Jose Escobar Santos v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE JAIRO ESCOBAR SANTOS, No. 17-72334
Petitioner,
Agency No.
v. A205-465-618
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 13, 2021*
San Francisco, California
Filed July 9, 2021
Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges,
and Robert H. Whaley,** District Judge.
Opinion by Judge Bybee;
Dissent by Judge Whaley
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Robert H. Whaley, United States District Judge for
the Eastern District of Washington, sitting by designation.
2 ESCOBAR SANTOS V. GARLAND
SUMMARY***
Immigration
Denying Jose Jairo Escobar Santos’s petition for review
of a decision of the Board of Immigration Appeals, the panel
held that Escobar’s forgery conviction under section 470a of
the California Penal Code categorically constitutes an
aggravated felony offense relating to forgery under 8 U.S.C.
§ 1101(a)(43)(R), thus rendering him ineligible for voluntary
departure.
Section 470a penalizes “[e]very person who alters,
falsifies, forges, duplicates or in any manner reproduces or
counterfeits any driver’s license or identification card issued
by a governmental agency with the intent that such driver’s
license or identification card be used to facilitate the
commission of any forgery.”
Escobar argued that section 470a’s first element sweeps
more broadly than the generic definition of forgery because
the proscribed conduct encompasses mere duplication or any
manner of reproduction, and thus a person could be liable for
photocopying a genuine driver’s license with the requisite
intent. The panel disagreed that photocopying a driver’s
license with the intent to facilitate the commission of any
forgery falls outside the generic definition of forgery.
As a helpful comparison, the panel looked to Vizcarra-
Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008), in which the
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ESCOBAR SANTOS V. GARLAND 3
court addressed California Penal Code section 475(c), which
proscribes possession of any completed check, money order,
traveler’s check, warrant or county order, whether real or
fictitious, with the intent to utter or pass or facilitate the
utterance or passage of the same, in order to defraud any
person. The panel observed that in Vizcarra-Ayala, the court
determined that an essential element of the generic offense of
forgery is the false making or alteration of a document, such
that the document is not what it purports to be, and that
Vizcarra-Ayala held that section 475(c) encompassed broader
conduct than the generic definition of forgery because it
criminalized the possession or use of genuine instruments
with the intent to defraud but not to forge. The panel
observed that in Vizcarra-Ayala, the court identified several
instances in which California used section 475(c) to prosecute
such conduct.
The panel pointed out several marked differences between
section 475(c) and section 470a, including that section 470a:
(1) plainly does not criminalize “possession”; (2) does not
include section 475(c)’s reference to “real or fictitious”
instruments; and (3) does not contemplate prosecution for
conduct akin to attempting to cash a genuine, unaltered
check––by for example, representing another person’s
genuine driver’s license as one’s own. Moreover, the panel
noted that unlike in Vizcarra-Ayala, Escobar did not identify,
and the panel could not locate, any cases in which California
had prosecuted individuals under section 470a for conduct
involving genuine documents. The panel further noted that
California punishes the duplication or reproduction of such
identification only when it is “used to facilitate the
commission of any forgery.”
4 ESCOBAR SANTOS V. GARLAND
The panel noted that Escobar had not identified any
evidence that California uses a broader definition of “forgery”
than the generic understanding, and thus by definition, section
470a requires proof of a false writing capable of procuring
fraud. The panel wrote that a person who takes the
affirmative step to photocopy a genuine document with the
intent to deceive has made a false instrument––an action that
falls squarely within the generic definition of forgery.
Dissenting, District Judge Whaley noted that in Vizcarra-
Ayala, this court held that forgery requires a lie about the
document itself, and that the lie must relate to the
genuineness of the document. Because CPC section 470a
penalizes duplicating identification cards that are not falsely
made, Judge Whaley concluded that the statute sweeps more
broadly than the federal common law definition of forgery.
In addition, Judge Whaley identified at least one case in
which California successfully prosecuted someone where the
identification card appeared to be genuine, and thus wrote
that there is a realistic probability that California would apply
CPC section 470a to conduct outside the common law
definition of forgery. Even were he to apply the modified
categorical approach, Judge Whaley wrote that his conclusion
would remain unchanged because there was no indication
from the administrative record, and the government did not
contend otherwise, that Escobar’s conviction was
indisputably for forgery—as opposed to non-forgery—
conduct.
ESCOBAR SANTOS V. GARLAND 5
COUNSEL
James Todd Bennett (argued), El Cerrito, California, for
Petitioner.
Brian M. Boynton, Acting Assistant Attorney General;
Anthony C. Payne, Assistant Director; Neelam Ihsanullah,
Trial Attorney; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
BYBEE, Circuit Judge:
Petitioner Jose Jairo Escobar Santos (Escobar), a native
and citizen of Guatemala, challenges the Board of
Immigration Appeals’ (BIA) determination that his forgery
conviction under California Penal Code (CPC) § 470a
constitutes an aggravated felony pursuant to the Immigration
and Nationality Act (INA) § 101(a)(43)(R), 8 U.S.C.
§ 1101(a)(43)(R). On this issue of first impression, we hold
that CPC § 470a is categorically an offense “relating to . . .
forgery” under INA § 101(a)(43)(R). Accordingly, we deny
the petition.
I. BACKGROUND
Escobar entered the United States without inspection in
2009. In 2015, police stopped him for running a red light.
Escobar was subsequently charged with (1) using false
documents to conceal his true citizenship (CPC § 114);
(2) driving without a valid driver’s license (California
6 ESCOBAR SANTOS V. GARLAND
Vehicle Code (CVC) § 12500(a)); (3) failure to stop at a red
light (CVC § 21453(a)); (4) driving without a safety belt
(CVC § 27315(d)(1)); and, (5) forgery of a driver’s license
(CPC § 470a). After Escobar pled guilty to the forgery count
(CPC § 470a), the remaining counts were dismissed. Escobar
was sentenced to three years in state prison, with 364 days to
be served in actual custody, and two years and one day to be
suspended and served on mandatory supervision.
Prior to Escobar’s conviction, in 2012, the Department of
Homeland Security (DHS) commenced removal proceedings
against Escobar, charging him with being removable under
INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) as a non-
citizen present in the United States without having been
admitted or paroled. Escobar conceded removability through
counsel and applied for asylum, withholding of removal,
protection under the Convention Against Torture (CAT), and,
in the alternative, voluntary departure.
At the hearing before the Immigration Judge (IJ) in 2017,
Escobar testified that he was afraid to return to his hometown
of San Carlos Sija in Guatemala because gang members were
extorting his family and burglarized his brother’s home.
Crediting Escobar’s testimony, the IJ issued an oral decision
denying his applications for asylum, withholding of removal,
CAT protection, and voluntary departure. As pertinent to this
appeal, the IJ found Escobar ineligible for voluntary
departure because his forgery conviction under CPC § 470a
constitutes an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(R). Escobar appealed to the BIA. The BIA
denied his appeal, holding that Escobar’s conviction under
CPC § 470a is categorically a crime “relating to forgery” and
thus an aggravated felony rendering him ineligible for
ESCOBAR SANTOS V. GARLAND 7
voluntary departure.1 Escobar’s present petition challenges
the BIA’s determination that CPC § 470a constitutes an
aggravated felony.
II. STANDARD OF REVIEW
We review questions of law de novo. See Toufighi v.
Mukasey, 538 F.3d 988, 992 (9th Cir. 2008). “Although the
BIA’s interpretation of immigration laws is entitled to
deference . . . its interpretation of the [CPC] . . . is not.
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.
2008). As such, “we apply de novo review to ‘the issue of
whether a particular offense constitutes an aggravated
felony.’” Id. (quoting Ruiz-Morales v. Ashcroft, 361 F.3d
1219, 1221 (9th Cir. 2004)).
III. DISCUSSION
A non-citizen is ineligible for voluntary departure if he
has been convicted of an aggravated felony as defined by the
INA. 8 U.S.C. § 1229c(b)(1)(C). Pursuant to the INA, an
1
The BIA also “found no reason to disturb” the IJ’s decision denying
Escobar’s application for withholding of removal and CAT protection.
Because Escobar does not address these claims in his opening brief, he has
waived any challenges to the denial of these applications, as well as the
BIA’s denial of his request for a continuance to pursue a provisional
unlawful-presence waiver. See Martinez-Serrano v. INS, 94 F.3d 1256,
1259–60 (9th Cir. 1996).
With respect to Escobar’s asylum claim, the IJ found him ineligible
based on his aggravated felony conviction. Although the BIA did not
explicitly mention asylum in its decision, its finding that CPC § 470a is an
aggravated felony necessarily forecloses any challenge to the IJ’s denial
of asylum. In any event, Escobar does not discuss his asylum claim—or
the BIA’s apparent omission—in any detail.
8 ESCOBAR SANTOS V. GARLAND
“aggravated felony” includes, inter alia, “an offense relating
to . . . forgery . . . for which the term of imprisonment is at
least one year.” 8 U.S.C. § 1101(a)(43)(R).
We employ the categorical approach set forth in Taylor v.
United States, 495 U.S. 575 (1990), to determine whether a
state conviction qualifies as an aggravated felony under the
INA. See Lopez-Valencia v. Lynch, 798 F.3d 863, 867–68
(9th Cir. 2015). Under this approach, we first “compare the
elements of the state offense to the elements of the generic
offense defined by federal law.” Id. at 867 (citation omitted).
If the state statute “encompasses offenses that are narrower
than or equal to the federal definition of ‘an offense relating
to . . . forgery,’” a conviction under the state statute qualifies
as an aggravated felony. Vizcarra-Ayala, 514 F.3d at 874;
see also Mathis v. United States, 136 S. Ct. 2243, 2248
(2016). However, where the state statute sweeps more
broadly than the generic definition, there can be no
categorical match and, likewise, no aggravated felony. See
Mathis, 136 S. Ct. at 2248–49. In conducting this inquiry,
“we examine what the state conviction necessarily involved,
not the facts underlying the case.” Moncrieffe v. Holder,
569 U.S. 184, 190 (2013).
Here, we must compare the elements of CPC § 470a with
the generic, common law definition of forgery. We have
previously explained that the “essential elements of the
common law crime of forgery are: (1) a false making of some
instrument in writing; (2) a fraudulent intent; [and] (3) an
instrument apparently capable of effecting fraud.” Vizcarra-
Ayala, 514 F.3d at 874 (internal quotation marks omitted)
(brackets in original). The statute in question penalizes
“[e]very person who alters, falsifies, forges, duplicates or in
any manner reproduces or counterfeits any driver’s license or
ESCOBAR SANTOS V. GARLAND 9
identification card issued by a governmental agency with the
intent that such driver’s license or identification card be used
to facilitate the commission of any forgery.” CPC § 470a.
Escobar’s challenge focuses solely on the first element of
§ 470a—specifically, one who “alters, falsifies, forges,
duplicates or in any manner reproduces or counterfeits . . . .
” He argues that § 470a’s first element sweeps more broadly
than the generic definition because the “pr[o]scribed conduct
encompasses . . . mere duplication or any manner of
reproduction.” That is, a person could be liable under § 470a
for photocopying a genuine driver’s license with the requisite
intent, which, according to Escobar, is not an act covered by
the generic definition.
We disagree that photocopying a driver’s license with the
intent “to facilitate the commission of any forgery” falls
outside the generic definition of forgery. Our decision in
Vizcarra-Ayala offers a helpful comparison. There, we
addressed whether a separate provision of the CPC, § 475(c),
constitutes an offense relating to forgery under the INA.
514 F.3d at 875–77. Section 475(c) provides that “[e]very
person who possesses any completed check, money order,
traveler’s check, warrant or county order, whether real or
fictitious, with the intent to utter or pass or facilitate the
utterance or passage of the same, in order to defraud any
person, is guilty of forgery.” (emphasis added). Applying
the categorical approach to § 475(c), we first determined that
contemporary treatises, our sister circuits, and Supreme Court
precedent plainly establish that “an essential element of the
generic offense of forgery is the false making or alteration of
a document, such that the document is not what it purports to
be.” Vizcarra-Ayala, 514 F.3d at 875.
10 ESCOBAR SANTOS V. GARLAND
We then held that § 475(c) encompasses broader conduct
than the generic definition of forgery because it criminalizes
the possession or use of genuine instruments with the intent
to defraud but not to forge. Id. at 876–77; see id. at 875
(explaining that “forgery requires the falsification of a
document or instrument”). We noted several instances in
which California used § 475(c) to prosecute such conduct.
See id. at 875–77. For example, California charged a woman
under § 475(c) for attempting to cash a check she received in
the mail issued to a youth foundation that had a storefront
underneath her apartment. Id. at 876 (citing People v. Viel,
No. D044101, 2005 WL 904806 (Cal. Ct. App. 4th Dist. Apr.
20, 2005)). Because the defendant endorsed the check with
her own signature and did not alter the identity of the payee,
the document was not falsified in any way. She might have
been guilty of fraud, but she had not committed generic
forgery. See id. Similarly, California prosecuted an office
manager who was an approved signatory on the company’s
checking account for writing several checks for personal use,
including one for “cash” on the company’s bank account. Id.
at 876–77 (citing People v. Leonard, No. G032720, 2004 WL
2610365 (Cal. Ct. App. 4th Dist. Nov. 17, 2004)). The
manager may have committed generic embezzlement or theft,
but her crime did not constitute generic forgery. That neither
case involved false documents solidified our conclusion that
§ 475(c) encompasses “conduct that plainly is not generic
forgery.” Id. at 877.
There are marked differences between § 475(c) and
§ 470a. Section 470a plainly does not criminalize
“possession”; rather, a separate provision of the CPC
specifically prohibits the display or possession of a forged
driver’s license. See CPC § 470b. Nor does § 470a include
§ 475(c)’s reference to “real or fictitious” instruments.
ESCOBAR SANTOS V. GARLAND 11
Section 470a thus does not contemplate prosecution for
conduct akin to attempting to cash a genuine, unaltered
check—by say, representing another person’s genuine
driver’s license as one’s own. Unlike in Vizcarra-Ayala,
Escobar does not offer—nor can we locate—any cases in
which California has prosecuted individuals under § 470a for
conduct involving genuine documents.2
Escobar points to § 470a’s reference to “duplicat[ing] or
in any manner reproduc[ing]” a driver’s license or
government ID as evidence that the statute sweeps too
broadly. But California only punishes the duplication or
reproduction of such identification when it is “used to
facilitate the commission of any forgery.” Escobar has not
referred us to any evidence that California uses a broader
2
Our dissenting colleague cites People v. Brown, 2010 WL 3871856,
at *1 (Cal. Ct. App. 6th Dist. 2010) (unpublished) as an example of a case
in which California prosecuted an individual under § 470a “where the
identification card at issue appeared to be genuine.” Dissent Op. at 17–18.
In Brown the defendant pled no contest to the forged driver’s license and
checks; as such, his appeal did not concern or provide substantial
information as to the specific facts giving rise to his § 470a conviction.
2010 WL 3871856, at *1.
In any event, we respectfully disagree with the dissent’s reading of
the case. Brown does not, as the dissent concludes, state that the
defendant possessed another individual’s genuine driver’s license and
merely presented it as his own, which would constitute fraud and not
forgery. Rather, as we read Brown, the fact that the defendant had a
driver’s license with data that belonged to two different people is, by
definition, indicative of some alteration, making the driver’s license false.
See 2010 WL 3871856, at *1 (stating that Brown had “a driver’s license
showing some data belonging to [Brown], but the license had been issued
to a different person”). That is classic forgery.
12 ESCOBAR SANTOS V. GARLAND
definition of “forgery” than the generic understanding.3
Thus, by definition, § 470a requires proof of a false writing
capable of procuring fraud. A person who takes the
affirmative step to photocopy a genuine document with the
intent to deceive has made a false instrument—an action that
falls squarely within the generic definition of forgery. We
thus conclude that § 470a is categorically an offense “relating
. . . to forgery” under INA § 101(a)(43)(R).
IV. CONCLUSION
For the foregoing reasons, CPC § 470a constitutes an
offense “relating to . . . forgery.” The petition is DENIED.
3
Nor do we have any concerns that § 470a’s reference to “any
forgery” incorporates § 475(c)’s broader definition of forgery. In the
unlikely event that an individual is convicted under both statutes, an
individual’s conviction under § 470a remains an independent offense that
matches the generic definition of forgery. So, for example, if an
individual used a duplicated driver’s license to pass a genuine, unaltered
check in violation of § 475(c), in order to be convicted under § 470a that
person would still need to use an altered ID to facilitate the crime. Stated
otherwise, § 470a is itself a complete crime involving the falsifying of IDs
and is not derivative of 475(c)’s broader definition involving “any
completed check, money order, traveler’s check, warrant or county order,
whether real or fictitious[.]”
ESCOBAR SANTOS V. GARLAND 13
WHALEY, District Judge, dissenting:
This case presents the question of whether the proscribed
conduct of one who “alters, falsifies, forges, duplicates or in
any manner reproduces or counterfeits any driver’s license or
identification card” under California Penal Code (CPC)
§ 470a encompasses conduct that is broader than the “false
making of some instrument in writing” under the federal
common law definition of forgery. For the reasons set forth
below, I conclude that CPC § 470a is broader than the federal
definition; and in turn, Appellant Escobar Santos’ (Escobar)
underlying conviction does not qualify as an aggravated
felony. I respectfully dissent.
I. DISCUSSION
The Immigration and Nationality Act (INA) defines an
“aggravated felony” as any one of a series of offenses,
including “an offense relating to . . . forgery . . . for which the
term of imprisonment is at least one year.” 8 U.S.C.
§ 1101(a)(43)(R). Whether an offense is an aggravated
felony for purposes of the INA is a question of law this court
reviews de novo. Vizcarra-Ayala v. Mukasey, 514 F.3d 870,
872–73 (9th Cir. 2008).
In the present case, the Board of Immigration Appeals
(BIA) determined that Escobar’s conviction under CPC
§ 470a was categorically an aggravated felony making him
ineligible for voluntary departure.
To determine whether Escobar’s state conviction is one
relating to forgery, and therefore qualifies as an aggravated
felony under the INA, this court employs the categorical
approach outlined in Taylor v. United States, 495 U.S. 575,
14 ESCOBAR SANTOS V. GARLAND
600 (1990). Vizcarra-Ayala, 514 F.3d at 874. Under this
approach, the court looks only to the statutory definitions of
the underlying crime and not the particular facts of the
offender’s case. Taylor, 495 U.S. at 600. First, the court
determines whether the state statute encompasses conduct
narrower than or equal to the federal definition of an offense
relating to forgery.1 Vizcarra-Ayala, 514 F.3d at 874(internal quotation marks omitted); Taylor, 495 U.S. at 599.
If so, then a conviction of the state statute constitutes a
conviction relating to forgery. Vizcarra-Ayala, 514 F.3d at
874. If the statute is overinclusive, the “modified categorical
approach permits an examination of certain documents in the
record ‘to determine if the record unequivocally establishes
that the defendant was convicted of the generically defined
crime.’” Id. (quoting United States v. Corona-Sanchez,
291 F.3d 1201, 1211 (9th Cir. 2002) (en banc)).
“Forgery developed from the common[]law crime of
larceny and thus should be defined by its ‘generic, core
meaning.’” Vizcarra-Ayala, 514 F.3d at 874 (quoting
Morales-Alegria v. Gonzales, 449 F.3d 1051, 1054 (9th Cir.
2006)). The essential elements of the common law crime of
forgery are “(1) a false making of some instrument in writing;
(2) a fraudulent intent; [and] (3) an instrument apparently
capable of effecting a fraud.” Id. (internal quotation marks
and citation omitted) (brackets in original).
1
For instance, in Taylor, the Supreme Court noted that state
convictions for first degree or aggravated burglary are examples of crimes
that are clearly narrower than the general definition of burglary. 495 U.S.
at 599 (the generic definition having the basic elements of “unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent
to commit a crime.”).
ESCOBAR SANTOS V. GARLAND 15
Like the present case, in Vizcarra-Ayala, the non-citizen’s
challenge focused on the first element of common law
forgery—the false nature of the document. 514 F.3d at 875.
There, we held that forgery requires a lie about the document
itself, and “the lie must relate to the genuineness of the
document.” Id. (citing 3 Wayne R. LaFave, Substantive
Criminal Law § 19.7(j)(5) (2d ed.) [hereinafter “LaFave”]).
Forgery requires “the falsification of a document or
instrument.” Vizcarra-Ayala, 514 F.3d at 875. “Forgery is a
crime aimed primarily at safeguarding confidence in the
genuineness of documents relied upon in commercial and
business activity.” Id. (quoting LaFave § 19.7(j)(5)).
“Where the falsity lies in the representation of facts, not
in the genuineness of execution, it is not forgery.” Gilbert v
United States, 370 U.S. 650, 658 (1962); see also Vizcarra-
Ayala, 514 F.3d at 875. According to the Tenth Circuit,
shortly before the U.S. Supreme Court decided Gilbert,
the words ‘falsely made’ and ‘forged’ are
homogeneous, partaking of each other. They
have always been synonymously construed to
describe a spurious or fictitious making as
distinguished from a false or fraudulent
statement. The words relate to genuineness of
execution and not falsity of content.
Selvidge v. United States, 290 F.2d 894, 897 (10th Cir. 1961).
As the majority notes, in Vizcarra-Ayala this court
determined that CPC § 475(c) did not categorically match the
definition of common law forgery because that statute
criminalizes the possession of “real” documents with the
requisite intent to defraud. 514 F.3d at 875. There, the
16 ESCOBAR SANTOS V. GARLAND
government contended the statute’s reference to “real or
fictitious” merely includes genuine document forms that
contain a forged signature. Id. In rejecting this argument,
this court considered actual instances where the State had
prosecuted CPC § 475(c) cases in which the offenders had
utilized genuine, unaltered documents. Id. at 876, & n.3.
Because CPC § 470a penalizes duplicating identification
cards that are not falsely made, the statute sweeps more
broadly than the federal common law definition of forgery.
For instance, if an offender used a photocopy of an
identification card with the requisite intent to defraud, he
would be in violation of § 470a, but he would not be guilty of
common law forgery because there would be no lie about the
genuineness of the document itself.
For a court “to find that a state statute creates a crime
outside the [federal] generic definition[,] . . . requires more
than the application of legal imagination to a state statute’s
language. It requires a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime.” Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). The offender
must point to his own case or other cases in which the state
courts have applied the statute in a broader manner than the
federal definition. Id. This court has held that when a “state
statute explicitly defines a crime more broadly than the
generic definition, no legal imagination is required to hold
that a realistic probability exists . . .” that the state will
prosecute conduct outside the generic definition. United
States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (internal
quotation marks omitted) abrogated by United States v. Stitt,
139 S. Ct. 399, 406–07 (2018). In Grisel, this court held that
the statute in question was overbroad simply by reviewing the
ESCOBAR SANTOS V. GARLAND 17
statutory text. Id.; but see United States v. Rodriguez-
Gamboa, 972 F.3d 1148, 1154 (9th Cir. 2020) (holding that
California’s prohibition of possession of geometric isomers
of methamphetamine did not make the state statute overbroad
because such geometric isomers do not scientifically exist,
and the State could not possibly prosecute their possession).
The Oregon burglary statute in Grisel included entrance into
places such as a booth, vehicle, boat, and aircraft, which were
explicitly excluded from the federal definition of burglary.2
488 F.3d at 850.
The majority finds that CPC § 470a does not contemplate
prosecution in the non-forgery context, for instance, when
“representing another person’s genuine driver’s license as
one’s own.” Majority Op. at 11. Although I generally agree
that the typical CPC § 470a prosecution involves a fake or
falsified identification,3 California has successfully
prosecuted at least one case where the identification card at
2
The Supreme Court has subsequently held that a burglary statute’s
prohibited entry of a vehicle designed or adapted for overnight use does
not render the statute categorically overbroad under the Taylor test. Stitt,
139 S. Ct. at 407.
3
See, e.g., People v. Estournes, 2009 WL 807568, at *1 (Cal. Ct.
App. 2009) (unpublished) (§ 470a prosecution premised on identification
card with appellant’s picture glued on top of another picture); Munoz v.
Robertson, No. 19-cv-00092-ODW, 2020 WL 4905845, at *2 (C.D. Cal.
2020) (unpublished) (§ 470a prosecution maintained when defendant
attempted to purchase a vehicle at car dealership and dealership
determined that the identification was forged because it failed multiple
authenticity tests); People v. Santos, 2005 WL 3065868, at *1 (Cal. Ct.
App. 2005) (unpublished) (§ 470a prosecution sustained when search
warrant uncovered computer and other equipment for manufacturing false
identifications).
18 ESCOBAR SANTOS V. GARLAND
issue appeared to be genuine.4 See People v. Brown, 2010
WL 3871856, at *1 (Cal. Ct. App. 2010) (unpublished). In
Brown, law enforcement found defendant Robert Brown in
possession of ten forged checks and “a driver’s license
showing some data belonging to defendant, but the license
had been issued to a different person.” Id. Brown was
charged with possessing a forged driver’s license with intent
to use it to facilitate the commission of a forgery under CPC
§ 470a, and the California court of appeal affirmed his
conviction. Id. The opinion makes no mention of the
driver’s license being falsely made; instead, it appears that
Brown possessed another individual’s genuine driver’s
license which he purported to be his own. See id. Under
Vizcarra-Ayala, such possession would not constitute forgery
because there was no lie relating to the genuineness of the
document itself. 514 F.3d at 875.
Even though the plain text which prohibits “duplicating
or in any manner reproducing” is sufficient to find that the
statute is overbroad, there is nonetheless a realistic
probability that California would apply CPC § 470a to
conduct outside the common law definition of forgery.
Accordingly, Escobar’s underlying conviction does not
constitute an aggravated felony under Taylor.
Even were this court to consider certain documents from
the record under the modified categorical approach, my
conclusion remains unchanged. There is no indication from
4
California Rules of Court 8.1115 restricts citation of unpublished
opinions in California courts. However, the unpublished cases in this
dissent are not cited as precedent but rather as examples of what conduct
California prosecutes under CPC § 470a. See Vizcarra-Ayala, 514 F.3d
at 876 n.3.
ESCOBAR SANTOS V. GARLAND 19
the administrative record, and the government does not
contend otherwise, that Escobar’s conviction was
indisputably for forgery—as opposed to non-forgery—
conduct.
I would grant Escobar’s petition for review and remand
to the BIA to consider his appeal with the understanding that
his conviction under CPC § 470a was not an aggravated
felony.