FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HO SANG YIM, AKA Alez Suk Peter

Yim Yoon,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 17-70624

Agency No.

A037-993-102

ORLANDO VELASQUEZ GARCIA,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 17-70670

Agency No.

A073-986-839
2 YIM V. BARR

RAUL BORGES BORBA-CARDOSO,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 17-70742

Agency No.

A030-861-138

OPINION

On Petitions for Review of Orders of the

Board of Immigration Appeals

Yim v. Barr, 17-70624

Argued and Submitted June 5, 2020

Pasadena, California

Velasquez Garcia v. Barr, 17-70670

Submitted June 5, 2020*

Pasadena, California

Borba-Cardoso v. Barr, 17-70742

Submitted June 5, 2020**

Pasadena, California

Filed August 25, 2020

*

 The panel unanimously concludes this case is suitable for decision

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

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
YIM V. BARR 3

Before: Consuelo M. Callahan and Sandra S. Ikuta, Circuit

Judges, and Cathy Ann Bencivengo,*** District Judge.

Opinion by Judge Ikuta

SUMMARY 

Immigration 

On petitions for review brought by Ho Sang Yim,

Orlando Velasquez Garcia, and Raul Borges Borba-Cardoso,

the panel deferred to the Board of Immigration Appeals’

interpretation of “perjury,” as used in the aggravated felony

definition of 8 U.S.C. § 1101(a)(43)(S), and held that perjury

under section 118(a) of the California Penal Code is an

aggravated felony.

Each of the three petitioners was convicted of perjury

under section 118(a) of the California Penal Code and then

suffered adverse immigration consequences on the ground

that he had committed an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(S), which includes “an offense relating to . . .

perjury.”

Applying the three-step categorical approach, the panel

first explained that the BIA had interpreted the generic

** * The Honorable Cathy Ann Bencivengo, United States District

Judge for the Southern District of California, sitting by designation.

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

has been prepared by court staff for the convenience of the reader.
4 YIM V. BARR

definition of “perjury” to require that an offender (1) make a

material false statement (2) knowingly or willfully (3) while

under oath or affirmation or penalty of perjury (4) where an

oath is authorized or required by law. The panel deferred to

the BIA’s determination, explaining that the BIA had

surveyed the definitions of perjury recognized at common

law, codified in state and federal statutes, and adopted by the

Model Penal Code, and that the BIA reasonably settled on a

definition compatible with those sources. The panel also

rejected the argument that it was not reasonable for the BIA

to omit a requirement that a statement be made in an official

proceeding, explaining that the federal perjury statute

supports the BIA’s omission of a “proceeding” requirement,

and that the BIA was not bound to adopt the definition used

by a majority of the states. 

At the second step of the categorical approach, the panel

concluded that the elements of perjury under section 118(a)

are: (1) a willful statement, (2) either (a) under oath in any of

the cases in which the oath may be administered or (b) in

writing under penalty of perjury in circumstances permitted

by law, (3) of any material matter, and (4) which the person

knows to be false.

At the third step, the panel concluded that the elements of

section 118(a) and the elements of the generic federal

definition are a categorical match. First, the panel concluded

that there was no meaningful difference between section

118(a)’s requirement of “willful” intent and the BIA’s

requirement of “knowingly or willfully.” 

Second, with respect to the false-statement requirement,

Borba argued that a person could be convicted under section

118(a) without making a literally false statement because
YIM V. BARR 5

California law provides that an “unqualified statement of that

which one does not know to be true is the equivalent to a

statement of that which one knows to be false.” The panel

rejected that argument, concluding that the phrase “false

statement” in the BIA’s definition includes statements made

by a declarant who is entirely ignorant of the statement’s

truth or falsity. 

Third, the panel considered the contention that section

118(a) criminalizes more conduct than the BIA’s generic

definition because, in California, it is no defense that the

accused did not know the materiality of the false statement. 

Rejecting that argument, the panel explained that the BIA’s

definition is in accord with the uniform principle that the

declarant need not know the statement is material. 

Finally, the panel considered the requirement that an oath,

affirmation, or declaration under penalty of perjury be

authorized or permitted by law. The panel rejected Yim’s

contention that there is a difference between being

“authorized by law,” as provided by section 118(a), and being

“permitted by law,” as provided by the BIA’s generic

definition. The panel explained that, even if there is some

semantic different between the terms, Yim failed to establish

a “realistic probability” that section 118(a) is applied more

broadly than the generic offense. 

Petitioners also argued that the offenses are not a

categorical match because California law recognizes two

affirmative defenses to perjury that are not incorporated into

the federal generic offense. The panel rejected this

contention, explaining that the existence or non-existence of

affirmative defenses is irrelevant to the categorical approach,
6 YIM V. BARR

and that neither of the statutes relied on by petitioners alter

the statutory definition set forth in section 118(a).

COUNSEL

Robert G. Berke (argued), Berke Law Offices Inc., Canoga

Park, California, for Petitioner Ho Sang Yim.

Alejandro Garcia, Commerce, California, for Petitioner

Orlando Velasquez Garcia.

Mario Acosta Jr., Law Offices of Mario Acosta Jr., Los

Angeles, California, for Petitioner Raul Borges BorbaCardoso.

Jessica A. Dawgert (argued), M. Jocelyn Lopez Wright, Song

E. Park, and Andrew N. O’Malley, Senior LitigationCounsel;

Keither I. McManus, Assistant Director; John F. Stanton,

Trial Attorney; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.
YIM V. BARR 7

OPINION

IKUTA, Circuit Judge:

We hold that the Board of Immigration Appeals (BIA)

reasonably interpreted “perjury,” as used in 8 U.S.C.

§ 1101(a)(43)(S), to mean an offense where “an offender

make[s] a material false statement knowingly or willfully

while under oath or affirmation [or penalty of perjury] where

an oath is authorized or required by law.” Matter of

Alvarado, 26 I. & N. Dec. 895, 901 & n.11 (BIA 2016). 

Given this definition, we hold that perjury under section

118(a) of the California Penal Code is an “aggravated felony”

because it is “an offense relating to . . . perjury.” 8 U.S.C.

§ 1101(a)(43)(S).

I

This opinion addresses issues raised in three separate

petitions for review: Yim v. Barr, No. 17-70624; Velasquez

Garcia v. Barr, No. 17-70670; and Borba-Carodoso v. Barr,

No. 17-70742. Each of the petitioners was convicted of

perjury under section 118(a) of the California Penal Code and

then suffered adverse immigration consequences on the

ground that he had committed an “aggravated felony,”

namely, an “an offense relating to . . . perjury.” 8 U.S.C.

§ 1101(a)(43)(S). The petitioners contend that perjury under

section 118(a) is not an “aggravated felony” because it is not

“an offense relating to . . . perjury.” Id. We briefly

summarize the facts relevant to each petition before

addressing the petitioner’s arguments.
8 YIM V. BARR

A

Raul Borges Borba-Cardoso, a native and citizen of

Portugal, was admitted to the United States as a lawful

permanent resident in 1975. In 2004, Borba was convicted of

perjury in violation of section 118(a) for testifying falsely

during a judicial proceeding, and he was sentenced to three

years in prison. The Department of Homeland Security

(DHS) initiated removal proceedings on the ground that

Borba had been convicted of an “aggravated felony.” An

immigration judge (IJ) found Borba removable as charged,

and the BIA affirmed.

B

Orlando Velasquez Garcia is a native and citizen of

Guatemala. He came to the United States on June 18, 1990. 

Once here, he amassed a significant criminal record,

including a conviction for perjury in violation of section

118(a) for providing false information, under penalty of

perjury, to the California Department of Motor Vehicles. In

2009, DHS charged Velasquez as removable on the ground

that he was an alien “present in the United States without

being admitted or paroled, or who arrived in the United States

at any time or place other than as designated by the Attorney

General.” 8 U.S.C. § 1182(a)(6)(A)(i).

An IJ found Velasquez removable as charged and denied

Velasquez’s requests for asylum, cancellation of removal,

withholding of removal, and protection under the Convention

Against Torture (CAT). The IJ ruled that Velasquez’s perjury

conviction was an “aggravated felony,” rendering him

ineligible for asylum and cancellation of removal, and the IJ

denied Velasquez’s requests for withholding of removal and
YIM V. BARR 9

CAT protection on the ground that Velasquez had not made

the requisite showing. The BIA affirmed.

C

Ho Sang Yim is a native and citizen of South Korea. He

was admitted to the United States as a lawful permanent

resident on June 3, 1983. In March 2010, Yim was arrested

pursuant to a four-count complaint charging grand theft auto,

identity theft, falsifying financial statements, and perjury. 

Yim, like Velasquez, was charged with providing false

information, under penalty of perjury, to the California

Department of Motor Vehicles. Yim eventually pleaded nolo

contendere to one count of perjury in violation of section

118(a), and in December 2011, DHS charged Yim as

removable for having committed an “aggravated felony.” An

IJ found Yim removable as charged, and the BIA affirmed.

II

The term “aggravated felony” covers “offense[s] relating

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

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

convicted of an “aggravated felony” is removable, 8 U.S.C.

§ 1227(a)(2)(A)(iii), and is also ineligible for asylum,

8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i), and cancellation of

removal, 8 U.S.C. § 1229b(a)(3). The question here is

whether perjury under section 118(a) of the California Penal

Code is “an offense relating to . . . perjury.” 8 U.S.C.

§ 1101(a)(43)(S). To answer this question, we apply the

categorical approach from Taylor v. United States, 495 U.S.
10 YIM V. BARR

575 (1990).1 The categorical approach prescribes a three-step

process for determining whether an offense is an “aggravated

felony.”

First, we must identify the elements of the generic federal

offense, Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081

(9th Cir. 2008), in this case, “perjury,” 8 U.S.C.

§ 1101(a)(43)(S). We “defer to the BIA’s articulation of the

generic federal definition ‘if the statute is silent . . . and the

BIA’s interpretation is based on a permissible construction of

the statute.’” Renteria-Morales, 551 F.3d at 1081 (quoting

Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005));

cf. United States v. Garcia-Santana, 774 F.3d 528, 542–43

(9th Cir. 2014). An interpretation is permissible so long as it

is not “clearly contrary to the plain meaning of the statute.” 

Parilla, 414 F.3d at 1041.

Second, we must identify the elements of the specific

crime of conviction, Renteria-Morales, 551 F.3d at 1081,

here, section 118(a) of the California Penal Code, Cal. Penal

Code § 118(a). In doing so, we will “not defer to the BIA’s

interpretation of state law,” Renteria-Morales, 551 F.3d at

1081, because the BIA “has no special expertise . . . in

construing state . . . statutes,” Marmolejo-Campos v. Holder,

558 F.3d 903, 907 (9th Cir. 2009) (en banc). To determine

the elements of a state statute, “we may consider the

interpretation of the statute provided by state courts.” United

States v. Perez, 932 F.3d 782, 785 (9th Cir. 2019).

1 Because we conclude that all of the conduct criminalized by section

118(a) constitutes “an offense relating to . . . perjury,” we need not apply

the modified categorical approach. See, e.g., Shepard v. United States,

544 U.S. 13, 25–26 (2005).
YIM V. BARR 11

Third, we compare the statute of conviction to the generic

federal offense to determine “whether the specific crime of

conviction meets the . . . definition of an aggravated felony.” 

Renteria-Morales, 551 F.3d at 1081. Here, unlike in other

cases, the state offense need not criminalize the same amount

of conduct (or less) as the generic offense, because the INA

refers to “an offense relating to . . . perjury.” 8 U.S.C.

§ 1101(a)(43)(S) (emphasis added); see, e.g., United States v.

Sullivan, 797 F.3d 623, 638 (9th Cir. 2015); United States v.

Sinerius, 504 F.3d 737, 743 (9th Cir. 2007). As we have

recognized, the phrase “relating to,” when used in this

context, indicates that Congress intended to “cover[] a range

of activities beyond” just the generic offense. AlbilloFigueroa v. I.N.S., 221 F.3d 1070, 1073 (9th Cir. 2000). 

Therefore, the statute of conviction need only “stand[] in

some relation, bear[] upon, or [be] associated with th[e]

generic offense.” Sinerius, 504 F.3d at 743.

A

We begin with the first step of the categorical approach,

which is to identify the elements of the generic crime of

“perjury,” as it is used in 8 U.S.C. § 1101(a)(43)(S), with due

deference to the BIA. See Renteria-Morales, 551 F.3d

at 1086. We presume that Congress intended the terms of a

statute, including a list of offenses, to have their

“contemporary meaning.” Taylor, 495 U.S. at 598. The

definition of the relevant offense in another section of the

United States Code provides strong evidence as to Congress’s

intent, given Congress’s presumed familiarity with that

definition. See, e.g., Esquivel-Quintana v. Sessions, 137 S.

Ct., 1562, 1570–71 (2017). Accordingly, the BIA may “rely

to a significant degree on the Federal definition of an offense,

where available.” Matter of M-W-, 25 I. & N. Dec. 748, 752
12 YIM V. BARR

n.5 (BIA 2012) (citation omitted); see Renteria-Morales,

551 F.3d at 1086 (holding that “the BIA acted reasonably in

deriving the definition of ‘obstruction of justice’ for purposes

of § 1101(a)(43)(S) from the body of federal statutes

imposing criminal penalties on obstruction-of-justice

offenses”). Although probative, a parallel federal offense

might not provide “the complete or exclusive definition” of

a generic offense, Esquivel-Quintana, 137 S. Ct. at 1571; cf.

Garcia-Santana, 774 F.3d at 535, and so a multijurisdictional analysis “can be useful insofar as it helps shed

light on the common understanding and meaning of the

federal provision being interpreted,” even though undertaking

such an analysis is “not required by the categorical

approach,” Esquivel-Quintana, 137 S. Ct. at 1571 n.3

(citation omitted).2In addition to state criminal codes, the

Model Penal Code and scholarly commentary may shed light

on the contemporary meaning of a term. See, e.g., Taylor,

495 U.S. at 580; Garcia-Santana, 774 F.3d at 534.

1

Given our deference to the BIA’s definition of generic

federal offenses, see, e.g., Renteria-Morales, 551 F.3d

at 1081, we begin by recounting the development of the

BIA’s definition of “perjury.” Before December 29, 2016,

the BIA concluded that the federal perjury statute, 18 U.S.C.

§ 1621, established the generic definition of “perjury,” as

used in 8 U.S.C. § 1101(a)(43)(S). See In Re Martinez2 To the extent we have implied that the categorical approach requires

a multi-jurisdictional analysis, see, e.g., Garcia-Santana, 774 F.3d at 534,

that guidance has been superseded by Esquivel-Quintana, 137 S. Ct.

at 1571 n.3. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en

banc).
YIM V. BARR 13

Recinos, 23 I. & N. Dec. 175, 177 (BIA 2001). Because the

BIA determined that the federal perjury statute and section

118(a) of the California Penal Code were “essentially the

same,” section 118(a) qualified as an “offense relating to . . .

perjury.” Id. We then held that this interpretation was not

entitled to deference on the ground that the BIA had failed to

perform a survey to determine the “contemporary usage” of

the term “perjury.” Yim v. Lynch, 610 F. App’x 672, 673 (9th

Cir. 2015). Accordingly, we remanded to the BIA with

instructions that it survey definitions of perjury codified in

state statutes, adopted by the Model Penal Code, and

endorsed by scholarly commentary. See id. at 672–73 (citing

Garcia-Santana, 774 F.3d at 534).

In a subsequent opinion, Matter of Alvarado, the BIA

surveyed the sources mentioned above. 26 I. & N. Dec. 895,

898–900 (BIA 2016). It first looked to the common-law

definition of perjury. Id. at 898. “At common law, perjury

was defined as ‘a crime committed when a lawful oath is

administered, in some judicial proceeding, to a person who

swears willfully, absolutely, and falsely, in a matter material

to the issue or point in question.” Id. (quoting 4 William

Blackstone, Commentaries on the Laws of England, 136–37

(1769)). The BIA reasonably recognized, however, that the

common-law definition of perjury was merely a starting point

for defining “perjury,” as used in 8 U.S.C. § 1101(a)(43)(S). 

See, e.g., Taylor, 495 U.S. at 593 (rejecting the argument that

burglary carried its common-law meaning because “[o]nly a

few States retain the common-law definition, or something

closely resembling it”); Garcia-Santana, 774 F.3d at 539

(rejecting the argument that “conspiracy” carried its commonlaw meaning because only a small minority of jurisdictions

retained “the common-law definition of conspiracy,” which

did not require an overt act).
14 YIM V. BARR

The BIA then considered the Model Penal Code and

explained that it “slightly expanded the common law

definition of perjury by proscribing false statements made ‘in

any official proceeding,’ not just those made in ‘judicial’

proceedings.” Matter of Alvarado, 26 I. & N. Dec. at 898

(citing Model Penal Code § 241.1(1) (1985)). Specifically,

“[a] person is guilty of perjury . . . if in any official

proceeding he makes a false statement under oath or

equivalent affirmation, or swears or affirms the truth of a

statement previously made, when the statement is material

and he does not believe it to be true.” Model Penal Code

§ 241.1(1). The Model Penal Code broadly defines an

“official proceeding” as “a proceeding heard or which may be

heard before any legislative, judicial, administrative or other

governmental agency or official authorized to take evidence

under oath, including any referee, hearing examiner,

commissioner, notary or other person taking testimony or

deposition in connection with any such proceeding.” Model

Penal Code § 240.0(4). Thus, by proscribing false statements

made “in any official proceeding,” a perjury offense could

occur “before any legislative, judicial, administrative or other

governmental agency or official authorized to take evidence

under oath.” Matter of Alvarado, 26 I. & N. Dec. at 898

(quoting Model Penal Code § 240.0(4)).

After consulting the Model Penal Code, the BIA

explained that “States’ perjury laws have many similarities to

the common law and Model Penal Code definitions.” Id. At

the time the phrase “an offense relating to . . . perjury” was

added to 8 U.S.C. § 1101(a)(43)(S) in 1996, the majority of

states defined perjury to require, at the least, “(1) a material

(2) false statement (3) made knowingly or willfully (4) while

under oath, affirmation, or under penalty of perjury.” Id.
YIM V. BARR 15

(footnote omitted).3In addition to these elements, the

majority of states also “required that the witness take [an]

oath in an ‘official proceeding,’ or in a proceeding where an

oath was either ‘required or authorized by law.’” Id. at 899

(footnotes omitted) (collecting statutes).

Finally, the BIA consulted the federal perjury statute,

18 U.S.C. § 1621. Id. at 900. In 1996, as now, the statute

provided,

Whoever—

(1) having taken an oath before a competent

tribunal, officer, or person in any case in

which a law of the United States authorizes an

oath to be administered, that he will testify,

declare, depose, or certify truly, or that any

written testimony, declaration, deposition, or

certificate by him subscribed is true, willfully

and contrary to such oath states or subscribes

any material matter which he does not believe

to be true; or

(2) in any declaration, certificate, verification,

or statement under penalty of perjury as

permitted under section 1746 of title 28,

3 The BIA explained that “[s]ome States had a ‘knowing’ mens rea in

their perjury statutes, while others included a ‘willful’ requirement.” 

Matter of Alvarado, 26 I. & N. Dec. at 898 n.5. But “these states of mind

are not meaningfully distinguishable because courts have uniformly

interpreted the willfulness requirement of perjury to mean that the

defendant knowingly made the false statement.” Id. (citing Bronston v.

United States, 409 U.S. 352, 359 (1973); Matter of Esqueda, 20 I. & N.

Dec. 850, 858 (BIA 1994); Model Penal Code § 2.02(8)).
16 YIM V. BARR

United States Code, willfully subscribes as

true any material matter which he does not

believe to be true;

is guilty of perjury.

Pub. L. No. 94-550, § 2, 90 Stat. 2534, 2534–35 (1976)

(codified at 18 U.S.C. § 1621). The federal statute, like some

state statutes, broadly extends to “unsworn declarations

prepared under penalty of perjury.” Scott Mah et al., Perjury,

57 Am. Crim. Law Rev. 1115, 1117 (2020) (citing 18 U.S.C.

§ 1621(2)). The BIA reasonably “presume[d] that Congress

was familiar with 18 U.S.C. § 1621 when it enacted [8 U.S.C.

§ 1101(a)(43)(S)].” Matter of Alvarado, 26 I. & N. Dec.

at 900 (citing Miles v. Apex Marine Corp., 498 U.S. 19, 32

(1990)).

Having surveyed the relevant authorities, the BIA

concluded that “the generic definition of the term ‘perjury’ in

[8 U.S.C. § 1101(a)(43)(S)] requires that an offender

[1] make a material false statement [2] knowingly or willfully

[3] while under oath or affirmation [or penalty of perjury]

[4] where an oath is authorized or required by law.” Id.

at 901 & n.11. The definition “incorporates false statements

made orally and in writing under penalty of perjury.” Id.

at 901 n.11. The BIA’s definition does not require that the

relevant statement be made in a proceeding. Id. at 899–900

(footnotes omitted).

We conclude that this is a “permissible construction of the

statute.” Parrilla, 414 F.3d at 1041 (citation omitted). The

BIA surveyed the definitions of perjury recognized at

common law, “codified in state and federal statutes,” and

“adopted by the Model Penal Code,” Garcia-Santana,
YIM V. BARR 17

774 F.3d at 534, and the BIA reasonably settled on a

definition of perjury compatible with these sources. As such,

the BIA’s definition of perjury is not “clearly contrary to the

plain meaning of the statute.” Parrilla, 414 F.3d at 1041. 

Therefore, we defer to the BIA’s determination.

2

In arguing against this conclusion, Yim contends that it

was not reasonable for the BIA to omit a requirement that a

statement be made in an “official proceeding” or a

“proceeding where an oath [is] either ‘required or authorized

by law.’” To support this, Yim points to the fact that the BIA

“identified only seven states as not requiring that the oath be

made in a proceeding.”

We reject this argument. First, the federal perjury statute,

18 U.S.C. § 1621, supports the BIA’s omission of a

“proceeding” requirement. Section 1621(2) provides that a

person is guilty of perjury if he “willfully subscribes as true

any material matter which he does not believe to be true” “in

any declaration, certificate, verification, or statement under

penalty of perjury as permitted under section 1746 of title 28,

United States Code.” 18 U.S.C. § 1621(2).4 Section 1621(2)

does not require that the statement be made in a

“proceeding,” and the BIA could reasonably rely on

18 U.S.C. § 1621 “to discern the elements of generic

4 Section 1746 sets forth the required form for declarations under

penalty of perjury when, “under any law of the United States or under any

rule, regulation, order, or requirement made pursuant to law, any matter

is required or permitted to be supported, evidenced, established, or proved

by the sworn declaration, verification, certificate, statement, oath, or

affidavit, in writing of the person making the same.” 28 U.S.C. § 1746.
18 YIM V. BARR

perjury.” Matter of Alvarado, 26 I. & N. Dec. at 900 (citation

omitted).5In fact, it would be unreasonable for the generic

definition of perjury to include a “proceeding” requirement,

as Yimcontends, because then conduct that meets Congress’s

definition of “perjury” for 18 U.S.C. § 1621(2) would not

constitute “perjury” under 8 U.S.C. § 1101(a)(43)(S). We

typically interpret statutes in a way that avoids such

incongruity. See Digital Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863, 879 (1994) (“[C]ourts should construe statutes

. . . to foster harmony with other statutory and constitutional

law.”). Thus, although the federal perjury statute might not

supply the “complete or exclusive definition” of “perjury,”

Esquivel-Quintana, 137 S. Ct. at 1571, it strongly supports

the BIA’s decision to omit a proceeding requirement, see

Renteria-Morales, 551 F.3d at 1086 (holding that “the BIA

acted reasonably in deriving the definition of ‘obstruction of

justice’ for purposes of § 1101(a)(43)(S) from the body of

federal statutes imposing criminal penalties on obstructionof-justice offenses”).

Second, in discerning Congress’s intent, the BIA may

survey a variety of sources and it is not bound to adopt the

definition of an offense used by a majority of the states. 

5 To the extent Yim argues that the federal perjury statute, 18 U.S.C.

§ 1621, includes a proceeding requirement, he is mistaken. Section

1621(2) extends to “unsworn declarations prepared under penalty of

perjury,” Scott Mah et al., Perjury, 57 Am. Crim. Law Rev. 1115, 1117

(2020) (citing 18 U.S.C. § 1621(2)), which do not need to be prepared in

connection with a “proceeding,” see 28 U.S.C. § 1746; United States v.

Gomez-Vigil, 929 F.2d 254, 258 (6th Cir. 1991) (“Section 1746 authorizes

the use of unsworn declarations under penalty of perjury, rather than

sworn declarations under oath, whenever the law, rule, regulation, or order

or requirement permits the matter to be supported, evidenced, established

or proved by sworn declaration.”).
YIM V. BARR 19

Indeed, the BIA need not in engage in a multi-jurisdictional

analysis at all. Esquivel-Quintana, 137 S. Ct. at 1571 n.3; cf.

Garcia-Santana, 774 F.3d at 534. Here, the BIA reasonably

placed significant weight on the federal definition of perjury,

Matter of Alvarado, 26 I. & N. Dec. at 900, and confirmed

the reasonableness of this choice by identifying a number of

states that likewise do not include a “proceeding” requirement

in their definition of perjury.6 The BIA reasonably

considered these definitions as evidencing the

contemporaneous understanding of the elements of perjury

and bolstering its conclusion regarding congressional intent. 

See Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152–53

(9th Cir. 2008) (en banc) (bolstering its interpretation of the

generic offense of “sexual abuse of a minor” by “survey[ing]

current criminal law,” even though it was “unnecessary” to do

so because Congress had defined “sexual abuse of a minor”

in a parallel federal offense), overruled on other grounds as

recognized by United States v. Rivera-Constantino, 798 F.3d

900, 904 (9th Cir. 2015).

3

Velasquez argues that the BIA’s interpretation is

unreasonable because the BIA’s decision to “survey the

contemporary definition of perjury [was] unexplained” and

“there is no evidence that Congress intended anything other

than the federal definition of perjury under 18 U.S.C.

§ 1621.” We reject these arguments. The BIA surveyed

contemporary definitions of perjury because we told it to do

6

See Alaska Stat. Ann. §§ 11.56.200, 11.56.240; Ariz. Rev. Stat.

Ann. § 13-2702; Cal. Penal Code § 118(a); Iowa Code Ann. §§ 622.1,

720.2; Nev. Rev. Stat. Ann. § 199.145; R.I. Gen. Laws Ann. § 11-33-1;

Tenn. Code Ann. § 39-16-702.
20 YIM V. BARR

so, see Yim, 610 F. App’x at 672–73, and such a survey can

“aid [the] interpretation” of a generic offense by “offering

useful context,” see Esquivel-Quintana, 137 S. Ct. at 1571

n.3.

4

In sum, we “may not supply the interpretation of the

statute we think best (as we would without an agency

pronouncement)” and must instead ask whether the BIA’s

interpretation of perjury was “based on a permissible

construction of the statute.” Marmolejo-Campos, 558 F.3d

at 908 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 843 (1984)). The BIA’s

approach to determining the elements of the generic offense

of perjury was consistent with Supreme Court guidance as

well as our own: the BIA surveyed relevant sources and

settled on a definition of perjury that was consistent with the

federal perjury statute and a number of state criminal codes. 

Because the BIA’s definition is “not clearly contrary to the

plain meaning of the statute,” Parrilla, 414 F.3d at 1041, we

conclude that it is entitled to deference.

B

Having accepted the BIA’s definition of the generic

offense, we now turn to the second step of the categorical

approach and ascertain the elements of the state statute of

conviction. Section 118(a) provides:

[1] Every person who, having taken an oath

that he or she will testify, declare, depose, or

certify truly before any competent tribunal,

officer, or person, in any of the cases in which
YIM V. BARR 21

the oath may by law of the State of California

be administered, willfully and contrary to the

oath, states as true any material matter which

he or she knows to be false, and [2] every

person who testifies, declares, deposes, or

certifies under penalty of perjury in any of the

cases in which the testimony, declarations,

depositions, or certification is permitted by

law of the State of California under penalty of

perjury and willfully states as true any

material matter which he or she knows to be

false, is guilty of perjury.

Cal. Penal Code § 118(a).

By its terms, section 118(a) criminalizes both oral and

written perjury. Matter of Alvarado, 26 I. & N. Dec. at 901

(citing Rivera v. Lynch, 816 F.3d 1064, 1071–72 (9th Cir.

2016)). For oral perjury cases, the elements of a section

118(a) offense are: “a [1] willful statement, [2] under oath,

[3] of any material matter [4] which the witness knows to be

false.” Rivera, 816 F.3d at 1072 (quoting Chein v. Shumsky,

373 F.3d 978, 983 (9th Cir. 2004)).7 For written perjury

cases, the false statement must be “in writing under penalty

of perjury” in circumstances “permitted by law,” as opposed

7

See also Cal. Jury Inst. Crim. (CALJIC) No. 7.20 (“Every person

who, [1] having taken an oath to (testify, declare, etc.) truly before any

competent tribunal, officer, or person, in any of the cases in which the

oath may by law be administered, [2] willfully and contrary to the oath,

[3] states as true any material matter [4] which he or she knows to be

false, is guilty of the crime of perjury in violation of Penal Code section

118.”).
22 YIM V. BARR

to “under oath.” Id.8 The other elements—willfulness,

materiality, and falsity—remain the same. See id.

Accordingly, the elements of perjury under section 118(a)

are: (1) a willful statement, (2) either (a) under oath in any of

the cases in which the oath may be administered or (b) in

writing under penalty of perjury in circumstances permitted

by law, (3) of any material matter, and (4) which the person

knows to be false. See Rivera, 816 F.3d at 1072; CALJIC

No. 7.20; CALJIC No. 7.21.

C

We now turn to the third step of the categorical approach. 

Given the language of 8 U.S.C. § 1101(a)(43)(S), we must

determine whether perjury in violation section 118(a) of the

California Penal Code “relat[es] to” the BIA’s generic

definition of perjury. To do so, we begin, as we normally do,

by determining whether the state offense is a categorical

match with the generic offense, meaning that the state offense

criminalizes the same amount of conduct (or less) as the

generic offense. See Sullivan, 797 F.3d at 635. Once we

complete this comparison, we turn to the question whether the

state offense “relat[es] to” the BIA’s generic definition of

perjury. See id. at 636; Sinerius, 504 F.3d at 743. Here, the

petitioners direct our attention to four distinct elements: 

(1) intent; (2) false statement; (3) materiality; and

(4) authorized or permitted by law.

8

See also CALJIC No. 7.21 (“Every person who [1] (testifies,

declares, etc.) under penalty of perjury [2] in any of the cases in which

(testimony, declarations, etc.) under penalty of perjury [are] permitted by

law, [3] willfully states as true any material matter [4] which he or she

knows to be false, is guilty of the crime of perjury in violation of Penal

Code section 118.”).
YIM V. BARR 23

1

We begin with the intent element. Section 118(a) requires

an intent of “willful[],” Cal. Penal Code § 118(a), and the

BIA’s generic definition of perjury require the intent of

“knowingly or willfully,” Matter of Alvarado, 26 I. & N. Dec.

at 902. Because there is no meaningful difference between

“knowingly” and “willfully” in this context, the BIA’s use of

both terms has no effect here. As the BIA explained, “courts

have uniformly interpreted the willfulness requirement of

perjury to mean that the defendant knowingly made the false

statement.” Id. at 899 n.5 (citing Bronston, 409 U.S. at 359;

Matter of Esqueda, 20 I. & N. Dec. at 858; Model Penal Code

§ 2.02(8)). “The terms ‘corruptly,’ ‘willfully,’

‘intentionally,’ and ‘knowingly’ are sprinkled freely through

[perjury] statutes, as is the more helpful phrase, ‘not believing

the statement to be true,’” but “[t]here does not appear to be

a significant distinction among the statutes based on the use

of these different terms.” Sara Sun Beale et al., Grand Jury

Law & Practice § 11:6 (2d ed. 2019). Thus, we conclude that

there is a match between the intent required by section 118(a)

and the intent required by the BIA’s generic definition of

perjury.

2

We next turn to the false-statement requirement. Both

section 118(a) and the BIA’s generic definition of perjury

require a false statement. The BIA’s generic definition refers

to a “false statement,” Matter of Alvarado, 26 I. & N. Dec.

at 901, whereas section 118(a) refers to a person “stat[ing] as

true any . . . matter which he or she knows to be false,” Cal.

Penal Code § 118(a). These requirements are materially

indistinguishable.
24 YIM V. BARR

Arguing against this conclusion, Borba points to section

125 of the California Penal Code, which provides, “An

unqualified statement of that which one does not know to be

true is equivalent to a statement of that which one knows to

be false.” Cal. Penal Code § 125. According to Borba, this

means that a person can be convicted of perjury in violation

of section 118(a) without making a literally false statement,

and therefore section 118(a) criminalizes more conduct than

the BIA’s generic definition of perjury.

We disagree. The BIA’s definition of perjury inherently

incorporates the longstanding common-law view that a

witness gives false testimony if the witness states any matter

as true when, in fact, the witness is entirely ignorant as to the

matter. See 3 Edward Coke, Institutes of the Laws of

England 166 (Brooke ed. 1797) (stating that two witnesses

were guilty of perjury when they swore to the value of goods

but “because they knew it not, it was a false oath in them, for

. . . which both the . . . witnesses were sentenced in the starchamber”). As one early commentator explained:

It . . . is not to be material whether the fact

which is sworn be in itself true or false; for

howsoever the thing sworn may happen to

prove agreeable to the truth, yet if it were not

known to be so by him who swears to it, his

offense is altogether as great as if it had been

false, inasmuch as he wilfully swears, that he

knows a thing to be true, which at the same

time he knows nothing of, and impudently

endeavours to induce those before whom he

swears to proceed upon the credit of a

deposition, which any stranger might make as

well as he.
YIM V. BARR 25

1 William Hawkins, A Treatise of the Pleas of the Crown 433

(8th ed. 1824); accord 2 Joseph Chitty, A Practical Treatise

of Criminal Law 153–54 (Riley’s ed. 1819) (noting that if a

witness “asserts that which may happen to be true, without

any knowledge of the fact, he is equally criminal, and the

accidental truth of his evidence will not excuse him”).

The modern understanding of perjury incorporates the

principle that a false statement includes an unqualified

statement made without knowledge as to its truth or falsity. 

A number of states, like California, codified this principle,9

while others confirmed it through judicial decisions.10 The

federal perjury statute likewise incorporates this principle; it

refers to statements of “any material matter which [the

declarant] does not believe to be true,” 18 U.S.C. § 1621(1),

(2), which covers “cases in which the witness makes a false

statement without knowing whether the statement is true or

9

See, e.g., Idaho Code Ann. § 18-5408; La. Stat. Ann. § 14:123(B);

Nev. Rev. Stat. Ann. § 199.200; S.D. Codified Laws § 22-29-2; Wash.

Rev. Code Ann. § 9A.72.080.

10 See, e.g., E. Ky. Rural Elec. Co-op. Corp. v. Phelps, 275 S.W.2d

592, 594 (Ky. 1955) (“[T]here is ample authority for the proposition that

a prosecution [for perjury] can be sustained upon . . . an affidavit, if it is

proved that the affiant did not in fact believe the facts asserted, or had no

probable grounds for believing such facts were true.”); State v. Rupp,

151 P. 1111, 1112 (Kan. 1915) (“[H]e who makes a positive affidavit to

a particular condition thereby holds himself out as having some reasonably

reliable information on the subject, and for one to swear to a fact, of the

existence of which he knows himself to be entirely ignorant, is rightly held

to constitute perjury.”); Butler v. State, 429 S.W.2d 497, 502 (Tex. Crim.

App. 1968) (“A witness may commit perjury if he swears to a matter

about which he consciously has no knowledge. The effect of such

testimony is that the witness declares that he knows the truth of what he

states, and, if he is conscious he does not know it, he means to swear

falsely.”).
26 YIM V. BARR

not,” Sara Sun Beale et al., Grand Jury Law & Practice § 11:6

n.7 (2d ed. 2019). In short, “[a] person may be guilty of

perjury when he swears to a particular fact, without knowing

at the time whether it is true or false, or without having

enough knowledge to support a belief that it is true, even

though the statement is in fact true.” 4 Wharton’s Criminal

Law § 577 (15th ed. 2019) (collecting sources). Borba has

identified no authority casting doubt on this centuries-old

principle.11

Given this backdrop, we understand the phrase “false

statement,” as used in the BIA’s generic definition of perjury,

Matter of Alvarado, 26 I. & N. Dec. at 901, to include

statements made by a declarant who is entirely ignorant as to

the statement’s truth or falsity. Accordingly, we conclude

that the reference to “false statement” in the BIA’s generic

definition is the same as the reference to “false” statements in

section 118(a), notwithstanding section 125.

11 Borba cites Bronston v. United States, 409 U.S. 352 (1973), for the

proposition that “[f]or a federal perjury charge . . . the statement cannot

support a perjury conviction if the information is [true].” This is wrong. 

Bronston “consider[ed] a narrow but important question in the application

of the federal perjury: whether a witness may be convicted of perjury for

an answer, under oath, that is literally true but not responsive to the

question asked and arguably misleading by negative implication.” 

409 U.S. at 352–53. Thus, we have explained that “Bronston’s rule is

limited to cases in which the statement is indisputably true, though

misleading because it was unresponsive to the question asked.” United

States v. Camper, 384 F.3d 1073, 1076 (9th Cir. 2004). Bronston

therefore does not address the situation contemplated by section 125.
YIM V. BARR 27

3

We next turn to the element of “materiality.” Both

section 118(a) and the BIA’s generic definition of perjury

require that the statement be “material.” Although these

terms are identical, Borba nevertheless contends that section

118(a) criminalizes more conduct than the BIA’s generic

definition because in California “[i]t is no defense to a

prosecution for perjury that the accused did not know the

materiality of the false statement made by him,” Cal. Penal

Code § 123, while, according to Borba, the BIA’s generic

definition of perjury “likely” does not cover situations where

a defendant lacks knowledge as to a statement’s materiality.

We reject this argument. At common law, it was “not

necessary that the witness know that the testimony is

material,” 60A Am. Jur. 2d Perjury § 26 (2d ed. 2020)

(collecting sources), and so “[a] mistaken belief that [a]

statement was not material is not a defense to perjury,”

110 Am. Jur. Proof of Facts 3d 479 (2009). The states

uniformly adopted these principles, see, e.g., State v.

Sargood, 68 A. 49, 50 (Vt. 1907) (“We are referred to no

authority, and have seen none, that treats knowledge of the

materiality as an element of [perjury].”), with many states,

like California, codifying this understanding.12 The Model

Penal Code is in accord. See Model Penal Code § 241.1(2)

(“It is no defense that the declarant mistakenly believed the

falsification to be immaterial.”). Borba cites no federal case

that has interpreted the federal perjury statute, 18 U.S.C.

§ 1621, as requiring proof that a witness know that a false

12 See Ark. Code Ann. § 5-53-102(b); Colo. Rev. Stat. Ann. § 18-8-

502(2); Fla. Stat. Ann. §§ 837.02(3), 837.012(2); Minn. Stat. Ann.

§ 609.48(3); Mo. Ann. Stat. § 575.040; 18 Pa. Stat. Ann. § 4902(b).
28 YIM V. BARR

statement is material, and we are aware of none. Cf. United

States v. Schaier, 175 F. Supp. 838, 842 (S.D.N.Y. 1959)

(“The defendant may be convicted even though he did not

know that his statement was material.”). We therefore

conclude that the BIA’s generic definition of perjury is in

accord with the uniform principle that a declarant need not

know that a statement is material to be guilty of perjury. 

Accordingly, we reject Borba’s argument that section 118(a)

criminalizes more conduct than the BIA’s generic definition

of perjury because California chose to codify this common

law principle in section 125.

4

Finally, we consider the requirement that an oath,

affirmation, or declaration under penalty of perjury be

authorized or permitted by law. Section 118(a) refers to

“cases in which [an] oath may by law of the State of

California be administered” and situations where

“certification is permitted by law of the State of California

under penalty of perjury.” Cal. Penal Code § 118(a). The

BIA’s generic definition simply refers to the situation “where

an oath is authorized or required by law.” Matter of

Alvarado, 26 I. & N. Dec. at 901. Yim contends that there is

a difference between a certification being “authorized by law”

and being “permitted by law.”

We disagree. Despite the slight difference in the verbal

formulations in section 118(a) and the BIA’s generic

definition, they are materially identical. To show that a

statute criminalizes more conduct than a generic offense, a

petitioner “must at least point to his own case or other cases

in which the state court in fact did apply the statute in the

special (nongeneric) manner for which he argues.” Gonzales
YIM V. BARR 29

v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Here, Yim

identifies no case in which a person was found guilty of

violating section 118(a) when an oath was “permitted” but

not “authorized” by law. Moreover, the California Court of

Appeal has stated that an “authorized” oath is the same as an

oath that is “permitted by law.” People v. Laws, 120 Cal.

App. 3d 1022, 1034 (1981) (stating that a declaration in

support of a motion “is a declaration for which an oath is

‘authorized,’ i.e., one which is ‘permitted by law’”). Thus,

even if there is some semantic difference between “permitted

by law” and “authorized by law,” Yim fails to show that there

is a “realistic probability,” as opposed to a “theoretical” one,

that section 118(a) is applied in a way that it is broader than

the BIA’s generic offense. Duenas-Alvarez, 549 U.S. at 193. 

We therefore reject the argument that there is some

meaningful difference between the phrases “authorized by

law” and “permitted by law.”

D

Our analysis has thus far established that the elements of

section 118(a) and the elements of the generic federal offense

are a categorical match. The petitioners raise two final

arguments against this conclusion. According to the

petitioners, California law recognizes two affirmative

defenses to perjury that are not incorporated into the federal

generic offense, and so the offenses are not a categorical

match. First, Borba argues that section 118(a) criminalizes

more conduct than the BIA’s generic definition of perjury

because section 122 provides that lack of competency is not

a defense to a prosecution under section 118(a). Cal. Penal
30 YIM V. BARR

Code § 122.13 Second, Velasquez argues that section 118(a)

differs from the BIA’s generic definition of perjury because

section 118(b) provides, “No person shall be convicted of

perjury where proof of falsity rests solely upon contradiction

by testimony of a single person other than the defendant.” 

Cal. Penal Code § 118(b).

These arguments misunderstand the nature and effect of

an affirmative defense. “Affirmative defenses are complete

defenses that, once proven by the defendant, negate criminal

liability for an offense, notwithstanding the government’s

ability otherwise to prove all elements of that offense beyond

a reasonable doubt.” United States v. Davenport, 519 F.3d

940, 945 (9th Cir. 2008). As we have recognized, the

availability (or unavailability) of an affirmative defense “is

not relevant to the categorical approach” because “we ‘look

only to the fact of conviction and the statutory definition of

the prior offense.’” United States v. Velasquez-Bosque,

601 F.3d 955, 963 (9th Cir. 2010) (quoting Taylor, 495 U.S.

at 602). The existence or non-existence of “extraneous

affirmative defenses” is therefore “irrelevant to the

categorical approach.” United States v. Albino-Loe, 747 F.3d

1206, 1213 (9th Cir. 2014).

On its face, section 118(b) merely elaborates on the

government’s evidentiary burden for proving perjury: proof

of falsity may not rest “solely upon contradiction by

testimony of a single person other than the defendant.” Cal.

13 Section 122 provides, “It is no defense to a prosecution for perjury

that the accused was not competent to give the testimony, deposition, or

certificate of which falsehood is alleged. It is sufficient that he did give

such testimony or make such deposition or certificate.” Cal. Penal Code

§ 122.
YIM V. BARR 31

Penal Code § 118(b). As such, it does not change the

elements of perjury set forth in section 118(a). Therefore,

section 118(b) has no bearing on our analysis as to whether

section 118(a) is a categorical match for the federal generic

offense of perjury. See Rivera, 816 F.3d at 1069 n.1. 

Accordingly, we reject Velasquez’s argument.

We next consider section 122, which provides that lack of

competency is “no defense to a prosecution for perjury.” Cal.

Penal Code § 122. In California, the general rule is that

“every person, irrespective of age, is qualified to be a witness

and no person is disqualified to testify to any matter.” Cal.

Evid. Code § 700. But there is an exception for persons who

are incompetent to testify. Under section 701 of the

California Evidence Code, “[a] person is disqualified to be a

witness if he or she is,” among other things, “[i]ncapable of

understanding the duty of a witness to tell the truth.” Cal.

Evid. Code § 701.14

14 Section 701 provides, in full:

(a) A person is disqualified to be a witness if he or she

is:

(1) Incapable of expressing himself or herself

concerning the matter so as to be understood, either

directly or through interpretation by one who can

understand him; or

(2) Incapable of understanding the duty of a witness to

tell the truth.

(b) In any proceeding held outside the presence of a
32 YIM V. BARR

Section 122 prevents a defendant charged with perjury

fromraising the affirmative defense that the defendant did not

“understand the duty of a witness to tell the truth.” Cal. Evid.

Code § 701(2). This limitation does not, however, alter the

elements of the offense of perjury. The government must still

prove beyond a reasonable doubt that the defendant stated “as

true any material matter which he or she knows to be false,”

Cal. Penal Code § 118(a), and the defendant may still negate

the mens rea element of the offense by raising reasonable

doubt as to whether he or she knew a statement was false, see,

e.g., People v. Von Tiedeman, 120 Cal. 128, 136 (1898)

(“[P]erjury cannot be willful where the oath is according to

the belief and conviction of the witness as to its truth.”). 

Because eliminating a defense regarding lack of

understanding about a witness’s duty does not cause section

118(a) to criminalize more conduct than the generic offense

of perjury, section 122 is irrelevant for purposes of applying

the categorical approach. See Albino-Loe, 747 F.3d at 1213;

Velasquez-Bosque, 601 F.3d at 963. Therefore, we also reject

Borba’s argument.

In sum, neither section 118(b) nor section 122 alter the

“statutory definition of the . . . offense” set forth in section

118(a), Velasquez-Bosque, 601 F.3d at 963 (citation omitted);

see Rivera, 816 F.3d at 1069 n.1, and so they have no bearing

on our analysis here.

jury, the court may reserve challenges to the

competency of a witness until the conclusion of the

direct examination of that witness.

Cal. Evid. Code § 701.
YIM V. BARR 33

E

Having considered the petitioners’ arguments, we

conclude that section 118(a) of the California Penal Code is

a categorical match with the BIA’s generic definition of

perjury, meaning they cover the same amount of conduct. 

We therefore conclude that section 118(a) is an “offense

relating to . . . perjury.” 8 U.S.C. § 1101(a)(43)(S). We

dispose of the petitions and any remaining arguments in

concurrently filed memorandum dispositions.

IT IS SO ORDERED.