oath,
[3] states as true any material matter [4] which he or she knows to be
false, is guilty of the crime of perjury in violation of Penal Code section
118.”).
22 YIM V. BARR
to “under oath.” Id.8 The other elements—willfulness,
materiality, and falsity—remain the same. See id.Accordingly, the elements of perjury under section 118(a)
are: (1) a willful statement, (2) either (a) under oath in any of
the cases in which the oath may be administered or (b) in
writing under penalty of perjury in circumstances permitted
by law, (3) of any material matter, and (4) which the person
knows to be false. See Rivera, 816 F.3d at 1072; CALJIC
No. 7.20; CALJIC No. 7.21.
C
We now turn to the third step of the categorical approach.
Given the language of 8 U.S.C. § 1101(a)(43)(S), we must
determine whether perjury in violation section 118(a) of the
California Penal Code “relat[es] to” the BIA’s generic
definition of perjury. To do so, we begin, as we normally do,
by determining whether the state offense is a categorical
match with the generic offense, meaning that the state offense
criminalizes the same amount of conduct (or less) as the
generic offense. See Sullivan, 797 F.3d at 635. Once we
complete this comparison, we turn to the question whether the
state offense “relat[es] to” the BIA’s generic definition of
perjury. See id. at 636; Sinerius, 504 F.3d at 743. Here, the
petitioners direct our attention to four distinct elements:
(1) intent; (2) false statement; (3) materiality; and
(4) authorized or permitted by law.
8
See also CALJIC No. 7.21 (“Every person who [1] (testifies,
declares, etc.) under penalty of perjury [2] in any of the cases in which
(testimony, declarations, etc.) under penalty of perjury [are] permitted by
law, [3] willfully states as true any material matter [4] which he or she
knows to be false, is guilty of the crime of perjury in violation of Penal
Code section 118.”).
YIM V. BARR 23
1
We begin with the intent element. Section 118(a) requires
an intent of “willful[],” Cal. Penal Code § 118(a), and the
BIA’s generic definition of perjury require the intent of
“knowingly or willfully,” Matter of Alvarado, 26 I. & N. Dec.
at 902. Because there is no meaningful difference between
“knowingly” and “willfully” in this context, the BIA’s use of
both terms has no effect here. As the BIA explained, “courts
have uniformly interpreted the willfulness requirement of
perjury to mean that the defendant knowingly made the false
statement.” Id. at 899 n.5 (citing Bronston, 409 U.S. at 359;
Matter of Esqueda, 20 I. & N. Dec. at 858; Model Penal Code
§ 2.02(8)). “The terms ‘corruptly,’ ‘willfully,’
‘intentionally,’ and ‘knowingly’ are sprinkled freely through
[perjury] statutes, as is the more helpful phrase, ‘not believing
the statement to be true,’” but “[t]here does not appear to be
a significant distinction among the statutes based on the use
of these different terms.” Sara Sun Beale et al., Grand Jury
Law & Practice § 11:6 (2d ed. 2019). Thus, we conclude that
there is a match between the intent required by section 118(a)
and the intent required by the BIA’s generic definition of
perjury.
2
We next turn to the false-statement requirement. Both
section 118(a) and the BIA’s generic definition of perjury
require a false statement. The BIA’s generic definition refers
to a “false statement,” Matter of Alvarado, 26 I. & N. Dec.
at 901, whereas section 118(a) refers to a person “stat[ing] as
true any . . . matter which he or she knows to be false,” Cal.
Penal Code § 118(a). These requirements are materially
indistinguishable.
24 YIM V. BARR
Arguing against this conclusion, Borba points to section
125 of the California Penal Code, which provides, “An
unqualified statement of that which one does not know to be
true is equivalent to a statement of that which one knows to
be false.” Cal. Penal Code § 125. According to Borba, this
means that a person can be convicted of perjury in violation
of section 118(a) without making a literally false statement,
and therefore section 118(a) criminalizes more conduct than
the BIA’s generic definition of perjury.
We disagree. The BIA’s definition of perjury inherently
incorporates the longstanding common-law view that a
witness gives false testimony if the witness states any matter
as true when, in fact, the witness is entirely ignorant as to the
matter. See 3 Edward Coke, Institutes of the Laws of
England 166 (Brooke ed. 1797) (stating that two witnesses
were guilty of perjury when they swore to the value of goods
but “because they knew it not, it was a false oath in them, for
. . . which both the . . . witnesses were sentenced in the star-
chamber”). As one early commentator explained:
It . . . is not to be material whether the fact
which is sworn be in itself true or false; for
howsoever the thing sworn may happen to
prove agreeable to the truth, yet if it were not
known to be so by him who swears to it, his
offense is altogether as great as if it had been
false, inasmuch as he wilfully swears, that he
knows a thing to be true, which at the same
time he knows nothing of, and impudently
endeavours to induce those before whom he
swears to proceed upon the credit of a
deposition, which any stranger might make as
well as he.
YIM V. BARR 25
1 William Hawkins, A Treatise of the Pleas of the Crown 433
(8th ed. 1824); accord 2 Joseph Chitty, A Practical Treatise
of Criminal Law 153–54 (Riley’s ed. 1819) (noting that if a
witness “asserts that which may happen to be true, without
any knowledge of the fact, he is equally criminal, and the
accidental truth of his evidence will not excuse him”).
The modern understanding of perjury incorporates the
principle that a false statement includes an unqualified
statement made without knowledge as to its truth or falsity.
A number of states, like California, codified this principle,9
while others confirmed it through judicial decisions.10 The
federal perjury statute likewise incorporates this principle; it
refers to statements of “any material matter which [the
declarant] does not believe to be true,” 18 U.S.C. § 1621(1),
(2), which covers “cases in which the witness makes a false
statement without knowing whether the statement is true or
9
See, e.g., Idaho Code Ann. § 18-5408; La. Stat. Ann. § 14:123(B);
Nev. Rev. Stat. Ann. § 199.200; S.D. Codified Laws § 22-29-2; Wash.
Rev. Code Ann. § 9A.72.080.
10
See, e.g., E. Ky. Rural Elec. Co-op. Corp. v. Phelps, 275 S.W.2d
592, 594 (Ky. 1955) (“[T]here is ample authority for the proposition that
a prosecution [for perjury] can be sustained upon . . . an affidavit, if it is
proved that the affiant did not in fact believe the facts asserted, or had no
probable grounds for believing such facts were true.”); State v. Rupp,
151 P. 1111, 1112 (Kan. 1915) (“[H]e who makes a positive affidavit to
a particular condition thereby holds himself out as having some reasonably
reliable information on the subject, and for one to swear to a fact, of the
existence of which he knows himself to be entirely ignorant, is rightly held
to constitute perjury.”); Butler v. State, 429 S.W.2d 497, 502 (Tex. Crim.
App. 1968) (“A witness may commit perjury if he swears to a matter
about which he consciously has no knowledge. The effect of such
testimony is that the witness declares that he knows the truth of what he
states, and, if he is conscious he does not know it, he means to swear
falsely.”).
26 YIM V. BARR
not,” Sara Sun Beale et al., Grand Jury Law & Practice § 11:6
n.7 (2d ed. 2019). In short, “[a] person may be guilty of
perjury when he swears to a particular fact, without knowing
at the time whether it is true or false, or without having
enough knowledge to support a belief that it is true, even
though the statement is in fact true.” 4 Wharton’s Criminal
Law § 577 (15th ed. 2019) (collecting sources). Borba has
identified no authority casting doubt on this centuries-old
principle.11
Given this backdrop, we understand the phrase “false
statement,” as used in the BIA’s generic definition of perjury,
Matter of Alvarado, 26 I. & N. Dec. at 901, to include
statements made by a declarant who is entirely ignorant as to
the statement’s truth or falsity. Accordingly, we conclude
that the reference to “false statement” in the BIA’s generic
definition is the same as the reference to “false” statements in
section 118(a), notwithstanding section 125.
11
Borba cites Bronston v. United States, 409 U.S. 352 (1973), for the
proposition that “[f]or a federal perjury charge . . . the statement cannot
support a perjury conviction if the information is [true].” This is wrong.
Bronston “consider[ed] a narrow but important question in the application
of the federal perjury: whether a witness may be convicted of perjury for
an answer, under oath, that is literally true but not responsive to the
question asked and arguably misleading by negative implication.”
409 U.S. at 352–53. Thus, we have explained that “Bronston’s rule is
limited to cases in which the statement is indisputably true, though
misleading because it was unresponsive to the question asked.” United
States v. Camper, 384 F.3d 1073, 1076 (9th Cir. 2004). Bronston
therefore does not address the situation contemplated by section 125.
YIM V. BARR 27
3
We next turn to the element of “materiality.” Both
section 118(a) and the BIA’s generic definition of perjury
require that the statement be “material.” Although these
terms are identical, Borba nevertheless contends that section
118(a) criminalizes more conduct than the BIA’s generic
definition because in California “[i]t is no defense to a
prosecution for perjury that the accused did not know the
materiality of the false statement made by him,” Cal. Penal
Code § 123, while, according to Borba, the BIA’s generic
definition of perjury “likely” does not cover situations where
a defendant lacks knowledge as to a statement’s materiality.
We reject this argument. At common law, it was “not
necessary that the witness know that the testimony is
material,” 60A Am. Jur. 2d Perjury § 26 (2d ed. 2020)
(collecting sources), and so “[a] mistaken belief that [a]
statement was not material is not a defense to perjury,”
110 Am. Jur. Proof of Facts 3d 479 (2009). The states
uniformly adopted these principles, see, e.g., State v.
Sargood, 68 A. 49, 50 (Vt. 1907) (“We are referred to no
authority, and have seen none, that treats knowledge of the
materiality as an element of [perjury].”), with many states,
like California, codifying this understanding.12 The Model
Penal Code is in accord. See Model Penal Code § 241.1(2)
(“It is no defense that the declarant mistakenly believed the
falsification to be immaterial.”). Borba cites no federal case
that has interpreted the federal perjury statute, 18 U.S.C.
§ 1621, as requiring proof that a witness know that a false
12
See Ark. Code Ann. § 5-53-102(b); Colo. Rev. Stat. Ann. § 18-8-
502(2); Fla. Stat. Ann. §§ 837.02(3), 837.012(2); Minn. Stat. Ann.
§ 609.48(3); Mo. Ann. Stat. § 575.040; 18 Pa. Stat. Ann. § 4902(b).
28 YIM V. BARR
statement is material, and we are aware of none. Cf. United
States v. Schaier, 175 F. Supp. 838, 842 (S.D.N.Y. 1959)
(“The defendant may be convicted even though he did not
know that his statement was material.”). We therefore
conclude that the BIA’s generic definition of perjury is in
accord with the uniform principle that a declarant need not
know that a statement is material to be guilty of perjury.
Accordingly, we reject Borba’s argument that section 118(a)
criminalizes more conduct than the BIA’s generic definition
of perjury because California chose to codify this common
law principle in section 125.
4
Finally, we consider the requirement that an oath,
affirmation, or declaration under penalty of perjury be
authorized or permitted by law. Section 118(a) refers to
“cases in which [an] oath may by law of the State of
California be administered” and situations where
“certification is permitted by law of the State of California
under penalty of perjury.” Cal. Penal Code § 118(a). The
BIA’s generic definition simply refers to the situation “where
an oath is authorized or required by law.” Matter of
Alvarado, 26 I. & N. Dec. at 901. Yim contends that there is
a difference between a certification being “authorized by law”
and being “permitted by law.”
We disagree. Despite the slight difference in the verbal
formulations in section 118(a) and the BIA’s generic
definition, they are materially identical. To show that a
statute criminalizes more conduct than a generic offense, a
petitioner “must at least point to his own case or other cases
in which the state court in fact did apply the statute in the
special (nongeneric) manner for which he argues.” Gonzales
YIM V. BARR 29
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Here, Yim
identifies no case in which a person was found guilty of
violating section 118(a) when an oath was “permitted” but
not “authorized” by law. Moreover, the California Court of
Appeal has stated that an “authorized” oath is the same as an
oath that is “permitted by law.” People v. Laws, 120 Cal.
App. 3d 1022, 1034 (1981) (stating that a declaration in
support of a motion “is a declaration for which an oath is
‘authorized,’ i.e., one which is ‘permitted by law’”). Thus,
even if there is some semantic difference between “permitted
by law” and “authorized by law,” Yim fails to show that there
is a “realistic probability,” as opposed to a “theoretical” one,
that section 118(a) is applied in a way that it is broader than
the BIA’s generic offense. Duenas-Alvarez, 549 U.S. at 193.
We therefore reject the argument that there is some
meaningful difference between the phrases “authorized by
law” and “permitted by law.”
D
Our analysis has thus far established that the elements of
section 118(a) and the elements of the generic federal offense
are a categorical match. The petitioners raise two final
arguments against this conclusion. According to the
petitioners, California law recognizes two affirmative
defenses to perjury that are not incorporated into the federal
generic offense, and so the offenses are not a categorical
match. First, Borba argues that section 118(a) criminalizes
more conduct than the BIA’s generic definition of perjury
because section 122 provides that lack of competency is not
a defense to a prosecution under section 118(a). Cal. Penal
30 YIM V. BARR
Code § 122.13 Second, Velasquez argues that section 118(a)
differs from the BIA’s generic definition of perjury because
section 118(b) provides, “No person shall be convicted of
perjury where proof of falsity rests solely upon contradiction
by testimony of a single person other than the defendant.”
Cal. Penal Code § 118(b).
These arguments misunderstand the nature and effect of
an affirmative defense. “Affirmative defenses are complete
defenses that, once proven by the defendant, negate criminal
liability for an offense, notwithstanding the government’s
ability otherwise to prove all elements of that offense beyond
a reasonable doubt.” United States v. Davenport, 519 F.3d
940, 945 (9th Cir. 2008). As we have recognized, the
availability (or unavailability) of an affirmative defense “is
not relevant to the categorical approach” because “we ‘look
only to the fact of conviction and the statutory definition of
the prior offense.’” United States v. Velasquez-Bosque,
601 F.3d 955, 963 (9th Cir. 2010) (quoting Taylor, 495 U.S.
at 602). The existence or non-existence of “extraneous
affirmative defenses” is therefore “irrelevant to the
categorical approach.” United States v. Albino-Loe, 747 F.3d
1206, 1213 (9th Cir. 2014).
On its face, section 118(b) merely elaborates on the
government’s evidentiary burden for proving perjury: proof
of falsity may not rest “solely upon contradiction by
testimony of a single person other than the defendant.” Cal.
13
Section 122 provides, “It is no defense to a prosecution for perjury
that the accused was not competent to give the testimony, deposition, or
certificate of which falsehood is alleged. It is sufficient that he did give
such testimony or make such deposition or certificate.” Cal. Penal Code
§ 122.
YIM V. BARR 31
Penal Code § 118(b). As such, it does not change the
elements of perjury set forth in section 118(a). Therefore,
section 118(b) has no bearing on our analysis as to whether
section 118(a) is a categorical match for the federal generic
offense of perjury. See Rivera, 816 F.3d at 1069 n.1.
Accordingly, we reject Velasquez’s argument.
We next consider section 122, which provides that lack of
competency is “no defense to a prosecution for perjury.” Cal.
Penal Code § 122. In California, the general rule is that
“every person, irrespective of age, is qualified to be a witness
and no person is disqualified to testify to any matter.” Cal.
Evid. Code § 700. But there is an exception for persons who
are incompetent to testify. Under section 701 of the
California Evidence Code, “[a] person is disqualified to be a
witness if he or she is,” among other things, “[i]ncapable of
understanding the duty of a witness to tell the truth.” Cal.
Evid. Code § 701.1414
Section 701 provides, in full:
(a) A person is disqualified to be a witness if he or she
is:
(1) Incapable of expressing himself or herself
concerning the matter so as to be understood, either
directly or through interpretation by one who can
understand him; or
(2) Incapable of understanding the duty of a witness to
tell the truth.
(b) In any proceeding held outside the presence of a
32 YIM V. BARR
Section 122 prevents a defendant charged with perjury
from raising the affirmative defense that the defendant did not
“understand the duty of a witness to tell the truth.” Cal. Evid.
Code § 701(2). This limitation does not, however, alter the
elements of the offense of perjury. The government must still
prove beyond a reasonable doubt that the defendant stated “as
true any material matter which he or she knows to be false,”
Cal. Penal Code § 118(a), and the defendant may still negate
the mens rea element of the offense by raising reasonable
doubt as to whether he or she knew a statement was false, see,
e.g., People v. Von Tiedeman, 120 Cal. 128, 136 (1898)
(“[P]erjury cannot be willful where the oath is according to
the belief and conviction of the witness as to its truth.”).
Because eliminating a defense regarding lack of
understanding about a witness’s duty does not cause section
118(a) to criminalize more conduct than the generic offense
of perjury, section 122 is irrelevant for purposes of applying
the categorical approach. See Albino-Loe, 747 F.3d at 1213;
Velasquez-Bosque, 601 F.3d at 963. Therefore, we also reject
Borba’s argument.
In sum, neither section 118(b) nor section 122 alter the
“statutory definition of the . . . offense” set forth in section
118(a), Velasquez-Bosque, 601 F.3d at 963 (citation omitted);
see Rivera, 816 F.3d at 1069 n.1, and so they have no bearing
on our analysis here.
jury, the court may reserve challenges to the
competency of a witness until the conclusion of the
direct examination of that witness.
Cal. Evid. Code § 701.
YIM V. BARR 33
E
Having considered the petitioners’ arguments, we
conclude that section 118(a) of the California Penal Code is
a categorical match with the BIA’s generic definition of
perjury, meaning they cover the same amount of conduct.
We therefore conclude that section 118(a) is an “offense
relating to . . . perjury.” 8 U.S.C. § 1101(a)(43)(S). We
dispose of the petitions and any remaining arguments in
concurrently filed memorandum dispositions.
IT IS SO ORDERED.