FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLORIA IBARRA-HERNANDEZ,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 11-70739

Agency No.

A095-767-460

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 6, 2014—Phoenix, Arizona

Filed November 5, 2014

Before: Dorothy W. Nelson, Barry G. Silverman,

and Milan D. Smith, Jr., Circuit Judges.

Per Curiam Opinion
2 IBARRA-HERNANDEZ V. HOLDER

SUMMARY*

Immigration

The panel denied Gloria Ibarra-Hernandez’s petition for

review of the Board of Immigration Appeals’ decision finding

her ineligible for cancellation of removal because her

conviction for taking the identity of another involves moral

turpitude. 

The panel held that Ibarra-Hernandez’s conviction

pursuant to Arizona Revised Statutes § 13-2008(A) is not a

categorical crime involving moral turpitude, because the

statute is divisible and not every possible variation of the

crime requires proof of fraud. However, applying the

modified categorical approach, the panel found that IbarraHernandez admitted at her change of plea hearing that she

used a real person’s identity without his knowledge or

consent to obtain employment. The panel held that the BIA

reasonably found that stealing a real person’s identity for the

purpose of obtaining employment is inherently fraudulent,

and that it therefore involves moral turpitude.

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

been prepared by court staff for the convenience of the reader.
IBARRA-HERNANDEZ V. HOLDER 3

COUNSEL

Hugo F. Larios (argued), Tempe, Arizona, for Petitioner.

Dawn S. Conrad (argued) and Luis E Perez, Office of

Immigration Litigation Civil Division, United States

Department of Justice, Washington D.C., for Respondent.

OPINION

PER CURIAM:

Gloria Ibarra-Hernandez, a native and citizen of Mexico,

petitions for review of a final order of removal. The Board of

Immigration Appeals held that petitioner is ineligible for

cancellation of removal because her conviction for taking the

identity of another in violation of Arizona Revised Statutes

§ 13-2008(A) involves moral turpitude under both the

categorical and modified categorical approaches. We hold

that A.R.S. §13-2008(A) is not a categorical crime involving

moral turpitude. The statute is divisible, and not every

possible variation of the crime requires proof of fraud. For

example, under the statute, a defendant can be convicted for

using a fictitious person’s identity with only the intent to

obtain employment, not to defraud. However, petitioner

admitted at the change of plea hearing to using a real

person’s identity, without that person’s knowledge or

consent, to obtain employment. Applying the modified

categorical approach, the Board reasonably held that stealing

a real person’s identity for the purpose of obtaining

employment is inherently fraudulent, and therefore, that it

involves moral turpitude.
4 IBARRA-HERNANDEZ V. HOLDER

I. Background

Petitioner, a native and citizen of Mexico, entered the

United States in 1994 without inspection. On December 17,

2008, she pled guilty pursuant to a written plea agreement to

taking the identity of another in violation of A.R.S. § 13-

2008(A). The relevant version of § 13-2008(A) provides:

A person commits taking the identity of

another person or entity if the person

knowingly takes, purchases, manufactures,

records, possesses or uses any personal

identifying information or entity identifying

information of another person or entity,

including a real or fictitious person or entity,

without the consent of that other person or

entity, with the intent to obtain or use the

other person's or entity's identity for any

unlawful purpose or to cause loss to a person

or entity whether or not the person or entity

actually suffers any economic loss as a result

of the offense, or with the intent to obtain or

continue employment.

A § 13-2008(A) conviction is a Class Four felony. Id. § 13-

2008(E). At the change of plea hearing, petitioner admitted

that she used the Social Security number of an actual person

without his knowledge or permission to get a job at a retail

store from April 9, 2006 to October 8, 2008. On January 21,

2009, the Arizona Superior Court in Maricopa County

sentenced petitioner to 90 days in jail and two years of

supervised probation.
IBARRA-HERNANDEZ V. HOLDER 5

The Department of Homeland Security subsequently

initiated removal proceedings, alleging that petitioner was

inadmissible on two grounds: First, pursuant to 8 U.S.C.

§ 1182(a)(6)(A)(i), for being present without being admitted

or paroled; and second, pursuant to 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), for having committed a crime involving

moral turpitude. In addition to rendering an alien removable,

a conviction of a crime involving moral turpitude renders an

alien ineligible for cancellation of removal. 8 U.S.C.

§ 1229b(b)(1)(C). Petitioner applied for cancellation of

removal, admitting that she was removable for having entered

without inspection, but denying that her crime involved moral

turpitude.

Affirming the immigration judge, the Board held that

petitioner was both inadmissible and ineligible for

cancellation of removal because a § 13-2008 conviction

involves moral turpitude. The Board held that the Arizona

statute was categorically a crime involving moral turpitude as

one involving fraud. In the alternative, the Board applied the

modified categorical approach and held that the change-ofplea colloquy established that petitioner used the Social

Security number of an actual person without his knowledge

or permission to obtain employment. Thus, petitioner

committed fraud when she took and used the identity of

Francisco Mejia, a real person.

II. Jurisdiction

Although we lack jurisdiction to review removal orders

for aliens who have been convicted of certain crimes,

8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to consider

questions of law, including whether a crime involves moral
6 IBARRA-HERNANDEZ V. HOLDER

turpitude. Marmolejo-Campos v. Holder, 558 F.3d 903, 907

(9th Cir. 2009) (en banc).

III. Analysis

The government concedes that the Board erred in ruling

that A.R.S. § 13-2008(A) is categorically a crime involving

moral turpitude. See Descamps v. United States, 133 S. Ct.

2276, 2281–82 (2013). We agree. It is possible to commit a

violation of A.R.S. § 13-2008(A) by using a fictitious

person’s name – say, Mickey Mouse – and a non-existent

Social Security number solely for the purpose of getting a

job, and not with the intent to cause loss to anyone. We thus

agree with the government that § 13-2008(A) is not

categorically a crime involving moral turpitude. We now turn

to the Board’s alternative holding that petitioner’s crime is

one involving moral turpitude under the modified categorical

approach.

The change of plea transcript establishes that petitioner

admitted to taking the Social Security number of a real person

without his knowledge or consent in order to obtain or

maintain employment. Unlike the Mickey Mouse example,

this particular offense was a form of theft involving fraud. 

The Board reasonably ruled that petitioner’s conviction was

for a crime involvingmoral turpitude, rendering her ineligible

for cancellation of removal.

PETITION DENIED.