Blanco v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO JORGE BLANCO, 
Petitioner, No. 06-71385
v.
 Agency No.
A79-159-176
MICHAEL B. MUKASEY,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 18, 2007—Pasadena, California
Filed March 3, 2008
Before: Harry Pregerson, Michael Daly Hawkins and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Concurrence by Judge Pregerson
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
1875
1878 BLANCO v. MUKASEY
COUNSEL
Michael J. Codner (argued) and Murray D. Hilts, Law Offices
of Murray Hilts, San Diego, California, for the petitioner.
Anthony C. Payne (argued) and Alison R. Drucker, United
States Department of Justice, Washington, D.C., for the
respondent.
OPINION
FISHER, Circuit Judge:
Mario Jorge Blanco petitions for review of a final order of
removal, arguing that the Board of Immigration Appeals
(“BIA”) erred in holding that he is an inadmissible alien who
is not eligible for any discretionary relief. The BIA found
Blanco to be ineligible for adjustment of status because he
made a false claim to citizenship when he was detained at the
border, and ineligible for cancellation of removal because he
had been convicted of crimes involving moral turpitude.
Because the BIA’s moral turpitude finding was flawed, we
grant Blanco’s petition as to cancellation of removal, but deny
his petition in all other respects.
FACTS AND PRIOR PROCEEDINGS
Blanco is a native and citizen of Argentina who has been
living in the United States since 1978. In 2001, Blanco trav-
eled to Mexico with his wife and a co-worker to deliver a
truckload of furniture. He was stopped by the Border Patrol
BLANCO v. MUKASEY 1879
when he applied for admission into the United States. He
presented a California driver’s license, social security card
and various membership cards to the Border Patrol agents, but
did not have immigration documents. The officer at the pri-
mary inspection point suspected that Blanco had made a false
claim to U.S. citizenship and referred him to secondary
inspection for further questioning, which led to his being
placed in detention. The Immigration and Naturalization Ser-
vice (“INS”)1 thereafter instituted removal proceedings
against him.
The INS charged Blanco with being inadmissible under 8
U.S.C. § 1182(a)(7)(A)(i)(I) as an alien who was not in pos-
session of valid entry documents, and under § 1182(a)(6)
(C)(ii) as an alien who made a false claim to U.S. citizenship
in order to gain entrance to the United States.2 Blanco con-
tested these charges and also applied for various forms of
relief from removal proceedings, including cancellation of
removal available for certain long-time residents under
§ 1229b(b) and adjustment of status under § 1255(i). Blanco
conceded that he was inadmissible as an alien without a valid
visa, but argued that he had never falsely claimed U.S. citi-
zenship at the border. Ruling against Blanco on both charges,
the immigration judge (“IJ”) found Blanco to be inadmissible.
The IJ denied Blanco’s request for adjustment of status
because under then-existing federal regulations, this relief was
unavailable to arriving aliens. The IJ further held that Blanco
was not eligible for consideration for cancellation of removal
because he had been convicted of two crimes involving moral
turpitude, as defined by § 1182(a)(2). Although ordinarily
1
On March 1, 2003, the INS was dissolved as an independent agency
within the Department of Justice and its functions were transferred to the
Department of Homeland Security. Homeland Security Act of 2002, Pub.
L. No. 107-296, § 471, 116 Stat. 2135, 2205.
2
Hereinafter, all statutory citations are to Title 8 of the U.S. Code unless
cited otherwise.
1880 BLANCO v. MUKASEY
cancellation relief is barred if the alien has committed even
one such crime, one of Blanco’s convictions — in 1980, for
receipt of stolen property — was a misdemeanor violation,
which allowed Blanco to remain eligible for cancellation of
removal under the so-called petty offense exception. See
§ 1182(a)(2)(A)(ii). However, because the IJ determined that
another of Blanco’s prior convictions — a 1986 misdemeanor
conviction for false identification to a peace officer under
California Penal Code § 148.9(a) — was also a crime involv-
ing moral turpitude, the IJ held that Blanco was not eligible
for the petty offense exception. The IJ ordered Blanco
removed to Argentina.
Blanco timely appealed to the BIA. The BIA declined to
affirm the IJ’s adjustment of status ruling in light of our inter-
vening decision in Bona v. Gonzales, 425 F.3d 663 (9th Cir.
2005), which held that regulations barring arriving aliens
from applying for adjustment of status were invalid. It never-
theless denied Blanco’s adjustment of status application, hold-
ing that his false claim of United States citizenship at the
border barred such relief. See § 1255(a). The BIA affirmed
the IJ’s conclusion that Blanco was not eligible for cancella-
tion of removal because he had been convicted of two crimes
involving moral turpitude. Lastly, the BIA denied Blanco’s
request for a remand based on ineffective assistance of his
prior counsel. Blanco filed a timely petition for review before
this court.
ANALYSIS
We have jurisdiction to review the petition under
§ 1252(b). Because Blanco was not ordered removed as a
criminal alien under § 1182(a)(2), the jurisdictional bar of
§ 1252(a)(2)(C) does not apply. We review questions of law
de novo, including “whether a state statutory crime constitutes
a crime involving moral turpitude.” Cuevas-Gaspar v. Gon-
zales, 430 F.3d 1013, 1017 (9th Cir. 2005). We review find-
ings of fact by the IJ and BIA for substantial evidence. See
BLANCO v. MUKASEY 1881
INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992); see
also § 1252(b)(4)(B). Where, as here, the BIA “has reviewed
the IJ’s decision and incorporated portions of it as its own, we
treat the incorporated parts of the IJ’s decision as the BIA’s.”
Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).
I.
Blanco argues that the BIA erred in holding that he was not
eligible for cancellation of removal because his misdemeanor
conviction for false identification to a peace officer under
California Penal Code § 148.9(a) is not a crime involving
moral turpitude. We agree.
[1] In determining whether a conviction qualifies as a crime
involving moral turpitude, we apply the categorical and modi-
fied categorical approaches set forth in Taylor v. United
States, 495 U.S. 575, 599-602 (1990).3 See Cuevas-Gaspar v.
Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005). Under the cat-
egorical approach, a crime involves moral turpitude if the
generic elements of the crime show that it involves conduct
that “(1) is base, vile, or depraved and (2) violates accepted
moral standards.” Navarro-Lopez v. Gonzales, 503 F.3d 1063,
1068 (9th Cir. 2007) (en banc). The Supreme Court has held
that crimes that involve fraud categorically fall into the defini-
tion of crimes involving moral turpitude. See Jordan v. De
George, 341 U.S. 223, 227 (1951) (“Without exception . . . a
crime in which fraud is an ingredient involves moral turpi-
tude.”); see also Cerezo v. Mukasey, Nos. 05 74688 & 05-
75213, ___ F.3d ___, 2008 WL 115184 at *2 (9th Cir. Jan.
3
Because the record here does not include any of the documents that
would allow us to conduct a modified categorical analysis, we employ
only the categorical approach. See United States v. Vidal, 504 F.3d 1072,
1086 (9th Cir. 2007) (en banc) (noting that when conducting a modified
categorical analysis, the court’s review is “limited to examining the statu-
tory definition, charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial judge”) (internal
quotation marks omitted).
1882 BLANCO v. MUKASEY
14, 2008); Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.
2005).
[2] Whether Blanco was convicted of a crime of fraud
depends on the statutory definition of the crime. In 1986,
Blanco pled guilty to violating California Penal Code
§ 148.9(a), which provides:
Any person who falsely represents or identifies him-
self or herself as another person or as a fictitious per-
son to any peace officer . . . upon a lawful detention
or arrest of the person, either to evade the process of
the court, or to evade the proper identification of the
person by the investigating officer is guilty of a mis-
demeanor.
[3] The California courts have explained that a violation of
California Penal Code § 148.9(a) occurs whenever any person
falsely identifies himself in a way that would mislead the offi-
cer and evade proper identification, including by giving a
false name or date of birth. See In re Ivan J., 88 Cal. App. 4th
27, 30-32 (Cal. Ct. App. 2001). To convict a defendant under
the statute, the prosecutor does not need to show that the indi-
vidual had specific intent to obtain a benefit or cause another
to be liable on his behalf; rather, the prosecutor “need only
establish general intent . . . that the defendant intended to do
the act which forms the basis of the crime, whether or not he
knew that the act was unlawful.” People v. Robertson, 223
Cal. App. 3d 1277, 1281-82 (Cal. Ct. App. 1990), rev’d on
other grounds by People v. Rathert, 6 P.3d 700, 704-05 (Cal.
2000). Thus a conviction under California Penal Code
§ 148.9(a) requires a showing that the individual knowingly
misrepresented his or her identity to a peace officer, but does
not require that the individual thereby knowingly attempted to
obtain anything of value.
[4] A crime involves fraudulent conduct, and thus is a
crime involving moral turpitude, if intent to defraud is either
BLANCO v. MUKASEY 1883
“explicit in the statutory definition” of the crime or “implicit
in the nature” of the crime. Goldeshtein v. INS, 8 F.3d 645,
648 (9th Cir. 1993) (internal quotation marks omitted). Intent
to defraud is not explicitly required by California Penal Code
§ 148.9(a), which requires only the knowing provision of
false information. The element of knowing misrepresentation
does not itself make fraud an element of the crime, however,
because it shows only that “the forbidden act is done deliber-
ately and with knowledge,” and not that the individual acts
with evil intent. See id. (quoting Hirsch v. INS, 308 F.2d 562,
567 (9th Cir. 1962)). Because intent to defraud is not a statu-
tory element of the offense, we must determine whether intent
to defraud is part of the crime’s “essential nature.” Id. at 649.
[5] Our cases hold that intent to defraud is implicit in the
nature of the crime when the individual makes false state-
ments in order to procure something of value, either monetary
or non-monetary. See id. (holding that fraud is not inherent
where crime “does not involve the use of false statements . . .
nor does the defendant obtain anything” of value); see also
Navarro-Lopez, 503 F.3d at 1076 (Reinhardt, J., concurring);
cf. Notash v. Gonzales, 427 F.3d 693, 698 (9th Cir. 2005)
(holding fraud not inherent where statute “did not require an
intent to deprive the United States of revenue”). Fraud there-
fore does not equate with mere dishonesty, because fraud
requires an attempt to induce another to act to his or her detri-
ment. See Black’s Law Dictionary 685 (8th ed. 2004). One
can act dishonestly without seeking to induce reliance. Our
cases have therefore recognized fraudulent intent only when
the individual employs false statements to obtain something
tangible. See, e.g., McNaughton v. INS, 612 F.2d 457, 459
(9th Cir. 1980) (securities); Winestock v. INS, 576 F.2d 234,
235 (9th Cir. 1978) (securities); Bisaillon v. Hogan, 257 F.2d
435, 437 (9th Cir. 1958) (a passport); see also Zaitona v. INS,
9 F.3d 432, 437 (6th Cir. 1993) (a driver’s license); United
States ex rel. Popoff v. Reimer, 79 F.2d 513, 515 (2d Cir.
1935) (naturalization papers); Matter of R-, 5 I. & N. Dec. 29,
38 (BIA 1952) (military deferment).
1884 BLANCO v. MUKASEY
[6] When the only “benefit” the individual obtains is to
impede the enforcement of the law, the crime does not
involve moral turpitude. In Navarro-Lopez, we held that the
crime of misprision of a felony does not involve moral turpi-
tude, even though a conviction for misprision of a felony
under California law requires “knowing interference with the
enforcement of the law with the specific intent to help a prin-
cipal avoid arrest or trial.” 503 F.3d at 1070. The crime of
false identification to a peace officer under California law
also punishes the “wrongful interference with the administra-
tion of justice,” Robertson, 223 Cal. App. 3d at 1282, but
notably does not require a showing of specific intent to avoid
arrest or trial. Id. at 1281-82. Although giving a false name or
date of birth to a police officer clearly “violates a duty owed
to society to obey the law and not to impede the investigation
of crimes,” this alone does not make the crime one that
involves moral turpitude, because “[i]f this were the sole
benchmark for a crime involving moral turpitude, every crime
would involve moral turpitude.” Navarro-Lopez, 503 F.3d at
1070-71.4
[7] We hold that because the crime of false identification
to a peace officer does not require fraudulent intent under Cal-
ifornia law, it is not categorically a crime involving moral tur-
pitude under § 1182(a)(2).5 Accordingly, we remand to the
BIA to consider whether Blanco should be granted cancella-
tion of removal.
4
But see Padilla v. Gonzales, 397 F.3d 1016 (7th Cir. 2005) (holding
that obstruction of justice is a crime involving moral turpitude); Itani v.
Ashcroft, 298 F.3d 1213 (11th Cir. 2002) (holding that misprision of a fel-
ony is a crime involving moral turpitude). Our circuit, however, has
adopted a different approach. See Navarro-Lopez, 503 F.3d at 1074 (mis-
prision of a felony is not a crime involving moral turpitude); see also id.
at 1077-78 (Reinhardt, J., concurring) (explaining that “[n]either [Padilla
nor Itani] is persuasive”).
5
Because we hold that Blanco’s crime is not a crime that involves moral
turpitude, we need not address Blanco’s alternative argument that the exis-
tence of his conviction was not properly established in evidence before the
IJ.
BLANCO v. MUKASEY 1885
II.
Blanco argues that the BIA erred in holding that he was an
inadmissible alien who was not eligible to be considered for
adjustment of status, based on its finding that Blanco made a
false claim of United States citizenship when he was detained
at the U.S.-Mexico border in 2001. In removal proceedings,
the alien has the burden of establishing that he is “ ‘clearly
and beyond doubt entitled to be admitted and is not inadmissi-
ble.’ ” Pichardo v. INS, 216 F.3d 1198, 1200 (9th Cir. 2000)
(quoting § 1229a(c)(2)(A)). We hold that the BIA’s determi-
nation that Blanco made a false claim to citizenship was sup-
ported by substantial evidence and so we deny the petition as
to this claim. See Elias-Zacarias, 502 U.S. at 481 & n.1.
The INS charged Blanco with being an inadmissible alien
in part because it alleged he had made a false assertion of U.S.
citizenship when he was stopped by the Border Patrol when
attempting to re-enter the United States. See § 1182(a)(6)
(C)(ii). Blanco disputed that he ever told the Border Patrol
officer that he was a U.S. citizen, insisting that he told the
officer that he was born in Argentina, but “grew up in East
LA.” He also denied admitting to the secondary inspection
officer that he had made a false claim to citizenship. Although
he signed a sworn statement admitting that he had made the
false claim, he testified during his removal proceedings that
he signed it only because the officer told him that he could
“go home” if he signed it, which he thought meant he could
go home to the United States.
During removal proceedings, the government produced the
sworn statement signed by Blanco. The statement showed that
in response to the question, “Did you declare yourself to be
a United States citizen,” Blanco answered, “Yes.” The gov-
ernment also produced two Border Patrol officers who had
spoken to Blanco during primary and secondary inspection, as
well as the immigration inspector who interviewed and took
Blanco’s sworn statement. The two officers had no indepen-
1886 BLANCO v. MUKASEY
dent recollection of Blanco but testified that their contempora-
neously created records, which indicated that Blanco had
falsely claimed citizenship, were reliable. The immigration
inspector also did not have an independent recollection of
Blanco, but described how he recorded oral statements during
interviews and obtained signed statements. He testified that he
never told individuals that they could “go home” if they
signed a statement.
[8] Although Blanco’s account of the misunderstanding
between himself and the border guards — that he only said he
“grew up” in Los Angeles, not that he was “born” there — is
plausible, we hold that the IJ’s decision was supported by
substantial evidence. The record shows that Blanco had moti-
vation to misrepresent himself as a citizen, because he had
previously left the United States without any immigration
documents, had been detained at reentry and warned not to
travel again without proper documentation. Most importantly,
however, Blanco’s own signed statement contradicted his tes-
timony during removal proceedings. Blanco argues here that
his signed statement should not have been admitted into evi-
dence because it was not “voluntary and knowing,” see Choy
v. Barber, 279 F.2d 642, 646 (9th Cir. 1960) (holding that
“statements made by the alien and used to achieve his depor-
tation must be voluntarily given”), but Blanco’s only support
for this due process argument is that he had to wait as long
as 26 hours between his initial detention and his interview and
that he was provided only bologna and cheese to eat.
Although the deprivation of food and sleep can affect the vol-
untariness of a confession, see Reck v. Pate, 367 U.S. 433,
441-42 (1961), Blanco has not established that his “will was
overborne,” see Schneckloth v. Bustamonte, 412 U.S. 218,
226 (1973).6
6
Because we are denying the petition as to Blanco’s adjustment of status
claim, we do not address the impact of regulations promulgated by the
Attorney General in May 2006, which transferred authority over adjust-
ment of status applications for arriving aliens from the IJ to the Depart-
ment of Homeland Security. See 8 C.F.R. §§ 1245.2(a)(1) & 245.2(a)(1)
(2006).
BLANCO v. MUKASEY 1887
III.
Blanco lastly argues that the BIA erred when it denied his
request for a remand based on ineffective assistance of his
prior counsel during his removal proceedings. We hold that
Blanco has not shown that his counsel’s performance violated
due process and so we deny the petition as to this claim. See
Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999).
Blanco asserts that his counsel was ineffective because she
failed to move to reopen the record on the day of the IJ’s oral
decision, thereby preventing Blanco’s witness and co-worker,
Eric Jackson, from testifying in his behalf. Jackson, was trav-
eling with Blanco when he attempted to re-enter the United
States at the U.S.-Mexico border and presumably could have
supported his testimony that he did not falsely claim U.S. citi-
zenship. Blanco’s counsel testified that she was not aware of
Jackson’s presence on the final day of the hearing until after
the IJ finished his oral ruling. Blanco and Jackson admitted
that Jackson showed up to testify only after the close of evi-
dence, and after failing to show at two previous merits hear-
ings, but insisted that Blanco’s counsel knew of Jackson’s
presence before the IJ began to deliver his oral ruling. The
BIA held that Blanco’s “former counsel’s actions involving
her failure to present a witness after the evidentiary record has
been closed . . . particularly when the witness at issue failed
to appear at 2 prior hearings where the record remained
open,” did not amount to ineffective assistance of counsel.
[9] Individuals in immigration proceedings do not have
Sixth Amendment rights, so ineffective assistance of counsel
claims are analyzed under the Fifth Amendment’s due process
clause. Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir.
2004), amended by 404 F.3d 1105 (9th Cir. 2005). Ineffective
assistance of counsel in a removal proceeding is a denial of
due process if the proceeding “was so fundamentally unfair
that the alien was prevented from reasonably presenting his
case.” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.
1888 BLANCO v. MUKASEY
2005) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.
1985)). Blanco must also show that he was prejudiced by his
counsel’s ineffective performance. See id.; see also Grigoryan
v. Mukasey, No. 05-77020, ___ F.3d ___, 2008 WL 307455,
at *3 (9th Cir. Feb. 5, 2008) (per curiam).
[10] We conclude that the BIA did not err, because Blanco
has not shown that his counsel’s performance denied him the
“right to a full and fair hearing.” Lin v. Ashcroft, 377 F.3d
1014, 1027 (9th Cir. 2004). The record as a whole shows that
Blanco’s counsel diligently examined and cross-examined
witnesses, argued points of law before the IJ and informed
Blanco of his right to appeal. Further, counsel’s performance,
even if ineffective, was not “so inadequate that it may have
affected the outcome of proceedings.” Iturribarria v. INS, 321
F.3d 889, 899-900 (9th Cir. 2003) (internal quotation marks
omitted). Given that the testimony and written records of sev-
eral Border Patrol officers, as well as Blanco’s own sworn
statement, contradicted his testimony regarding the false
claim of U.S. citizenship, the testimony of a co-worker as a
supporting witness would not likely have led the IJ to reach
a different outcome.
CONCLUSION
Because the BIA erred when it held that Blanco’s convic-
tion under California Penal Code § 148.9(a) precluded him
from consideration for cancellation of removal, we GRANT
the petition in relevant part and REMAND so that the BIA
may determine whether Blanco should be afforded any discre-
tionary relief. We DENY the petition as to Blanco’s other
claims.
GRANTED IN PART, DENIED IN PART AND
REMANDED.
Each party shall bear its own costs on appeal.
BLANCO v. MUKASEY 1889
PREGERSON, Circuit Judge, specially concurring:
I concur with the holding that a violation of California
Penal Code § 148.9(a) is not a crime of moral turpitude.