FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

H O S A N G Y I M , AKA Alez Suk Peter Yim Yoon, Petitioner ,

v

. W I L L IAM P. B AR

R , Attorney General, Respondent. No. 17-70624 Agency No. A037-993-102

O R LA ND O V E LA S QUEZ G ARC IA ,

Petitioner ,

v

. W I L L IAM P. B AR

R , Attorney General, Respondent. No. 17-70670 Agency No. A073-986-839Y I M V

. B AR R 2

R A UL B O RGE S B O R

B A -C AR D O S O , Petitioner ,

v

. W I L L IAM P. B AR

R , Attorney General, Respondent. No. 17-70742 Agency No. A030-861-138

OPINION

On Petitions for Review of Orders of the Board of Imm igration Appeals

Yim v. Barr , 17-70624 Argued and Subm itted June 5, 2020 Pasadena, California Velasquez Garcia v. Barr , 17-70670 Subm itted June 5, 2020 * Pasadena, California

Borba-Cardoso v. Barr , 17-70742 Subm itted June 5, 2020 * * Pasadena, California

F iled August 25, 2020

* The panel unanim ously concludes this case is suitable for decision without oral argum ent. SeeFed. R. App. P. 34(a)(2).

** The panel unanim ously concludes this case is suitable for decision without oral argum ent. SeeFed. R. App. P. 34(a)(2).Y I M V

. B AR R 3 Before: Consuelo M. Callahan and Sandra S. Ikuta, Circuit Judges, and Cathy Ann Bencivengo, * * * District Judge.

Opinion by Judge Ikuta

SUMMARY * * * *

Immigration

On petition s for review brought by Ho Sang Yim , Orlando Velasquez Garcia, and Raul Borges Borba-Cardoso, the pane l d eferred to the Board of Imm igration Appeals’ interpreta t i on 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 wa s convicted of perjury under section 1 18(a) of the California P enal Co d e and then suffered adverse imm igration consequences on the ground th at h e had comm itted an aggravated felony under 8 U.S.C. § 1101(a)(43)(S), which includes “an offense relating to

. . . perjury.” Applying the three-step cate g o r ical approach, the panel first explained that the BIA had interpreted the ge n e ri c

*** The Honorable Cathy Ann Bencivengo, United St ates District Judge for the Southern District of California, sitting by designation.

**** This summ ary constitutes no part o f the o pinion of the court. It has been prepared by court staff for the convenience of the reader.Y I M V

. B AR R 4

definition of “perjury” to require that an offender (1) m ake a m aterial false statem ent (2) knowingly or willfully (3) while under o ath o r a ffi rmation or penalty of p erjury (4) where an oath is authorized or required by law. The panel deferred to the BIA’s determ ination, e xplaining that the BIA h ad
s urv eyed the definitions of perjury recognized at comm o n law, codified in state and federal statutes, and adopted by the Model Penal Code, and that the BIA reasonably settled on a definition com

patible with those sources. The panel al s o rejected the argum ent that it was not reasonable for the BIA to om it a requirem ent that a statem ent be m ade in an official proceeding, e xp l a ining that the federal perjury statute supports the BIA’s om ission of a “proceeding” requirem ent, and that the BIA was not bound to adopt the definitionused by a m ajority of the states.

At the second step of the categorical approach, the panel concluded that the elem ents of p e rjury under section 118(a)
are: (1) a willful statem ent, (2) either (a) under oath in any o f the cases in which th e oath m ay be adm inistered or (b) in writing unde r penalty of perjury in circum stances p erm itted by l aw, (3) of any m aterial m atter, and (4) which the person knows to be false.

At the third step, the panel concluded that the elem ents o f section 118(a) and the elem en ts of the generic federal definition are a categorical m atch. First, the panel concluded that the re was no m eaningful difference between section 118(a)’s requireme nt o f “willful” intent and the BIA’s requirem ent of “knowingly or willfully.”
Second, w ith respect to the false-statem ent requirem ent, Borba argued that a p erson could be convicted under section 118(a) w ithout m aking a literally false statem en t becauseY I M V

. B AR R 5
California law provides that an “unqualified statem ent of that which one does not know to be true is the e qu i v a l e nt to a s ta tem ent of that which one knows to be false.” Th e pan el rejected that argum ent, concluding that the p hr ase “false statem ent” in the BIA’s definition includes statem ents m ade by a declarant who is entirely ignorant of th e statem ent’s truth or falsity.
Third, the panel considered the conten tion that section 118(a) crim inalizes m ore conduct than the B IA’s g e n eric definition because, in California, it is no defense th at the accused did not know the m ateriality of the fa l se statem ent. Rejecting that argum ent, the panel explained that the BIA’s definition is in accord with the uniform p rinciple that the declarant need not know the statem ent is m aterial. Finally, the panel considered the req u irem ent that an oath, affirm ation, o r de claration under penalty o f perjury be authorized or permi tt ed b y 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 “perm itted by law,” as provided by the BIA’s g eneric definition. T he panel explained that, even if there is som e sem antic different between the term s, Yim failed to establish
a “realistic probabilit y” that section 118(a) is applied m ore broadly than the generic offense.

Petitioners also argued th at the offenses are n ot a categorical m atch because California law recognizes two affirm ative defenses to perjury that are not incorporated into the fe d er al generic offense. The panel rejected this contention, explaining that the existence or non-existence o f affirm ative defenses is irrelevant to the categorical approach,Y I M V

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and that neither o f the statutes relied o n b y p etitioners alter the statutory definition set forth in section 118(a).

C OUNSEL

Robert G

. Berke (arg u ed), B erke L aw Offices Inc., Canoga Park, California, for Petitioner Ho Sang Yim

. Alejandro Garcia, Comm erce, California, for Petitioner Orlando Velasquez Garcia.

Mario Acosta Jr., Law Offi c e s o f Mario Acosta Jr., Los Angeles, California, f

or Petitioner Rau l Borges BorbaCardoso.

Jessica A. Dawgert (argued), M. Jocelyn Lopez Wright, Song E. P ark, and Andrew N

. O’Malley, Senior Litig atio n C o un sel; Keither I. McManus, Assistant Director; John F. Stanton, Tr i al Attorney; Office o f Imm igration L itigation, Civ i l Division, United States Department of Justice, W ashington, D.C.; for Respondent.Y I M V

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OPINION IKUTA, Circuit Judge:

W e hold that the Board of Imm igration Ap p e a ls (BIA) reasonably interpreted “perjury, ” a s used in 8 U.S.C. § 1101(a)(43)(S), t o me an an offense where “an offender
m ake[s] a m aterial false statem ent k nowingly or w illfu lly while under oath or affirm ation [or penalty of perjury] where
an o ath is authorized or required by law.” Matter of Alvarado , 26 I. & N. Dec. 895, 901 & n.11 (BIA 2016). Give n this definition, we hold that perjury under section 118(a) of the California Penal Code is an “aggravated felony” becau s e i t i s “ 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 , N o. 17-70624; Velasquez Garcia v. B arr , No. 17-70670; and Borba-Carodoso v. Barr , No. 17-70742. Each of the p etitioners was convicted o f perjury under section 118(a) of the California Penal Code and then suffered adverse imm igration consequences on the ground that he had comm itted an “aggravated felony,”
nam ely, an “an offense r e l ating to

. . . perjury.” 8 U.S.C. § 1101(a)(43)(S). The petitioners contend that perjury under section 118(a) is not an “aggravated felony” b ecause it is not “an o ffense relating to

. . . p er j ury.” Id. W e briefly
summ arize the facts relevant to each petition before addressing the petitioner’s argum ents.Y I M V

. B AR R 8

A

Raul Borges Borba-Cardoso, a native and cit i ze n o f Portugal, was adm itted to the United States a s a lawful perm anent resident in 1975. In 2004, Borba was convicted o f perjury in v iolation of section 118(a) for te s t ifying falsely during a judicial proceeding, and he wa s s entenced to three years in p rison

. The Departm ent of Hom eland Security (DHS) i nitiated rem oval proceedings on the ground that Borba had been convicted of an “aggravated felony.” An imm igration judge (IJ) found Bo r b a rem ovable as charged, and the BIA affirm ed.

B

Orlando Velasquez Garc ia is a native and citizen o f Guatem ala. He cam e to the United States o n June 18, 1990. Once here, he am assed a significant crim inal record , including a convict i on f or perjury in violation of section 118(a) for providing false i nform ation, under penalty o f perjury, to the California Departm ent of Motor Vehicles. In 2009, D HS charged Velasquez a s rem ovable on the ground that he was an alien “present in the United States without being adm itted or paroled, or who arrived in the United States at any tim e or place other than as d esignated by the Attorney General.” 8 U.S.C. § 1182(a)(6)(A)(i).

An IJ found Velasquez rem ovable as charged and denied Velasquez’s requests for asylum , cance l lation of rem oval, withholding of rem oval, and p rotection under the Convention A g ainst Torture (CAT). The IJ ruled that Velasquez’s perjury conviction was an “aggravated f elony,” renderin g him ineligible for asylum and cancellation of rem oval, and the IJ denied Velasquez’s requests for withholding of rem oval andY I M V

. B AR R 9

CAT protection on the gro un d that Velasquez had n ot m ade the requisite showing. The BIA affirm ed.

C

Ho Sang Yim is a native and citizen of South Korea. He
was adm itted to th e Un ited S tates as a lawful perm anent resident on June 3, 1983. In March 2010, Yim was arrested pursuant to a f

our-count com

plaint charging grand theft auto, identity theft, falsifying financial statem ents, an d perjury. Yim , like Velasqu ez , w as charged with p roviding false inform ation, under penalty of perjury , to the California Departm ent of Motor Vehicles. Yim eventually pleaded nolo contendere to one count of pe r j ury i n violation of section 118(a), and in Decem

ber 2011, DHS char g e d Yim as rem ovable for having comm itted an “aggravated felony.” An IJ found Yim rem ovable as charged, and the BIA affirm ed.

II

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

. . . perjury

. . . for which the term of im prisonm ent is at least one year.” 8 U.S.C. § 1101(a)(43)( S)

. An alien convicted o f an “aggravated felony” is rem ovable, 8 U.S.C. § 1227(a)(2)(A)(iii), and is also ineligible for asylum , 8 U.S.C. § 1 158(b)(2)(A)(ii), (B) ( i), and cancellation o f
rem oval, 8 U.S.C. § 1229b(a)(3). The quest i o n h e r e is whether p erjury under section 1 18(a) of the California Penal Code is “an o ffense relating to

. . . p e r j ury

. ” 8 U.S.C. § 1101(a)(43)(S). To answer th i s qu estion, we apply the categorical approach from Taylor v. United States , 495 U.S.Y I M V

. B AR R 10

5 7 5 (1990). 1 T he categorical approach prescribes a three-step process for determ ining whether an offense is an “aggravated felony.”
First, we m

ust identify the elem ents of the generic federal offense, Renteria-Morales v. Mukasey , 551 F.3d 1 076, 1081 (9th Cir. 2 008), in this case, “perjury,” 8 U.S.C. § 1101(a)(43)(S). W e “defer to the BIA’s articulation of the generic federal definition ‘if the statute is sil e nt

. . . and the BIA’s interpretation is b ased on a perm issible construction o f the statute.’ ” Renteria-Morales , 551 F.3d at 1081 (quoting Parrilla v

. Gonzales , 414 F.3d 1038, 1041 (9th Cir. 2 005)); cf. Un i ted S

tates v. Garcia-Santana , 7 74 F.3d 528, 542–43 (9th C ir. 2014). An interpretation is perm issible so long as it is not “cle ar ly contrary to the plain m eaning of the statute.” Parilla , 414 F.3d at 1041.
Second, we m

ust identify the elem ent s o f the specific crim e o f conviction, Re n te ria-Morales , 551 F.3d at 1081, here, section 1 18(a) of the California Penal Code, Cal. Penal Code § 118(a). In doing so, w e will “not defer to the BIA’s interpretation of state law,” Renteria-Morales , 551 F.3d at 1081, because the BIA “has no special experti s e

. . . in construing state

. . . statutes,” Marmolejo-Campos v. H older , 558 F.3 d 9 0 3, 907 (9th C ir. 2 009) (en banc). To determ ine the elem ents of a stat e s tatute, “we m ay consider the interpretation of the statute provided b y state courts.” United States v. Perez , 932 F.3d 782, 785 (9th Cir. 2019).

1 Because w e conclude that all of the conduct criminalized by section 118(a) constitutes “an offense relating to

. . . p erjury,” we need not apply the m odified categorical approach. S e e, e.g. , Shepard v. U

n i ted S tates , 544 U.S. 13, 25–26 (2005).Y I M V

. B AR R 11 Third, we com

pare the statute of conviction to the g eneric federal o ffe nse to determ ine “whether the specific crim e o f conviction m eets the

. . . definition of an aggravated felony.” Renteria-Morales , 551 F.3d at 1081. Here, unlike i n other cases, the state offense need not crim inalize the sam e am ount of conduct (or less) as the generic offense , because the INA refers to “an offense relating to

. . . p erjury.” 8 U.S.C. § 1101(a)(43)(S) (em

phasis added); see, e.g. , United States v. Sullivan , 797 F.3d 623, 6 38 (9th Cir. 2015); United S tates v. Sinerius , 504 F.3d 737, 743 (9th Cir. 2007). As we have
rec o g n ized, the phrase “relating to,” when used in this context, indicates that C ongress intended to “cover[] a range of act iv i t i e s beyond” just the g eneric offense. AlbilloFigueroa v. I.N.S. , 221 F.3d 1070, 1073 (9th Ci r

. 2000). Therefore, the statute of c o nv i c tion need o nly “stand[] in
som e relation, bear[] upon, or [be] associated with th[e] generic offense.” Sinerius , 504 F.3d at 743.

A

W e begin with the first step of the categorical approach, which is to identify the elem ents of the generic crim e o f “perjury,” as it is used in 8 U.S.C. § 1101(a)(43)(S), with d ue deference to the BIA. S ee Renteria-Mo ra les , 551 F.3d at 1086. W e presum e that Congress intended the term s of a statute, including a l i st of o ffenses, to h ave their “contem porary m eaning.” Taylor , 4 95 U.S. at 5 9 8. The definition of the relevant offense in another section of the United States Code provides strong evidence as to C on gress’s intent, given Congress’s p re sum ed fam iliarity with that d efi nition. See, e.g. , Esquivel-Quintana v. Sessions , 137 S. Ct., 1562, 1570–71 (2017). A ccordingly, the BIA m ay “rely to a significant degree on the Federal definition of an offense, where available.” Matter ofM-W- , 25 I. & N. Dec. 748, 752Y I M V

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n.5 (BIA 2012) (citation o m i tted); see Renteria-Morales , 551 F.3d at 1 086 (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 im posing crim i n al penalties on obstruction-of-justice offenses”). Although p robative, a parallel fe d eral o ffense
m ight n ot provide “the com plete or ex clusive definition” o f
a generic offense, Esquivel-Quintana , 137 S. Ct. at 1571; cf. Ga rcia-Santana , 774 F.3d at 5 35, and so a multijurisdictional analysis “can be useful insofar as it helps shed l i gh t o n the comm on understanding and m eaning of the f ederal p rovision bein g interp reted , ” ev en th o u gh un d ertakin g such an analysis is “not required b y the cate g o r i c al approach,” Esqu ivel-Quintana , 137 S. Ct. at 1 571 n.3 (citation om itted). 2 In addition to state crim inal codes, the Model Penal C ode and scholarly comm entary m ay shed light
on the contem

porary m eani n g 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 BI A’ s definition of g eneric federal offen se s, see, e.g. , R enteria-Morales , 551 F.3d
at 1 0 8 1 , we begin by recounting the developm ent of the BIA’s definition of “perjury.” Be fore Decem ber 29, 2016, the BIA concluded that the f ederal p erjury statute, 18 U.S.C. § 1621, established the generic defi ni t ion of “perjury,” as used in 8 U.S.C. § 1101(a)(43)(S). See In Re Martinez2 To the extent we have im plied that the categorical approach requires
a m ulti-jurisdictional analysis, see, e.g. , Garcia-Santana , 774 F.3d at 534, that guidance h a s been superseded by Esquivel-Quintana , 137 S. Ct. at 1571 n .3. See M

iller v. Gammie , 335 F.3d 889, 899 (9th Cir. 2003) (en banc).Y I M V

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Recinos , 23 I. & N. Dec. 1 75, 1 77 (BIA 2001). Because the BIA dete rmi n ed that the federal perjury statute and section 118(a) of the California P enal Code were “e ssentially the
sam e,” section 118(a) qualified as an “offense relating to

. . . perjury.” Id. W e then held that this interpretation was not entitled to deference on the ground that the BIA had failed to perform a survey to determ ine the “contem porary usa g e ” of the term “perjury.” Yim v. Lynch , 610 F

. App’x 672, 673 (9th Cir. 2015). A ccordingly, we rem an ded to the BIA with instructions that it survey definitions o f p e rjury codified in
s ta t e statutes, adopted by the Model Penal Code, and endorsed by scholarly comm entary. See id. at 672–73 (citing Garcia-Santana , 774 F.3d at 534).

In a subsequent opinion, Matter o f Alv a rad

o , the B IA surveyed the sources m entioned above. 26 I. & N. Dec. 895, 898–900 (BI A 2 0 1 6). It first looked to the comm on-law definition of perjury. Id. at 8 98. “At co mmo n law, perjury
was defined as ‘a crim e comm i tt e d when a lawful oath is adm inistered, in s om e judicial proceeding, to a person who
swears w illfully, absolutely, and falsely, in a m atter m aterial to the i ssue or point in question.” Id. (quoting 4 W illiam Blackstone, Comm entaries on the Laws of England, 136–37 (1769)). Th e B IA reasonably recognized, however, that the
comm on-law definition of p erjury was m erely 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 argum ent that burglary carried its comm on-law m eaning because “[o]nly a few States retain the comm on-law defin i t i on, or som ething closely resem

b ling it”); Garcia

- S

a n tana , 774 F.3d at 539 (rejecting th e argum ent th at “co n sp iracy ” carried its comm onlaw m eaning because only a sm all m inority of jurisdictions retained “the comm on-law definition of conspir a cy,” which did not require an overt act).Y I M V

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The BIA then considered the Model Pe nal Code and explained th at it “slightly expanded the comm on law definition of perjury by proscribing false statem ents m ade ‘in any official proceeding,’ not just those m ade in ‘judic ial’ proceedings.” Matter of Alvarado , 26 I. & N. De c. at 898 (citing Model Penal Code § 2 41.1(1) (1985))

. Specifically, “[a] person is guilty of perjury

. . . if in any offi c i al proceeding he m akes a false statem ent under oath o r equivalent affirm ation, o r s we ars or affirm s the truth of a statem ent previously m ade, when the statem ent is m aterial
an d h e does not b elieve it to b e true.” Model Penal Code § 241.1(1). T he Model Pe n al C o de broadly defines an “official proceeding” as “a proceeding heard or which m ay be heard before any legislative, judicial, adm inistrative or other governm ental agency or official authorized to take evidence under o ath, including any referee, hearing exam iner,
comm issio ner, notary or other person taking testim ony o r deposition in connection with any such proceeding.” Model Penal Code § 240.0(4). Thus, by proscribing false statem ents
m ade “in any offi c i a l proceeding,” a perjury offense could
occur “before any legislative, judicial, adm inistrative or other governm ental agency or official authorized to take evidence under oath.” Matter o

f Alvarado , 26 I. & N. De c. at 898 (quoting Model Penal Code § 240.0(4)).

After consulting the Model Penal C ode, th e B IA explained that “States’ perjury laws have m any sim ilarities to the comm on law and Model Penal Code definitions.” Id. At the time th e p hrase “an offense relating to

. . . perjury” was added to 8 U.S.C. § 1 101(a)(43)(S) in 1996, the m ajority o f states defined perjury to require, at the least, “(1) a material (2) false statem ent (3) m ade knowingly or willfully (4) while
un der o ath, affirm ation, or under p enalty of perjury.” Id

.Y I M V

. B AR R 15 (footnote om itted). 3 In addition to these elem ents, the
m ajority of states also “r e qu ired that the witness take [an] oath in an ‘official proceeding,’ o r in a proceeding where an oath was eith e r ‘ r e qu ired or authorized by law.’” Id. at 899 (footnotes om itted) (collecting statutes). Finally, the BIA c o n s ulted the federal perjury statute, 18 U.S.C. § 1621. Id. at 9 0 0

. I n 1 9 96, as now, the statute provided,

Whoever— (1) h aving taken an o ath before a com petent tri b unal, officer, or person in any case in which a law of the United States authorizes an o ath to be adm inistered, that he will testi fy , d e c lare, depose, or certify truly, or that any written testim ony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any m aterial m atter which he does not believe to be true; or (2) in any declaration, certificate, verification,
or statem ent under penalty of perjury as perm itted under section 1746 of title 28,

3 T he BIA explained that “[s]om e States had a ‘knowing’ m ens r ea in th e i r perjury statutes, while others i ncluded a ‘willful’ requirem ent.” Matter of Alvarado , 26 I. & N. Dec. at 898 n.5. But “these states o f m ind
are not m eaningfully distinguishable because courts have uniformly interpreted the willfulness requirem ent o f p erjury to m ean t h at the defendant knowingly m ade t he false statem ent.” Id. ( cit i n g Br o nston v. United States , 409 U.S. 352, 3 59 (1 973); M atter of Esqueda , 20 I. & N. Dec. 850, 858 (BIA 1994); Model Penal Code § 2.02(8)).Y I M V

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United States C ode, wil l fully subscribes as true any m aterial m atter whic h h e 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 som e state statutes, b r o ad ly extends to “unsworn declarations prepared under penalty of perjury.” Scott Mah et al., Perjury , 57 Am

. Crim

. L aw R ev. 1115, 1117 (2020) (citing 18 U.S.C. § 1621(2)). The BIA reasonably “presum e[d] that Congress
was fam iliar with 18 U.S.C. § 1 621 when it enacted [8 U.S.C. § 1101(a)(43)(S)].” Matter of Alvarado , 26 I. & N. Dec. at 9 0 0 (citing Miles v. Ape x Marine Corp. , 498 U.S. 19, 32 (1990)). Having surveyed the re levant authorities, the B IA concluded that “the generic definition of the term ‘perjury’ in [8 U.S.C. § 1101(a) ( 4 3 )(S)] requires that an offender [1] m ake a m aterial false statem ent [2] knowingly or w illfully [3] wh ile under oath o r affirm ation [or penalty of perjury] [4] where an oath is autho r iz e d or required by law.” Id. at 9 01 & n.11. The definition “incorporates false statem ents
m ade or a l ly and in writing under penalty of perjury.” Id. at 9 0 1 n.11. The BIA’s definition does not require that the relevant statem ent be m ade in a pro c e e d i n g

. Id. at 899–900 (footnotes om itted).

W e conclude that this is a “perm issible construction of the statute.” Parrilla , 414 F .3d at 1 04 1 ( citation om itted). The BIA surveyed the defini tions of perjury recognized at
comm on law, “codified in state and federal sta tut es,” and “adopted by the Model Penal Code,” Garcia-Santana ,Y I M V

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774 F.3d at 534, and the BIA reasonably s e tt l ed on a definition of perjury com

patible with these sources. As such, the BIA’s definition of perjury is not “clearly contrary to the p lain m eaning of the statute.” Parrilla , 414 F.3d at 1 0 4 1

. Therefore, we defer to the BIA’s determ ination.

2

In arguing agains t this conclusion, Yim contends that it
was n ot reasonable fo r the BIA to om it a requirem ent that a statem ent be m ade in an “official p r o ceeding” or a “proceeding where an oath [is] either ‘required or authorized by law.’” To support this, Y im points to the fact that the B IA “identified only seven states as n ot requiring that the oath be
m ade in a proceeding.”

W e reject this argum ent. First, the federal perjury statute, 18 U.S.C. § 1621, supports the BIA’s om issi o n o f a “proceeding” requir em ent. Section 1621(2) provides that a p er son is guilty of perjury if h e “willfully subscribes as tru e any m aterial m atter which he does not believe to be true” “in any declaration, certificate, verification, or statem ent under penalty of perjury as p erm itted under section 1746 of title 28, United States Code.” 18 U.S.C. § 1621(2). 4 Section 1621(2) does not require that the statem e nt b e made in a “proceeding,” and the BIA could r e a s o n ably rely on 18 U.S.C. § 1621 “to discern the elem ents of g eneric

4 Section 1746 sets f

orth th e re qu i red form for declarations under penalty o f p erjury when, “under any law of the United States or under any rule, regulation , o rder, or r equirem ent m ade pursuant to law, any m atter is required or perm itted to be supported, evidenced, established, or proved by the sworn declaration, verification , ce r tificate, statem ent, oath, o r affidavit, in writing of the person m aking the sam e.” 28 U.S.C. § 1746.Y I M V

. B AR R 18 perjury.” Matter of

Alvarado , 26 I. & N. Dec. at 900 (citation
om itted). 5 In fa c t , i t would be unreasonable for the g eneric definition of p erjury to include a “proceeding” requirem ent,
as Yim contends, because then conduct that m eets C ongress’s definition of “perjury” for 18 U.S.C. § 1621(2) wo u l d not constitute “perjury” under 8 U.S.C. § 1101(a)(43) ( S)

. W e 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 harm ony with other statutory and constitutional law.”). Thus, although the federal perjury statute m ight not supply the “com

plete or exclusive definition” of “perjury,” Es qu i v el-Quintana , 137 S. Ct. at 1571, it strongly supports the BIA’s decision to om it a p roceeding requirem ent, see Renteria-M

o ra les , 551 F.3d at 1 086 (holding that “the B IA acted reasonably in deriving the definition o f ‘obstruction o f justice’ f or purposes o f § 1101(a)(43)(S) from the body o f federal statutes im

posing crim inal penaltie s on obstructionof-justice offenses”).
Second, in di s cerning C ongress’s intent, the BIA m ay surv e y a v ariety of sources and it is not bound to adopt the definition o f an offense used by a m ajority of the states.

5 To t he extent Yim argues t

hat t he federal p erjury statute, 18 U.S.C. § 16 2 1 , i n c l udes a proceeding requirem ent, he is m istaken. Section 1621(2) extends to “unsworn declarations prepared under p e n a lty o f p e rj ury,” Scott Mah et al., Perjury , 57 Am

. Crim

. Law Rev. 1115, 1 1 17 (2020) (citing 18 U.S.C. § 1 621(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 th e use of unsworn declarations under penalty of perjury, r ather than
sworn declarations under oath, whenever the law, rule, regulation, o r order
or requirem ent permits the m atter t o be supported, evidenced, established or proved by sworn declaration.”).Y I M V

. B AR R 19 Indeed, the BIA need not in engag e i n a m ulti-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 o n the federal definition of perjury, Matter of Alvarado , 26 I. & N. Dec. at 900, and c on fi rme d the reasonableness of this choice b y identifying a num ber o f states that likewise d o not inclu d e a “p r o ceedin g ” req u irem ent in their d efinition of perjury. 6 T h e BIA rea s o n ab l y c o n s i d e r e d t h e s e d e f i n i t i o n s a s e v i d e n c i n g t h e contem poraneous underst an ding of the elem ents of perjury and bolstering its conclusion regarding congressional intent. See Estrada-Es

p i noza 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 m inor” by “survey[ing] current crim inal law,” even though it w as “u nnecessary” to do
so because Co n g r e s s had defined “sexual abuse of a m inor” in a parallel federal offense), overruled on other grounds as recognized by United S

tates v. R ivera-Constantino , 798 F.3d 900, 904 (9th Cir. 2015).

3 Velasquez argues that the BIA’s interpretatio n i s unr e asonable because the BIA’s decision to “survey the contem porary definition of per

j ury [ was] unexplained” and “there is no evidence that C ongress inten d e d anything other than the federal definition of perjury under 18 U.S.C. § 1 62 1

. ” W e reject these argum ents. The BIA surveyed contem porary definitions of perjury because we told it to do

6 See Ala sk a St at. Ann. §§ 11.56.200, 11.56.240; Ariz. Rev. Stat. Ann. § 13-2702; C a l

. Penal Code § 1 18(a); Iowa Code Ann

. §§ 622.1, 720.2; N ev. Rev. Stat. Ann. § 1 99.145; R .I. Gen. Laws Ann. § 11-33-1; Tenn. Code Ann. § 39-16-702.Y I M V

. B AR R 20

s o, see Yim , 610 F. App’x at 6 7 2–73, and such a survey c an “aid [the] interpretati o n” of a generic offense by “offering useful context,” see E

squivel-Quintana , 137 S. Ct. at 1 5 71 n.3.

4

In sum , we “m ay not supply the interpre t ation of the statute we think best (as we would without an agency pronouncem ent)” and mu s t instead ask whether the BIA’s interpretation o f perjury was “based on a perm issible
cons tru ct ion of the statute.” Marmolejo-Campos , 5 58 F.3d at 908 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 4 6 7 U.S. 837, 843 (1984)). The BIA’s approach to determ ining the elem ents of the generic offense of p erjury was consistent with Suprem e Court guidance as well as o ur own: the BIA surveyed relevant sources and settled on a definition of perjury that was consistent with the federal perjury statute and a num ber of state crim inal codes. Because the BIA’s defin i t i on is “not clearly contrary to the plain m eaning 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 g eneric offense, we now turn to the second step of the categorical approach and ascertain the elem ents of the state statute o f conviction. Section 118(a) provides:
[1] E very person who, having taken an oath that h e or she will testify, declar e , depose, o r certify truly before any com petent tribunal, officer, or person, in any of the cases in whichY I M V

. B AR R 21

the oath m ay by law of the State o f California be adm inistered, w illfully and contrary to the oath, states as true any m aterial m atter which he or she knows to be false , an d [2] every person who testifies, declares, deposes, o r certifies under p enalty o f perjury in any of the
cases in which the testim ony , declarations, depositions, or certification is perm itted by law of the State of California under penalty o f perjury and willfully states as true any mat e r i al m atter which h e or she knows to be false, is guilty of perjury. Cal. Penal Code § 118(a).
By its term s, section 118(a) crim inalizes both o ral an d
wr i tten perjury. Matter ofAlvarado , 26 I. & N. Dec. at 9 0 1 (citing Rivera v

. Lynch , 816 F.3d 1 064, 1071–72 (9th Cir. 2016)). For oral p er

j ury cases, the elem ents of a section 118(a) o ffense are: “a [1] willful statem ent , [2] under oath, [3] of any m aterial m atter [4] which the witness knows to be false.” Rivera , 816 F.3d at 1072 (quoting Chein v. Shumsky , 373 F.3d 9 78, 983 (9th Cir. 2004)). 7 For written perjury cases, the f

alse statem ent m

ust be “in writ i n g under p enalty of perjury” in circum stances “perm itted by law,” as opposed

7 See also Cal. Jury Inst. Crim

. (CALJIC ) N o

. 7.20 (“Every person who, [1] having t aken an oath to (t e s tify, d eclare, etc.) truly before any com p etent tribunal, officer, o r person, i n any o f the cases in which the oath m ay by law b e a dm i n i s tered, [2] willfully and contrary to the oath, [3] states as true any m aterial m atter [4] which he or she knows t o be fa l s e, is guilty of the crim e of perjury in violation of Penal Code sectio n 118.”).Y I M V

. B AR R 22

to “under oath.” Id. 8 The other ele me nt s

—willfulness,
m ateriality, and falsity—rem ain the sam e. See id. Accordingly, the elem ents of perjury under s e c tion 118(a)
are: (1) a willful statem ent, (2) either (a) under oath in any o f the cases in which the oath m ay be adm inistered or (b) in writing under penalty of p erjury in circum s t ances p erm itted by law, (3) of any m aterial m atte r , 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

W e now turn to the third step of the categorical approach. Given the language of 8 U.S.C. § 1101(a)(43)(S) , we m u st determ ine whether perjury in violation section 118(a) of the California Penal Code “relat[es] to” the BIA’s gene ric definition o f perjury. To do so, we begin, as we norm ally do, by determ ining wh e th er the state offense is a categorical
m atch w ith the generic offense, m eaning that the state o ffense crim inalizes the sam e am ount o f conduct (or less) as the generic offense. See S

u ll i van , 797 F.3d at 635. Once we com p lete this com

parison, we turn to the question whether the state offense “relat[es] to” the B IA’s g eneric defini tion o f perjury. S

ee id. at 636; Sinerius , 5 04 F.3d at 743. Here, the petitioners direct our attention to four distin ct elem ents: (1) intent; (2) false statem ent; (3) m ateriality; and (4) authorized or perm itted by law.

8 See also CALJIC No. 7.21 (“Every p erson who [1] (testifies, declares, etc.) under penalty of perjury [2] in any of th e ca se s i n which (testim ony, declarations, etc.) under penalty of perjury [are] perm itted b y l aw, [3] willfully states as true any m aterial m atter [4] which he or she knows to b e false, is guilty of t he crim e of perjury in vi o l at i o n of Penal Code section 118.”).Y I M V

. B AR R 23

1

W e begin with the intent elem ent. Section 118(a) r equires
an intent of “willful[],” Cal. Penal C ode § 118(a), and the BIA’s g eneric definition o f perjury require the intent o f “knowingly o r willfully,” Matter o f A lvarado , 26 I. & N. D ec. at 9 02. Because there is no m eaningful difference between “knowingly” and “willfully” in this context, the BIA’s use o f both term s h as no effect here. As the B IA explained, “courts h av e uniform ly interpreted the willfulness requirem ent o f perjury to m ean that the defendant knowingly m ade the false statem ent.” Id. at 899 n.5 (citing Bronston , 409 U.S. at 359; Matter o f Esqueda , 20 I. & N

. Dec. at 858; Model Penal Code § 2

. 0 2 ( 8 ) )

. “ T h e t e rm s ‘ c o rrup t l y , ’ ‘ w i l l f u l l y , ’ ‘intentionally,’ and ‘knowingly’ are sprinkled freely through [perjury] statutes, as is the m ore helpful phrase, ‘not b elieving the statem ent to be true,’” but “[t]here does not appear to be
a significant distinction am ong the statutes based o n the u s e of these different term s.” Sara Sun Beale et a l. , Gr and Jury Law & Practice § 11:6 (2d ed. 2019). T hus, we conclude that there is a m atch between the intent required b y section 118(a) and the inten t r e quired by the BIA’s generic definition o f perjury.

2

W e next turn to the f

alse-statem ent require m ent. Both
s ec tion 118(a) and the BIA’s generic definition of perjury require a false statem ent. The BIA’s generic definition refers to a “false state me nt , ” Matter of Alvarado , 26 I. & N

. D ec. at 901, whereas section 118(a) refers to a person “stat[ing] as true any

. . . m atter which he or she knows to be f alse,” Cal. Penal Code § 118(a). These requirem ents are m aterially indistinguishable.Y I M V

. B AR R 24 Arguing against this conclusion, Borba p oints to section 125 of the Ca l i fo rn ia Penal Code, which provides, “An unqualified statem ent of that which one does not know to be tru e is equivalent to a statem ent of that which one knows to be false.” Cal. Penal Code § 125. According to Borb a , th i s m eans that a p erson can be convicted of perjury in violation of section 118(a) without m akin g a literally false statem ent, and therefore section 118(a) crim inalizes m ore conduct than the BIA’s generic definition of perjury.

W e disagree. The BIA’s definition of perjury inherently incorporates the longst anding comm on-law view that a witness gives false testim ony if the witness states any m atter
as true when, in fact, the witness is entirely ignorant as to the
m atter. S

ee 3 Edward Coke, Institu tes o f the Laws o f England 166 ( Br ooke 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 .

. . w itnesses were sentenced in the starcham b er”). As one early comm entator explained:

It

. . . is not to be m at e r i a l wh ether the fact which is sworn be in itself true or false; for howsoever the thing sworn m ay happen to prove agreeable to the truth, yet if it w ere not known to be so by him who swears to it, his offense is altogether as great as if it h ad been false, inasmu ch as he wilfully swears, that he knows a thing t o be true, which at the sam e tim e h e knows n othing o f, and im pudently endeavours t o i n duce those before whom he
swears to proceed up o n the credit of a deposition, which any stranger m ight m ake as well as he.Y I M V

. B AR R 25

1 W illiam Hawkins, A T reatise of the Pleas of the Crown 433 (8th ed. 1824); accord 2 Joseph Chitty, A Practical Treatise of Cr i m inal Law 1 5 3–54 (Riley’s ed. 1819) (noting that if a witness “asserts that which m ay happen to b e true , wi thout any k nowledge of the fact, he is equally crim in a l , an d the accidental truth of his evidence will not excuse him ”).

The m odern understanding of perjury inc orporates the principle that a fa l s e statem ent includes an unqualified sta t e m en t m ade without knowledge as to its truth or falsity. A num ber of states, like California, codified this principle, 9 while others confirm ed it through judicial decisions. 1 0 The federal perjury statute likewise incorporates this principle; it refers to statem ents of “any m aterial m atter which [the declarant] does not b elieve to be true,” 18 U.S.C. § 1621(1), (2), which covers “cases in which the witn e s s m akes a false statem ent without knowi n g whether the statem ent is true o r

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; W ash. Rev. Code Ann. § 9A.72.080.

10 S ee, e.g. , E. Ky. Rural Elec. Co-o p

. C o r p. v. Phelps , 275 S.W .2d 592, 594 (Ky. 1955) (“[T]here is am p le authority for the proposition t hat
a prosecution [for perjury] can b e sustained upon . . . an affidavit, i f it is proved that the affiant did not in fact believe the facts asserted, or had n o p robable grounds for b elieving such f acts w ere true.”); State v. Ru p p , 151 P. 1111, 1112 (Kan. 1915) (“[H]e who m akes a positive affidavit to
a particular condition thereby holds him self out as h av i n g so me r e a sonably reliable inform ation on the subject, and for one to s w e ar t o a fact, of the existence of which he knows him self to be entirely ignorant, is rightly held to constitute perjury.”); B utler v. State , 429 S .W .2d 497, 502 (Tex. Crim

. App. 1968) (“A witness m ay co mm i t perjury if he swears t o a m atter
about which he consciously has no knowledge. The effect o f s uc h t e s t i m o ny is that the witness declares that he knows the truth of what he states, and, if he is conscious he d o e s n o t know it, he m eans to swear falsely.”).Y I M V

. B AR R 26
not,” Sara Sun Beale et al., Grand Jury L aw & Practice § 11:6
n .7 ( 2 d ed. 2019). In short, “[a] person m ay be guil ty of perjury when he swears to a particular fact, without knowing at the tim e whether it is true or false, or witho ut h av i n g enough knowledge to support a belief that it is tru e, even though the statem ent is in fact true.” 4 Wh art o n’s Crim inal Law § 577 (15th ed. 2019) (collecting sourc es )

. B orba has identified no authority casting doubt on this centuries-old principle. 1 1

Gi ve n this backdrop, we understand the phrase “false statem ent,” as used in the BIA’s generic definition of perjury, Matter of Alvarado , 26 I. & N

. Dec. at 901, to include statem ents m ade by a declarant who is entirely ignorant as to the statem ent’s truth or falsity. Accordingly, we conclude tha t the reference to “false statem ent” in the BIA’s g eneric definition is the sam e as the reference to “false” statem ents in section 118(a), notwithstanding section 125.

11 Borba cites Bronston v. United States , 409 U.S. 352 (1973), for the propo s ition that “[f]or a f ederal perjury charge

. . . the statem ent cannot support a perjury conviction if the information is [true].” This is wrong. Bronston “consider[ed] a narrow but im portant question in the application of the federal perjury: whether a witness m ay b e convicted of perjury f o r an an s w e r, under oath, t hat is literally true but not responsive to the question asked and arguably misleading by negative im plicat i o n.” 409 U.S. at 352–5 3

. Thu s , we have explained that “Bronston ’s rule is limi t e d to cases in which the statem ent is indisputably true, though
m isleading because it was unresponsive to t he questio n a s k ed.” United States v. Camper , 384 F.3d 1073, 1076 ( 9 th Cir. 2004). Bronston therefore does not address the situation contem plated by section 125.Y I M V

. B AR R 27

3

W e next turn to the elem ent of “m ater ia li ty.” Both section 118(a) and the BIA’s generic definition o f p erjury require that the statem ent be “m aterial.” Alth o u gh these term s are identical, Borba nevertheless contends that section 118(a) crim inalize s more conduct than the BIA’s g eneric d efinition because in C alifornia “[i]t is no defense t o a p ro s ecution for perjury that the accused did not k n ow th e m ateriality of the false statem ent m ade by him ,” Cal. Penal Code § 123, while, according t o B orba, the BIA’s g eneric definition o f perjury “likely” d oes not cover situations where
a defendant lacks knowledge as to a statem ent’s m ateriality.

W e reject this argum ent. At comm on l aw, i t was “not necessary that the witness k now that the testim ony is
m aterial,” 60A Am

. Jur

. 2 d Perjury § 26 (2d ed. 2 020) (collecting sources), and so “[a] m istaken belief that [ a] statem ent was not m aterial is not a defense to p erjury,” 1 10 Am

. Jur. Proof of Facts 3d 479 (2009). The state s uniform ly adopted these principles, see, e.g. , Sta te v. Sargood, 68 A. 49, 5 0 (Vt. 1907) (“W e ar e r e ferred to no auth o r i ty, and have seen none, that treats knowledge of the
m ateriality as an elem ent of [perjury].”), wi th m any states, like C alifornia, codifying this understanding. 1 2 T he Model Penal Code is in accord. See Mo d el Penal C ode § 241.1(2) ( “ It is no defense that the declarant m istakenly believe d th e falsification to be imm aterial.”). Borba cites no federal case that has interpreted th e fe d e ral perjury statute, 1 8 U.S.C. § 1621, as requir i n g pr o of that a witness know that a false

12 See Ark. Code Ann. § 5-53-102(b); Colo. Rev. Stat. Ann. § 18-8- 502(2); Fl a

. Stat. Ann. § § 837.02(3), 8 37.012(2); Minn. Stat. Ann. § 609.48(3); Mo. Ann. Stat. § 575.040; 18 Pa. Stat. Ann. § 4902(b).Y I M V

. B AR R 28

statem ent is m aterial, and we are aware of none. Cf. United States v. Schaier , 1 75 F. Supp. 8 3 8 , 842 (S.D.N.Y. 1 959) (“The d efendant m ay be convicted e ve n though he did not know that his statem ent was m aterial.”). W e therefore conclude that the BIA’s generic definition of per j ury i s in accord with the un iform principle that a de clarant need not know that a statem ent is m aterial to be gui lty of perjury. Accordingly, we reject Borba’s argum ent that section 118(a) crim inalizes m ore conduct than the BIA’s generic definition
o f perjury because C alifornia chose to codify this comm on law principle in section 125.

4

Fin a l ly , we consider the requirem ent that an oath, affirm ation, o r declaration under p enalty of perjury be authorized or p e rmi tted by law. S ection 118(a) refers to “cases in which [an] oath m ay by law of the State of C a l i f o rn i a b e a d mi n i s t e r e d ” a n d s i tu a t i o n s w h e r e “certification is perm itted by l aw of the State o f California under penalty o f p er

j ury.” Cal. Penal Code § 118(a). The BIA’s generic definition sim ply refers to the situation “where
an o ath is authorize d or required by law.” Matter of Alvarado , 26 I. & N. D ec. at 901. Yim contends that there is
a difference betw een a certif ication b e in g “authorized by law” and being “perm itted by law.”

W e disagree. D espite the slight diffe r ence in the verbal form ulations in section 1 18(a) an d the BIA’s g eneric definition, they are m aterially identical. To show tha t a statute cri mi n a l izes m ore 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 di d app l y the statute in the special (nongeneric) m anner for which he argues.” GonzalesY I M V

. B AR R 29

v. Duenas-Alvarez , 549 U.S. 183, 193 (2007). Here, Yim identifies no case in which a person was found guilty o f violating section 118(a) when an oath w as “ p e rmitted” but not “authorized” by law. Moreover, the California Court o f Appeal has stated that an “authorized” o ath is the sam e as an oath that is “perm itted b y law.” People v. La ws , 120 Cal. App. 3d 1022, 1034 (1981) (stating that a declaration in support of a m otion “is a declaration for wh ich an oath is ‘auth orized,’ i.e., one which is ‘perm itted by law’”). Thus,
even if there is som e sem antic d ifference between “perm itted by law” and “authorized by law,” Yim fails to show that there is a “realistic probability,” as o pposed to a “theoretical” one, that section 118(a) is applied in a way that it is broader than the B IA’s generic offense. Duenas-Alvarez , 549 U.S. at 193. W e therefore reject the argum ent that there is som e m ean in g ful difference between the phrases “authorized by law” and “perm itted by law.”

D

Our analysis has thus far established that the elem ents o f section 1 18(a) and the elem ents of the generic federal o ffense
are a categorical m atch. Th e p e titioners raise two final argum ents against this conclusion. According to the petitioners, Ca l ifornia law recognizes two affirm ative defenses to perjury that are not incorporated into the federal gen e r i c offense, and so the offenses are not a categorical
m at c h. F irst, Borba argues that section 118(a) crim inalizes
m ore conduct than the B IA’s generic de fi nition o f perjury because section 122 provides that lack of competency is not
a defense to a prosecution under section 118(a). Cal. PenalY I M V

. B AR R 30
Code § 122. 1 3 Second, V elasquez argues that section 118(a) differs from the BIA’s generic definition of p erjury because section 1 18(b) provides, “No p erson shall b e convicted o f perjury where proof of f

alsity rests solely upon contradiction by testim ony of a single person other than the defendant.” Cal. Penal Code § 118(b).

These argum ents m isunderstand the nature and effect o f
an affirm ative defense. “ Affi rm ative defenses are com p lete defenses that, o nce proven by the defendant, negate crim inal liability for an offense, notwithst and i ng the governm ent’s ability otherwise to prove all elem ents of that offense b eyond
a reasonable doubt.” United Sta tes v

. Davenport , 5 19 F.3d 940, 945 (9th Cir

. 2 0 08 ). As we have recognized, the availabilit y (or unavailability) of an affirm ative defense “is not relevant to the categorical approach” b e c au s e “we ‘look only to the fact of conviction and the statutory definition o f the prior offen s e

. ’” United States v. Velasquez-Bosque , 601 F.3d 955, 963 (9th Cir. 2010) (quoting Taylor , 495 U.S. at 602). The existence or n on-existen c e of “extraneous affirm ative defenses” is therefore “i rr e levant to the categorical approach.” United States v. Albino-Loe , 747 F.3d 1206, 1213 (9th Cir. 2014).

On its face, section 118(b) m erely elaborates o n the governm ent’s evidentiary b urden for proving perjury: proof of falsity m ay not rest “solely upon co ntradiction by testim ony of a single p erson other than the defendant.” Cal.

13 Section 122 provides, “ It is no defense t o a prosecution for perjury that the accused was not com petent to give the testim ony, deposition, o r cert i fi c at e o f which falsehood is alleged. It is sufficient that he d id give such testim ony or m ake such deposition or certificate.” Cal. Penal Code § 122.Y I M V

. B AR R 31

Pe n al Code § 118(b). As such, it does n ot chang e th e elem ents of perjury set forth in section 118(a). Therefore,
se c t io n 1 1 8(b) has no bearing on our analysis as to whether section 118( a) i s a categorical m atch for the federal g eneric offen s e o f pe rjury. See Rivera , 816 F.3d at 1069 n.1. Accordingly, we reject Velasquez’s argum ent.

W e next consider section 122, which provides that lack o f
com petency is “no defense to a prosecution for p erjury.” Cal. Penal Code § 122. In California, the g eneral rule is that “every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any m atter.” Cal. Evid. Code § 700. But there is an exception for persons who
are incom

petent to testify. Under section 701 of the California Evidence Code, “[a] person is disqualified to b e a witness if he or she is,” am o ng other things, “[i]ncapable o f understanding the duty o f a witness to tell the truth.” Cal. Evid. Code § 701. 1 4

14 Section 701 provides, in full: (a) A person is d isqualified to be a witness i f he or she is: (1) Incapable o f expressing him self o r herself concerning the m atter so as to be understood, either directly or thro u g h i nterpretation by one who can understand him ; or (2) Incapable of understanding the duty of a witness to tell the truth. (b) In any proceeding hel d o ut side t he presence of aY I M V

. B AR R 32
Section 122 prevents a defendant charged with pe r j ury from raising the affirm ative defense that the defendant d id not “understand the duty o f a witness to tell the truth.” C al. Evid. Cod e § 701(2). This lim itation does not, however, alter the elem ents of the offense of perjury. The governm ent m ust still prove beyond a reasonable doubt that the defendant stated “as true any m aterial m atter which he or she knows to be false,” Cal. Penal Code § 118(a), and the defendant m ay still negate th e m ens rea elem ent of the offense by raising reasonab le doubt as to whether h e or she knew a statem ent w as 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 wi tness as to its truth.”). Be c au s e e l i mi n at in g a d e fe n s e r e g ar d in g l a c k of understanding about a w itness’s duty does n ot cause section 118(a) to crim inalize m ore conduct than the generic o ffense of perjury, section 122 is irrelevant for purposes o f 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 argum ent.

In sum , n either section 1 18(b) nor sect i on 1 22 alter the “statut o ry definition of the

. . . offense” set forth in section 118(a), V elasquez-Bosque , 601 F .3d at 9 6 3 (citation om itted);
see Rivera , 816 F.3d at 1069 n .1, and so they have no bearing on our analysis here.

jury, t h e c o urt m ay reserve challenges t o the
com p etency of a witness until the conclusion of the direct exam ination of that witness.
Cal. Evid. Code § 701.Y I M V

. B AR R 33

E Having consid e red the petitioners’ argum ents, we con c lude that section 118(a) of the California Penal Code is
a categorical m atch with the BIA’s g eneric d efini t io n o f perjury, me an ing they cover the sam e am ount of conduct. W e th e re fo re conclude that section 118(a) is an “offense relating to

. . . perjury.” 8 U. S. C. § 1101(a)(43)(S). W e dispose o f the petitions and any rem ai n i n g argum ents in concurrently filed m em o randum dispositions.

IT IS SO ORDERED

.