Notash v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KYKHOSRO NOTASH, 

Petitioner, No. 03-72116

v.

 Agency No.

A46-115-800

ALBERTO R. GONZALES,* Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

January 10, 2005—San Francisco, California

Filed November 2, 2005

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

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Tashima

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

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

43(c)(2).

15021

15024 NOTASH v. GONZALES

COUNSEL

Dorothea P. Kraeger, Phoenix, Arizona, for the petitioner.**

Regina Byrd, Civil Division, U.S. Department of Justice,

Washington, D.C., for the respondent.

OPINION

TASHIMA, Circuit Judge:

Kykhosro Notash, a native and citizen of Iran, petitions for

review of a decision of the Board of Immigration Appeals

(“BIA”), affirming without opinion the decision of the Immi-

gration Judge (“IJ”). The IJ concluded that Notash’s convic-

tion for attempted entry of goods by means of a false

statement, in violation of 18 U.S.C. § 542, constituted a crime

of moral turpitude for purposes of Immigration and National-

ity Act (“INA”) § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)

(A)(i). The IJ consequently found Notash removable, but

granted voluntary departure in lieu of removal pursuant to

INA § 240B, 8 U.S.C. § 1229c. For the reasons explained

below, we grant the petition.

**Concurrently with the filing of this opinion, we grant Ms. Kraeger’s

motion to withdraw as counsel of record for petitioner.

NOTASH v. GONZALES 15025

BACKGROUND

Notash was admitted to the United States in October 1997.

The Notice to Appear charged that Notash committed the

offense of attempted entry of goods by means of a false state-

ment, in violation of 18 U.S.C. § 542.1 Notash conceded the

conviction. His sole contention is that the conviction was not

for a crime involving moral turpitude; therefore, that the con-

viction did not render him deportable pursuant to INA

§ 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).

At his hearing before the IJ, Notash explained that, when

completing his customs declaration form, he had left a line

relating to foreign goods blank because he was not sure how

to declare the items. Customs officials thought that he was

attempting to avoid payment of duty on the goods and

charged him under 18 U.S.C. § 542. Notash, however, paid

the duty and received the items back.

Notash thus argued that his conviction was not for a crime

involving moral turpitude. He contended that, although crimes

involving fraud generally are considered to involve moral tur-

pitude, crimes involving false statements are not categorically

considered to involve moral turpitude. He further argued that,

unlike cases involving moral turpitude, his offense did not

involve “clear deceit” and an attempt to obtain a property

interest to which he was not entitled.

The IJ rejected Notash’s arguments. The IJ stated that con-

viction under § 542 required an attempt to “deprive the United

States of revenue by fraud or false statement or engage in a

willful act or omission by which the United States may be

deprived of lawful duties.” Reasoning that “[f]raud and mali-

ciousness are inherent in these offenses,” the IJ concluded that

1

The Notice To Appear states that Notash was convicted of this offense

on September 27, 1997, although that date clearly is wrong and probably

should be September 27, 1999.

15026 NOTASH v. GONZALES

Notash’s conviction was a crime involving moral turpitude

because “[e]vil intent is the very essence of moral turpitude.”

The IJ accordingly concluded that Notash was removable.

The BIA affirmed without opinion, pursuant to 8 C.F.R.

§ 1003.1. Notash filed a timely petition for review.

JURISDICTION

[1] Our jurisdiction rests on INA § 242, 8 U.S.C. § 1252.

Section 1252(a)(2)(C) limits this court’s jurisdiction over

petitions for review of final orders of removal based on cer-

tain enumerated crimes. It provides, in part, that,

except as provided in subparagraph (D), no court

shall have jurisdiction to review any final order of

removal against an alien who is removable by reason

of having committed a criminal offense covered in

section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or

(D) of this title, or any offense covered by section

1227(a)(2)(A)(ii) of this title for which both predi-

cate offenses are, without regard to their date of

commission, otherwise covered by section

1227(a)(2)(A)(i) of this title.

8 U.S.C. § 1252(a)(2)(C). Subparagraph (D) was added in

May 2005 by the REAL ID Act of 2005, Pub. L. No. 109-13,

119 Stat. 231. It provides, in part, that the limits on judicial

review found in subparagraph (C) do not preclude “review of

constitutional claims or questions of law raised upon a peti-

tion for review filed with an appropriate court of appeals in

accordance with this section.” 8 U.S.C. § 1252(a)(2)(D).

[2] The determination of whether an offense is a crime

involving moral turpitude is a question of law and accordingly

is not subject to the jurisdiction-stripping provision of

§ 1252(a)(2)(C). See Carty v. Ashcroft, 395 F.3d 1081, 1083

(9th Cir. 2005), (stating that “[w]hether a state statutory crime

necessarily involves moral turpitude is a question of law, sub-

NOTASH v. GONZALES 15027

ject to de novo review”), cert. denied, ___ S. Ct. ___, 73

U.S.L.W. 3725 (U.S. Oct. 3, 2005); Goldeshtein v. INS, 8

F.3d 645, 647 n.4 (9th Cir. 1993) (stating that “[w]hether a

statute defines a crime involving moral turpitude is a question

of law”). Thus, we have jurisdiction over Notash’s petition for

review under INA § 242(b)(1), 8 U.S.C. § 1252(b)(1).

STANDARD OF REVIEW

Because the BIA affirmed the decision of the IJ without

opinion, we review the decision of the IJ. Ndom v. Ashcroft,

384 F.3d 743, 750 (9th Cir. 2004). “ ‘The question of whether

a conviction under federal law is a deportable offense is

reviewed de novo.’ ” Randhawa v. Ashcroft, 298 F.3d 1148,

1151 (9th Cir. 2002) (quoting Albillo-Figueroa v. INS, 221

F.3d 1070, 1072 (9th Cir. 2000)).

DISCUSSION

I.

The Immigration and Naturalization Service (“INS”)2 con-

tends that Notash failed to raise below the issue he raises in

his petition for review and that he accordingly has waived the

issue. Generally, we lack jurisdiction over claims that the

petitioner fails to present to the IJ or the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (discussing the

requirement of administrative exhaustion found in 8 U.S.C.

§ 1252(d)). However, the INS’ contention, as well as its com-

plete failure to address Notash’s arguments on the merits, is

difficult to understand. Notash argued before the IJ that,

although he admitted the factual allegations of the charge, the

crime did not involve moral turpitude. He also argued to the

BIA that his crime did not involve moral turpitude.

2

The INS has been abolished and its functions transferred to the Depart-

ment of Homeland Security. See Homeland Security Act of 2002, Pub. L.

No. 107-296, 116 Stat. 2142 (2002), 6 U.S.C. §§ 101-557. We will refer

to the government agency as the INS.

15028 NOTASH v. GONZALES

The INS contends that the IJ found that Notash was con-

victed under the first paragraph of 18 U.S.C. § 542 and that

Notash did not challenge that finding below. Notash does

argue that the IJ should have considered the second paragraph

of the statute. He also argues, however, as he did before the

IJ and the BIA, that crimes involving false statements are not

categorically crimes involving moral turpitude. He has not

waived the issue; he raised it sufficiently below. We therefore

address the merits of his claim.

II.

[3] INA § 237 defines classes of removable aliens and

makes removable an alien who “is convicted of a crime

involving moral turpitude within five years . . . after the date

of admission” and “is convicted of a crime for which a sen-

tence of one year or longer may be imposed.” 8 U.S.C.

§ 1227(a)(2)(A)(i). In determining whether a conviction con-

stitutes a removable offense, we apply the categorical

approach, looking only to the statutory definition of the

offense. Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.

2004). If it is not clear from the statutory definition whether

the offense is a qualifying offense, we apply the modified cat-

egorical approach, in which we “may look beyond the lan-

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

that are part of the record of conviction.” Id. Those documents

include “ ‘the state charging document, a signed plea agree-

ment, jury instructions, guilty pleas, transcripts of a plea pro-

ceeding and the judgment.’ ” Ferreira v. Ashcroft, 390 F.3d

1091, 1095 (9th Cir. 2004) (quoting Hernandez-Martinez v.

Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003)); cf. Shepard

v. United States, 125 S. Ct. 1254, 1263 (2005) (holding that

a sentencing court may look only to the charging document,

the plea agreement, and the plea colloquy in determining

whether a guilty plea to burglary constituted a predicate

offense for purposes of the Armed Career Criminal Act). If

the record of conviction does not establish that the offense is

a qualifying offense, the government has failed to meet its

NOTASH v. GONZALES 15029

burden, and the offense may not be used as a basis for

removal. Ferreira, 390 F.3d at 1095; Tokatly, 371 F.3d at

620-21.

III.

Notash was convicted under 18 U.S.C. § 542, which pro-

vides, in pertinent part:

Whoever enters or introduces, or attempts to enter or

introduce, into the commerce of the United States

any imported merchandise by means of any fraudu-

lent or false invoice, declaration, affidavit, letter,

paper, or by means of any false statement, written or

verbal, or by means of any false or fraudulent prac-

tice or appliance, or makes any false statement in

any declaration without reasonable cause to believe

the truth of such statement, or procures the making

of any such false statement as to any matter material

thereto without reasonable cause to believe the truth

of such statement, whether or not the United States

shall or may be deprived of any lawful duties; or

Whoever is guilty of any willful act or omission

whereby the United States shall or may be deprived

of any lawful duties accruing upon merchandise

embraced or referred to in such invoice, declaration,

affidavit, letter, paper, or statement, or affected by

such act or omission —

Shall be fined for each offense under this title or

imprisoned not more than two years, or both.

18 U.S.C. § 542.

[4] The first paragraph of the statute criminalizes certain

false or fraudulent statements, without regard to whether

those statements will result in a loss of revenue to the United

15030 NOTASH v. GONZALES

States. By contrast, the second paragraph criminalizes “any

willful act or omission” that may deprive the United States of

revenue, whether or not those acts are false or fraudulent.

[5] The record contains no evidence that indicates under

which paragraph Notash was convicted. Because the govern-

ment bears the burden of proving “ ‘by clear, unequivocal,

and convincing evidence that the facts alleged as grounds for

deportation are true,’ ” Hernandez-Guadarrama v. Ashcroft,

394 F.3d 674, 679 (9th Cir. 2005) (quoting Gameros-

Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989)), the

order of removal may be upheld only if a conviction under

either prong of § 542 would qualify as a crime involving

moral turpitude. We conclude that a conviction under the sec-

ond paragraph of § 542 would not categorically qualify as a

crime involving moral turpitude. Because of our conclusion

regarding the second paragraph of § 542, it is unnecessary for

us to address whether the first paragraph is categorically a

crime involving moral turpitude.3

[6] “To involve moral turpitude, intent to defraud must be

an ‘essential element’ of [Notash’s] conviction.” Carty, 395

F.3d at 1084 (quoting Goldeshtein, 8 F.3d at 647); see also

Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978) (“A

crime having as an element the intent to defraud is clearly a

crime involving moral turpitude.”). Unlike the first paragraph,

the second paragraph of § 542 does not require a false or

fraudulent statement, which could indicate an intent to

defraud. The IJ therefore relied on the fact that a conviction

under the second paragraph requires willfulness, which he

equated with evil intent.

[7] We have stated, however, that “[t]he word ‘wilful’

3

Contrary to the position of both Notash and the INS, the IJ did not

focus solely on the first paragraph of the statute. Our review of the record

reveals that the IJ found that a conviction under either paragraph of the

statute would constitute a crime involving moral turpitude.

NOTASH v. GONZALES 15031

means no more than that the forbidden act is done deliberately

and with knowledge.” Hirsch v. INS, 308 F.2d 562, 567 (9th

Cir. 1962). Thus, in Hirsch, we held that a conviction for will-

fully and knowingly making false and fraudulent statements

on a shipper’s export declaration did not constitute a crime

involving moral turpitude. Id.; see also Goldeshtein, 8 F.3d at

648 (rejecting the INS’ argument that “evil intent exists if a

conviction requires proof that a defendant did a forbidden act

‘willfully’ ”). Similarly, in Goldeshtein, we held that a con-

viction for willfully violating 31 U.S.C. § 5324(a)(3), which

proscribes structuring a financial transaction for the purpose

of evading federal reporting laws, “does not establish the evil

intent required for a crime of moral turpitude.” Goldeshtein,

8 F.3d at 648. Willfullness alone accordingly does not cate-

gorically indicate an intent to defraud.

[8] “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, 395 F.3d at 1084 (quoting Goldeshtein,

8 F.3d at 648) (alteration in original). In Carty, the petitioner

was convicted of willful failure to file state income taxes, a

conviction requiring the government to prove specific intent

to evade taxes. Unlike Goldeshtein, “where the court found

that willfully structuring transactions did not inherently

involve fraud because it only deprived the government of

information and did not obtain anything from the govern-

ment,” Carty “attempted to deprive the government of

revenue—or, in other words, to obtain a free pass on taxes.”

Id.; see also id. at 1085 (reasoning that “the terms ‘evasion’

and ‘fraud’ have been treated interchangeably by California

and the federal government”).

[9] Unlike Carty, where the statute of conviction explicitly

required the intent to evade taxes, § 542 does not require an

intent to deprive the United States of revenue. Intent to

defraud accordingly is neither explicit nor implicit in the

nature of the crime. We therefore disagree with the IJ’s con-

15032 NOTASH v. GONZALES

clusion that a conviction under this paragraph categorically is

a crime involving moral turpitude.

Jordan v. De George, 341 U.S. 223 (1951), and Matter of

Flores, 17 I. & N. Dec. 225 (BIA 1980), on which the IJ

relied, are distinguishable. There was no question of an intent

to defraud in Jordan, where the alien was twice convicted of

violating 18 U.S.C. § 371.4 Both charges included the intent

to defraud the United States of tax. See Jordan, 341 U.S. at

224-25 (stating that the alien was charged, first, with possess-

ing alcohol “with intent to sell it in fraud of law and evade the

tax thereon” and with concealing liquor “with intent to

defraud the United States of the tax thereon,” and then with

conspiring to “unlawfully, knowingly, and willfully defraud

the United States of tax on distilled spirits”).

Flores similarly involved a conviction for violating 18

U.S.C. § 371, as well as 18 U.S.C. § 1426(b), for uttering and

selling false and counterfeit papers relating to registry of

aliens, knowing the papers to be false or counterfeited. The

BIA reasoned, first, that the alien’s § 371 conviction did not

involve moral turpitude because he “was convicted under that

clause of the statute which merely prohibits any offense

against the United States”; the intent to defraud the United

States thus was not required for conviction. Flores, 17 I. & N.

Dec. at 228. The BIA did conclude that the violation of 18

U.S.C. § 1426(b) was a crime involving moral turpitude

because it involved “a deliberate deception of the government

and an impairment of its lawful functions.” Id. at 230. Unlike

§ 1426(b), however, which requires knowledge that the regis-

try papers are false, § 542 does not require knowledge that the

statement is false. Section 542 requires only that the defen-

dant lack “reasonable cause to believe the truth of such state-

ment” for a conviction under the first paragraph. 18 U.S.C.

§ 542. The second paragraph contains no intent requirement.

4

18 U.S.C. § 371 proscribes a conspiracy “either to commit any offense

against the United States, or to defraud the United States.”

NOTASH v. GONZALES 15033

Cf. Matter of Balao, 20 I. & N. Dec. 440, 443 (BIA 1992)

(holding that an alien’s state conviction for issuing worthless

checks was not a crime involving moral turpitude because,

although the statute spoke of “the ‘knowing’ issuance of bad

checks,” it did not “expressly require intent to defraud as an

element of the crime”).

[10] Section 542 accordingly is overly inclusive because it

criminalizes conduct that does not qualify as a crime involv-

ing moral turpitude. We accordingly must proceed to the

modified categorical approach, which involves examining the

record of conviction. See Tokatly, 371 F.3d at 620 (stating

that if it is “not clear from the statutory definition of the prior

offense whether that offense constitutes a removable offense,”

we apply the modified categorical approach).

[11] Unfortunately, none of the documents that may be

examined under the modified categorical approach are in the

record. See Ferreira, 390 F.3d at 1095 (stating that the record

of conviction includes the state charging document, a signed

plea agreement, jury instructions, guilty pleas, transcripts of

a plea proceeding, and the judgment); see also Shepard, 125

S. Ct. at 1263. The only evidence in the record of Notash’s

conviction is the Notice to Appear, which states that, “on Sep-

tember 27, 1997, [Notash was] convicted in the United States

District Court, Northern District of Texas for the offense of

Count 2: Attempted Entry of Goods by Means of False State-

ment, committed on or about March 16, 1998 in violation of

18 USC 542.” The government accordingly has failed to meet

its burden of proving that the offense for which Notash was

convicted “constitutes a predicate offense, and the conviction

may not be used as a basis for removal.” Tokatly, 371 F.3d at

620-21; see also Ferreira, 390 F.3d at 1095 (“If the record of

conviction does not establish that the offense the petitioner

committed qualifies as an aggravated felony, the government

has not met its burden of proving that the defendant commit-

ted an aggravated felony.”).

15034 NOTASH v. GONZALES

CONCLUSION

Notash’s conviction under § 542 is not an offense involving

moral turpitude because the record does not disclose under

which paragraph he was convicted, and a conviction can be

obtained under the second paragraph without proof of evil

intent or intent to defraud. His conviction therefore does not

categorically qualify as a crime involving moral turpitude.

Further, the government has failed to meet its burden under

the modified categorical approach.

PETITION FOR REVIEW GRANTED.