Milton Rosales Rivera v. Loretta E. Lynch , 816 F.3d 1064 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILTON BLADIMIR ROSALES No. 12-72668
RIVERA,
Petitioner, Agency No.
A200-156-835
v.
LORETTA E. LYNCH, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued July 9, 2015
Submitted March 10, 2016
Pasadena, California
Filed March 10, 2016
Before: William A. Fletcher, Richard A. Paez,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Paez
2 ROSALES RIVERA V. LYNCH
SUMMARY*
Immigration
The panel granted Milton Rosales Rivera’s petition for
review of the Board of Immigration Appeals’ denial of
cancellation of removal based on its finding that his
conviction for perjury under California Penal Code § 118 was
a crime involving moral turpitude.
The panel held that CPC § 118 is not a categorical CIMT,
and that it is divisible because it criminalizes two distinct
offenses, written and oral perjury. Applying the modified
categorical approach, the panel held that written perjury,
Rosales Rivera’s offense of conviction, is not a CIMT. The
panel noted that it focused solely on CPC § 118, and did not
consider the rest of the California state law perjury
framework.
COUNSEL
Nicole Henning (argued), Jones Day, Chicago, Illinois; Craig
Stewart, Jones Day, San Francisco, California, for Petitioner.
Jessica Dawgert (argued), Kristofer McDonald, Trial
Attorney, and Leslie McKay, Assistant Director, United
States Department of Justice, Office of Immigration
Litigation, Washington, D.C.; Joyce Branda, Acting Assistant
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROSALES RIVERA V. LYNCH 3
Attorney General, United States Department of Justice, Civil
Division, Washington, D.C., for Respondent.
OPINION
PAEZ, Circuit Judge:
At common law, a person could be convicted of perjury
“when, under oath, he wilfully and corruptly [gave] false
testimony on a material point in a judicial proceeding.”
4 Wharton’s Crim. Law § 574, Westlaw (database updated
Sept. 2015); see also In re H—, 1 I. & N. Dec. 669, 670 (BIA
1943). Today, many states have adopted expanded
definitions of perjury that include false statements made in
depositions, declarations, and other non-judicial proceedings.
California Penal Code section 118 is one such “general”
perjury statute. See 2 Witkin & Epstein, Cal. Crim. Law 4th
§§ 57, 60 (4th ed. 2012). California “supplement[s]” section
118 with several context-specific, or “special,” perjury
statutes, including Financial Code section 460 (prohibiting as
perjury intentional false statements in bank reports) and
Government Code section 1368 (prohibiting as perjury false
statements made by a public officer while taking the oath of
office). Id. § 60.
Within this complex framework, Milton Bladimir Rosales
Rivera, a citizen of El Salvador, pled no contest to a charge
under section 118.1 Later, in removal proceedings, the
1
California Penal Code section 118 has two subsections, but section
118(a) is the only subsection that describes a crime. Because the
underlying conviction records refer to Rosales Rivera’s conviction as one
4 ROSALES RIVERA V. LYNCH
Immigration Judge (“IJ”) and the Board of Immigration
Appeals (“BIA”) ruled that this conviction was a crime
involving moral turpitude (“CIMT”) and therefore
disqualified Rosales Rivera from obtaining cancellation of
removal. The first issue in this proceeding is whether section
118 is categorically a CIMT. Because we determine that it is
not, we proceed to consider whether section 118 is divisible.
We find that section 118 criminalizes two distinct offenses:
written and oral perjury. Finally, applying the modified
categorical approach, we hold that Rosales Rivera’s offense
of conviction—written perjury—is not a CIMT. We
therefore grant the petition for review and remand for further
proceedings.
We note that whether section 118 is a CIMT is a different
question from whether perjury, generally, is a CIMT. We
recognize that historically common law perjury was
considered to be a CIMT, but, as we will explain, both section
118 as a whole and the specific offense of written perjury
criminalize significantly more conduct than common law
perjury. Moreover, in focusing on section 118 alone, we
leave the rest of California’s perjury framework untouched.
California’s special perjury statutes, for instance, have
distinct elements and therefore require an entirely separate
CIMT analysis from the one we undertake here.
I.
Rosales Rivera is a citizen of El Salvador who first came
to the United States in 2001. He has a son who is a United
States citizen. He admits he is present in the United States
under section 118, we refer to the statute throughout this opinion as
section 118.
ROSALES RIVERA V. LYNCH 5
without having been admitted, paroled, or inspected by an
Immigration Officer, the basis for removal that the
Department of Homeland Security (“DHS”) cited in its
Notice to Appear. See 8 U.S.C. § 1182(a)(6)(A)(i). Rosales
Rivera may be entitled to cancellation of removal under
8 U.S.C. § 1229b(b) due to his son’s citizenship, but
conviction of a CIMT would bar such relief. 8 U.S.C.
§ 1228b(b)(1)(C).
On December 14, 2011, in the County of San Bernardino
Superior Court, Rosales Rivera was charged with
“PERJURY—APPLICATION FOR DRIVER’S LICENSE”
in violation of California Penal Code section 118. He pled no
contest to the felony charge, and was sentenced to 180 days
in the county jail.
DHS initiated removal proceedings against Rosales
Rivera. The IJ ordered Rosales Rivera removed. In doing so,
she concluded that a conviction under section 118 “is clearly
a crime involving moral turpitude,” and therefore Rosales
Rivera was ineligible for cancellation of removal under
8 U.S.C. § 1229b(b). The BIA, citing to In re Martinez-
Recinos, 23 I. & N. Dec. 175 (BIA 2001), affirmed the IJ’s
decision. In summary fashion, it reasoned that Rosales
Rivera provided no arguments supporting a “realistic
probability” that California “would apply its perjury statute
to prosecute conduct which was not morally turpitudinous.”
The BIA also noted that the criminal complaint indicated that
Rosales Rivera “committed his offense by providing false
information to the State of California when he applied for a
Driver’s License,” and that crimes with fraud as an element
are categorically CIMTs.
6 ROSALES RIVERA V. LYNCH
Rosales Rivera timely filed a petition for review.
8 U.S.C. § 1252(b)(1). “We have no jurisdiction to review a
final order removing an alien on account of a conviction for
a crime involving moral turpitude. Nevertheless, we have
jurisdiction to review the [BIA’s] determination that [Rosales
Rivera’s conviction is], in fact,” a CIMT. Marmolejo-
Campos v. Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en
banc) (citing 8 U.S.C. § 1252(a)(2)(C)); see also 8 U.S.C.
§ 1252(a)(2)(D).
II.
In Marmolejo-Campos, we established a two-step
framework for evaluating whether a conviction is
categorically a CIMT. 558 F.3d at 907–12. In the first step,
we must identify the elements of the petitioner’s statute of
conviction, reviewing de novo the BIA’s analysis. Id. at 907,
911.
The second step requires determining whether the
“petitioner’s offense” is a CIMT. Id. We employ the
categorical approach, as described below, to assess whether
a statute of conviction is a CIMT. Blanco v. Mukasey,
518 F.3d 714, 718 (9th Cir. 2008). To make this
determination, we “compare the elements of the statute of
conviction to the generic definition of a [CIMT to] decide
whether the conviction meets that definition.” Castrijon-
Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir. 2013). We
rely on our “own generalized definition of moral turpitude,”
which divides almost all CIMTs “into two basic types: those
involving fraud and ‘those involving grave acts of baseness
or depravity.’” Marmolejo-Campos, 558 F.3d at 910 (quoting
Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005)).
ROSALES RIVERA V. LYNCH 7
III.
In determining whether the statute of conviction fits
categorically within our general definition of moral turpitude,
some deference to the BIA may be warranted. Ordinarily,
where “the [BIA] determines that certain conduct is morally
turpitudinous in a precedential decision, we apply Chevron2
deference regardless of whether the order under review is the
precedential decision itself or a subsequent unpublished order
that relies upon it.” Id. at 911. Otherwise, Skidmore3
deference applies. Id. at 909. Here, as noted above, the BIA
cited to a published decision, Martinez-Recinos, in which the
BIA stated without analysis that “the respondent’s aggravated
felony offense” under California Penal Code section 118 was
a CIMT. 23 I. & N. Dec. at 178. Nonetheless, we conclude
that the BIA’s decision does not warrant Chevron deference
because Martinez-Recinos provided no reasoned explanation
for its conclusion.
In Chevron, the Supreme Court contemplated an agency
engaging in the process of “informed rulemaking” by
“consider[ing] varying interpretations and the wisdom of its
policy on a continuing basis.” Chevron, 467 U.S. at 863–64.
In the immigration law context, the Attorney General “vested
the BIA with power to exercise the ‘discretion and authority
conferred upon the Attorney General by law’ in the course of
‘considering and determining cases before it.’” I.N.S. v.
Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting 8 C.F.R.
§ 3.1(d)(1) (1998)). Chevron deference applies to BIA
2
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984).
3
Skidmore v. Swift & Co., 323 U.S. 134 (1944).
8 ROSALES RIVERA V. LYNCH
decisions because the BIA “gives ambiguous statutory terms
concrete meaning through [this] process of case-by-case
adjudication.” Id. (internal quotation marks omitted).
We have limited Chevron deference to precedential BIA
decisions based on similar reasoning. The BIA issues
precedential decisions where it “intend[s] to issue an
interpretation of a statute it enforces.” Miranda Alvarado v.
Gonzales, 449 F.3d 915, 922 (9th Cir. 2006) (internal
quotation marks omitted); see also 8 C.F.R. § 1003.1(g).
There are, however, “rare instances” where we withhold
deference from precedential BIA decisions, including where
the BIA has “failed to provide an explanation for its action.”
Marmolejo-Campos, 558 F.3d at 916; see also Mellouli v.
Lynch, — U.S. —, 135 S. Ct. 1980, 1989 (2015) (“Because
it makes scant sense, the BIA’s interpretation, we hold, is
owed no deference under the doctrine described in
Chevron[.]”).
This case presents such a “rare instance.” In Martinez-
Recinos, the BIA’s analysis focused on why section 118 is an
aggravated felony, without any explanation of why section
118 is a CIMT. 21 I & N. Dec. at 176–78. The only sentence
concerning section 118’s status as a CIMT is: “We concur
with the [IJ] that the respondent’s [conviction under section
118] is also a crime involving moral turpitude, which renders
him inadmissible . . . .” Id. at 178. The decision contains no
discussion of the elements required for a conviction under
section 118, nor any explanation of why section 118
constitutes a CIMT under the BIA’s definition or our
definition of moral turpitude. See id. Because the BIA did
not support its conclusion with any statutory interpretation or
reasoning, we accord no deference to Martinez-Recinos under
Chevron.
ROSALES RIVERA V. LYNCH 9
Where Chevron deference does not apply in the CIMT
context, Skidmore deference does. Marmolejo-Campos,
558 F.3d at 909. Under Skidmore, “the measure of deference
afforded to the agency varies ‘depend[ing] upon the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it the power
to persuade, if lacking the power to control.’” Id. (quoting
Skidmore, 323 U.S. at 140). Here, the BIA’s decision that
section 118 is a CIMT is not entitled to Skidmore deference
because, as we explained, the BIA in Martinez-Recinos
provided no reasoning whatsoever. See, e.g., Castrijon-
Garcia, 704 F.3d at 1211 (“declin[ing] to grant deference”
under Skidmore where there is “no analysis at all”).
IV.
A.
As explained above, under the categorical approach, we
must first interpret the statute of conviction to identify its
essential elements. Marmolejo-Campos, 558 F.3d at 907.
California Penal Code section 118 provides:
(a) 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
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 every person
who testifies, declares, deposes, or certifies
under penalty of perjury in any of the cases in
10 ROSALES RIVERA V. LYNCH
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.
As discussed below, infra Part V, section 118 criminalizes
both written and oral perjury. In the case of a defendant who
committed oral perjury, we have articulated the elements of
this offense as “a willful statement, under oath, of any
material matter which the witness knows to be false.” Chein
v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (quoting Cabe
v. Super. Ct., 63 Cal. App. 4th 732 (1998)). The model jury
instructions for section 118 explain that written perjury, by
contrast, requires only that the false statement be in writing
under penalty of perjury. See People v. Hedgecock, 51 Cal.
3d 395, 403–04 (Cal. 1990) (explaining that California Jury
Instruction—Criminal (“CALJIC”) No. 7.21 (1982) sets forth
the elements of written perjury). The requirements of
willfulness and materiality are common to both perjury
offenses. Cal. Penal Code § 118.
The word “willful” “simply means that the witness made
the allegedly perjurious statement with the consciousness that
it was false; with the consciousness that he did not know that
it was true and with the intent that it should be received as a
statement of what was true in fact.” People v. Tolmachoff,
58 Cal. App. 2d 815, 821 (1943); see also People v. Hagen,
19 Cal. 4th 652, 663–64 (1998); People v. Viniegra, 130 Cal.
App. 3d 577, 584 (1982). That the accused was not
ROSALES RIVERA V. LYNCH 11
competent4 to give a false statement is not a defense to a
charge of perjury under section 118. Cal. Penal Code § 122.
A statement is “material” if “the statement or testimony
‘might have been used to affect the [proceeding in or for
which it was made],’” or if “the statement could probably
have influenced the outcome of the proceedings.”5 People v.
Feinberg, 51 Cal. App. 4th 1566, 1575 (1997) (quoting
People v. Kobrin, 11 Cal. 4th 416, 420 (1995) (internal
brackets in original), and People v. Pierce, 66 Cal. 2d 53, 61
(1967)). For example, testimony may be material if it has a
tendency to impeach the credibility of a witness who testified
on a material issue, even if the testimony is unrelated to the
case itself. See People v. Gamble, 8 Cal. App. 3d 142, 146
(1970). It is not a defense to perjury that “the accused did not
know the materiality of the false statement made . . . . It is
sufficient that it was material.” Cal. Penal Code § 123.
People v. Darcy illustrates the breadth of the materiality
element. 59 Cal. App. 2d 342 (1943), disapproved of on
other grounds by Murgia v. Mun. Ct., 15 Cal. 3d 286 (1975).
There, the defendant stated under oath before a deputy
registrar of voters that his name was Sam Darcy and that he
4
A trial witness may be disqualified if he or she is “[i]ncapable of
expressing himself or herself concerning the matter so as to be
understood,” or “[i]ncapable of understanding the duty of a witness to tell
the truth.” Cal. Evid. Code § 701(a).
5
California courts have recognized that this definition of materiality
does not apply to all section 118 offenses. Hedgecock, 51 Cal. 3d at 405
(setting forth an alternate definition of materiality in “a perjury
prosecution based on the filing of a false [statements of economic interest]
or [campaign disclosure statement]” because “there is no ‘proceeding’ the
outcome of which could be influenced by the false verification”).
12 ROSALES RIVERA V. LYNCH
was born in New York, even though his true name was
Samuel Dardeck and he was born in the Ukraine. Id. at 345.
Darcy argued that it was immaterial whether he made false
statements about his name and place of birth, as he could
have registered to vote had he used his real name and given
his correct place of birth. Id. at 348–49. The court, however,
reasoned that the false statements were material because the
voting authorities were “prevented from examining the
father’s naturalization papers for the purpose of verifying
[Darcy’s] citizenship.” Id. at 349. Indeed, one’s name and
birthplace may serve “as a basis for an investigation of
qualifications of a person who registers,” including
citizenship. Id. In sum, even though Darcy would have been
allowed to vote had he given his true name and true
birthplace, his false statements under oath were material.
B.
Having identified the elements of the statute of conviction
in the first step, we move to the second step, where we use
the categorical approach to determine whether section 118 is
a CIMT. Almanza-Arenas v. Lynch, 809 F.3d 515, 521–22
(9th Cir. 2015) (en banc), opinion amended and superseded,
(9th Cir. Feb. 29, 2016); Mendoza v. Holder, 623 F.3d 1299,
1302 (9th Cir. 2010); Fernandez-Ruiz v. Gonzalez, 468 F.3d
1159, 1163 (9th Cir. 2006) (citing Taylor v. United States,
495 U.S. 575 (1990)).
1.
Under the categorical approach, we compare “the
elements of the statute of conviction to the generic definition”
of moral turpitude to determine whether the “conduct
proscribed” by the statute of conviction “is broader than, and
ROSALES RIVERA V. LYNCH 13
so does not categorically fall within, this generic definition.”
Fernandez-Ruiz, 468 F.3d at 1163 (internal citation and
quotation marks omitted). The “issue is not whether the
[petitioner’s] actual conduct constitutes a crime involving
moral turpitude, but rather, whether the full range of conduct
encompassed by the statute constitutes a crime of moral
turpitude.”6 Id. (quoting Cuevas-Gaspar v. Gonzales,
430 F.3d 1013, 1017 (9th Cir. 2005)). In other words, “the
key . . . is elements, not facts.” Descamps v. United States,
— U.S. —, 133 S. Ct. 2276, 2283 (2013).
When performing a categorical analysis, the court “must
presume that the conviction ‘rested upon [nothing] more than
the least of th[e] acts criminalized,’ and then determine
whether even those acts are encompassed by the generic”
definition of moral turpitude. Moncrieffe v. Holder, — U.S.
—, 133 S. Ct. 1678, 1684 (2013) (quoting Johnson v. United
States, 559 U.S. 133, 137 (2010)) (alterations in original).
There must be “a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct
that falls outside” the generic definition of moral turpitude.
Id. at 1685 (quoting Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007)); see also Castrijon-Garcia, 704 F.3d at
1212.
2.
Crimes of moral turpitude are generally “of two types:
those involving fraud and those involving grave acts of
6
Because we compare section 118 with the generic definition of moral
turpitude, rather than with the federal offense of “perjury generally,”
18 U.S.C. § 1621, we need not engage in a comparison of § 1621 and
section 118.
14 ROSALES RIVERA V. LYNCH
baseness or depravity.” Castrijon-Garcia, 704 F.3d at 1212.
These two categories, however, are not exhaustive. Common
law perjury—lying under oath during a judicial
proceeding—has historically been regarded as a CIMT even
though it does not fit neatly into the two-part framework
described below. We conclude 1) that section 118 goes well
beyond common law perjury and 2) that it categorically
involves neither fraud nor grave acts of baseness or
depravity.7
a.
At common law, a person committed perjury by giving
false testimony under oath. See United States v. Dunnigan,
507 U.S. 87, 94 (1993). Historically, and before the
development of the two-category CIMT approach, courts held
with little debate that common law perjury is a CIMT. See,
e.g., Masaichi Ono v. Carr, 56 F.2d 772, 774 (9th Cir. 1932)
(“It is not to be doubted that the commission of perjury before
the immigration officials is a felony involving moral
turpitude.”); U.S. ex rel. Boraca v. Schlotfeldt, 109 F.2d 106,
108 (7th Cir. 1940) (“That perjury is a crime involving moral
turpitude, there can be no question, and the crime was
completed when she made the false statement under oath.”);
Wharton’s supra § 574 (explaining that a person committed
perjury at common law “when, under oath, he wilfully and
corruptly [gave] false testimony on a material point in a
judicial proceeding”). This conclusion recognizes the
implicit harm in obstructing justice and the formality inherent
in taking an oral oath in a judicial proceeding.
7
The government does not argue that section 118 could be a CIMT on
some other basis.
ROSALES RIVERA V. LYNCH 15
The conduct prohibited by section 118 extends far beyond
the narrow meaning of common law perjury. Not only does
section 118 reach past false testimony in the courtroom to
non-case related lying, it also punishes lies where no oral
oath, with its requisite solemnity, was required of the speaker.
Section 118 essentially creates a self-defining crime—
whenever a document must be signed under penalty of
perjury, the penalty of perjury applies. Thus, section 118
does not fit within the historical understanding of perjury and
cannot be deemed a CIMT on that basis. Nor, as we
demonstrate below, does it qualify as a CIMT under the
modern two-category approach.
b.
Non-fraudulent CIMTs generally involve base, vile, and
depraved conduct that shocks the public conscience.8 Turijan
v. Holder, 744 F.3d 617, 621 (9th Cir. 2014). The “essence
of moral turpitude” is “evil or malicious intent.” Gonzalez-
Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013)
(internal quotation marks omitted). Crimes with such a mens
rea “offend[] the most fundamental values of society.”
Robles-Urrea v. Holder, 678 F.3d 702, 705 (9th Cir. 2012).
“That an offense contravenes societal duties is not enough to
make it a [CIMT]; otherwise, every crime would involve
moral turpitude.” Id. (internal quotation marks omitted).
“Only truly unconscionable conduct surpasses the threshold
of moral turpitude.” Id. at 708.
Examples of non-fraud CIMTs include “sex-related
offenses” that “necessarily inflict[] harm,” Gonzalez-
8
Neither the government nor Rosales Rivera addressed whether section
118 is a CIMT because it is base, vile, or depraved.
16 ROSALES RIVERA V. LYNCH
Cervantes, 709 F.3d at 1267, 1269 (listing several), as well as
murder, rape, and incest, Robles-Urrea, 678 F.3d at 708.
These and other non-fraudulent CIMTs “almost always
involve an intent to harm someone, the actual infliction of
harm upon someone, or an action that affects a protected class
of victim.” Castrijon-Garcia, 704 F.3d at 1207.
Section 118 encompasses conduct that does not qualify as
base, vile, and depraved behavior. That one need not be
competent to give the false statement demonstrates that not
all section 118 convictions result from “evil or malicious
intent.” See Cal. Penal Code § 122; Gonzalez-Cervantes,
709 F.3d at 1267. Similarly, the fact that lack of knowledge
as to the false statement’s materiality is not a defense to
conviction further demonstrates that not all conduct covered
by section 118 involves intent to harm someone. See Cal.
Penal Code § 123; Castrijon-Garcia, 704 F.3d at 1214. For
example, a witness may not know that her testimony, which
is unrelated to the case at issue, could impeach the credibility
of another witness who testified on a material issue. See
Gamble, 8 Cal. App. 3d at 146. Such a witness may be
convicted under section 118, even though the false statement
is not made with “evil or malicious intent.” Because section
118 does not require the very “essence of moral turpitude,”
Gonzalez-Cervantes, 709 F.3d at 1267, it does not
categorically qualify as a non-fraudulent CIMT.
Furthermore, section 118 does not categorically “offend[]
the most fundamental values of society,” Robles-Urrea,
678 F.3d at 705, like murder, rape, incest, and harm-inflicting
sex-related offenses do. See id. at 708; Gonzalez-Cervantes,
709 F.3d at 1269. Unlike these crimes, perjury does not
necessarily involve “intent to harm,” “actual infliction of
harm,” or “an action that affects a protected class of victim.”
ROSALES RIVERA V. LYNCH 17
Castrijon-Garcia, 704 F.3d at 1213–14. Indeed, Darcy, who
gave a false birthplace and name when registering to vote and
was convicted of perjury in California, intended no harm,
inflicted no harm, and did not adversely affect a protected
class of victims. See Darcy, 59 Cal. App. 2d 342.
In sum, we conclude that section 118 is not categorically
a non-fraudulent CIMT.
c.
Although section 118 reaches beyond the narrow
definition of common law perjury and is not categorically a
non-fraudulent CIMT, it could categorically be a CIMT if it
required an intent to defraud or sounded in fraud. “A crime
involves fraudulent conduct, and thus is a crime involving
moral turpitude, if intent to defraud is either ‘explicit in the
statutory definition’ of the crime or ‘implicit in the nature’ of
the crime.” Blanco, 518 F.3d at 719 (quoting Goldeshtein v.
INS, 8 F.3d 645, 658 (9th Cir. 1993)).
First, the intent to defraud is not explicit in the statutory
definition of section 118, especially in light of Blanco.
There, we held that California Penal Code section 148.9(a)
(false representation of identity to a peace officer “to evade
the process of the court, or to evade the proper identification
of the person by the investigating officer”) was not a CIMT.
We explained that intent to defraud was not explicitly
required because the statute “require[d] only the knowing
provision of false information.” 518 F.3d at 719. Conviction
required “only that ‘the forbidden act [wa]s done deliberately
and with knowledge,’ and not that the individual act[ed] with
evil intent.” Id. (quoting Hirsch v. INS, 308 F.2d 562, 567
(9th Cir. 1962)). Similarly, intent to defraud is not required
18 ROSALES RIVERA V. LYNCH
for conviction under section 118; it requires only that the
false statements have been made “deliberately and with
knowledge.” See id.; Tolmachoff, 58 Cal. App. 2d at 821
(explaining that a false statement under section 118 must be
made “with the consciousness that it was false” and “with the
intent that it should be received as a statement of what was
true in fact”); Judicial Council of California Criminal Jury
Instructions9 (“CALCRIM”) 2640 (lacking any reference to
an intent to defraud). Because, like section 148.9(a), section
118 does not require proof of a “specific intent to defraud,”
see People v. Guasti, 110 Cal. App. 2d 456, 467 (1952), nor
of intent to “injur[e] another,” Darcy, 59 Cal. App. 2d at 348,
it does not explicitly require intent to defraud for CIMT
purposes. See Blanco, 518 F.3d at 719; cf. Goldeshtein,
8 F.3d at 648 (noting that this court has rejected the argument
“that evil intent exists if a conviction requires proof that a
defendant did a forbidden act ‘willfully’”); Hirsch, 308 F.2d
at 567 (holding that a federal statute prohibiting false
statements was not a CIMT because “the jury could convict
if it found that petitioner had ‘knowingly’ but without evil
intent, made a ‘false’ but not ‘fraudulent’ statement”).
The converse proposition underscores the rule. We have
held that particular statutes are CIMTs because the intent to
defraud is explicit in the statutory definition. See, e.g., De
Martinez v. Holder, 770 F.3d 823, 825 (9th Cir. 2014)
(holding that Arizona Revised Statutes section 13-2006(A)(1)
is a CIMT because it is committed by “assuming a false
identity with the intent to defraud another”); Planes v.
Holder, 652 F.3d 991, 992–93 (9th Cir. 2011) (holding that
it was reasonable for the BIA to conclude that state
9
CALCRIM and CALJIC are alternative jury instruction sources in
California.
ROSALES RIVERA V. LYNCH 19
convictions for “passing a bad check with intent to defraud”
and “possession of 15 or more access devices with intent to
defraud” were CIMTs). Section 118 contains no such
language. Thus, we conclude that intent to defraud is not
explicit in section 118.
Conviction under section 118 does require proof of
“intent that [the false statement] should be received as a
statement of what was true in fact,” Tolmachoff, 58 Cal. App.
2d at 821, but that requirement does not amount to an “intent
to defraud” in this context. That an accused’s lack of
knowledge as to the materiality of the false statement is not
a defense to section 118, Cal. Penal Code § 123, demonstrates
that section 118 punishes conduct that falls short of the “evil
intent” required for a fraud offense to qualify as a CIMT.
Blanco, 518 F.3d at 719.
The next question is whether intent to defraud is “implicit
in the nature” of section 118. Blanco, 518 F.3d at 719.
“[I]ntent to defraud is implicit in the nature of the crime when
the individual makes false statements in order to procure
something of value, either monetary or nonmonetary.” Id.
Because “[o]ne can act dishonestly without seeking to induce
reliance,” fraudulent intent only exists “when the individual
employs false statements to obtain something tangible.”10 Id.
10
As part of a string cite of cases in Blanco where the accused made
false statements to obtain tangible items, we referenced Zaitona v. INS,
9 F.3d 432, 437 (6th Cir. 1993), which dealt with driver’s licenses.
Blanco, 517 F.3d at 719. The statute of conviction at issue there was
Michigan Compiled Laws section 257.324(1)(e), using a false name or
other false information “in an application for an operator’s or chauffeur’s
license.” Zaitona, 9 F.3d at 438. As we explain, such a statute is
distinguishable from section 118 because it requires proof of the tangible
item that the accused sought to obtain. In other words, a person could not
20 ROSALES RIVERA V. LYNCH
Fraud is thus distinguishable from “mere dishonesty[]
because fraud requires an attempt to induce another to act to
his or her detriment.” Id.
Our opinion in Bisaillon v. Hogan provides an example of
where intent to defraud was not an explicit requirement for
conviction, but this court nevertheless held that the crime was
a CIMT. 257 F.2d 435 (9th Cir. 1958). There, conviction
under 18 U.S.C. § 1542 required “willfully and knowingly
mak[ing] any false statement in an application for passport
with intent to induce and secure the issuance of a passport
under the authority of the United States[.]” Id. at 436. We
held that § 1542 is a CIMT in part because it “requires the
presence of . . . intent to induce the issuance of the passports
under authority of the United States.” Id. at 438.11 Section
118, unlike § 1542, does not implicate intent to defraud
because it does not require “procur[ing] something of value.”
Blanco, 518 F.3d at 719. Section 118 is thus overbroad when
compared to this category of implicit fraud-related crimes,
because it does not require for conviction proof of
“attempt[ing] to induce another to act to his or her detriment”
be convicted of a crime under the Michigan statute without having applied
for the license.
11
The government cites a Second Circuit case, Rodriguez v. Gonzales,
451 F.3d 60 (2d Cir. 2006) (per curiam), which also held that § 1542 is a
CIMT.
The court reasoned that § 1542 “involves deceit and an intent to
impair the efficiency and lawful functioning of the government,” which
“alone is sufficient to categorize a crime as a CIMT.” Id. at 64. In
Blanco, however, we held that “[w]hen the only ‘benefit’ the individual
obtains is to impede the enforcement of law, the crime does not involve
moral turpitude.” 518 F.3d at 719; see also Latu v. Mukasey, 547 F.3d
1070, 1074 (9th Cir. 2008) (same).
ROSALES RIVERA V. LYNCH 21
or “to obtain something tangible.” Id. Thus, section 118 does
not fall within the category of CIMTs where intent to defraud
is implicit in the nature of the crime.
3.
There is “a realistic probability, not a theoretical
possibility, that [California] would apply [section 118] to
conduct that falls outside” all the established definitions of
moral turpitude. Moncrieffe, 133 S. Ct. at 1685. Once again,
the facts of People v. Darcy provide a compelling example.
As an initial matter, Darcy’s conduct would not fall within
the narrow meaning of common law perjury, which, as noted
above, historically has been considered a CIMT. Further,
Darcy was convicted under section 118 even though he did
not commit a base or vile act, or one involving explicit or
implicit fraud. Providing a false name and birthplace when
one is entitled to vote without the false statements does not
implicate “intent to harm,” “actual infliction of harm,” or “an
action that affects a protected class of victims.” Castrijon-
Garcia, 704 F.3d at 1214. Darcy’s actions were therefore not
base or vile. Further, he was not convicted of an explicitly
fraudulent CIMT because section 118 does not contain an
element of intent to defraud. Finally, his actions contained no
implicit fraud, as he was not “attempt[ing] to induce another
to act to his or her detriment” or “obtain something
tangible.”12 Blanco, 518 F.3d at 719. Because defendants
like Darcy are convicted under section 118 without these
essential elements, there is a “realistic probability” that
section 118 “would apply” to conduct that is not morally
turpitudinous. See Moncrieffe, 133 S. Ct. at 1685.
12
The facts only indicate that Darcy was attempting to file an affidavit
of registration as an elector. See Darcy, 59 Cal. App. 2d at 345, 349.
22 ROSALES RIVERA V. LYNCH
V.
Where, as here, a statute is not categorically a CIMT, we
may, in some circumstances, apply the “modified categorical
approach.” Descamps, 133 S. Ct. at 2281. “This approach is
available, however, only when the state statute of conviction
is ‘divisible,’ meaning it ‘lists multiple, alternative elements,
and so effectively creates several different . . . crimes.’”
Chavez-Solis v. Lynch, 803 F.3d 1004, 1012 (9th Cir. 2015)
(quoting Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir.
2014)); see also Almanza-Arenas, 809 F.3d at 523 (holding
that “if the elements of the crime are alternative to each
other—not the mode or means of proving an element of the
crime—the statute is divisible”).13 “If the state statute is
divisible, and the full range of conduct in the state statute is
not included in the federal offense, we may use the modified
categorical approach so long as one of the crimes included in
the statute is a categorical match for the federal generic
offense.” Rodriguez-Castellon v. Holder, 733 F.3d 847, 853
(9th Cir. 2013) (citing Descamps, 133 S. Ct. at 2285).
A.
In Almanza-Arenas, we recently outlined the process for
determining whether a statute is divisible. 809 F.3d at
522–28. First, we examine the text of the statute to determine
whether it contains multiple crimes with distinct elements or
alternative means for accomplishing a single crime. Second,
we confirm our reading of the statute by looking to the
13
The question of section 118’s divisibility “requires neither factual
development nor agency expertise” and is properly analyzed by this court.
Chavez-Soliz, 803 F.3d at 1012 n.10.
ROSALES RIVERA V. LYNCH 23
conviction documents. Finally, we consider how state courts
have construed the statute of conviction.
Section 118 is divisible into two discrete offenses.14 At
step one, an examination of the statutory text suggests that
section 118 contains several offenses rather than alternative
means for committing perjury. First, an individual violates
section 118 by making a false, oral statement under oath.
Cal. Penal Code § 118(a) (“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 . . .
willfully and contrary to the oath, states as true any material
matter which he or she knows to be false . . . is guilty of
perjury.”). Second, the statute criminalizes false, written
statements made under “penalty of perjury.” Id. (“[E]very
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.”). Thus, the language
of section 118 defines two separate crimes of perjury.
The conviction documents in the administrative record
confirm this interpretation at step two. The documents
relevant to this inquiry include the “indictment, jury
instructions, plea colloquy, and plea agreement.” Descamps,
133 S. Ct. at 2281 n.2. This list is “merely illustrative, and
‘documents of equal reliability may also be considered.’”
Coronado v. Holder, 759 F.3d 977, 985 (9th Cir. 2014)
(quoting United States v. Snellenberger, 548 F.3d 699, 701
(9th Cir. 2008) (en banc) (per curiam)).
14
The parties agree that section 118 is divisible.
24 ROSALES RIVERA V. LYNCH
Here, the felony complaint used to charge Rosales Rivera
demonstrates that section 118 contains two separate offenses.
Count 2 of the complaint charges Rosales River with “the
crime of PERJURY-APPLICATION FOR DRIVER’S
LICENSE” as “a person who testified, declared, deposed, and
certified under penalty of perjury . . . an application for a
California Driver’s License [and] did state as true a material
matter which he/she knew to be false.” This document makes
clear that Rosales Rivera was specifically convicted of
making a false representation on his driver’s license
application, rather than for an act of oral perjury.
Third, California courts have long recognized the division
in section 118. Hedgecock, 51 Cal. 3d at 404 n.1 (explaining
that “Penal Code section 118 prohibits both perjurious
testimony under oath (the elements are set forth in CALJIC
No. 7.20) and perjurious, signed declarations (covered by
CALJIC No. 7.21)”). The fact that separate jury instructions
exist for each of the two offenses in section 118 bolsters a
finding of divisibility. Compare CALJIC 7.20 (2005
Revision) (“Perjury Under ‘Oath’”) with CALJIC 7.21 (2005
Revision) (“Perjury Under ‘Penalty of Perjury’”). Notably,
to prove written perjury, the prosecution must show that the
statement was “delivered to another person . . . with the
specific intent that it be uttered or published as true,” an
element that is not required for perjury under oath. See
Collins v. Super. Court, 89 Cal. App. 4th 1244, 1247 (2001)
(explaining that “it is the finality of the writing and its
delivery . . . which constitutes an essential element of the
crime of perjury. This is to be distinguished from the giving
of false testimony before the judge, jury or tribunal
responsible for deciding the matter at issue. Such testimony
constitutes perjury when the words are spoken . . . .”).
ROSALES RIVERA V. LYNCH 25
Our conclusion that section 118 is divisible finds further
support in the fact that an individual cannot violate the
statute’s two offenses simultaneously. See Rendon, 764 F.3d
at 1087 (describing two decisions that found statutes divisible
in part because “it was impossible for the state to allege and
the jury to find that the defendant violated the alternative
parts of the statute simultaneously”). Rather, making a false
statement under oath before a tribunal and making a written
false statement under penalty of perjury are separate offenses
that necessarily involve different conduct.
B.
Because section 118 is divisible, we apply the modified
categorical approach to determine “which alternative element
in a divisible statute formed the basis of the defendant’s
conviction.” Descamps, 133 S. Ct. at 2293. This analysis
allows the court to “effectuate the categorical analysis when
a divisible statute, listing potential offense elements in the
alternative, renders opaque which element played a part in the
defendant’s conviction.” Id. at 2283. As we described when
considering section 118’s divisibility, Rosales Rivera pled no
contest to a felony complaint that charged him with written
perjury rather than oral perjury.
For the reasons discussed supra Part IV.B.2., the specific
offense of written perjury is not a CIMT. First, written
perjury criminalizes entirely different conduct than common
law perjury, which focused on false oral testimony given
under oath. Second, written perjury, like the general section
118, criminalizes conduct that is not base, vile, or depraved.
Third, written perjury does not require proof of an intent to
defraud; in fact, conviction is proper even if the accused had
no knowledge that his false statement was material. And
26 ROSALES RIVERA V. LYNCH
fourth, written perjury does not sound implicitly in fraud
because it does not require proof of intent to either induce
another to act to his detriment or obtain something tangible.
Thus, under the modified categorical approach, Rosales
Rivera was not convicted of a CIMT.
VI. Conclusion
We hold that California Penal Code section 118
categorically is not a crime involving moral turpitude. We
also hold that section 118 is divisible into two separate
offenses—written and oral perjury—and conclude that under
the modified categorical approach, written perjury, which is
Rosales Rivera’s crime of conviction, is not a crime involving
moral turpitude. We take no position on California’s other,
context-specific perjury statutes. Therefore, we grant Rosales
Rivera’s petition and remand for further proceedings
consistent with this opinion.
Petition GRANTED and REMANDED.