F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

F E L I P E E S P I

N O -C A S T I L L O ,

Petitioner ,

v

.
E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 13-70756 Ag ency No. A205-414-449

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals
Arg ued and Submitted September 11, 2014—San F rancisco, California

F iled October 29, 2014

B efore: J . Clifford W allace, Mary M. Schroeder, and W illiam A. F letcher, Circuit J u dg es. Opinion by

J udg e SchroederE S P I N O -C A S T I L L O V

. H O L D E R 2

SUMMARY *

Im m igration

The panel denied F elipe E spino-Castillo’s petition for review of the B oard of I mmig ration Appeals’ decision finding t h a t h i s state law forg ery conviction q ualified as a crim e involving moral turpitude.

The panel h eld that petitioner’s conviction under A riz o na Revised Statutes § 13-2002 constituted a categ orical crime involving moral turpitude because the statute crimin a liz e s conduct that constitutes f raud. T h e p anel held that the
ex c e p t ion in Beltran-Tirado v. INS , 213 F .3d 1179 (9th Cir. 2000), to the clearly established r u l e t hat a fraud conviction is a CI MT did not apply to this offense, w here the underly ing conduct involved the use of f alse information to obtain employ ment.

COUNSEL
Hug o F

. L arios (arg

ued), Hug o F

. L arios L aw, PL L C, Tempe, Ariz ona, for Petitioner.

Stuart F

. Delery , Assistant Attorney General, Civil D ivision, B lair T

. O’Connor, Assistant Director, Office of I mmig r ation L itig ation, Edward C. D urant and J o nathan Robbins (arg ued), United States Department of J ustice, W ashing ton, D.C. for Respondent.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.E S P I N O -C A S T I L L O V

. H O L D E R 3

OP INION
SCHROEDER, Circuit J udg e:

I n this petition for review of a Bo a rd of I mmig r ation A ppeals’ ( “B I A”) order of removal, the novel question is whether Cong r ess has e x empted state fraud convictions from characteriz ation as crimes involving moral turpitu d e , when the underly in g conduct involved fraud in an application for employ ment. W e hold Cong ress has not.

Petitioner relies on our decision in Beltran-Tirado v. INS , 2 1 3 F. 3 d 1179 (9th Cir. 2000), where we considered an amendment to the social security laws that g ranted immunity from p rosecution for long standing r e sident a liens who used
a false social security number t o obtain employ ment. W e held the amendment ex p ressed cong ressional intent that such conduct did n ot establish moral turpi tude for immig r ation purposes. W e have never applied Beltr a n
- T i rado ’s holding outside the social security contex t. W e t h e refore deny the petition.

BACK G ROUND

Petitioner F elipe Espino-Castillo is a native and citiz e n o f Mex ico who entered the U nited States in approx imately 1992 without admission or parole. H e h a s lived in this country continuously si n c e t h at time. I n 2012, he was c onvicted in the Superior Court of Maricopa County , Ariz ona, of two counts o f forg ery in violati on of Ariz ona Revised Statutes § 13-2002. Petitioner was promptly charg ed in immig r ation proceeding s with being an alien who has been convicted of a cr i me involving moral turpitude ( “CI MT”) under 8 U .S.C. § 1182(a)(2)(A)(i)(I

). H e admitted h is r emovability under aE S P I N O -C A S T I L L O V

. H O L D E R 4

different p rovision, but denied that h e had b een convicted o f
a CI MT and arg ued h e was therefore elig ible for c ancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C) (barring ali ens convicted of a CI MT from cancellation of removal).

The I mmig ration J u dg e denied the application for cancellation in November 2012, finding that h e was inelig ible for such relief because his forg e r y c onvic tion constituted a CI MT. T he B I A af

f i rmed, and this petition for r eview followed. W hether a conviction is a CI MT is a q u e s t i o n o f law which this court has jurisdiction to review de novo. See Marmole jo-Campos v. Holder , 5 58 F .3d 903, 911 ( 9 th Cir. 2009).

Petitioner was con v i c ted under section 13-2002 of the Ariz ona Revised Statutes, which provides in relevant part:
[ A] person commits for g ery if, with intent to defraud , the person:

1. F alsely makes, completes, or alter s a written instrument; or

2. Knowing ly possesses a forg ed ins t rument;
or
3. Offers or presents, whether accepted or not,
a forg ed instrument t h at contains false information.

Ariz

. Rev. Stat. § 13-2002(A) (2014) (emphasis added). The statute criminaliz es conduct that constitutes fraud. Petitioner does not n ow dispute the p roposition t h a t fraud is g enerally
a CI MT. We have repeatedly r e cog niz e d the “long standingE S P I N O -C A S T I L L O V

. H O L D E R 5

rule that crimes that have fraud as an el e m e nt

. . . a re categ orically crimes involving mor al t urpitude.” Planes v

. Holder , 652 F .3d 991, 997–98 (9th Cir. 2011); s e e , e.g. , Goldeshtein v. INS , 8 F .3d 645, 6 4 7 (9th Cir. 1993). The only i s sue on appeal is whether, under this court’s decisi o n i n Beltran-Tirado , petitioner’s conviction sho u l d not be considered a CI MT because the underly ing conduct involved the use of false information to obtain employ ment.

D ISCUSSION

I n B elt r a n -Tirado , the petitioner h ad been convicted in federal court of using a false social security number in violation of the predecessor to 4 2 U.S.C. § 408(a)(7)(B ). 213 F .3d at 1 182. F or nineteen y e ars she had used a s o c i al security card, f

ound o n a bus, to e stablish credit and obtain employ ment, u ntil her income broug ht h er to the attention o f federal authorities. I

d. W hen faced wi t h deportation proceeding s in 1993, B eltran soug ht to a pply for relief under the r eg istry statute, 8 U.S.C. § 1 259. Id. Th a t s tatute was enacted to provide relief to persons w h o had resided in the United States for a long period of time and possessed “g ood moral character.” Id. a t 1 1 8 3

. The B I A denied the application o n the g round that her fraud co n viction w as a CI MT that prevented her from showing g ood moral character. Id.

On review of the B I A order, this court held that B eltran’s conviction was not a CI MT. Id. at 1184. W e did so b y looking at a 1990 amendment t o § 408 that ex e mpted a categ ory o f a liens from p rosecution for the c ri m e o f using a false social security n u mber. Id. at 1183–84; 42 U .S.C. § 408(e) (2012) (previously numbered § 408(d)). Those
ex e mpted were person s who had been g ranted p ermanentE S P I N O -C A S T I L L O V

. H O L D E R 6

resident status under long sta n d i ng amnesty or reg istry statutes. Id. at 1183–84. The leg islative history of the 1990 amendment indicated that Cong r ess intended the e x emption to include p ersons who used a false social security number in order to obtain employ

ment. Id. Althoug h the amendment d id not ex empt B eltran h erself from prosecution, because she could not meet the deadline for reg istration, w e concluded that the a mendment was indicative of a somewhat broader cong r essional intent. Id. a t 1184. W e said “that § 408(d) and the accompany ing leg islative history
ex p ress Cong ress’s intent that the crimes of w h i c h Beltran
was convicted do not establish ‘moral turpitu de.’” Id. at 1184.

Beltran-Tirado is g rounded in the history and purpose o f § 408, the specific federal social security statute under which B eltran had b een convicted. W e h ave never overruled Beltran-Tirado , but we have never cited it s h olding for any purpose b ey ond the application of that specific statute. B oth before a nd after Beltran-Tirado , w e have e x pressly a nd repeatedly rejected the arg ument that fraud crimes are not per se CI MTs. S

ee, e.g. , Planes , 652 F. 3 d at 997–98; NavarroLopez v. Gonzales , 503 F .3d 1063, 1074–75 (9th Cir. 2 007) (en banc) (Reinhardt, J ., concurring for a majority), overruled
on other grounds by United S tates v. Aguila-Montes d

e Oca , 655 F .3d 915 (9th Cir. 2010).

Other circuits have refused to f ollow Beltran-Tirado in any contex t. See Lateef v

. Dep’t of Homeland Sec. , 592 F .3d 926, 930–31 (8th Cir. 2010) (declining to follow B e l t r a n
Tirado because its holding ex tended § 408(d) bey ond its plain
s t atutory terms); Serrato-Soto v. Holder , 570 F .3d 686, 692 (6th Cir. 2009) (declining to follow Beltran-Tirado in holdingE S P I N O -C A S T I L L O V

. H O L D E R 7

that a state c onviction for u sing false social security number
a CI MT); Hyder v

. Keisler , 506 F .3d 388, 393 (5th Cir. 2 007) (“W e decline to follow Beltran-Tirado in ex empting social security number misuse f

rom CI MT status

. . . . [ I ] n BeltranTirado , the Ninth Circuit appears to have ex p anded a narrow ex e mption bey ond what Cong ress intended.”).
Moreover, we doubt we c ould now ex pand the r easoning of Beltran-Tirado bey ond its o rig inal scope, ev e n i f we wanted to. That is b ecause the inquiry in which p etitioner asks us to eng ag e involves ex amination of the circumstances surrounding petitioner’s particular conviction

. B ecause a conviction u n d er Ariz

. Rev. Stat. § 13-2002(A) requires intent to defraud, the Supreme Co u r t ’ s recent decision in Descamps v. United States , 133 S. Ct. 2276 (2013), forecloses any such inquiry

. To determi n e whether a petitioner’s conviction is a CI MT, the co u r t applies the categ o r ical a nd modified categ orical approaches articulated by t h e Supreme Court in Taylor v. United States , 495 U.S. 575, 599–602 (1990). Blanco v. Mukasey , 518 F .3d 714, 718 (9th Cir. 2 0 0 8 )

. A court must apply the categ o rical approach unless the statute in question is divisib l e and proscribes multiple a lternative elements, some of which would qualify as a CI MT and some of which would not. S

e e Descamps , 133 S. Ct. at 2284–85. A court may not apply the modified categ orical a pproach “if the statute p r oscribes only cond u ct that involves moral turpitude.” M

e n d oza v

. Holder , 623 F .3d 1299, 1303 (9th Cir. 2010). I n Descamps , the Supreme Court emphasiz ed the
necess i t y of looking to the e lements of the crime under the categ orical approach, rather than to th e underly ing circumstances or motivati o n s. See id. at 2 285. The Court said that a “circumstanc e
- s p ecific review is just what theE S P I N O -C A S T I L L O V

. H O L D E R 8
categ orical approach p r ecludes.” Id. at 2292. B ecause the petitioner here was convicted u nder a statute that p r oscribes only morally turpitudi n ous conduct, we cannot look to the underly ing circumstances of his crime. According l y , b e c a

u s e Beltran-Tirado ’s holding depended upon the history o f the specific statutory provision involved in tha t c a s e , and not a g arden-variety state fraud statute like the one involved h e r e , B e ltran-Tirado is by its terms inapplicable to peti t ioner’s case. F urther, the circumstancespecific approach that B eltran-Tirado took is now in tension with intervening and c ontrollin g S upreme Court a uthority

. The case now stands, a t best, as an i s o l ated ex ception to the prevailing rule that a conviction for a fraud offense is
c a teg orically a crime involving moral turpitude. “ Suc h h a s been the clearly established rule with respect to fraud since at least 1951.” Navarro-Lopez , 503 F .3d at 1074 (Reinhardt, J ., concurring

for a majority

). The petition for review is DENIED

.