Jose Escobar Santos v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE JAIRO ESCOBAR SANTOS, No. 17-72334

Petitioner,

Agency No.

v. A205-465-618

MERRICK B. GARLAND, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted January 13, 2021*

San Francisco, California

Filed July 9, 2021

Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges,

and Robert H. Whaley,** District Judge.

Opinion by Judge Bybee;

Dissent by Judge Whaley

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable Robert H. Whaley, United States District Judge for

the Eastern District of Washington, sitting by designation.

2 ESCOBAR SANTOS V. GARLAND

SUMMARY***

Immigration

Denying Jose Jairo Escobar Santos’s petition for review

of a decision of the Board of Immigration Appeals, the panel

held that Escobar’s forgery conviction under section 470a of

the California Penal Code categorically constitutes an

aggravated felony offense relating to forgery under 8 U.S.C.

§ 1101(a)(43)(R), thus rendering him ineligible for voluntary

departure.

Section 470a penalizes “[e]very person who alters,

falsifies, forges, duplicates or in any manner reproduces or

counterfeits any driver’s license or identification card issued

by a governmental agency with the intent that such driver’s

license or identification card be used to facilitate the

commission of any forgery.”

Escobar argued that section 470a’s first element sweeps

more broadly than the generic definition of forgery because

the proscribed conduct encompasses mere duplication or any

manner of reproduction, and thus a person could be liable for

photocopying a genuine driver’s license with the requisite

intent. The panel disagreed that photocopying a driver’s

license with the intent to facilitate the commission of any

forgery falls outside the generic definition of forgery.

As a helpful comparison, the panel looked to Vizcarra-

Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008), in which the

***

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

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

ESCOBAR SANTOS V. GARLAND 3

court addressed California Penal Code section 475(c), which

proscribes possession of any completed check, money order,

traveler’s check, warrant or county order, whether real or

fictitious, with the intent to utter or pass or facilitate the

utterance or passage of the same, in order to defraud any

person. The panel observed that in Vizcarra-Ayala, the court

determined that an essential element of the generic offense of

forgery is the false making or alteration of a document, such

that the document is not what it purports to be, and that

Vizcarra-Ayala held that section 475(c) encompassed broader

conduct than the generic definition of forgery because it

criminalized the possession or use of genuine instruments

with the intent to defraud but not to forge. The panel

observed that in Vizcarra-Ayala, the court identified several

instances in which California used section 475(c) to prosecute

such conduct.

The panel pointed out several marked differences between

section 475(c) and section 470a, including that section 470a:

(1) plainly does not criminalize “possession”; (2) does not

include section 475(c)’s reference to “real or fictitious”

instruments; and (3) does not contemplate prosecution for

conduct akin to attempting to cash a genuine, unaltered

check––by for example, representing another person’s

genuine driver’s license as one’s own. Moreover, the panel

noted that unlike in Vizcarra-Ayala, Escobar did not identify,

and the panel could not locate, any cases in which California

had prosecuted individuals under section 470a for conduct

involving genuine documents. The panel further noted that

California punishes the duplication or reproduction of such

identification only when it is “used to facilitate the

commission of any forgery.”

4 ESCOBAR SANTOS V. GARLAND

The panel noted that Escobar had not identified any

evidence that California uses a broader definition of “forgery”

than the generic understanding, and thus by definition, section

470a requires proof of a false writing capable of procuring

fraud. The panel wrote that a person who takes the

affirmative step to photocopy a genuine document with the

intent to deceive has made a false instrument––an action that

falls squarely within the generic definition of forgery.

Dissenting, District Judge Whaley noted that in Vizcarra-

Ayala, this court held that forgery requires a lie about the

document itself, and that the lie must relate to the

genuineness of the document. Because CPC section 470a

penalizes duplicating identification cards that are not falsely

made, Judge Whaley concluded that the statute sweeps more

broadly than the federal common law definition of forgery.

In addition, Judge Whaley identified at least one case in

which California successfully prosecuted someone where the

identification card appeared to be genuine, and thus wrote

that there is a realistic probability that California would apply

CPC section 470a to conduct outside the common law

definition of forgery. Even were he to apply the modified

categorical approach, Judge Whaley wrote that his conclusion

would remain unchanged because there was no indication

from the administrative record, and the government did not

contend otherwise, that Escobar’s conviction was

indisputably for forgery—as opposed to non-forgery—

conduct.

ESCOBAR SANTOS V. GARLAND 5

COUNSEL

James Todd Bennett (argued), El Cerrito, California, for

Petitioner.

Brian M. Boynton, Acting Assistant Attorney General;

Anthony C. Payne, Assistant Director; Neelam Ihsanullah,

Trial Attorney; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

BYBEE, Circuit Judge:

Petitioner Jose Jairo Escobar Santos (Escobar), a native

and citizen of Guatemala, challenges the Board of

Immigration Appeals’ (BIA) determination that his forgery

conviction under California Penal Code (CPC) § 470a

constitutes an aggravated felony pursuant to the Immigration

and Nationality Act (INA) § 101(a)(43)(R), 8 U.S.C.

§ 1101(a)(43)(R). On this issue of first impression, we hold

that CPC § 470a is categorically an offense “relating to . . .

forgery” under INA § 101(a)(43)(R). Accordingly, we deny

the petition.

I. BACKGROUND

Escobar entered the United States without inspection in

2009. In 2015, police stopped him for running a red light.

Escobar was subsequently charged with (1) using false

documents to conceal his true citizenship (CPC § 114);

(2) driving without a valid driver’s license (California

6 ESCOBAR SANTOS V. GARLAND

Vehicle Code (CVC) § 12500(a)); (3) failure to stop at a red

light (CVC § 21453(a)); (4) driving without a safety belt

(CVC § 27315(d)(1)); and, (5) forgery of a driver’s license

(CPC § 470a). After Escobar pled guilty to the forgery count

(CPC § 470a), the remaining counts were dismissed. Escobar

was sentenced to three years in state prison, with 364 days to

be served in actual custody, and two years and one day to be

suspended and served on mandatory supervision.

Prior to Escobar’s conviction, in 2012, the Department of

Homeland Security (DHS) commenced removal proceedings

against Escobar, charging him with being removable under

INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) as a non-

citizen present in the United States without having been

admitted or paroled. Escobar conceded removability through

counsel and applied for asylum, withholding of removal,

protection under the Convention Against Torture (CAT), and,

in the alternative, voluntary departure.

At the hearing before the Immigration Judge (IJ) in 2017,

Escobar testified that he was afraid to return to his hometown

of San Carlos Sija in Guatemala because gang members were

extorting his family and burglarized his brother’s home.

Crediting Escobar’s testimony, the IJ issued an oral decision

denying his applications for asylum, withholding of removal,

CAT protection, and voluntary departure. As pertinent to this

appeal, the IJ found Escobar ineligible for voluntary

departure because his forgery conviction under CPC § 470a

constitutes an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(R). Escobar appealed to the BIA. The BIA

denied his appeal, holding that Escobar’s conviction under

CPC § 470a is categorically a crime “relating to forgery” and

thus an aggravated felony rendering him ineligible for

ESCOBAR SANTOS V. GARLAND 7

voluntary departure.1 Escobar’s present petition challenges

the BIA’s determination that CPC § 470a constitutes an

aggravated felony.

II. STANDARD OF REVIEW

We review questions of law de novo. See Toufighi v.

Mukasey, 538 F.3d 988, 992 (9th Cir. 2008). “Although the

BIA’s interpretation of immigration laws is entitled to

deference . . . its interpretation of the [CPC] . . . is not.

Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.

2008). As such, “we apply de novo review to ‘the issue of

whether a particular offense constitutes an aggravated

felony.’” Id. (quoting Ruiz-Morales v. Ashcroft, 361 F.3d

1219, 1221 (9th Cir. 2004)).

III. DISCUSSION

A non-citizen is ineligible for voluntary departure if he

has been convicted of an aggravated felony as defined by the

INA. 8 U.S.C. § 1229c(b)(1)(C). Pursuant to the INA, an

1

The BIA also “found no reason to disturb” the IJ’s decision denying

Escobar’s application for withholding of removal and CAT protection.

Because Escobar does not address these claims in his opening brief, he has

waived any challenges to the denial of these applications, as well as the

BIA’s denial of his request for a continuance to pursue a provisional

unlawful-presence waiver. See Martinez-Serrano v. INS, 94 F.3d 1256,

1259–60 (9th Cir. 1996).

With respect to Escobar’s asylum claim, the IJ found him ineligible

based on his aggravated felony conviction. Although the BIA did not

explicitly mention asylum in its decision, its finding that CPC § 470a is an

aggravated felony necessarily forecloses any challenge to the IJ’s denial

of asylum. In any event, Escobar does not discuss his asylum claim—or

the BIA’s apparent omission—in any detail.

8 ESCOBAR SANTOS V. GARLAND

“aggravated felony” includes, inter alia, “an offense relating

to . . . forgery . . . for which the term of imprisonment is at

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

We employ the categorical approach set forth in Taylor v.

United States, 495 U.S. 575 (1990), to determine whether a

state conviction qualifies as an aggravated felony under the

INA. See Lopez-Valencia v. Lynch, 798 F.3d 863, 867–68

(9th Cir. 2015). Under this approach, we first “compare the

elements of the state offense to the elements of the generic

offense defined by federal law.” Id. at 867 (citation omitted).

If the state statute “encompasses offenses that are narrower

than or equal to the federal definition of ‘an offense relating

to . . . forgery,’” a conviction under the state statute qualifies

as an aggravated felony. Vizcarra-Ayala, 514 F.3d at 874;

see also Mathis v. United States, 136 S. Ct. 2243, 2248

(2016). However, where the state statute sweeps more

broadly than the generic definition, there can be no

categorical match and, likewise, no aggravated felony. See

Mathis, 136 S. Ct. at 2248–49. In conducting this inquiry,

“we examine what the state conviction necessarily involved,

not the facts underlying the case.” Moncrieffe v. Holder,

569 U.S. 184, 190 (2013).

Here, we must compare the elements of CPC § 470a with

the generic, common law definition of forgery. We have

previously explained that the “essential elements of the

common law crime of forgery are: (1) a false making of some

instrument in writing; (2) a fraudulent intent; [and] (3) an

instrument apparently capable of effecting fraud.” Vizcarra-

Ayala, 514 F.3d at 874 (internal quotation marks omitted)

(brackets in original). The statute in question penalizes

“[e]very person who alters, falsifies, forges, duplicates or in

any manner reproduces or counterfeits any driver’s license or

ESCOBAR SANTOS V. GARLAND 9

identification card issued by a governmental agency with the

intent that such driver’s license or identification card be used

to facilitate the commission of any forgery.” CPC § 470a.

Escobar’s challenge focuses solely on the first element of

§ 470a—specifically, one who “alters, falsifies, forges,

duplicates or in any manner reproduces or counterfeits . . . .

” He argues that § 470a’s first element sweeps more broadly

than the generic definition because the “pr[o]scribed conduct

encompasses . . . mere duplication or any manner of

reproduction.” That is, a person could be liable under § 470a

for photocopying a genuine driver’s license with the requisite

intent, which, according to Escobar, is not an act covered by

the generic definition.

We disagree that photocopying a driver’s license with the

intent “to facilitate the commission of any forgery” falls

outside the generic definition of forgery. Our decision in

Vizcarra-Ayala offers a helpful comparison. There, we

addressed whether a separate provision of the CPC, § 475(c),

constitutes an offense relating to forgery under the INA.

514 F.3d at 875–77. Section 475(c) provides that “[e]very

person who possesses any completed check, money order,

traveler’s check, warrant or county order, whether real or

fictitious, with the intent to utter or pass or facilitate the

utterance or passage of the same, in order to defraud any

person, is guilty of forgery.” (emphasis added). Applying

the categorical approach to § 475(c), we first determined that

contemporary treatises, our sister circuits, and Supreme Court

precedent plainly establish that “an essential element of the

generic offense of forgery is the false making or alteration of

a document, such that the document is not what it purports to

be.” Vizcarra-Ayala, 514 F.3d at 875.

10 ESCOBAR SANTOS V. GARLAND

We then held that § 475(c) encompasses broader conduct

than the generic definition of forgery because it criminalizes

the possession or use of genuine instruments with the intent

to defraud but not to forge. Id. at 876–77; see id. at 875

(explaining that “forgery requires the falsification of a

document or instrument”). We noted several instances in

which California used § 475(c) to prosecute such conduct.

See id. at 875–77. For example, California charged a woman

under § 475(c) for attempting to cash a check she received in

the mail issued to a youth foundation that had a storefront

underneath her apartment. Id. at 876 (citing People v. Viel,

No. D044101, 2005 WL 904806 (Cal. Ct. App. 4th Dist. Apr.

20, 2005)). Because the defendant endorsed the check with

her own signature and did not alter the identity of the payee,

the document was not falsified in any way. She might have

been guilty of fraud, but she had not committed generic

forgery. See id. Similarly, California prosecuted an office

manager who was an approved signatory on the company’s

checking account for writing several checks for personal use,

including one for “cash” on the company’s bank account. Id.

at 876–77 (citing People v. Leonard, No. G032720, 2004 WL

2610365 (Cal. Ct. App. 4th Dist. Nov. 17, 2004)). The

manager may have committed generic embezzlement or theft,

but her crime did not constitute generic forgery. That neither

case involved false documents solidified our conclusion that

§ 475(c) encompasses “conduct that plainly is not generic

forgery.” Id. at 877.

There are marked differences between § 475(c) and

§ 470a. Section 470a plainly does not criminalize

“possession”; rather, a separate provision of the CPC

specifically prohibits the display or possession of a forged

driver’s license. See CPC § 470b. Nor does § 470a include

§ 475(c)’s reference to “real or fictitious” instruments.

ESCOBAR SANTOS V. GARLAND 11

Section 470a thus does not contemplate prosecution for

conduct akin to attempting to cash a genuine, unaltered

check—by say, representing another person’s genuine

driver’s license as one’s own. Unlike in Vizcarra-Ayala,

Escobar does not offer—nor can we locate—any cases in

which California has prosecuted individuals under § 470a for

conduct involving genuine documents.2

Escobar points to § 470a’s reference to “duplicat[ing] or

in any manner reproduc[ing]” a driver’s license or

government ID as evidence that the statute sweeps too

broadly. But California only punishes the duplication or

reproduction of such identification when it is “used to

facilitate the commission of any forgery.” Escobar has not

referred us to any evidence that California uses a broader

2

Our dissenting colleague cites People v. Brown, 2010 WL 3871856,

at *1 (Cal. Ct. App. 6th Dist. 2010) (unpublished) as an example of a case

in which California prosecuted an individual under § 470a “where the

identification card at issue appeared to be genuine.” Dissent Op. at 17–18.

In Brown the defendant pled no contest to the forged driver’s license and

checks; as such, his appeal did not concern or provide substantial

information as to the specific facts giving rise to his § 470a conviction.

2010 WL 3871856, at *1.

In any event, we respectfully disagree with the dissent’s reading of

the case. Brown does not, as the dissent concludes, state that the

defendant possessed another individual’s genuine driver’s license and

merely presented it as his own, which would constitute fraud and not

forgery. Rather, as we read Brown, the fact that the defendant had a

driver’s license with data that belonged to two different people is, by

definition, indicative of some alteration, making the driver’s license false.

See 2010 WL 3871856, at *1 (stating that Brown had “a driver’s license

showing some data belonging to [Brown], but the license had been issued

to a different person”). That is classic forgery.

12 ESCOBAR SANTOS V. GARLAND

definition of “forgery” than the generic understanding.3

Thus, by definition, § 470a requires proof of a false writing

capable of procuring fraud. A person who takes the

affirmative step to photocopy a genuine document with the

intent to deceive has made a false instrument—an action that

falls squarely within the generic definition of forgery. We

thus conclude that § 470a is categorically an offense “relating

. . . to forgery” under INA § 101(a)(43)(R).

IV. CONCLUSION

For the foregoing reasons, CPC § 470a constitutes an

offense “relating to . . . forgery.” The petition is DENIED.

3

Nor do we have any concerns that § 470a’s reference to “any

forgery” incorporates § 475(c)’s broader definition of forgery. In the

unlikely event that an individual is convicted under both statutes, an

individual’s conviction under § 470a remains an independent offense that

matches the generic definition of forgery. So, for example, if an

individual used a duplicated driver’s license to pass a genuine, unaltered

check in violation of § 475(c), in order to be convicted under § 470a that

person would still need to use an altered ID to facilitate the crime. Stated

otherwise, § 470a is itself a complete crime involving the falsifying of IDs

and is not derivative of 475(c)’s broader definition involving “any

completed check, money order, traveler’s check, warrant or county order,

whether real or fictitious[.]”

ESCOBAR SANTOS V. GARLAND 13

WHALEY, District Judge, dissenting:

This case presents the question of whether the proscribed

conduct of one who “alters, falsifies, forges, duplicates or in

any manner reproduces or counterfeits any driver’s license or

identification card” under California Penal Code (CPC)

§ 470a encompasses conduct that is broader than the “false

making of some instrument in writing” under the federal

common law definition of forgery. For the reasons set forth

below, I conclude that CPC § 470a is broader than the federal

definition; and in turn, Appellant Escobar Santos’ (Escobar)

underlying conviction does not qualify as an aggravated

felony. I respectfully dissent.

I. DISCUSSION

The Immigration and Nationality Act (INA) defines an

“aggravated felony” as any one of a series of offenses,

including “an offense relating to . . . forgery . . . for which the

term of imprisonment is at least one year.” 8 U.S.C.

§ 1101(a)(43)(R). Whether an offense is an aggravated

felony for purposes of the INA is a question of law this court

reviews de novo. Vizcarra-Ayala v. Mukasey, 514 F.3d 870,

872–73 (9th Cir. 2008).

In the present case, the Board of Immigration Appeals

(BIA) determined that Escobar’s conviction under CPC

§ 470a was categorically an aggravated felony making him

ineligible for voluntary departure.

To determine whether Escobar’s state conviction is one

relating to forgery, and therefore qualifies as an aggravated

felony under the INA, this court employs the categorical

approach outlined in Taylor v. United States, 495 U.S. 575,

14 ESCOBAR SANTOS V. GARLAND

600 (1990). Vizcarra-Ayala, 514 F.3d at 874. Under this

approach, the court looks only to the statutory definitions of

the underlying crime and not the particular facts of the

offender’s case. Taylor, 495 U.S. at 600. First, the court

determines whether the state statute encompasses conduct

narrower than or equal to the federal definition of an offense

relating to forgery.1 Vizcarra-Ayala, 514 F.3d at 874

(internal quotation marks omitted); Taylor, 495 U.S. at 599.

If so, then a conviction of the state statute constitutes a

conviction relating to forgery. Vizcarra-Ayala, 514 F.3d at

874. If the statute is overinclusive, the “modified categorical

approach permits an examination of certain documents in the

record ‘to determine if the record unequivocally establishes

that the defendant was convicted of the generically defined

crime.’” Id. (quoting United States v. Corona-Sanchez,

291 F.3d 1201, 1211 (9th Cir. 2002) (en banc)).

“Forgery developed from the common[]law crime of

larceny and thus should be defined by its ‘generic, core

meaning.’” Vizcarra-Ayala, 514 F.3d at 874 (quoting

Morales-Alegria v. Gonzales, 449 F.3d 1051, 1054 (9th Cir.

2006)). The essential elements of the common law crime of

forgery are “(1) a false making of some instrument in writing;

(2) a fraudulent intent; [and] (3) an instrument apparently

capable of effecting a fraud.” Id. (internal quotation marks

and citation omitted) (brackets in original).

1

For instance, in Taylor, the Supreme Court noted that state

convictions for first degree or aggravated burglary are examples of crimes

that are clearly narrower than the general definition of burglary. 495 U.S.

at 599 (the generic definition having the basic elements of “unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent

to commit a crime.”).

ESCOBAR SANTOS V. GARLAND 15

Like the present case, in Vizcarra-Ayala, the non-citizen’s

challenge focused on the first element of common law

forgery—the false nature of the document. 514 F.3d at 875.

There, we held that forgery requires a lie about the document

itself, and “the lie must relate to the genuineness of the

document.” Id. (citing 3 Wayne R. LaFave, Substantive

Criminal Law § 19.7(j)(5) (2d ed.) [hereinafter “LaFave”]).

Forgery requires “the falsification of a document or

instrument.” Vizcarra-Ayala, 514 F.3d at 875. “Forgery is a

crime aimed primarily at safeguarding confidence in the

genuineness of documents relied upon in commercial and

business activity.” Id. (quoting LaFave § 19.7(j)(5)).

“Where the falsity lies in the representation of facts, not

in the genuineness of execution, it is not forgery.” Gilbert v

United States, 370 U.S. 650, 658 (1962); see also Vizcarra-

Ayala, 514 F.3d at 875. According to the Tenth Circuit,

shortly before the U.S. Supreme Court decided Gilbert,

the words ‘falsely made’ and ‘forged’ are

homogeneous, partaking of each other. They

have always been synonymously construed to

describe a spurious or fictitious making as

distinguished from a false or fraudulent

statement. The words relate to genuineness of

execution and not falsity of content.

Selvidge v. United States, 290 F.2d 894, 897 (10th Cir. 1961).

As the majority notes, in Vizcarra-Ayala this court

determined that CPC § 475(c) did not categorically match the

definition of common law forgery because that statute

criminalizes the possession of “real” documents with the

requisite intent to defraud. 514 F.3d at 875. There, the

16 ESCOBAR SANTOS V. GARLAND

government contended the statute’s reference to “real or

fictitious” merely includes genuine document forms that

contain a forged signature. Id. In rejecting this argument,

this court considered actual instances where the State had

prosecuted CPC § 475(c) cases in which the offenders had

utilized genuine, unaltered documents. Id. at 876, & n.3.

Because CPC § 470a penalizes duplicating identification

cards that are not falsely made, the statute sweeps more

broadly than the federal common law definition of forgery.

For instance, if an offender used a photocopy of an

identification card with the requisite intent to defraud, he

would be in violation of § 470a, but he would not be guilty of

common law forgery because there would be no lie about the

genuineness of the document itself.

For a court “to find that a state statute creates a crime

outside the [federal] generic definition[,] . . . requires more

than the application of legal imagination to a state statute’s

language. It requires a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct

that falls outside the generic definition of a crime.” Gonzales

v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). The offender

must point to his own case or other cases in which the state

courts have applied the statute in a broader manner than the

federal definition. Id. This court has held that when a “state

statute explicitly defines a crime more broadly than the

generic definition, no legal imagination is required to hold

that a realistic probability exists . . .” that the state will

prosecute conduct outside the generic definition. United

States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (internal

quotation marks omitted) abrogated by United States v. Stitt,

139 S. Ct. 399, 406–07 (2018). In Grisel, this court held that

the statute in question was overbroad simply by reviewing the

ESCOBAR SANTOS V. GARLAND 17

statutory text. Id.; but see United States v. Rodriguez-

Gamboa, 972 F.3d 1148, 1154 (9th Cir. 2020) (holding that

California’s prohibition of possession of geometric isomers

of methamphetamine did not make the state statute overbroad

because such geometric isomers do not scientifically exist,

and the State could not possibly prosecute their possession).

The Oregon burglary statute in Grisel included entrance into

places such as a booth, vehicle, boat, and aircraft, which were

explicitly excluded from the federal definition of burglary.2

488 F.3d at 850.

The majority finds that CPC § 470a does not contemplate

prosecution in the non-forgery context, for instance, when

“representing another person’s genuine driver’s license as

one’s own.” Majority Op. at 11. Although I generally agree

that the typical CPC § 470a prosecution involves a fake or

falsified identification,3 California has successfully

prosecuted at least one case where the identification card at

2

The Supreme Court has subsequently held that a burglary statute’s

prohibited entry of a vehicle designed or adapted for overnight use does

not render the statute categorically overbroad under the Taylor test. Stitt,

139 S. Ct. at 407.

3

See, e.g., People v. Estournes, 2009 WL 807568, at *1 (Cal. Ct.

App. 2009) (unpublished) (§ 470a prosecution premised on identification

card with appellant’s picture glued on top of another picture); Munoz v.

Robertson, No. 19-cv-00092-ODW, 2020 WL 4905845, at *2 (C.D. Cal.

2020) (unpublished) (§ 470a prosecution maintained when defendant

attempted to purchase a vehicle at car dealership and dealership

determined that the identification was forged because it failed multiple

authenticity tests); People v. Santos, 2005 WL 3065868, at *1 (Cal. Ct.

App. 2005) (unpublished) (§ 470a prosecution sustained when search

warrant uncovered computer and other equipment for manufacturing false

identifications).

18 ESCOBAR SANTOS V. GARLAND

issue appeared to be genuine.4 See People v. Brown, 2010

WL 3871856, at *1 (Cal. Ct. App. 2010) (unpublished). In

Brown, law enforcement found defendant Robert Brown in

possession of ten forged checks and “a driver’s license

showing some data belonging to defendant, but the license

had been issued to a different person.” Id. Brown was

charged with possessing a forged driver’s license with intent

to use it to facilitate the commission of a forgery under CPC

§ 470a, and the California court of appeal affirmed his

conviction. Id. The opinion makes no mention of the

driver’s license being falsely made; instead, it appears that

Brown possessed another individual’s genuine driver’s

license which he purported to be his own. See id. Under

Vizcarra-Ayala, such possession would not constitute forgery

because there was no lie relating to the genuineness of the

document itself. 514 F.3d at 875.

Even though the plain text which prohibits “duplicating

or in any manner reproducing” is sufficient to find that the

statute is overbroad, there is nonetheless a realistic

probability that California would apply CPC § 470a to

conduct outside the common law definition of forgery.

Accordingly, Escobar’s underlying conviction does not

constitute an aggravated felony under Taylor.

Even were this court to consider certain documents from

the record under the modified categorical approach, my

conclusion remains unchanged. There is no indication from

4

California Rules of Court 8.1115 restricts citation of unpublished

opinions in California courts. However, the unpublished cases in this

dissent are not cited as precedent but rather as examples of what conduct

California prosecutes under CPC § 470a. See Vizcarra-Ayala, 514 F.3d

at 876 n.3.

ESCOBAR SANTOS V. GARLAND 19

the administrative record, and the government does not

contend otherwise, that Escobar’s conviction was

indisputably for forgery—as opposed to non-forgery—

conduct.

I would grant Escobar’s petition for review and remand

to the BIA to consider his appeal with the understanding that

his conviction under CPC § 470a was not an aggravated

felony.