Felipe Espino-Castillo v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FELIPE ESPINO-CASTILLO, No. 13-70756

Petitioner,

Agency No.

v. A205-414-449

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

September 11, 2014—San Francisco, California

Filed October 29, 2014

Before: J. Clifford Wallace, Mary M. Schroeder,

and William A. Fletcher, Circuit Judges.

Opinion by Judge Schroeder

2 ESPINO-CASTILLO V. HOLDER

SUMMARY*

Immigration

The panel denied Felipe Espino-Castillo’s petition for

review of the Board of Immigration Appeals’ decision finding

that his state law forgery conviction qualified as a crime

involving moral turpitude.

The panel held that petitioner’s conviction under Arizona

Revised Statutes § 13-2002 constituted a categorical crime

involving moral turpitude because the statute criminalizes

conduct that constitutes fraud. The panel held that the

exception in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir.

2000), to the clearly established rule that a fraud conviction

is a CIMT did not apply to this offense, where the underlying

conduct involved the use of false information to obtain

employment.

COUNSEL

Hugo F. Larios (argued), Hugo F. Larios Law, PLLC, Tempe,

Arizona, for Petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division,

Blair T. O’Connor, Assistant Director, Office of Immigration

Litigation, Edward C. Durant and Jonathan Robbins (argued),

United States Department of Justice, Washington, D.C. for

Respondent.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ESPINO-CASTILLO V. HOLDER 3

OPINION

SCHROEDER, Circuit Judge:

In this petition for review of a Board of Immigration

Appeals’ (“BIA”) order of removal, the novel question is

whether Congress has exempted state fraud convictions from

characterization as crimes involving moral turpitude, when

the underlying conduct involved fraud in an application for

employment. We hold Congress has not.

Petitioner relies on our decision in Beltran-Tirado v. INS,

213 F.3d 1179 (9th Cir. 2000), where we considered an

amendment to the social security laws that granted immunity

from prosecution for longstanding resident aliens who used

a false social security number to obtain employment. We

held the amendment expressed congressional intent that such

conduct did not establish moral turpitude for immigration

purposes. We have never applied Beltran-Tirado’s holding

outside the social security context. We therefore deny the

petition.

BACKGROUND

Petitioner Felipe Espino-Castillo is a native and citizen of

Mexico who entered the United States in approximately 1992

without admission or parole. He has lived in this country

continuously since that time. In 2012, he was convicted in

the Superior Court of Maricopa County, Arizona, of two

counts of forgery in violation of Arizona Revised Statutes

§ 13-2002. Petitioner was promptly charged in immigration

proceedings with being an alien who has been convicted of a

crime involving moral turpitude (“CIMT”) under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). He admitted his removability under a

4 ESPINO-CASTILLO V. HOLDER

different provision, but denied that he had been convicted of

a CIMT and argued he was therefore eligible for cancellation

of removal. See 8 U.S.C. § 1229b(b)(1)(C) (barring aliens

convicted of a CIMT from cancellation of removal).

The Immigration Judge denied the application for

cancellation in November 2012, finding that he was ineligible

for such relief because his forgery conviction constituted a

CIMT. The BIA affirmed, and this petition for review

followed. Whether a conviction is a CIMT is a question of

law which this court has jurisdiction to review de novo. See

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

2009).

Petitioner was convicted under section 13-2002 of the

Arizona Revised Statutes, which provides in relevant part:

[A] person commits forgery if, with intent to

defraud, the person:

1. Falsely makes, completes, or alters a

written instrument; or

2. Knowingly possesses a forged instrument;

or

3. Offers or presents, whether accepted or not,

a forged instrument that contains false

information.

Ariz. Rev. Stat. § 13-2002(A) (2014) (emphasis added). The

statute criminalizes conduct that constitutes fraud. Petitioner

does not now dispute the proposition that fraud is generally

a CIMT. We have repeatedly recognized the “longstanding

ESPINO-CASTILLO V. HOLDER 5

rule that crimes that have fraud as an element . . . are

categorically crimes involving moral turpitude.” Planes v.

Holder, 652 F.3d 991, 997–98 (9th Cir. 2011); see, e.g.,

Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993). The only

issue on appeal is whether, under this court’s decision in

Beltran-Tirado, petitioner’s conviction should not be

considered a CIMT because the underlying conduct involved

the use of false information to obtain employment.

DISCUSSION

In Beltran-Tirado, the petitioner had been convicted in

federal court of using a false social security number in

violation of the predecessor to 42 U.S.C. § 408(a)(7)(B).

213 F.3d at 1182. For nineteen years she had used a social

security card, found on a bus, to establish credit and obtain

employment, until her income brought her to the attention of

federal authorities. Id. When faced with deportation

proceedings in 1993, Beltran sought to apply for relief under

the registry statute, 8 U.S.C. § 1259. Id. That statute was

enacted to provide relief to persons who had resided in the

United States for a long period of time and possessed “good

moral character.” Id. at 1183. The BIA denied the

application on the ground that her fraud conviction was a

CIMT that prevented her from showing good moral character.

Id.

On review of the BIA order, this court held that Beltran’s

conviction was not a CIMT. Id. at 1184. We did so by

looking at a 1990 amendment to § 408 that exempted a

category of aliens from prosecution for the crime of using a

false social security number. Id. at 1183–84; 42 U.S.C.

§ 408(e) (2012) (previously numbered § 408(d)). Those

exempted were persons who had been granted permanent

6 ESPINO-CASTILLO V. HOLDER

resident status under longstanding amnesty or registry

statutes. Id. at 1183–84. The legislative history of the 1990

amendment indicated that Congress intended the exemption

to include persons who used a false social security number in

order to obtain employment. Id.

Although the amendment did not exempt Beltran herself

from prosecution, because she could not meet the deadline for

registration, we concluded that the amendment was indicative

of a somewhat broader congressional intent. Id. at 1184. We

said “that § 408(d) and the accompanying legislative history

express Congress’s intent that the crimes of which Beltran

was convicted do not establish ‘moral turpitude.’” Id. at

1184.

Beltran-Tirado is grounded in the history and purpose of

§ 408, the specific federal social security statute under which

Beltran had been convicted. We have never overruled

Beltran-Tirado, but we have never cited its holding for any

purpose beyond the application of that specific statute. Both

before and after Beltran-Tirado, we have expressly and

repeatedly rejected the argument that fraud crimes are not per

se CIMTs. See, e.g., Planes, 652 F.3d at 997–98; Navarro-

Lopez v. Gonzales, 503 F.3d 1063, 1074–75 (9th Cir. 2007)

(en banc) (Reinhardt, J., concurring for a majority), overruled

on other grounds by United States v. Aguila-Montes de Oca,

655 F.3d 915 (9th Cir. 2010).

Other circuits have refused to follow Beltran-Tirado in

any context. See Lateef v. Dep’t of Homeland Sec., 592 F.3d

926, 930–31 (8th Cir. 2010) (declining to follow Beltran-

Tirado because its holding extended § 408(d) beyond its plain

statutory terms); Serrato-Soto v. Holder, 570 F.3d 686, 692

(6th Cir. 2009) (declining to follow Beltran-Tirado in holding

ESPINO-CASTILLO V. HOLDER 7

that a state conviction for using false social security number

a CIMT); Hyder v. Keisler, 506 F.3d 388, 393 (5th Cir. 2007)

(“We decline to follow Beltran-Tirado in exempting social

security number misuse from CIMT status . . . . [I]n Beltran-

Tirado, the Ninth Circuit appears to have expanded a narrow

exemption beyond what Congress intended.”).

Moreover, we doubt we could now expand the reasoning

of Beltran-Tirado beyond its original scope, even if we

wanted to. That is because the inquiry in which petitioner

asks us to engage involves examination of the circumstances

surrounding petitioner’s particular conviction. Because a

conviction under Ariz. Rev. Stat. § 13-2002(A) requires

intent to defraud, the Supreme Court’s recent decision in

Descamps v. United States, 133 S. Ct. 2276 (2013), forecloses

any such inquiry.

To determine whether a petitioner’s conviction is a

CIMT, the court applies the categorical and modified

categorical approaches articulated by the Supreme Court in

Taylor v. United States, 495 U.S. 575, 599–602 (1990).

Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir. 2008). A

court must apply the categorical approach unless the statute

in question is divisible and proscribes multiple alternative

elements, some of which would qualify as a CIMT and some

of which would not. See Descamps, 133 S. Ct. at 2284–85.

A court may not apply the modified categorical approach “if

the statute proscribes only conduct that involves moral

turpitude.” Mendoza v. Holder, 623 F.3d 1299, 1303 (9th

Cir. 2010). In Descamps, the Supreme Court emphasized the

necessity of looking to the elements of the crime under the

categorical approach, rather than to the underlying

circumstances or motivations. See id. at 2285. The Court

said that a “circumstance-specific review is just what the

8 ESPINO-CASTILLO V. HOLDER

categorical approach precludes.” Id. at 2292. Because the

petitioner here was convicted under a statute that proscribes

only morally turpitudinous conduct, we cannot look to the

underlying circumstances of his crime.

Accordingly, because Beltran-Tirado’s holding depended

upon the history of the specific statutory provision involved

in that case, and not a garden-variety state fraud statute like

the one involved here, Beltran-Tirado is by its terms

inapplicable to petitioner’s case. Further, the circumstance-

specific approach that Beltran-Tirado took is now in tension

with intervening and controlling Supreme Court authority.

The case now stands, at best, as an isolated exception to the

prevailing rule that a conviction for a fraud offense is

categorically a crime involving moral turpitude. “Such has

been the clearly established rule with respect to fraud since at

least 1951.” Navarro-Lopez, 503 F.3d at 1074 (Reinhardt, J.,

concurring for a majority).

The petition for review is DENIED.