Tall v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIMANE TALL, 

Petitioner, No. 06-72804

v.

 Agency No.

A93-008-485

MICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 12, 2008—San Francisco, California

Filed February 27, 2008

Before: Barry G. Silverman, M. Margaret McKeown, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Silverman

1753

TALL v. MUKASEY 1755

COUNSEL

Jeffrey M. Singletary, Snell & Wilmer L.L.P., Costa Mesa,

California, for the petitioner.

Christopher Fuller and Russell J.E. Verby, United States

Department of Justice, Office of Immigration Litigation,

Washington, D.C., for the respondent.

OPINION

SILVERMAN, Circuit Judge:

Elimane Tall, a native and citizen of Senegal, petitions for

review of the Board of Immigration Appeals’ summary affir-

mance of the Immigration Judge’s decision finding him inad-

missible for having been convicted of a crime of moral

turpitude, namely California Penal Code § 350(a), which pun-

ishes “[a]ny person who willfully manufactures, intentionally

sells, or knowingly possesses for sale any counterfeit . . .

mark.” Tall argues that California Penal Code § 350(a) is not

a crime involving moral turpitude. We hold today that it is.

1756 TALL v. MUKASEY

I. Facts

Tall first arrived in the United States in 1981 without a

visa. Tall was paroled into the United States from May 26,

2003 to May 25, 2004 for purposes of pursuing an application

for adjustment of status.

On October 3, 2003, Tall pled guilty to one count of coun-

terfeit of a registered mark in violation of California Penal

Code § 350(a)(2)1 and was placed on probation for three

years.

On December 24, 2003, Tall’s application for adjustment of

status was denied, and his appeal of this denial was dismissed

on October 8, 2004.

1

California Penal Code § 350(a) provides:

(a) Any person who willfully manufactures, intentionally sells,

or knowingly possesses for sale any counterfeit of a mark regis-

tered with the Secretary of State or registered on the Principal

Register of the United States Patent and Trademark Office, shall,

upon conviction, be punishable as follows:

(1) When the offense involves less than 1,000 of the articles

described in this subdivision, with a total retail or fair market

value less than that required for grand theft as defined in Section

487, and if the person is an individual, he or she shall be pun-

ished by a fine of not more than five thousand dollars ($5,000),

or by imprisonment in a county jail for not more than one year,

or by both that fine and imprisonment; or, if the person is a cor-

poration, by a fine of not more than one hundred thousand dollars

($100,000).

(2) When the offense involves 1,000 or more of the articles

described in this subdivision, or has a total retail or fair market

value equal to or greater than that required for grand theft as

defined in Section 487, and if the person is an individual, he or

she shall be punished by imprisonment in a county jail not to

exceed one year, or in the state prison for 16 months, or two or

three years, or by a fine not to exceed two hundred fifty thousand

dollars ($250,000), or by both that imprisonment and fine; or, if

the person is a corporation, by a fine not to exceed five hundred

thousand dollars ($500,000).

TALL v. MUKASEY 1757

On December 1, 2004, Tall pled guilty to nine new counts

of counterfeit of a registered mark and one count of counter-

feit of a registered mark with a prior, all in violation of § 350,

and he was sentenced to two years’ imprisonment. Tall’s

guilty plea triggered the revocation of his 2003 probation and

the imposition of another two year sentence to run concur-

rently with the sentence imposed for the new conviction.

On September 16, 2005, after the completion of Tall’s

prison sentence, the government served on Tall a Notice to

Appear for removal proceedings, and Tall was taken into

Department of Homeland Security custody. The government

charged Tall as inadmissible for being an alien convicted of

a crime involving moral turpitude under Immigration and

Nationality Act § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)

(i)(I). The government also charged that, under INA § 212(a)

(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), Tall was an alien

who, at the time of application for admission, was not in pos-

session of a valid entry document.

On January 9, 2006, the IJ ordered Tall removed from the

United States. The IJ adopted the government’s position that

“fraud is so inextricably woven into the statute as to clearly

be an ingredient of the crime,” Matter of Flores, 17 I&N Dec.

225, 228 (BIA 1980), and ruled Tall’s convictions to be

crimes involving moral turpitude. The IJ also upheld the

invalid entry charge, noting that the only evidence submitted

by Tall was a transit visa that expired on November 16, 1989.

The IJ deemed Tall’s application for asylum abandoned for

lack of prosecution because he failed to submit it by the dead-

line. The IJ also rejected Tall’s application for waiver of inad-

missibility because of Tall’s multiple felony convictions for

a crime involving moral turpitude.

In his appeal to the BIA, Tall argued that his convictions

were not for crimes of moral turpitude, he was not an “intend-

ing immigrant” without valid entry documents, and that the IJ

violated his procedural due process rights by allowing uncerti-

1758 TALL v. MUKASEY

fied documents as evidence of Tall’s convictions. On May 1,

2006, the BIA affirmed the IJ’s decision without opinion.

Tall timely petitions for review of the BIA’s summary

affirmance. Tall disputes the IJ’s holding that he is removable

under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)

(i)(I), as an alien convicted of a crime involving moral turpi-

tude. Tall does not dispute the IJ’s holding that he is remov-

able under INA § 212(a)(7)(A)(i), 8 U.S.C. § 1182(a)(7)(A)(i)

(invalid entry). Although not raised to the BIA, Tall now

argues that the IJ violated his procedural due process rights by

(i) not allowing Tall to offer evidence in defense of the

charges brought against him, (ii) failing to provide Tall with

adequate instructions as a pro se litigant, and (iii) refusing to

grant Tall additional time to file his application for asylum

and withholding of removal.

II. Analysis

A. Crime Involving Moral Turpitude

We lack jurisdiction to review BIA removal orders “against

an alien who is removable by reason of having committed a

criminal offense covered in section 1182(a)(2),” including

crimes involving moral turpitude. 8 U.S.C. § 1252(a)(2)(C).

However, we have jurisdiction to review “constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Thus,

we have jurisdiction to determine our jurisdiction—that is, to

determine whether Tall’s convictions qualify as crimes

involving moral turpitude. See Notash v. Gonzales, 427 F.3d

693, 696 (9th Cir. 2005).

We review “the question of whether a state statutory crime

constitutes a crime involving moral turpitude” de novo.

Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.

2005).

[1] “[A]ny alien convicted of, or who admits having com-

mitted, or who admits committing acts which constitute the

TALL v. MUKASEY 1759

essential elements of . . . a crime involving moral turpitude

(other than a purely political offense) or an attempt or con-

spiracy to commit such a crime . . . is inadmissible.” 8 U.S.C.

§ 1182(a)(2)(A)(i)(I); see Garcia-Lopez v. Ashcroft, 334 F.3d

840, 843 (9th Cir. 2003). “To determine whether a conviction

is for a crime involving moral turpitude, we apply the categor-

ical and modified categorical approaches established by the

Supreme Court.” Navarro-Lopez v. Gonzales, 503 F.3d 1063,

1067 (9th Cir. 2007) (en banc) (citing Taylor v. United States,

495 U.S. 575, 599-602 (1990)).

Under the categorical approach, we must “first make a cate-

gorical comparison of the elements of the statute of convic-

tion to the generic definition, and decide whether the conduct

proscribed by [§ 350(a)] is broader than, and so does not cate-

gorically fall within, this generic definition.” Huerta-Guevara

v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2002). In other words,

the issue is “whether the full range of conduct encompassed

by [§ 350(a)] constitutes a crime of moral turpitude.” Cuevas-

Gaspar, 430 F.3d at 1017. In making this determination, “we

look only to the fact of conviction and the statutory definition

of the prior offense.” Huerta-Guevara, 321 F.3d at 887 (quo-

tations omitted).

[2] “Crimes of moral turpitude are of basically two types,

those involving fraud and those involving grave acts of base-

ness or depravity.” Navarro-Lopez, 503 F.3d at 1074 (Rein-

hardt, J. concurring for a majority of the court) (quoting Carty

v. Ashcroft, 395 F33d 1081, 1083 (9th Cir. 2005)). “A crime

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

involving moral turpitude.” Id. (internal quotation omitted). A

crime whose nature is “inherently fraudulent” also qualifies as

a crime of moral turpitude. Id. at 1076; see also Goldeshtein

v. INS, 8 F.3d 645, 648 (9th Cir. 1993). “Our cases hold that

in order to be inherently fraudulent, a crime must involve

knowingly false representations made in order to gain some-

thing of value.” Navarro-Lopez, 503 F.3d at 1076 (Reinhardt,

J. concurring for a majority of the court).

1760 TALL v. MUKASEY

[3] California Penal Code § 350(a) punishes “[a]ny person

who willfully manufactures, intentionally sells, or knowingly

possesses for sale any counterfeit of a mark registered with

the Secretary of State or registered on the Principal Register

of the United States Patent and Trademark Office.” The stat-

ute defines “counterfeit mark” as “a spurious mark that is

identical with, or confusingly similar to, a registered mark and

is used on or in connection with the same type of goods or

services for which the genuine mark is registered.”

§ 350(e)(2).

[4] Under the categorical approach, § 350(a) is a crime

involving moral turpitude because it is an inherently fraudu-

lent crime. Either an innocent purchaser is tricked into buying

a fake item; or even if the purchaser knows the item is coun-

terfeit, the owner of the mark has been robbed of its value.

The crime is really a species of theft. All of the conduct pun-

ished by § 350(a), “willfully manufactur[ing], intentionally

sell[ing], or knowingly possess[ing] for sale any counterfeit .

. . mark,” is inherently fraudulent because each type of con-

duct “involve[s] knowingly false representations made in

order to gain something of value.” Navarro-Lopez, 503 F.3d

at 1076. The commission of the crime necessarily defrauds

the owner of the mark, or an innocent purchaser of the coun-

terfeit items, or both.

[5] Because section 350(a) is a crime involving moral turpi-

tude, the IJ correctly ruled that Tall’s convictions rendered

him inadmissible pursuant to Immigration and Nationality Act

§ 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).

B. Procedural Due Process

[6] Although Tall raised a procedural due process claim in

his appeal to the BIA, Tall now argues that the IJ violated his

procedural due process in ways not argued before the BIA.

Due process claims are generally exempt from the exhaustion

requirement “because the BIA does not have jurisdiction to

TALL v. MUKASEY 1761

adjudicate constitutional issues.” Vargas v. INS, 831 F.2d

906, 908 (9th Cir. 1987). However, procedural errors that can

be remedied by the BIA are not exempted from the exhaustion

requirement. See Liu v. Waters, 55 F.3d 421, 426 (9th Cir.

1995); see also Barron v. Ashcroft, 358 F.3d 674, 678 (9th

Cir. 2004) (finding no jurisdiction where “BIA could simply

have ordered a rehearing” to remedy the alleged problems). In

particular, “[t]he exhaustion requirement applies to claims

that an alien was denied a ‘full and fair hearing.’ ” Agyeman

v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (citation omitted).

[7] Here, the exhaustion requirement applies to Tall’s claim

that he was denied a full and fair hearing. See id. Although

Tall raised his due process rights in his brief to the BIA, he

only complained about the IJ allowing uncertified evidence to

support the convictions against Tall. Tall did not give the BIA

an opportunity to consider and remedy the particular proce-

dural errors he raises now. Tall’s current claim that he was

denied a full and fair hearing requires exhaustion because the

BIA could have provided a remedy if his complaints were

found to be valid by ordering a rehearing to allow for addi-

tional evidence, further assistance to Tall as a pro se litigant,

and additional time to file his asylum application. See, e.g.,

Barron, 358 F.3d at 678. We lack jurisdiction to consider

Tall’s belated due process claims because he failed to prop-

erly exhaust his claims before the BIA.

PETITION DENIED IN PART, AND DISMISSED IN

PART.