Tijani v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONSURU OLASUMBO TIJANI,  No. 05-70195

Petitioner,

Agency No.

v.

 A27-431-266

ERIC H. HOLDER JR.,* Attorney

ORDER AND

General,

OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued November 20, 2007

Submitted February 10, 2008

San Francisco, California

Filed December 6, 2010

Before: John T. Noonan, A. Wallace Tashima, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Noonan;

Partial Concurrence and Partial Dissent by Judge Tashima;

Partial Concurrence and Partial Dissent by Judge Callahan

*Eric H. Holder, Jr., is substituted for his predecessor, Michael B.

Mukasey, as Attorney General of the United States, pursuant to Fed. R.

App. P. 43(c)(2).

19373

19376 TIJANI v. HOLDER

COUNSEL

Cecillia D. Wang, San Francisco, California, for the peti-

tioner.

Ada E. Bosque, Washington, D.C., for the respondent.

ORDER

The Opinion filed March 11, 2010 is withdrawn. A new

Opinion is filed herewith.

With the new Opinion, the government’s petition for panel

rehearing is DENIED. Judge Callahan would grant the gov-

ernment’s petition for rehearing.

The panel votes to deny Tijani’s petition for panel rehear-

ing. Judge Callahan votes to deny the petition for rehearing en

banc and Judge Noonan so recommends. Judge Tashima rec-

ommends granting the petition for rehearing en banc.

TIJANI v. HOLDER 19377

The full court has been advised of the petition for rehearing

en banc, and no judge of the court has requested a vote

whether to rehear the matter en banc. Fed. R. App. P. 35.

Tijani’s petition for rehearing is DENIED and his petition

for rehearing en banc is DENIED.

No further petitions for rehearing and for rehearing en banc

will be entertained.

OPINION

NOONAN, Circuit Judge:

Monsuru Olasumbo Tijani, a native and citizen of Nigeria,

petitions for a review of a decision of the Board of Immigra-

tion Appeals (the BIA), affirming a decision by an immigra-

tion judge ordering his removal and denying him asylum.

Central to the case is the place of credit in our economy. To

the unsophisticated and sometimes to the sophisticate, the

nature of credit is a mystery. It is not animal, mineral or vege-

table. It is not real property. It is not a chattel. It is not money.

Yet it is not a vapor. The one who uses it becomes a debtor,

but becomes a debtor empowered to acquire wealth. The one

who grants it, the creditor, puts his own wealth at risk.

Credit comes into existence through confidence — confi-

dence that one human being may rely on the representations

of another human being. On this utterly unmechanical,

uniquely human understanding, a credit economy is formed

and wealth is created. To exploit, pervert and destroy the con-

fidence that creates credit is a vicious act. The abuse of the

distinctively human capacities to reason and to engage in

rational speech, using these capacities to harm another human,

may well be considered an act of moral turpitude.

19378 TIJANI v. HOLDER

That, at least, is the conclusion most people in this country

would reach once they knew the facts. Credit is today the

most widespread means of acquiring wealth in this country.

To suppose that it is not fraud to try to tap into this wealth by

lies is to ignore the economic elements of the modern world.

Credit card fraud not fraud? No, in the modern United States

it is the paradigm of fraud.

FACTS

Tijani was born in Lagos, Nigeria on October 19, 1965. He

entered the United States in 1982 on a student visa. He

adjusted his status to lawful permanent resident in 1985. He

was a student at California State University at Sacramento

from 1982 to 1985 and has held several jobs in information

technology and in biomedical laboratories. He is now married

to a citizen of the United States.

In 1986, the year after he achieved the status of lawful per-

manent resident, Tijani was convicted of perjury in violation

of Cal. Penal Code § 118 and of grand theft in violation of

Cal. Penal Code § 487; he was sentenced to three years proba-

tion. The next year, 1987, he was convicted of passing fraudu-

lent checks in violation of Cal. Penal Code § 476a(a) and

sentenced to one and one third years imprisonment.

As a result of these felony convictions, the Immigration and

Naturalization Services (now the Department of Homeland

Security (DHS)) placed Tijani in deportation proceedings. He

applied for a waiver of inadmissibility, submitting a letter on

the letterhead of the Brotherhood of the Cross and Star, with

its world headquarters indicated as Calabas, Nigeria, and its

local headquarters indicated as Los Angeles. The letter was

signed by “Pastor O. J. Omogi” and stated that Tijani had

been a practicing member of this Christian church for two

years. In 1989, an immigration judge granted the waiver.

Two years later, in 1991, Tijani was convicted of violating

Cal. Penal Code § 532a(1) by providing false information to

TIJANI v. HOLDER 19379

obtain credit cards and using the cards to obtain goods; he

was sentenced to prison for one and one-third years. One

month later, on January 3, 1992, he was again convicted of

filing false statements and had his prison sentence doubled.

On June 9, 1999, Tijani was convicted of twelve counts

under the same section of the criminal law which he had been

found in 1991 and 1992 to have violated; the crimes this time

had been committed between June 1996 and July 1998. This

time he was sentenced to prison for nine years and ordered to

pay $27,793.71 in restitution.

PROCEEDINGS

In 2003, Tijani was charged with being removable as an

alien convicted of an aggravated felony and two crimes of

moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii),

respectively. He applied for asylum, withholding of deporta-

tion, and other relief. He testified that, brought up a Muslim,

he had become a Christian in 1994 and that, on returning to

his mother’s village in 1995, to her consternation he revealed

his change of religion. She told neighbors, who told the Sharia

police, who paid him a visit at her house and reproached him

for his apostasy from Islam. He was struck on the head, a

blow requiring seventeen stitches to repair and leaving a scar.

He was summoned to explain his apostasy in court, but fled

Nigeria three days after the incident.

Prior to his removal hearing before the immigration judge

in El Centro, California, Tijani filed a pro se motion for

change of venue of the removal proceeding to San Francisco.

The immigration judge denied his request.1

1

Tijani argues that the BIA violated his due process rights by (1) deny-

ing his motion to transfer venue and (2) using the streamlined procedure

to affirm the immigration judge’s decision. Neither claim has merit. This

court has held that streamlining does not violate an alien’s due process

rights. Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003). As

to the motion to transfer venue, Tijani has not established that the proceed-

ings were so “fundamentally unfair” that he was, in effect, “prevented

from reasonably representing his case.” See Colmenar v. INS, 210 F.3d

967, 971 (9th Cir. 2000).

19380 TIJANI v. HOLDER

The immigration judge found the charges against Tijani

true, rendering him removable. He found that the 1991 and

1999 convictions were crimes of moral turpitude and that the

1999 conviction was an aggravated felony. The immigration

judge further found Tijani’s credit card frauds to be particu-

larly serious crimes, hurtful to the credit structure on which

the economy of the United States exists. The immigration

judge ruled that considering the multiple lies to which his

convictions witnessed and also the conflict between his story

of his change of religion and the account given in Pastor

Omogi’s letter, the immigration judge had “reason not to

believe him.” The immigration judge did explicitly refuse to

rule that Tijani was not credible, reasoning that he could “not

find an inconsistency in [Tijani’s] testimony . . . to say that

he [was] not credible.” At the same time, the immigration

judge found “his words deserve no weight,” and described

him as the Boy Who Cried Wolf. The judge concluded that

Tijani had failed to prove eligibility for asylum, withholding

of removal, or relief under the Convention Against Torture

(“CAT”).2 The judge also held that if Tijani was eligible for

asylum, asylum was denied as a matter of discretion.

The BIA, using its streamlined procedure, affirmed the

immigration judge’s decision without opinion. Tijani petitions

for review.

JURISDICTION

We have jurisdiction to review the questions of law pres-

ented by Tijani’s petition. Fernandez-Ruiz v. Gonzales, 410

F.3d 585, 586-87 (9th Cir. 2005), as adopted by Fernandez-

Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir. 2006) (en

banc). Among these questions are whether Tijani has been

convicted of crimes of moral turpitude and whether he was

required to corroborate his own testimony.

2

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, art. 9, opened for signature Dec. 10, 1984,

231465 U.N.T.S. 85.

TIJANI v. HOLDER 19381

ANALYSIS

On this appeal, we must decide, first, whether the crimes of

Tijani, a lawful permanent resident, made him removable.

Second, we must decide whether, if removable, he has estab-

lished his claim for relief.

The Crimes. Tijani’s string of crimes consisted in credit

card fraud in violation of Cal. Penal Code § 532a(1) — a

modern form of swindle particularly tempting because of the

ease and the impersonality with which the crime may be car-

ried out. Do they constitute removable offenses? The govern-

ment argues that the BIA correctly affirmed the IJ’s decision

holding that Tijani’s 1991 and 1999 convictions are crimes

involving moral turpitude. It also argues that the 1999 convic-

tion is an aggravated felony.

[1] To determine whether a conviction constitutes a

removable offense, this court applies the approach set out in

Taylor v. United States, 495 U.S. 575 (1990); Gonzales v.

Duenas-Alvarez, 549 U.S. 183 (2007). Counterfactual and

counterintuitive though it often appears to be, we do not con-

sider the particular facts of the convictions. We first ask

whether the “full range of conduct” proscribed by Cal. Penal

Code § 532a(1) meets the definition of a crime involving

moral turpitude or an aggravated felony. Nicanor-Romero v.

Mukasey, 523 F.3d 992, 999 (9th Cir. 2008) (“The issue is not

whether the 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 turpi-

tude’ ”). If the crime does prohibit conduct that does not nec-

essarily involve moral turpitude, we turn next to the modified

categorical approach, under which “We look beyond the lan-

guage of the statute to a narrow, specified set of documents

that are part of the record of conviction, including the indict-

ment, the judgment of conviction, jury instructions, a signed

guilty plea, or the transcript from the plea proceedings.” Id.

at 1007 (citation omitted).

19382 TIJANI v. HOLDER

Section 532a(1) provides:

Any person who shall knowingly make or cause to

be made, either directly or indirectly or through any

agency whatsoever, any false statement in writing,

with intent that it shall be relied upon, respecting the

financial condition, or means or ability to pay, of

himself, or any other person, firm or corporation, in

whom he is interested, or for whom he is acting, for

the purpose of procuring in any form whatsoever,

either the delivery of personal property, the payment

of cash, the making of a loan or credit, the extension

of a credit, the execution of a contract of guaranty or

suretyship, the discount of an account receivable, or

the making, acceptance, discount, sale or indorse-

ment of a bill of exchange, or promissory note, for

the benefit of either himself or such person, firm or

corporation shall be guilty of a public offense.

[2] Tijani has argued that his convictions do not constitute

crimes involving moral turpitude. His argument appears fore-

closed by the frauds of which he stands convicted. The law is

that “to be inherently fraudulent, a crime must involve know-

ingly false representation to gain something of value.”

Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1076 (9th Cir.

2007) (en banc).

[3] When this standard is applied, any conviction under the

California statute involves fraud; that is, the crime is commit-

ted by making a false statement with the intent that it be relied

upon to obtain “the delivery of personal property, the payment

of cash, the making of a loan or credit . . . .” Cal. Penal Code

§ 532a(1). Fraud is implicit in the nature of a crime under sec-

tion 532a(1). The statute of conviction does not explicitly list

intent to defraud as an element. But we have held that “[e]ven

if intent to defraud is not explicit in the statutory definition,

a crime nevertheless may involve moral turpitude if such

intent is implicit in the nature of the crime.” Carty v. Ashcroft,

TIJANI v. HOLDER 19383

395 F.3d 1081, 1084 (9th Cir. 2005). A crime under § 532a(1)

is committed only when a person by a knowing falsehood

obtains property, money, or credit. The fraudster intentionally

seeks and obtains something of value by means of his misrep-

resentation. See Tall v. Muskasey, 517 F.3d 1115, 1119 (9th

Cir. 2008).

Our dissenting colleague makes this argument as to the ele-

ments of the California crime:

As the BIA recognized in In re Kinney: “The

intent that the false statement be relied upon is not

necessarily an intent to do evil or work fraud

because . . . one who intends that there be reliance

upon his false statement may nevertheless also

intend to pay for the goods he is attempting to

obtain.” 10 I. & N. Dec. at 549 (citations omitted).

The same benevolent interpretation could be extended to a

borrower misrepresenting his credit-worthiness to a bank to

get a loan: “I’ll get rich and pay it all back, the bank will ben-

efit by my chicanery.” No court would accept such a defense.

The intent of the fraudster is evil: to get what he has no right

to get. The California Court of Appeal has rejected this same

defense in analyzing California’s law of false pretenses,

which does explicitly require an intent to defraud:

[T]he fraudulent intent contemplated by the statute

is the intent by the use of false representations to

induce another to part with his property when other-

wise he would not have done so . . . therefore, when

the property is obtained under such circumstances,

neither the promise to repay, the intention at the time

to make the aggrieved party whole, nor repayment,

will relieve the false and fraudulent act in obtaining

the property of its criminality.

19384 TIJANI v. HOLDER

People v. Hand, 16 P.2d 156, 158 (Cal. Ct. App. 1932), citing

People v. Wieger, 100 Cal. 352 (1893) and People v. Bow-

man, 142 P. 495 (Cal. Ct. App. 1914).

Even if we were to accept the dissent’s argument, it would

be inapplicable in Tijani’s case under the modified categorical

approach. The mistaken argument is that Tijani’s conviction

did not necessarily require an intent to defraud. The informa-

tion filed in Tijani’s 1999 case shows that he was charged

specifically with making false statements to procure “the

extension of credit,” not goods or cash. Two assumptions are

concealed in dissent’s argument where it is applied to a credit-

seeker: (1) that the lying credit-seeker has not obtained some-

thing of value when he gets credit and (2) that the lying

credit-seeker harbors no evil intent to deprive the creditor of

anything. Each assumption is fallacious.

Creditors, like investors, transact in risk. An investor who,

as a result of a person’s misrepresentations, receives a riskier

asset than he bargained for, has suffered measurable and fore-

seeable economic harm, and is the victim of fraud. Similarly,

the creditor who is induced through misrepresentations to give

credit suffers measurable and foreseeable harm the moment

the creditor enters into the transaction with the fraudster.

The harm is inflicted regardless of whether the customer

intends to make timely payments or whether or not he eventu-

ally makes them. The creditor’s contract with the customer

has more than one parameter. Creditors extend a particular

line of credit, including a specific credit limit, a specific inter-

est rate, and particular provisions for late fees and penalties,

based on the calculated credit-worthiness of a specific cus-

tomer. A credit-seeker who misrepresents his credit-

worthiness does so precisely with the intent of receiving a

higher credit limit, a lower interest rate, lower monthly pay-

ments, and more favorable late-fee and penalty provisions

than he otherwise would — at the expense of the creditor. The

creditor, in this situation, receives a riskier and less valuable

TIJANI v. HOLDER 19385

investment than that bargained for, and therefore suffers mea-

surable and foreseeable economic harm. He has been

defrauded.

The current economic crisis highlights the full impact of

the misrepresentation of risk in the credit market. The impact

is on creditors, consumers, and on the economy. When credi-

tors take on too many risky contracts, whether due to their

own carelessness or the misrepresentations of their customers,

they are likely to suffer enormous economic harm, and the

resulting effects on society can be devastating. Any assess-

ment of the pecuniary harm suffered by the creditor of a

fraudster will be incomplete if it is divorced from these eco-

nomic realities.

[4] In a word, to induce a creditor into a risky contract

through misrepresentation, on terms to which the creditor

would not have agreed if he had not been duped, is to commit

fraud on the creditor. Precisely this type of conduct is prohib-

ited under § 532a(1). Tijani’s conduct was “inherently fraudu-

lent.”

Further fraud is committed when the fraudster uses his

fraudulently-obtained credit card to obtain goods. The seller

of the goods is now the victim. The seller parts with property

in return for a representation of credit to which the fraudster

has no right. The harm is tangible and immediate.

[5] The argument might be advanced that fraudulently

using the card to obtain goods is not fraud on the merchant

because he will be paid by the issuer of the card. But at the

moment the merchant delivers the goods, he has parted with

property on the basis of a lie: that is the fraud. That the mer-

chant will be reimbursed is no more relevant than is insurance

to the victim of a theft; the reimbursement does not mean that

the victim was not deprived of his property. What is secured

by the fraudster is the property he purchases. To argue that it

is not fraud to obtain property by falsehood if one harbors the

19386 TIJANI v. HOLDER

intent to pay for it at some future time is to suppose that any

prosecution for fraud could be defeated by the swindler say-

ing “I intended to pay all along and will now do so.” We held

in a federal case involving fraud: “While an honest, good-

faith belief in the truth of the misrepresentations may negate

intent to defraud, a good-faith belief that the victim will be

repaid and will sustain no loss is no defense at all.” United

States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986).

When argument suggests that an intent to repay is a defense

to a charge of fraud, it confuses a practical possibility with a

legal defense. Of course if the fraudster does in fact pay his

bills, he is probably not going to be prosecuted. Who would

turn him in? His upright intent to repay does not absolve him

of the lie by which he obtained what was not his. It is con-

tended that the creditor could benefit from the fraud when the

honest fraudster paid up. But no sane giver of credit would

want to be lied to and be persuaded to make credit available

or to deliver his goods on the basis of the lie. Any benefit that

came from the fraudster turning honest would be a matter of

chance.

It is argued that our reading of § 532a(1) makes another

section of the same statute, 532(a), redundant. This section

criminalizes the act of one who “knowingly or designedly, by

any false or fraudulent representation or pretense, defrauds

any other person of money, labor, or property, whether real or

personal . . . and thereby fraudulently gets possession of

money or property, or obtains the labor or service of another

. . . .” Cal. Penal Code § 532(a). This statute does not specify

fraud in obtaining credit. Therefore, § 532(a) is not otiose. It

criminalizes only fraud to obtain labor, money or property.

Section 532a(1) aims at fraud in obtaining credit.

Tijani cites People v. Hagedorn, 127 Cal. App. 4th 734

(Cal. Ct. App. 2005), applying Cal. Penal Code § 530.5(a)

which criminalizes the use of another person’s identity “for

any unlawful purpose, including to obtain, or attempt to

TIJANI v. HOLDER 19387

obtain, credit, goods, services, real property, or medical infor-

mation . . . .” For conviction under the statute, the court held

an intent to defraud was not necessary. Id. at 742. But this

case merely shows that identity theft is a crime that may not

involve fraud. The statute criminalizes identity theft for “any

unlawful purpose.”

Barry v. Am. Express Publ’g, Inc., 54 Cal. Rptr. 3d 91, 94

(Ct. App. 2007) is worth comment. The question in this civil

suit was whether a credit card was covered by the Consumer

Legal Remedies Act (CLRA), Cal. Civil Code § 1750 et seq.

The court held that the card fell neither within the definition

of goods nor services, the two types of property protected by

the CLRA. The court further noted that the legislature had

dropped “money” and “credit” from what the CLRA pro-

tected. Barry does not show that credit is valueless in Califor-

nia; rather, the case establishes that credit is a distinct kind of

valuable.

Tijani calls our attention to Hirsch v. INS, 308 F.2d 562

(9th Cir. 1962), which distinguished a fraudulent statement

from a false one. The distinction is that a false statement

could be made without the intent to induce reliance. The dis-

tinction does not help Tijani. Section 532a(1) prohibits only

false statements made in the expectation that credit or prop-

erty will be given in reliance on them. Tijani’s false state-

ments were made for that purpose.

Marmolejo-Campos. Finally, we disagree with Judge

Tashima’s assertion that our recent decision in Marmolejo-

Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc)

requires that we direct the BIA to adhere to its decision in In

re Kinney, 10 I & N Dec. 548 (1964). Our decision in

Marmolejo-Campos is inapposite to this petition and the con-

trary suggestion opens the door to considerable mischief.

Marmolejo-Campos concerned the deference this court should

give a BIA opinion when reviewing a challenge to a BIA

decision. We clarified that, pursuant to Chevron U.S.A. Inc. v.

19388 TIJANI v. HOLDER

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), “where

. . . the board determines that certain conduct is morally turpi-

tudinous in a precedential decision, we apply Chevron defer-

ence.” 558 F.3d at 911. We concluded that “once the elements

of the petitioner’s offense are established, our review of the

BIA’s determination that such offense constitutes a ‘crime of

moral turpitude’ is governed by the same traditional principles

of administrative deference we apply to the Board’s interpre-

tation of other ambiguous terms in the INA.” Id.

The first step is that “the elements of the petitioner’s

offense be established.” To establish the elements is to con-

strue the statute of conviction. As we said:

[1] The first inquiry requires the BIA to construe

a state criminal statute. As the BIA has no statutory

expertise in such state law matters, we review de

novo its determination of the elements of the offense

for which the petitioner was convicted. [2] The sec-

ond inquiry requires the BIA to construe the INA by

defining a particular removable offense and applying

that definition to a petitioner’s state conviction. If, in

resolving the second issue, the BIA has interpreted

an ambiguous INA statutory term, and rendered its

interpretation in a precedential decision intended to

carry the force of law, we defer under Chevron

U.S.A [ ], to the BIA’s definition so long as it is rea-

sonable.

See Fregozo v. Holder, 576 F.3d 1030, 1034-35 (9th Cir.

2009) (citing Marmolejo-Campos) (citations and internal quo-

tations omitted).

As the Marmolejo-Campos court explained:

It is well established that we give no deference to

the BIA’s answer to the first question. The BIA has

no special expertise by virtue of its statutory respon-

TIJANI v. HOLDER 19389

sibilities in construing state or federal criminal stat-

utes and, thus, has no special administrative

competence to interpret the petitioner’s statute of

conviction. As a consequence, we review the BIA’s

finding regarding the specific act for which the peti-

tioner was convicted de novo.

Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.

2009)

Deference is not due the agency in construing state law. We

determine that an element of the California statute is fraud.

Once that is determined, the conclusion is clear: “Crimes

involving fraud are considered to be crimes involving moral

turpitude.” See Matter of Correa-Garcia, 20 I. & N. Dec. 451,

453 (BIA 1992).

The erroneous exposition of the elements of the crime in

Kinney is not binding upon us. Kinney contains the proposi-

tion that credit card fraud is not fraud because the fraudster

might harbor the intent to repay the credit he fraudulently

requires. That proposition, as our preceding analysis has dem-

onstrated, is contrary to the law. Moral turpitude attaches to

the fraud. “Without exception, federal and state courts have

held that a crime in which fraud is an ingredient involves

moral turpitude.” Jordan v. De George, 341 U.S. 223, 227

(1951).

The dissent [page 19394] observes that the majority’s anal-

ysis is “contained in three sentences” and that the analysis is

not “a reasoned analysis; it is patently ipse dixit.” These com-

ments appear to be made without acknowledgment of the

analysis in the majority opinion pages 19380-87 showing why

Tijani was convicted of crimes of fraud. The dissent does not

note that the first step specified in Marmolejo-Compos is for

us to establish the elements of the offense. Our interpretation

of Marmolejo is no canard, i.e. “a false or fabricated report.”

Our interpretation simply repeats what the en banc court said.

19390 TIJANI v. HOLDER

Intent to repay is not recognized as a defense by any Cali-

fornia case we have been able to find or by California Model

Jury Instructions for crimes charged under Penal Code § 532a.

They read:

To prove that the defendant is guilty of this crime,

the People must prove that: . . . The defendant (made

the statement/[or] caused the statement to be made)

to obtain the (delivery of personal property[,]/[or]

payment of cash[,]/[or] making of a loan[,]/[or]

extension of credit[,]/[or] execution of a contract of

guaranty or suretyship[,]/[or] discount of an account

receivable[,]/[or] making, acceptance, discount, sale,

or endorsement of a bill of exchange or promissory

note) for ((his/her) benefit/the benefit of the (other

person/corporation)).

Judicial Council of Cal. Crim. Jury Instructions No. 2020

(emphasis added).

Nowhere is there an instruction stating that an intent to

repay is a defense.

[6] Relief. Tijani has a fallback: he seeks asylum, with-

holding of deportation, or CAT relief. There are reasons, set

out strongly by Judge Callahan, for doubting Tijani’s credibil-

ity in making these claims. Compelled by precedent, we none-

theless accept his story. The immigration judge found that

“the weight of his words is not sufficient to carry his burden

of proving eligibility for asylum.” But the immigration judge

explicitly refused to find Tijani not credible. Precedent holds

that an adverse credibility finding does not require the recita-

tion of a particular formula, yet the finding must be “explicit.”

Mansour v. Aschcroft, 390 F.3d 667, 671-72 (9th Cir. 2004).

Absent such explicit finding, an immigration judge cannot

require corroboration evidence. Kataria v. INS, 232 F.3d

1107, 1113 (9th Cir. 2000).

TIJANI v. HOLDER 19391

The Real ID Act of 2005 has remedied part of the problem

created by our precedent. It permits an immigration judge to

ask for corroboration of otherwise credible testimony. 8

U.S.C. § 1158(b)(1)(B)(ii). The proceedings in this case

began before the effective date of the new law and are there-

fore not governed by it. Sandoval-Lua v. Gonzalez, 499 F.3d

1121, 1132, n.10 (9th Cir. 2007).

Scope of Remand

[7] Accordingly, we must remand to the agency to address

the question of whether Tijani is entitled to relief. But Tijani

has not preserved all of his claims. Fairly read, we have no

doubt that the IJ’s decision denied Tijani asylum as a matter

of discretion. Tijani failed to argue before the BIA or in his

opening brief before this court that the exercise of discretion

was error. We lack jurisdiction to review legal claims not

presented in an alien’s administrative proceedings before the

BIA. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Moreover, we generally will not take up arguments not raised

in an alien’s opening brief before this court. Perezo v.

Mukasey, 512 F.3d 1163, 1165 n.5 (9th Cir. 2008). Because

both bars apply here, we do not review the IJ’s discretionary

denial of asylum to Tijani and so the IJ’s and the BIA’s denial

of asylum stands.

We remand to the BIA for consideration of Tijani’s other

claims for withholding of deportation and CAT relief.

AFFIRMED in part, REVERSED in part, and

REMANDED. Each party shall bear its own costs.

19392 TIJANI v. HOLDER

TASHIMA, Circuit Judge, concurring in part and dissenting

in part:

Because the majority employs an unauthorized non-

categorical mode of analysis in concluding that the petitioner

was convicted of a crime involving moral turpitude

(“CIMT”), I respectfully dissent from the majority opinion,

except for the section entitled Relief, commencing at Maj. op.

19390.

In open defiance of our recent en banc holding in

Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir.

2009) (en banc), that the determination of whether a crime is

a CIMT is committed to the Board of Immigration Appeals

(“BIA”), the majority refuses to grant the BIA’s published,

precedential decision that the crime involved here is not a

CIMT the deference to which it is entitled and, instead, makes

its own free-wheeling determination that the crime involved

is a CIMT. It not only ignores the BIA’s precedential deci-

sion, but fails to adhere to the categorical-approach analysis

of Taylor v. United States, 495 U.S. 575 (1990). It ignores the

accepted elements of the offense, concocts its own version of

what offenses the crime categorically includes, and pays no

attention to the state courts’ interpretation of the elements that

constitute the crime.

Granting the BIA’s decision the deference that it is owed,

and requiring the BIA in a one-member, “streamlined” dispo-

sition to follow its own binding precedent, I would hold that

petitioner Monsuru Olasumbo Tijani is not removable and

grant the petition for review.

The pivotal issue in this case is whether a violation of Cal.

Penal Code § 532a(1) is a CIMT. We recently held, en banc,

that the BIA’s precedential decision determining that a crime

is or is not a CIMT is entitled to Chevron1 deference. See

1

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984).

TIJANI v. HOLDER 19393

Marmolejo-Campos, 558 F.3d at 910-11. We there held that

the BIA’s precedential determination of whether an offense

meets the INA’s definition of moral turpitude “is precisely the

type of agency action the Supreme Court instructs is entitled

to Chevron deference.” Id. at 910 (citing INS v. Aguirre-

Aguirre, 526 U.S. 415, 425 (1999)).

The crime at issue here, entitled “False financial state-

ments,” provides in relevant part:

Any person who shall knowingly make or cause to

be made, either directly or indirectly or through any

agency whatsoever, any false statement in writing,

with intent that it shall be relied upon, respecting the

financial condition, or means or ability to pay, of

himself . . . for the purpose of procuring in any form

whatsoever, either the delivery of personal property,

the payment of cash, the making of a loan or credit,

the extension of a credit, the execution of a contract

of guaranty or suretyship, the discount of an account

receivable, or the making, acceptance, discount, sale

or indorsement of a bill of exchange, or promissory

note, for the benefit of [ ] himself . . . shall be guilty

of a public offense.

Cal. Penal Code § 532a(1).2 In In re Kinney, 10 I. & N. Dec.

548 (BIA 1964), a published, precedential opinion, in constru-

ing a Connecticut statute that is identical to § 532a(1),3 the

2

The majority mislabels this offense as “credit card fraud,” which it is

not. The California Penal Code entitles the section “False financial state-

ments.” Thus, by mislabeling the offense, the majority prejudges the issue

of whether it is a CIMT, because all fraud offenses are CIMTs. See Jordan

v. DeGeorge, 341 U.S. 223, 232 (1951) (“The phrase ‘crime involving

moral turpitude’ has without exception been construed to embrace fraudu-

lent conduct.”). But, as I explain below, fraud or a fraudulent intent is not

an element of this offense.

3

Although the majority asserts that In re Kinney contains an “erroneous

exposition of the elements of the crime,” Maj. op. at 19389, it does not

19394 TIJANI v. HOLDER

BIA held that procuring credit by way of a false statement is

not morally turpitudinous. That should be the end of our

inquiry.

But in its perplexing interpretation of Chevron deference,

the majority collapses the CIMT determination into the Taylor

analysis of the elements of the offense. The majority’s entire

“analysis” is contained in three sentences:

Deference is not due the agency in construing

state law. We determine that an element of the Cali-

fornia statute is fraud. Once that is determined the

conclusion is clear: “Crimes involving fraud are con-

sidered to be crimes involving moral turpitude.” See

Matter of Correa-Garcia, 20 I. & N. Dec. 451, 453

(BIA 1992). ¶ The erroneous exposition of the ele-

ments of the crime in Kinney is not binding upon us.

Maj. op. at 19389. But this interpretation of the statute is not

a reasoned analysis; it is patently ipse dixit. Moreover, it is the

majority’s “exposition of the elements of the crime” that is

erroneous. It is also inconsistent with a Taylor categorical

inquiry because fraudulent intent is not an element of the

crime. Under California’s standard jury instructions, the only

contest that the elements of the Connecticut statute at issue in In re Kinney

are identical to the elements of Cal. Penal Code § 532a(1). The statute at

issue in In re Kinney provided:

Any person who knowingly makes or causes to be made, either

directly or indirectly or through any agency, any false statement

in writing, with intent that it shall be relied upon, concerning the

financial condition or means or ability to pay of himself . . . for

the purpose of procuring . . . the delivery of personal property,

the payment of cash, the making of a loan or credit, the extension

of credit . . . shall be fined two thousand dollars or imprisoned

not more than five years or both.

In re Kinney, 10 I. & N. Dec. at 548-49 (quoting Conn. Gen. Stat. § 8698

(1949 Revision)). A comparison of the two statutes quickly reveals that

they are, for all relevant purposes, identical.

TIJANI v. HOLDER 19395

intent required for a conviction under § 532a(1) is that the

defendant “intended that the statement be relied on.” CAL-

CRIM 2020, 2 Judicial Council of Cal., Criminal Jury Instruc-

tions (2009).4 When the crime at issue requires an intent to

defraud, as in forgery, the Cal. Judicial Council Criminal Jury

Instructions clearly require a fraud instruction, i.e., that

“[s]omeone intends to defraud if he or she intends to deceive

another person either to cause a loss of something of value,

or cause damage to, a legal, financial, or property right.”

CALCRIM 1901. Thus, the majority’s conclusory statement

that “[w]e determine that an element of the California statute

is fraud,” is clearly contrary to California’s construction of its

own law and is unsupported by any California case or stan-

dard jury instruction. It does not conform to Taylor’s categori-

cal approach. The majority simply refuses to accept the

elements of the offense as defined by California law.

As the BIA recognized in In re Kinney: “The intent that the

false statement be relied upon is not necessarily an intent to

do evil or work fraud because . . . one who intends that there

be reliance upon his false statement may nevertheless also

intend to pay for the goods he is attempting to obtain.” 10 I.

& N. Dec. at 549 (citations omitted). The majority labels this

as a “benevolent interpretation” and asserts that “[n]o court

would accept such a defense.” Maj. op. at 19383. But it is

exactly the “defense” that is accepted by the California courts

in California’s standard jury instructions; moreover, it is also

exactly how the BIA, pursuant to its discretion recognized by

Marmolejo-Campos, interprets the statute.

Rather than making the categorical inquiry mandated by

Taylor, the majority constructs an elaborate apologia of Wall

Street and the banking industry and engages in speculation on

4

Note that, while the majority also relies on and quotes this same stan-

dard instruction, CALCRIM 2020, see Maj. op. at 19390, it carefully

avoids mention of the mens rea element of the crime quoted above, which

is not an intent to defraud.

19396 TIJANI v. HOLDER

the causes of the “current economic crisis.” Maj. op. at 19385.

These ruminations, however, have nothing to do with the

question at hand and do not move us forward in the task with

which we are charged: To examine the statute and to deter-

mine whether that statute, as construed by the California

courts, is categorically a CIMT.5

The majority’s subjective, non-categorical approach to

interpreting the statute begins with its characterization of the

crime as “a modern form of swindle,” Maj. op. at 19381,

implying that the statute was recently enacted to combat

credit card fraud “in the modern United States,” Maj. op. at

19378, ignoring that the statute was enacted in 1913. See 1913

Cal. Stat. c. 251, p. 437, § 1. It then concludes by stating that

“[t]he erroneous exposition of the elements of the crime in

Kinney is not binding upon us.” Maj. op. at 19389. But the

majority simply misreads In re Kinney. In re Kinney accepts

the crime as defined by state law. What it concludes is that the

intent required by the statute does not amount to fraud. After

agreeing with government counsel that the statute, like the

California statute, “requires the false statement to be made

with intent that it be relied upon,” the BIA goes on to observe:

The intent to which moral turpitude adheres, is the

intent to do evil or work fraud—this intent is absent

in section 8698. The intent that the false statement be

relied upon is not necessarily an intent to do evil or

work fraud because as the special inquiry officer has

pointed out, one who intends that there be reliance

upon his false statement may nevertheless also

5

The majority complains that my characterization of its “determination”

that “an element of the California statute is fraud” ”is patently ipse dixit”

does not “acknowledge[ ] the analysis in the majority opinion pages

19380-87 showing why Tijani was convicted of crimes of fraud.” Maj. op.

at 19389. Obviously, however, those subjective ruminations, wholly

divorced from the elements of § 532a(1) and unsupported by any citation

to directly applicable California authority, are not an objective categorical

analysis of the elements of the offense mandated by Taylor.

TIJANI v. HOLDER 19397

intend to pay for the goods he is attempting to

obtain. The fact that a person convicted under sec-

tion 8698, intended to commit fraud, does not make

a conviction under the section one involving moral

turpitude. It is the moral obliquity of the crime and

not of the individual that is the test under the law.

In re Kinney, 10 I. & N. Dec. at 549.

The majority also insists on labeling a violation of

§ 532a(1) as “credit card fraud,” e.g., Maj. op. at 19378,

19380, 19381, which is not an accurate categorical descrip-

tion of the elements of this 97-year-old statute, which was

enacted decades before the credit card was invented. What-

ever else the majority’s fixation on “credit card fraud” as “a

modern form of swindle” may be, it decidedly is not the cate-

gorical examination of § 532a(1) mandated by Taylor.6

“The essence of moral turpitude is an evil or malicious

intent.” In re Phong Nguyen Tran, 21 I. & N. Dec. 291, 293

(BIA 1996). Fraud is a crime of moral turpitude because evil

intent is inherent in an intent to defraud. Goldeshtein v. INS,

8 F.3d 645, 647 (9th Cir. 1993); compare Hirsch v. INS, 308

F.2d 562, 567 (9th Cir. 1962) (“A crime that does not neces-

sarily involve evil intent, such as intent to defraud, is not nec-

essarily a crime involving moral turpitude.”). The evil intent

inherent in an intent to defraud is simply missing where intent

to deprive another of property is not an element of the

offense. Thus, the crime of procuring credit by the use of a

false statement is not categorically fraudulent, as the BIA rec-

ognized in In re Kinney, because an individual need not have

6

The majority also makes a half-hearted attempt to invoke the modified

categorical approach, Maj. op. at 19384, but this attempt is as deficient as

its categorical-approach analysis in that it also completely ignores the

mens rea element of the offense. Moreover, because intent to defraud is

a “missing element,” it cannot be supplied by turning to the modified cate-

gorical approach. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073

(9th Cir. 2007) (en banc).

19398 TIJANI v. HOLDER

an evil intent to defraud in making a false statement in viola-

tion of the statute, i.e., intent to defraud is not an element of

the offense.

Additionally, People v. Hagedorn, 25 Cal. Rptr. 3d 879

(Ct. App. 2005), evinces the California courts’ reluctance to

read an intent to defraud into a statute that does not include

it on its face. The statute there in question, an identity theft

statute, criminalizes the use of personal identifying informa-

tion belonging to another “for any unlawful purpose, includ-

ing to obtain, or attempt to obtain, credit, goods, services, real

property, or medical information.” Cal. Penal Code

§ 530.5(a). The court held that the statute “clearly and unam-

biguously does not require an intent to defraud.” Hagedorn,

25 Cal. Rptr. 3d at 885. Hagedorn clearly illustrates that

under the California courts’ mode of analysis, a fraud require-

ment will not be implied into a statute that does not contain

a fraud element on its face.7

Thus, reading § 532a(1) as not categorically including an

intent to defraud is consistent with California law,8 as well as

7

Moreover, the California Legislature has been explicit that when it

intends fraud to be an element of an offense it includes it in the statute.

See, e.g., Cal. Penal Code § 470(d) (forgery includes “with intent to

defraud” as an element); Cal. Penal Code § 476a(a) (check kiting) (same);

Cal. Penal Code § 548(a) (insurance fraud) (same). As the court observed

in Hagedorn, “Obviously, if the Legislature meant for [the statute in ques-

tion] to require an intent to defraud, it knew how to so provide.” 25 Cal.

Rptr. 3d at 885. People v. Hand, 16 P.2d 156 (Cal. Ct. App. 1932), cited

by the majority, exemplifies the California Legislature’s approach. The

statute there involved, Cal. Penal Code § 484, unlike § 532a(1), as the

majority concedes, “does expressly require an intent to defraud.” Maj. op.

at 19383.

8

Although the majority purports to address why Tijani cited Hagedorn,

noting that “the court held that intent to defraud was not necessary” for a

conviction under Cal. Penal Code § 530.5(a), Maj. op. at 19387 (citing

Hagedorn, 25 Cal. Rptr. 3d at 885), it does not respond to my reason for

citing the case — that Hagedorn’s mode of analysis demonstrates that

California courts do not read an intent to defraud into a statute that does

not include such a requirement on its face.

TIJANI v. HOLDER 19399

with the BIA’s reasonable interpretation to which we must

defer. The majority’s refusal to grant Chevron deference to In

re Kinney and accept it as binding flies in the face of our

recent en banc decision in Marmolejo-Campos. Under

Marmolejo-Campos, we have no authority to ignore In re

Kinney, as the majority purports to do.

The majority characterizes Marmolejo-Campos as “inappo-

site to this petition,” Maj. op. at 19387, but it reaches that

conclusion, as explained earlier, only by relying on its off-

hand, single-sentence “determination” that “an element of the

California statute is fraud.” Maj. op. at 19389.

Under our case law, like any other court or agency, the

BIA, too, must follow the law. The BIA’s own regulations

provide:

Except as Board decisions may be modified or

overruled by the Board or the Attorney General,

decisions of the Board, and decisions of the Attorney

General, shall be binding on all officers and employ-

ees of the Department of Homeland Security or

immigration judges in the administration of the

immigration laws of the United States.

8 C.F.R. § 1003.1(g).

As we explained in Hernandez v. Ashcroft, 345 F.3d 824,

846 (9th Cir. 2003), the BIA cannot simply ignore its own

long-established precedent. We emphasized that “the regula-

tions themselves limit the BIA’s discretion to operating within

the law.” Id. (discussing § 1003.1). Thus, we held, “[a] non-

precedential decision by the BIA in defiance of its own prece-

dential case law simply cannot be classified as discretionary.”

Id. In short, the “BIA has no discretion to make a decision

that is contrary to law.” Id.

19400 TIJANI v. HOLDER

The decision at issue here was an IJ’s decision which was

adopted by one member of the BIA. As the majority con-

cedes, Maj. op. at 19380, this was a “streamlined” decision,

i.e., a decision by one member in which the BIA agrees with

the result but does not endorse the reasoning. See 8 C.F.R.

§ 1003.1(e)(4); Falcon-Carriche v. Ashcroft, 350 F.3d 845,

849 (9th Cir. 2003). Thus, the majority’s rejection of the con-

trolling force of Marmolejo-Campos and, through it, of In re

Kinney, is without foundation.9

Tijani was not convicted of a CIMT. Contrary to the major-

ity’s ipse dixit, intent to defraud is not an explicit or implicit

requirement of § 532a(1). Moreover, the BIA has reasonably

determined in a precedential decision that this crime is not

morally turpitudinous and, under Marmolejo-Campos, we

owe deference to the BIA’s determination.

Because Tijani has not committed a removable offense, I

would hold that he is not removable and grant the petition.

*****

Alternatively, I concur in that portion of the majority opin-

9

Judge Callahan, in her concurring and dissenting opinion, offers a fur-

ther reason for distinguishing In re Kinney and Marmolejo-Campos. She

states that “Marmolejo-Campos, like all other cases following Chevron,

recognizes that an agency may develop its positions through a ‘process of

case-by-case adjudication.’ 558 F.3d at 908. This process inherently

allows for differences over a period of forty-five years. The agency

decision-making process envisioned by Congress allows for change over

time, and nothing in Chevron or Marmolejo-Campos supports this court

insisting that the BIA adhere to a forty-five year old precedent.” Callahan

concur. and diss. op. at 4095 n.2. The problem with this assertion,

although it may be true as a general proposition, is that neither Judge Cal-

lahan nor the majority cites or identifies any precedential case of the BIA

(or any circuit) in the 45 years since In re Kinney was decided that ques-

tions Kinney. And, of course, the one-member, streamlined adoption of the

IJ’s decision in this case is not entitled to Chevron deference. See

Miranda-Alvarado v. Gonzales, 449 F.3d 915, 924 (9th Cir. 2006).

TIJANI v. HOLDER 19401

ion holding that the IJ erred in requiring corroborating evi-

dence in the absence of an explicit adverse credibility finding.

Maj. op. at 19390-91. I would add only that on remand, under

the cases cited in the majority opinion, when evaluating

Tijani’s claims for relief from removal, the IJ must credit

Tijani’s testimony as true. See Mansour v. Ashcroft, 390 F.3d

667, 672 (9th Cir. 2004) (“In the absence of an explicit

adverse credibility finding, we must assume that [Petitioner’s]

factual contentions are true.”) (quoting Kataria v. INS, 232

F.3d 1107, 1114 (9th Cir. 2000))).

CALLAHAN, Circuit Judge, concurring and dissenting:

Nonsuro Olasumbo Tijani, a native and citizen of Nigeria,

has been convicted on four separate occasions for crimes of

dishonesty and financial fraud: in 1986 for perjury, in 1987

for passing fraudulent checks, in 1991 for providing false

information to obtain credit cards in violation of California

Penal Code § 532, and in 1999 on twelve counts of again vio-

lating § 532(a)(1) by providing false information to obtain

credit cards and using the cards to obtain goods. The govern-

ment, most reasonably, seeks to remove Tijani to Nigeria. I

would affirm the decision by the Board of Immigration

Appeals (“BIA”) to deny Tijani relief.

I agree with Judge Noonan that Tijani was convicted of a

crime involving moral turpitude.1 I also agree, albeit for

slightly different reasons than expressed by Judge Noonan,

that our opinion in Marmolejo-Campos v. Holder, 558 F.3d

903 (9th Cir. 2009) (en banc) does not require that we direct

the BIA to adhere to its decision in In re Kinney, 10 I & N

Dec. 548 (1964).2

1

I also agree that neither of Tijani’s due process claims have any merit.

2

Even if In re Kinney were not distinguishable as set forth in Judge

Noonan’s opinion, there are two features of Marmolejo-Campos that ren-

19402 TIJANI v. HOLDER

However, I do not agree that because the Immigration

Judge (“IJ”) may not have explicitly stated that Tijani was not

credible, Tijani must be presumed to be credible, or that the

IJ could not require that Tijani corroborate his unsupported

testimony. At the very least, my colleagues needlessly pro-

long Tijani’s removal proceedings. The greater harm, how-

ever, lies in their reliance on technicalities to overcome the

reality of the situation and to defeat the purpose and letter of

our precedents.

Because Judge Noonan and I agree that Tijani is remov-

able, Tijani would only be entitled to relief if he made the req-

uisite showings for asylum, withholding of removal, or

protection against torture. However, Tijani’s eligibility for

these forms of relief depends on his credibility. I read the

record to show that the IJ held that Tijani was not credible and

to contain substantial evidence supporting that determination.

Moreover, the IJ properly held that Tijani had not carried his

burden to show eligibility for asylum, withholding of

removal, or protection against torture because he failed to

proffer any evidence to support his incredible testimony.

A. The Immigration Judge’s Opinion

The best evidence that the IJ found that Tijani was not

credible is the IJ’s decision. The IJ wrote:

The respondent was admitted into the United

States in 1985. The court finds the situation with the

der it inapposite to the case at bar. First, the issue is what deference this

court should give to an agency decision, not what deference an agency is

required to give to its own precedent. See United States v. Mead, 533 U.S.

218, 229 (2001). Second, Marmolejo-Campos, like all the other cases fol-

lowing Chevron, recognizes that an agency may develop its positions

through a “process of case-by-case adjudication.” 558 F.3d at 908. This

process inherently allows for differences over a period of forty-five years.

The agency decision-making process envisioned by Congress allows for

change over time, and nothing in Chevron or Marmolejo-Campos supports

this court insisting that the BIA adhere to a forty-five year old precedent.

TIJANI v. HOLDER 19403

respondent analogous to that of the boy who cried

wolf. In 1986 the respondent was convicted of per-

jury. Perjury is a crime under Section 118 of the Cal-

ifornia Penal Code, which is essentially a crime for

lying. In 1986 when the respondent in essence cried

wolf a Judge in a court found that he did in fact lie

and he was convicted and sentence[d] to 36 months

probation. At the same time the respondent indicated

his willingness to violate law and his lack of charac-

ter by also being convicted of grand theft. As men-

tioned above, it is not clear whether the respondent

has two perjury convictions or one perjury convic-

tion, two grand theft convictions or one. It is respon-

dent’s burden of proof.

In 1987 the respondent was convicted of insuffi-

cient funds under Section 476A. This is the second

time the respondent cried wolf. Again, a Judge was

called upon to determine whether the respondent’s

statements were true or not. The respondent wrote a

check representing that he had funds in an account

necessary to cover the expenses. He knowingly did

not have the funds and therefore he was sentenced to

16 months in prison. This is the second time a Judge

has found the respondent has not told the truth.

In 1989 the respondent was in removal proceed-

ings by the foreign Immigration Judge. The respon-

dent submitted or had submitted on his behalf by his

legal representative, who he was friendly enough

with to attend church together, a letter to the Judge.

The letter to the Judge is from a pastor. The letter

represents that the respondent is a Christian and that

he provided numerous dedicated services. The letter

represents that respondent attended the church for

two years. The letter provided the respondent had

become a member of that church. The respondent

now testifies that this letter that was sent to the Judge

19404 TIJANI v. HOLDER

on his behalf is a lie. The respondent represents how

that letter was written and he does not recall having

seen the letter.

In 1991 the respondent picked up a conviction for

filing financial statements. In this case the respon-

dent lied, used a fictitious name, fictitious social

security number, fictitious business name and busi-

ness address and falsely represented himself to be

another person. In essence the respondent lied about

his own identity. The respondent did so in such a

manner that it was relied upon by Sears to extend

benefits to him for which he was not entitled. This

is the third time the respondent cried wolf. Again, a

Judge was called upon and found that the respondent

had in fact lied and the cry of wolf was not true. The

Judge, as a result, sentenced the respondent to two

years, 4 months in prison. 16 months for the lie and

1 year for the prior lies. Exhibit 3 reflects the respon-

dent has another conviction, on January 23, 1992 in

Santa Barbara, California for false financial state-

ments. This was found to be the basis to sustain a

one year prison enhancement. This is another

instance, and in fact the fourth in the United States,

where the respondent cried wolf and a Judge was

called upon and determined that the respondent had

lied again and this time the respondent was given

appropriate sanctions.

The respondent is now in front of me on 12 counts

of again lying. The respondent was convicted in

1999 on 12 different counts of filing false financial

statements. These lies occurred between 1996 and

1998. This is another 12 instances where the respon-

dent cries wolf. And each time the Court and a Judge

is required to come in and in each of these 12

instances that were alleged, the Judge found that the

TIJANI v. HOLDER 19405

respondent had lied and this time imposed 9 years in

prison.

The respondent in front of me has testified in 1994

he was in college and that he decided to convert to

Christianity. The respondent acknowledges that the

Christian faith has as one of its [tenets, thou] shall

not steal. The respondent based upon the record has

committed numerous offenses of this section. The

Court finds that this, at a minimum draws into ques-

tion whether the respondent holds this faith. The

Court also find[s] the fact that the respondent previ-

ously has been in front of an immigration judge and

someone on behalf of the respondent has submitted

a very detailed letter written directly to the Judge

saying the respondent had been a Christian and part

of the Christian sect of Brotherhood of the Cross and

Star [in] 1999 [sic]. Accordingly take notice, Judge

Peters granted the respondent relief on May 12,

1989. The case before Judge Peters began in 1987.

The respondent, however, distances himself from

this letter saying he does not recall it and that it is

not true. If it is not respondent in this case who is not

telling the truth, someone is submitting lies to the

Judge on his behalf.

Now the respondent is coming before this Court.

The respondent is requesting asylum in the United

States. Although the respondent or someone in his

behalf testified that he became a Christian in 1987

and submitted details regarding his practice and

church attendance as well as his character during the

two year period of [1987 to 1989] when he was

allegedly a member of this Christian sect of Brother-

hood of the Cross and Star. Respondent has testified

to the contrary today that he did not become a Chris-

tian until 1994 when he was in college.

19406 TIJANI v. HOLDER

The respondent is claiming that he would be per-

secuted and tortured upon return to Nigeria because

of the fact that he [has] changed his religion. This

time the respondent is not crying wolf. Instead on

this occasion the respondent is crying an alligator is

present. The respondent would like the United States

and its Government to run and give him the neces-

sary relief and believe him. The Court, however,

finds that after a conviction for perjury, after false

statements have been submitted to an Immigration

Judge regarding the respondent in the past, the fact

that the record contains conflicting evidence as to

when the respondent did become [a] Christian, even

if [he] did and based upon this case that the Court

has reason not to believe the respondent this time.

The 9th Circuit Court of Appeals has held that it is

not necessary to corroborate one[’s] testimony if it is

specific, credible and direct. This Court, however,

finds for the reasons set forth above that there are a

number of deficiencies in the respondent’s testi-

mony. The Court also finds that when the little boy

comes 16 times and cries wolf and each time it is

verified beyond a doubt that he is telling a lie, the

17th time that he cries [that] he is afraid of an alliga-

tor, that it is reasonable for the trier [of] fact, in this

case myself, not to [believe] him. This Court is not

going to specifically find for the record that the

respondent is not credible because the Court cannot

point to a single inconsistency in the record other

than the fact that the respondent claims that in 1994

he was a Christian, although it appears that it has

been represented to an Immigration Judge before,

that occurred in 1987. But the Court finds based

upon the respondent’s past lengthy detailed record of

lying in this country, which has occurred on [a] con-

tinuous and regular basis that the words of this

respondent simply deserve no weight. This Court is

not, after 16 occasions of crying wolf, going to

TIJANI v. HOLDER 19407

believe the respondent at this time when he claims a

different harm that necessitating asylum without

requiring some type of corroboration. In essence

what the Court is saying then is while it cannot find

an inconsistency in the respondent’s testimony at

this time to say that he is not credible, it finds that

the weight of his words is not sufficient to carry his

burden of proving eligibility for asylum. If the boy

comes and claims alligator, this Court cannot say

that after 16 prior lies that there is any way to deem

the statement there is an alligator to be inconsistent.

The Court, however, finds that the weight of those

words, there is an alligator after 16 occasions of

finding beyond a doubt that there is [a] lie sufficient

to say to the boy well if there is an alligator this

time, you need to prove it to me and demonstrate

that your words are true. The Court simply finds that

the respondent has not done so and has failed to meet

his burden of proof.

B. The IJ adequately explained his determination that

Tijani was notcredible

Even though the IJ’s perspective is certainly reasonable, if

not compelling, my colleagues read the IJ’s decision as insuf-

ficiently explicit to be a credibility determination. As author-

ity they cite the statement in Mansour v. Ashcroft, 390 F.3d

667, 671 (9th Cir. 2004), that the Ninth Circuit “does not per-

mit implicit adverse credibility determinations.”

First, there is nothing implicit about the IJ’s determination.

He finds that because Tijani has been found by judges to have

lied on 16 prior occasions, he is not credible. The IJ con-

cluded that “based upon the respondent’s past lengthy detailed

record of lying in this country, which has occurred on a con-

tinuous and regular basis that the words of this respondent

simply deserve no weight.” Perhaps if the IJ had said no

more, he would have been affirmed. The IJ, however, admit-

19408 TIJANI v. HOLDER

ted that on Tijani’s seventeenth incredible claim, the only spe-

cific inconsistency he found was Tijani’s prior representation

(on which he was granted relief) that he had converted to

Christianity in 1987 or 1988, rather than 1994, as he now

claims. This too should be enough to deny Tijani relief. See

INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (“To

reverse the BIA finding we must find that the evidence not

only supports that conclusion, but compels it.”) (emphasis in

original). The majority opinion, however, seems to hold that

because the IJ fails to find a more specific inconsistency in

Tijani’s claim of religious persecution in Nigeria, we are

bound by our precedent to accept Tijani’s representations as

true. In other words, if an applicant spins a sufficiently clever

yarn for which there is no direct contrary evidence, it must be

accepted as true.3 I do not read our precedent as compelling

this conclusion.

3

This case presents a similar situation to that to which then Judge, now

Chief Judge, Kozinski dissented in Kumar v. Gonzales, 444 F.3d 1043,

1060-61 (9th Cir. 2006) (Kozinski, J., dissenting), where he wrote:

The larger problem with the majority’s opinion is its know-it-all

approach, an error oft repeated when our circuit reviews immi-

gration cases in which an IJ has made an adverse credibility

determination. First, the majority lays out the applicant’s story as

if it were the gospel truth, making it seem like denial of rehearing

will cause a huge miscarriage of justice. Then the majority picks

apart the IJ’s findings piece by piece, scrutinizing his every sen-

tence as if it is completely unconnected to the rest of his opinion.

Don’t agree with the IJ that the applicant is lying? Not to worry;

just label the IJ’s finding “speculation and conjecture.” . . . Find-

ing it difficult to dispute that the applicant is lying? No problem;

just label the inconsistencies “minor,” or “merely incidental to

[the] asylum claim.” . . . The net effect is that any asylum appli-

cant who is a skillful enough liar — and many who aren’t —

must be believed no matter how implausible or farfetched their

story . . . . It also means that IJs, who are doubtless chary of being

vilified by august court of appeals judges, become even more

reluctant to make adverse credibility findings, even when they

have good reason to believe the asylum applicant is lying.

(footnote and internal citations omitted).

TIJANI v. HOLDER 19409

Admittedly, our opinions have not been a model of clarity

or consistency. In Jibril v. Gonzales, 423 F.3d 1129, 1135

(9th Cir. 2005), we explained:

Under our case law, testimony that is “implausible in

light of the background evidence,” Chebchoub v.

INS, 257 F.3d 1038, 1043 (9th Cir. 2001) (emphasis

added), can support an adverse credibility finding.

For example, a finding made by an IJ that a petition-

er’s testimony is implausible given the evidence in

a Country Report or other objective evidence in the

record is accorded deference. However, when an IJ

finds a petitioner’s testimony implausible based

solely on “conjecture and speculation” that the testi-

mony, though uncontroverted by any evidence that

the IJ can point to in the record, is inherently unbe-

lievable, then that “finding” should not automatically

be accorded deference. See Vera-Villegas v. INS, 330

F.3d 1222, 1231 (9th Cir. 2003) (“The IJ’s view was

based on mere speculation and conjecture, and . . .

conjecture is not a substitute for substantial evi-

dence.”) (quotation marks omitted).

Although “speculation and conjecture” alone cannot

sustain an adverse credibility finding, an IJ must be

allowed to exercise common sense in rejecting a

petitioner’s testimony even if the IJ cannot point to

specific, contrary evidence in the record to refute it.

Without such latitude, IJs would be bound to credit

even the most outlandish testimony as long as it was

internally consistent and not contradicted by inde-

pendent evidence in the record. Unfortunately, a sur-

vey of our precedent reveals no consistent line that

has been drawn between an IJ’s legitimate applica-

tion of common sense, on the one hand, and an IJ’s

reliance on “speculation or conjecture” in determin-

ing that a fact alleged by a petitioner is implausible

on the other.

19410 TIJANI v. HOLDER

It appears that a critical line regarding deference to an IJ’s

determination that an applicant is not credible is whether the

determination is based on “speculation or conjecture” or on

compelling background evidence. In Mansour, we declined to

defer to the IJ’s ambiguous adverse credibility determination

because it was based on concerns as to inconsistencies in the

evidence and questions as to whether the petitioner had pro-

vided false information.4 Mansour, 390 F.3d at 671. Similarly,

in Kataria v. INS, 232 F.3d 1107, 1111-13 (9th Cir. 2000), the

IJ did not make an explicit adverse credibility determination,

but expressed concerns about mistakes in Kataria’s applica-

tion and inconsistencies in the evidence concerning his reli-

gion and where he lived, which he failed to address by

submitting supporting evidence.

In the case at bar, the IJ was not concerned so much with

inconsistencies in Tijani’s actual testimony or mistakes in his

application but with the facts that: (1) on numerous prior

occasions, Tijani had been judicially determined to have lied

and had been criminally convicted for his lies; and (2) Tijani

testified that he had not converted to Christianity until 1994

although in 1989, a prior IJ had granted Tijani adjustment of

status based on his representation that he had converted to

Christianity in 1987. This irrefutable “background” informa-

tion suggests that no fact-finder should be compelled to

accept Tijani’s unsupported testimony as true.

C. The IJ properly denied Tijani relief because he failed

to proffer any corrobative evidence

I do not read our precedent as prohibiting the IJ in this case,

where substantial evidence undermined the petitioner’s credi-

bility, from requiring that Tijani provide supporting evidence

of his claim of religious persecution. Our rule is that “the BIA

4

The panel, however, ultimately found that even accepting Mansour’s

testimony as true, he had not demonstrated past persecution. Mansour, 390

F.3d at 673.

TIJANI v. HOLDER 19411

may not require independent corroborative evidence from an

asylum applicant who testifies credibly in support of his

application.” Kataria, 232 F.3d at 113. This rule, however,

turns on a determination that an applicant’s testimony is cred-

ible. We explained in Chebchoub:

“Because asylum cases are inherently difficult to

prove, an applicant may establish his case through

his own testimony alone.” . . . That is, Chebchoub’s

testimony, if credible, may be sufficient to sustain

his burden of proof without corroboration. . . . How-

ever, 8 C.F.R. § 208.13 plainly indicates that if the

trier of fact either does not believe the applicant or

does not know what to believe, the applicant’s fail-

ure to corroborate his testimony can be fatal to his

asylum application. Thus, the regulations unambigu-

ously contemplate cases where an applicant’s testi-

mony alone will not satisfy his burden of proof.

257 F.3d at 1042 (internal citations omitted).

This case presents an instance where an applicant, who has

been criminally convicted at least three times for lying, seeks

asylum on the basis of his testimony alleging religious perse-

cution which is inconsistent with the position he successfully

presented to an IJ ten years earlier and for which he offers no

corroborative evidence. Under these relatively unique circum-

stances, the IJ could not know “what to believe,” and thus,

even if not compelled to request corroborative evidence, can-

not be faulted for doing so.

Finally, I note that our rulings that an IJ must make an

explicit adverse credibility determination and that credible

evidence may be sufficient to support an asylum claim are

based on sound concerns that are not applicable here. The IJ’s

determination that Tijani is not credible was not based on

speculation or conjecture,5 nor did the request for corroborat-

5

For example, in Shoafera v. INS, 228 F.3d 1070, 1074 n.3 (9th Cir.

2000), which is cited in Mansour, 390 F.3d at 671, in support of the rule

19412 TIJANI v. HOLDER

ing evidence seek information that was presumptively beyond

Tijani’s reach.6 Instead, the IJ simply refused to accept the

against implied adverse credibility determinations, the court explained:

As we explained in Canjura-Flores v. INS, 784 F.2d 885, 888-89

(9th Cir. 1985), without an adverse credibility finding we accept

a petitioner’s testimony as credible because “[a]ny other rule

would put us in the position of second-guessing the credibility of

the petitioner on appeal when no doubts have been raised by the

Immigration Judge or the Board.” Consequently, the IJ “must

have ‘a legitimate articulable basis to question the petitioner’s

credibility,’ ” and must express “a specific, cogent reason for any

stated disbelief.” Garrovillas [v. INS], 156 F.3d [1010] at 1013

[(9th Cir. 1998)] (emphasis added) . . . . Indeed, any such reasons

for doubting a petitioner’s credibility must be “substantial and

must bear a legitimate nexus to the finding.” Id. (citation omit-

ted); Akinmade v. INS, 196 F.3d 951, 954 (9th Cir. 1999); Turcios

v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987). “Generalized state-

ments that do not identify specific examples of evasiveness or

contradiction in the petitioner’s testimony” are insufficient. Gar-

rovillas, 156 F.3d at 1013.

Here, the IJ had “a legitimate articulable basis for questioning” Tijani’s

credibility, the IJ explicitly stated his reasons, the reasons are substantial,

and they bear a legitimate nexus to the IJ’s fact-finding mission.

6

For example, in Smolniakova v. Gonzales, 422 F.3d 1037, 1047 (9th

Cir. 2005), we held that the IJ committed legal error in holding that

“Smolniakova’s credibility was undermined by her failure to corroborate

her testimony about the May 1991 attack with a letter from the stranger

who witnessed the assault.” The court held that “it is unreasonable to

expect Smolniakova to have obtained a corroborating letter from an

unidentified stranger.” Id. Similarly, in Bolanos-Hernandez v. INS, 767

F.2d 1277, 1285 (9th Cir. 1984), we held that an applicant cannot be

required to present independent corroborative evidence of a specific threat

to his life, and concluded that “[a]uthentic refugees rarely are able to offer

direct corroboration of specific threats.”

Here, however, the IJ only sought some corroboration of Tijani’s claim

that he was attacked and injured while visiting his mother in Nigeria

because of his conversion to Christianity. The corroboration could have

been in the form of a letter or affidavit from his mother or his brother, or

hospital records, or even statements from acquaintances that Tijani had the

injury when he returned to the United States. Tijani offered no evidence

of his claim other than his word, but due to his past misrepresentations,

his word is not entitled to any presumption of credibility.

TIJANI v. HOLDER 19413

unsupported testimony of an applicant who has several crimi-

nal convictions for lying and who proffered a claim of reli-

gious persecution that was inconsistent with the claim he had

presented to an IJ ten years earlier. Because Tijani’s unsup-

ported testimony was not entitled to any presumption of credi-

bility, I would find that the IJ did not err in requiring that he

produce some corroborative evidence.

This case tests the extremes to which our precedent can be

stretched. My colleagues appear to reason that because the

IJ’s adverse credibility determination was not sufficiently

explicit, Tijani’s testimony must be taken as true, and that

because his testimony must be accepted as true, the IJ could

not require corroborative evidence. In other words, contrary

to the fable, in the Ninth Circuit, it does not matter how often

an asylum applicant cries wolf, each new cry for relief must

be treated as true because to do otherwise is arguably specula-

tive and conjectural.7 Even assuming that our precedent could

be stretched to this point, I dissent because it should not be.

D. Conclusion

Tijani has been convicted of four crimes since he came to

the United States. After the first two, he prevailed upon an IJ

to grant him a waiver of deportation because he had converted

to Christianity and feared persecution if he returned to Nige-

ria. Tijani continued to commit frauds and after two more

convictions, the government again sought his removal to

Nigeria. Tijani now claims, based only on his unsupported

testimony, that he became a Christian in 1994, and that when

he visited his mother in Nigeria in 1995 and told her he had

7

It should be remembered that in the fable, the last time the boy cried

wolf there really was a wolf, but the people ignored the cry. Thus, if those

who had heard the call had not discounted the cry based on past events and

had investigated the last cry, the boy might have been saved. The moral,

however, is that society does not have any obligation to investigate the

unsupported claim of a person who has repeatedly confirmed that he is a

liar.

19414 TIJANI v. HOLDER

converted to Christianity, he was attacked and injured by “a

group of Sharia police officers and regular civil police offi-

cers.” I agree with the IJ that Tijani’s record of lying to the

courts in this country coupled with his revision of when he

allegedly became a Christian is sufficient to strip his testi-

mony of any credibility. Accordingly, the IJ properly required

Tijani to provide some corroboration of his testimony, and

properly denied him relief when he failed to do so. The peti-

tion for review should be denied.