Jesus Moreno-Avendano v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION NOV 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS IVAN MORENO-AVENDANO, No. 14-70998
Petitioner, Agency No. A074-384-365
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 20, 2015
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.
Jesus Ivan Moreno-Avendano, a citizen of Mexico and a lawful permanent
resident of the United States, petitions this court for review of a Board of Immigration
Appeals (“BIA”) decision finding him removable under the Immigration and
Nationality Act for the commission of an aggravated felony. The immigration judge
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“IJ”) found that Moreno-Avendano was removable because his conviction under
Nevada Revised Statute § 205.090 for forgery fell within the federal categorical
definition of an “offense relating to . . . forgery.” 8 U.S.C. § 1101(a)(43)(R). The
BIA affirmed, stating that Moreno-Avendano did not “meaningfully dispute” in his
appeal brief to the BIA that he is subject to removal but rather only made a collateral
attack on his underlying Nevada conviction.
1. At the outset, the Government argues that we do not have jurisdiction to hear
this petition because Moreno-Avendano failed to exhaust both his claim that the
Nevada forgery conviction was not an aggravated felony and his due-process claim
that he did not receive a full and fair hearing with the IJ. We may review an order of
removal only if a non-citizen has exhausted administrative remedies. 8 U.S.C. §
1252(d)(1). Although a petitioner cannot meet the exhaustion requirement by simply
challenging an IJ’s decision as wrong, the petitioner “need not . . . raise the precise
argument below.” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008)
(emphasis in original). In the context of exhaustion, pro se petitioners’ claims are
given particular latitude. Id.
Moreno-Avendano exhausted his argument that his Nevada conviction was not
an aggravated felony, but he did not exhaust his due-process argument. In his brief
to the BIA, Moreno-Avendano stated that his Nevada conviction “did not involve
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drugs, weapons or violence in any way.” Contrary to the BIA’s finding, this language
does not collaterally attack Moreno-Avendano’s forgery sentence; indeed, the absence
of drugs, weapons, or violence has nothing to do with forgery. Rather, this argument
is what might well be expected of a lay person who was trying to contest the finding
that forgery, like crimes involving drugs, weapons, or violence, is an aggravated
felony. Moreover, the only ground for the IJ’s decision was that forgery constituted
an aggravated felony. The BIA should have been on notice that Moreno-Avendano’s
language, even though it did not include precise legal terminology, was challenging
this sole basis for his removal. See Vizcarra-Ayala, 514 F.3d at 873.
Moreno-Avendano, however, did not raise his due-process contention to the BIA, and
we therefore lack jurisdiction to hear that argument.
2. To establish that a lawful permanent resident, such as Moreno-Avendano,
is removable, the Government must prove that the Nevada forgery conviction meets
the generic definition of an “offense relating to . . . forgery” under federal immigration
law. See 8 U.S.C. § 1101(a)(43)(R). In evaluating whether the government carried
this burden, we start with the categorical approach. Ragasa v. Holder, 752 F.3d 1173,
1175-76 (9th Cir. 2014). “Under the categorical approach, we ‘examine only the
statutory definition of the crime to determine whether the state statute of conviction
renders an alien removable under the statue of removal, without looking to the actual
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conduct underlying the petitioner’s offense.’” Id. at 1176 (quoting Myielewczyk v.
Holder, 575 F.3d 992, 996 (9th Cir. 2009)). 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 a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007). A realistic probability can be shown through case law or when “a state
statute explicitly defines a crime more broadly than the generic definition.” U.S. v.
Grisel, 488 F.3d 844, 850 (9th Cir. 2007); see also Chavez-Solis v. Lynch, --- F.3d
----, 2015 WL 5806148, at *5 (9th Cir. Oct. 6, 2015). Here, the Nevada statute is
broader than the federal one because it includes the destruction of a document in its
definition of forgery while the federal definition only includes the altering or making
of a document. The Nevada statute states, “A person who falsely makes, alters, forges
or counterfeits any record . . . with the intent to damage or defraud any person . . . is
guilty of forgery.” NRS § 205.090. The verb “forges” includes “false making,
‘counterfeiting’ and the alteration, erasure or obliteration of a genuine instrument in
whole or in part . . . .” NRS § 205.085(2) (emphasis added). The word obliterate
includes to erase or destroy, OBLITERATE, Black's Law Dictionary (10th ed. 2014),
and the inclusion of “in whole or in part” means that the complete obliteration or the
complete erasure of a document is included in Nevada’s forgery definition in addition
to a partial erasure or obliteration. In sum, the Nevada forgery statute on its face
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punishes a person who erases or obliterates a whole document—that is, destroys the
document—with the intent to defraud or damage.
This destruction of a document is not included in the federal definition. In
Vizcarra-Ayala, 514 F.3d at 874, we defined the “essential elements of the common
law crime of forgery” as “(1) a false making of some instrument in writing; (2) a
fraudulent intent; [and] (3) an instrument apparently capable of effecting a fraud.” We
elaborated, “it is clear 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.” Id. at 875. Both of these definitions underscore that forgery includes
the “making” or “alteration” of a document and not simply the destruction of a
document, as allowed under Nevada law.
Furthermore, the federal statute’s ‘relating to’ clause does not broaden the
federal definition to include the destruction of documents.1 As explained in
Vizcarra-Ayala, conduct relating to forgery applies to “activities ancillary to the core
offense,” such as possession of counterfeit documents or knowing use of a counterfeit
mark. Id. at 877. Because including the destruction of a document, rather than the
1
The Government argues that we should remand this question as well as any
analysis of the modified categorical approach to the BIA. However, “remand is
not required where, as here, the issue is purely legal and involves an interpretation
of . . . a statute which the BIA is not charged with administering.” Aguiluz-
Arellano v. Gonzalez, 446 F.3d 980, 984 (9th Cir. 2006).
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making or alteration of a document, would eliminate an essential element of forgery,
the ‘relating to’ clause may not be read so broadly.
3. Finally, we do not apply the modified categorical approach because the
statute is not divisible. A statute is divisible only if the jury “must unanimously agree
on the particular offense of which the petitioner has been convicted.” Rendon v.
Holder, 764 F.3d 1077, 1085 (9th Cir. 2014). “Any statutory phrase that—explicitly
or implicitly—refers to multiple, alternative means of commission must still be
regarded as indivisible if the jurors need not agree on which method of committing
the offense the defendant used.” Id. Here, nothing in Nevada case law suggests that
the statute is divisible. Indeed, given that the words used in the Nevada forgery
definition—alteration, obliteration, and erasure—all have overlapping meanings, it
would be illogical to require that a Nevada jury unanimously conclude that a
defendant erased as opposed to obliterated or altered a document to convict under the
statute. In any event, we need not consider this issue further as the government
conceded at oral argument that the Nevada forgery statute is not divisible. In sum,
because the Nevada statute under which Moreno-Avendano was convicted
encompasses more conduct than the federal definition of an offense relating to
forgery, he is not removable on the ground of his conviction for violation of that
statute.
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PETITION GRANTED.
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