RODRIGUEZ-VALENCIA v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE RODRIGUEZ-VALENCIA, 

Petitioner, No. 09-72060

v.

 Agency No.

A028-976-760

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 6, 2011—Pasadena, California

Filed July 21, 2011

Before: John T. Noonan and Richard A. Paez,

Circuit Judges, and Edward R. Korman,

Senior District Judge.*

Per Curiam Opinion

*The Honorable Edward R. Korman, Senior District Judge for the U.S.

District Court for Eastern New York, Brooklyn, sitting by designation.

9693

RODRIGUEZ-VALENCIA v. HOLDER 9695

COUNSEL

Lori B. Schoenberg, Law Offices of John R. Perry, P.C.,

Encino, California, for the petitioner.

Blair T. O’Connor, United States Department of Justice,

Washington, D.C., counsel for the respondent.

OPINION

PER CURIAM:

Jose Rodriguez-Valencia, a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals’

(“BIA”) decision dismissing his appeal from an immigration

judge’s order finding him removable and denying his applica-

tion for cancellation of removal. We have jurisdiction pursu-

ant to 8 U.S.C. § 1252.

Rodriguez-Valencia challenges the BIA’s finding that his

six convictions for “willfully manufacturing, intentionally

selling, and knowingly possessing for sale more than 1,000

articles bearing a counterfeit trademark,” in violation of Cali-

fornia Penal Code § 350(a)(2), constitute an aggravated fel-

ony as an “offense relating to . . . counterfeiting.” INA

§ 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R). Rodriguez-

Valencia maintains that the generic offense of counterfeiting

refers only to the imitation of currency and that his conviction

under California Penal Code § 350 did not require proof of his

intent to defraud. We review de novo whether an offense is

9696 RODRIGUEZ-VALENCIA v. HOLDER

an aggravated felony. Martinez-Perez v. Gonzales, 417 F.3d

1022, 1025 (9th Cir. 2005).

To determine whether a conviction qualifies as an aggra-

vated felony, we apply the categorical approach articulated in

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

Mukasey, 528 F.3d 603, 608 (9th Cir. 2008). Under this

approach, we “look to the statute under which the person was

convicted and compare its elements to the relevant definition

of an aggravated felony in 8 U.S.C. § 1101(a)(43).” Penuliar,

528 F.3d at 608. An offense is an aggravated felony “if and

only if the full range of conduct covered by the [criminal stat-

ute] falls within the meaning of that term.” Id.

I.

[1] We turn first to the argument that the generic offense

of counterfeiting refers only to the unlawful imitation of cur-

rency and other government obligations. INA section

101(a)(43)(R) defines an aggravated felony as “an offense

relating to . . . counterfeiting . . . for which the term of impris-

onment is at least one year.” 8 U.S.C. § 1101(a)(43)(R).

While the common law may have limited the crime of coun-

terfeiting to “debasing or imparing the coin,” Fox v. State of

Ohio, 46 U.S. 410, 428 (1847), by the time Congress enacted

INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R),1 federal

counterfeiting offenses had grown to encompass, inter alia,

the unauthorized imitation of: state securities, 18 U.S.C.

§ 513; foreign securities, 18 U.S.C. § 478; court seals, 18

U.S.C. § 505; federal department and agency seals, 18 U.S.C.

§ 506; customs papers, 18 U.S.C. § 496; ship’s papers, 18

U.S.C. § 507; letters patent, 18 U.S.C. § 497; passports, 18

U.S.C. § 1543; postage stamps, 18 U.S.C. § 502; and Post

Office keys, 18 U.S.C. § 1704. Indeed, over a decade before

1

Congress enacted INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), as

part of the Antiterrorism and Effective Death Penalty Act of 1996. Pub.

L. No. 104-132, § 440, 110 Stat. 1214, 1278 (1996).

RODRIGUEZ-VALENCIA v. HOLDER 9697

Congress enacted INA § 101(a)(43)(R), 8 U.S.C.

§ 1101(a)(43)(R), it criminalized trafficking in counterfeit

goods and services. See Trademark Counterfeiting Act of

1984, Pub. L. No. 98-473, § 1502, 98 Stat. 1837, 2178 (1984)

(codified at 18 U.S.C. § 2320); see also United States v.

Petrosian, 126 F.3d 1232, 1234 (9th Cir. 1997) (finding that

the Trademark Counterfeiting Act of 1984 was intended “[t]o

help stem . . . an ‘epidemic’ of commercial counterfeiting . . .

[and to] provide[ ] for stiff criminal penalties for those who

intentionally traffic in goods or services knowing them to be

counterfeit.”) (ellipses in original) (internal quotations and

citations omitted). Accordingly, when Congress added con-

victions relating to counterfeiting to the definition of aggra-

vated felony, it was well understood and clearly established

that the generic crime of counterfeiting extended far beyond

the imitation of currency.

[2] A plain reading of INA § 101(a)(43)(R), 8 U.S.C.

§ 1101(a)(43)(R), further bolsters a broad construction of an

“offense relating to . . . counterfeiting.” When interpreting the

INA, we “construe[ ] the ‘relating to’ language broadly.” Luu-

Le v. I.N.S., 224 F.3d 911, 915 (9th Cir. 2000). In Albillo-

Figueroa v. I.N.S., 221 F.3d 1070, 1073 (9th Cir. 2000), we

held that the “relating to” language of INA “[s]ection

101(a)(43)(R) necessarily covers a range of activities beyond

those of counterfeiting or forgery itself.” Other circuits have

similarly found that “Congress evidenced an intent to define

[counterfeiting] in [its] broadest possible sense” by employing

the phrase “relating to.” See Magasouba v. Mukasey, 543 F.3d

13, 15 (1st Cir. 2008) (quoting Park v. I.N.S., 472 F.3d 66, 72

(3rd Cir. 2006); Kamagate v. Ashcroft, 385 F.3d 144, 154 (2d

Cir. 2004) (“The term [‘relating to’ in INA § 101(a)(43)(R),

8 U.S.C. § 1101(a)(43)(R),] . . . suggest[s] Congress’s intent

to reach more broadly than any single statute.”); see also

Morales v. Trans World Airlines, 504 U.S. 374, 383-84,

(1992) (finding that the phrase “relating to” has “a broad

scope . . . and an expansive sweep.”) Indeed, both the First

and the Third Circuits have held that convictions for counter-

9698 RODRIGUEZ-VALENCIA v. HOLDER

feiting trademarks categorically relate to counterfeiting under

section 101(a)(43)(R) of the INA, 8 U.S.C. § 1101(a)(43)(R).

See Magasouba, 543 F.3d at 15 (finding a Rhode Island stat-

ute that punishes “[a]ny person who knowingly and willfully

sells, offer[s] to sell, or possesses with the intent to sell goods

which contain a counterfeit trademark,” R.I.G.L. § 11-14-

03(c)(1), qualifies as an offense relating to counterfeiting);

see also Park, 472 F.3d at 71 (finding a conviction for traf-

ficking in counterfeit goods or services, in violation of 18

U.S.C. § 2320, relates to counterfeiting). We similarly hold

that the definition of aggravated felony extends to convictions

for the unauthorized imitation of trademarks.

II.

[3] We quickly dispose of Rodriguez-Valencia’s remaining

argument that California Penal Code § 350 does not incorpo-

rate “an intent to defraud” as an essential element of the

offense. Pet’r Br. at 7. While there may be some counterfeit-

ing crimes that do not require an intent to defraud, see e.g.,

United States v. Reich, 479 F.3d 179, 188-89 (2d Cir. 2007)

(“Congress deliberately chose to require an intent to defraud

for some forgery and counterfeiting crimes, but not for oth-

ers.”) (Sotomayor, J.), assuming arguendo that the generic

offense of counterfeiting requires such an intent, California

Penal Code § 350 “is an inherently fraudulent crime.” Tall v.

Mukasey, 517 F.3d 1115, 1117 (9th Cir. 2008). Indeed, “[a]ll

of the conduct punished by [California Penal Code] § 350,

‘willfully manufactur[ing], intentionally sell[ing], or know-

ingly possess[ing] for sale any counterfeit . . . mark,’

‘involve[s] knowingly false representations made in order to

gain something of value.’ ” Id. at 1119-20 (citation omitted)

(third, fourth, fifth, and sixth alterations in original). Because

“[t]he commission of the crime necessarily defrauds the

owner of the mark, or an innocent purchaser of the counterfeit

items, or both,” id. at 1120, we “have difficultly distinguish-

ing such intent from a general intent to defraud,” Winestock

v. I.N.S., 576 F.2d 234, 235 (9th Cir. 1978).

RODRIGUEZ-VALENCIA v. HOLDER 9699

The petition for review is DENIED.