FOR PUBLICATION



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

J O S E J AI RO E S C O B AR S A N T O S , Petitioner
,

v

.

M E R R I C K B. G AR

LA ND , Attorney General, Respondent. No. 17-72334

Agency No. A205-465-618

OPINION

On Petition for Review of an Order of the Board of Imm igration Appeals

Subm itted January 13, 2021 * San Francisco, California

Filed July 9, 2021

Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges, and Robert H. Whaley, * * District Judge.

Opinion by Judge Bybee; D issent by Judge W haley

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

** T he Honorable Robert H. W haley, United States District Judge f o r the Eastern District of W ashington, sitting by designation.E S C O B AR S A N T O S V

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S UMMARY * * *

Immigration

Denying Jose Jairo E sco b ar Santos’s petition for review of a decision of the Board of Imm igration Appeals, the panel held that Escobar’s forgery conviction under section 470a o f the California Penal Code categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. § 1101(a)(43)(R), thus rendering him ineligible for voluntary departure.

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

orges, duplicates or in any m anner reproduces o r counterfeits any driver’s license o r identification card issued by a governm ental agency with the intent that such dr i v e r’ s license or identification card b e u sed to facilitate the

comm ission of any forgery.”

Escobar a rgued that section 470a’s first elem ent sweeps
m ore broadly than the g e ne ric definition of forgery because the p roscribed conduct encom passes m ere duplication or any
m anner of reproduction, and thus a person could be liable for photocopying a genuine dr i v er’s license with the requisite intent. The panel disagreed that photocopying a d river’s license with the intent to facilitate the comm issi o n o f any forgery falls outside the generic definition of forgery.

As a helpful com

parison, the panel looked to Vi z carraAyala v. Mukasey
, 514 F.3d 870 (9th C ir. 2008), in which the

*** This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.E S C O B AR S A N T O S V

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court addressed California P enal Code section 475(c), which proscribes possession of any com pleted check, m oney order, traveler’s check, warrant or county order, whether r e al o r fictitious, with the in t e nt t o utter or pass or facilitate the utterance or passage of the sam e, in order to d e fr aud any person. The panel observed that in V izcarra-Ayala
, the court determ ined that an essential elem ent of the generic offense o f forgery is the f

alse m aking o r alteration of a docum ent, such th a t the docum ent is not what it purports to be, and th at Vizcarra-Ayala held th at s ectio n 4 7 5 (c) e n co m p assed b roader

co nduct than the generic definition of forgery because it crimi n a lized the possession or use of genuine instrum ents with the intent to defr aud but not to forge. The panel observed that in Vizcarra-Ayala
, the court identified several instances i n wh ich C alif

o rnia used section 475(c) to prosecute such conduct.

The panel pointed o ut sev e r al m ark ed d if f eren ces b etw een section 475(c) and section 470a, including that section 470a: (1) p lainly does n ot crim inalize “possession”; (2) d o es not include section 475(c)’s reference to “real or fictitious” instrum ents; and (3) does not contem plate prosecution for conduct akin t o attem

pting to cash a genuine, unaltered check––by for exam

ple, repr e senting another person’s genuine driver’s license as one’s own. Moreove r , the panel noted that unlike in V

izcarra-Ayala
, Escobar did n ot identify, and the panel could not locate, any cases in which California had prosecuted individuals under sec ti on 470a for conduct i n v ol ving g enuine docum ents. The panel further noted tha t California punish e s the d uplication or reproduction of such identification only when it is “used to facil itate the

comm ission of any forgery.”E S C O B AR S A N T O S V

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The panel noted that Escobar had not identified any evidence that Calif

o rn ia u ses a b ro ad er d ef

inition of “forgery” th an t h e g en eric un d e rstanding, and thus by definition, sectio n 4 7 0a requires proof o f a false writing capable of procu r i n g fraud. The panel wrote that a p erson who takes the affirm ative step to photocopy a genuine docum ent wi th the intent to deceive has m ade a false instrum ent––an action that falls squarely within the generic definition of forgery.

Dissenting, District Judge Whaley n oted that in VizcarraAyala
, this court held that forgery requires a lie about the docum ent itself, and th a t the lie m ust relate to the genuinene s s o f the docum ent. Because CPC section 470a penalizes duplicating identification cards that are not falsely

m ade, Judge Whaley concluded that the statute sweeps m ore broadly than the f

ederal comm o n law definition of forgery. In addition, Ju dge Whaley identified at least one case in which California successfully prosecuted som eone where the identification card appeared to be genuine, and thus wrote that there is a realistic probability that California would apply CPC section 470a to conduct o utsi d e the comm o n law definition of forgery. Even were h e to apply the m odified categ o rical ap p roach, Judge Whaley wrote that his con clu sio n
wo u l d rem ain unchanged because there was no indication from th e adm inistrative record, and the governm ent d id not

c o n t e n d o th e rw i s e , tha t E s c o b a r ’ s c o n v i c t i o n wa s indisputably f

or forgery—as opposed to non-forgery— conduct.E S C O B AR S A N T O S V

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C OUNSEL

Jam es Todd Bennett (argued), E l Cerri t o , California, for Petitioner.

Brian M. Boynton, Acting Assistant Attorney Gen e r a l; Antho n y C. Payne, Assistant Director; Neelam Ihsanullah, Trial Attorney; Office of Immi g r ation Litigation, Civil Division, United States Departm ent of Ju stice, W ashington, D.C.; for Respondent.

OPINION

BYBEE, Circuit Judge:

Petitioner Jose Jairo Es c o b a r Santos (Escobar), a native and citizen of Guatem ala, challenges the Board o f Imm igration Appeals’ (BIA) determi n a tion that his f orgery conviction under California Penal Code (CPC) § 470a constitutes an aggravated felony p ursuant to the Imm igration and Nationality Act (INA) § 101(a)(4 3 )(R), 8 U.S.C. § 1101(a)(43)(R). On this issue of first im pression, we hold that C P C § 470a is categorically an offense “relat i n g t o

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

I. BACKGROUND

Escobar entered the United States without i n s p e ction in 2009. In 2015, police sto pp e d h i m for running a red light. Escobar w as subsequently charged with ( 1 ) u sing false docum ents to conceal h is true citizenship (CPC § 114); (2) driving wi th o u t a valid driver’s license (CaliforniaE S C O B AR S A N T O S V

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Vehicle C ode (CVC) § 1 2500(a)); (3) failure to stop at a red light (CVC § 21453(a)); (4) driving witho ut a safety belt (CVC § 27315(d)(1)); and, (5) forgery of a driver’s license (CPC § 470a). After Escobar p led g uilty to the forgery count (CPC § 470a), the rem aining counts w ere dism issed. Escobar

was sentenced to three years in state prison, with 364 days to be served in actual custody, and two years and one day to be suspended and served on m andatory supervision.

Prior to Escobar’s conviction, in 2012, the Departm ent o f Hom eland Security (DHS) comm enced rem oval proceedings against Escobar, charging him w ith be i ng rem ovable under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without ha v i ng been adm itted o r paroled. Escobar conceded rem ovability through counsel and applied for asylum
, withholding of rem ova l, protection under the C onvention Again st Torture (CAT), and, in the alternative, voluntary departure.

At the h earing before the Imm igration Judge (IJ) in 2017, Escobar testified that he was afraid to return to h is hom etown of S an C arlos Sija in Guatem ala because gang m em bers were extorting h is fam ily and burglarized h is brot h er’s h om e. Crediting E scobar’s testim ony, the IJ issued an oral decision denying his applications f or asylum
, withholding of rem oval, CAT p rotection, and voluntary departure. As pertinent to this appeal, the IJ found Escobar ineligible f or voluntary departure b ecause his forgery convic t ion under CPC § 470a

c o n s t i tu t e s a n a g gr a v a te d fe l o ny un d e r 8 U

. S

. C

. § 1101(a)(43)(R). Escobar appe a l e d t o the BIA. The B IA d enied his appeal, holding that Escobar’s conviction un d e r CPC § 470a is categorically a crim e “relating to forgery” and thus an aggravated fe l o n y rendering him ineligible forE S C O B AR S A N T O S V

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voluntary departure. 1 Escobar’s present petition challenges the BIA’s determ i na t ion that CPC § 4 70a constitutes an aggravated felony.

II. STANDARD OF REVIEW

W e review questio n s of law de novo. See Toufighi v. Mukasey
, 538 F.3d 988, 992 (9th Cir. 2008). “Although the BIA’s interpretation o f imm igration la ws i s entitled to deference

. . . its interpret a t io n o f the [CPC]

. . . is not. Vizcarra-Ayala v. Mukasey
, 5 14 F.3d 8 7 0, 873 (9th Cir. 2008). As such, “we apply de novo review to ‘the issue o f whether a p articular offense constitutes an aggravated felony.’” Id

. (quoting Ruiz-Mo r a l es v. Ashcroft
, 361 F.3d 1219, 1221 (9th Cir. 2004)).

III. DISCUSSION

A non-citizen is i n e l i gible for v oluntary d eparture if he has been convicted of an aggravated felony as defined by the INA. 8 U.S.C. § 1229c(b)(1)(C). Pu rs u a nt to the INA, an

1 The BIA also “found no reason to disturb” the IJ’s decision denying Escobar’s application for withholding of rem oval and C A T protection. Because E scobar does not address these claim s in his opening brief, he h as waived a n y c h allenges to the denial of these applications, as w ell as the BIA’s denial o f his request fo r a c o ntinuance to pursue a p r ovisional unlawful-pre s e n c e waiver. See Martinez-Serrano v. INS
, 94 F .3d 1256, 1259–60 (9th Cir. 1996).

W i th r espect to Escobar’s asylu m claim
, the IJ found him ineligible based on h is aggra v a t e d felony conviction. Although the BIA did not explicitly m ention asylum in its decision, its finding that CPC § 470a is an aggravated felony necessarily forecloses any challenge to the IJ’s denial of asylum

. In any event, E scobar does not discuss his asylum claim —or the BIA’s apparent om ission—in any detail.E S C O B AR S A N T O S V

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

. . . forgery

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

W e em ploy the categorical approach set forth in Taylor v. United States
, 495 U .S. 575 (1990), to determi ne whether a state conviction qualifies as an aggravated felony under the INA. See Lopez-Valencia v. Ly n ch
, 798 F.3d 863, 867–68 (9th Cir. 2015). Under this approach, we first “compare the ele me n t s o f the state offense to the elem ents of the g eneric offense defined by federal law.” Id. at 8 67 (citation om itted). If the state statute “encom passes o ffenses th a t are narrower than or equal to the federal definition of ‘an offense relating to

. . . forgery,’” a conviction under the state statute q u alifies

as an aggravated f

elony. Vi z c a rra -Ayala
, 514 F.3d at 874;

see also Mathis v. U

nited States
, 136 S. Ct. 2243, 2248 (2016). However, wh ere the state statute sweeps m ore b ro a d l y than the generic definition, there can be n o categorical m atch and, l ikewise, n o aggravated felony. See Mathis
, 1 36 S. Ct. at 2 248–49. In conducting this inquiry, “we exam ine what the state conviction n ecessarily involved, not the facts un derlying the case.” Moncrieffe v. H older
, 569 U.S. 184, 190 (2013).

Here, we m

ust com pare the elem ents of CPC § 470a with the generic, comm on law definition o f forge ry

. We have previously ex p l a i n ed that the “essential elem ents o f the

comm on law crim e of forgery are: (1) a false m aking of som e instrum ent in writing; (2) a f raudulent intent; [and] (3) an instrum ent apparently capable of effecting fraud.” VizcarraAyala
, 514 F .3d at 874 (internal q uotation m a rk s om itted) (brackets in original). The statute in question p enalizes “[e]very person who alters, falsifies, forges, duplicates or in any m anner reproduces or counterfeits any driver’s license o rE S C O B AR S A N T O S V

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identification card issued by a governm ental agency with the intent that such driver’s license o r identification card be used to facilitate the com m ission of any forgery.” CPC § 470a.

Escobar’s challenge focuses solely on the first elem ent o f § 470a—specifically, one who “alters, falsifies, forges, duplicates or in any m anner rep roduces or counterfeits

. . . . ” He argues that § 470a’s first elem ent sweeps m ore broadly than the generic definition because the “pr[o]scribed conduct

encom passes

. . . m ere duplication or any m anner o f reproduction.” T hat is, a person could be liable under § 470a for photocopying a genuine d river’s license with the requisite intent, which, according to Escobar, is not an act covered by the generic definition.

W e disagree that p hotocopying a driver’s license with the intent “to facilitate th e comm ission of any forgery” falls outside the generic definition of f orgery. Our decision in Vizcarra-Ayala offers a helpful com p ari s o n. There, we addressed whether a separate provision of the CPC, § 475(c), constitutes an offense r el ating to forgery under the INA. 514 F.3d at 8 7 5

– 7 7. Section 475(c) provides that “[e]very person who possesses any com pleted check, m oney order, traveler’ s ch e ck, warrant or county order, whether real or fictitious
, with th e i n t e nt to utter o r pass or facilitate the utterance or passage of the sam e , in o r d er to defraud any person, is guilty of forgery.” (em phasis added). Applying the categorical approach to § 475(c), we first d eterm ined that contem p o rary treatises, o ur sister circuits, and Suprem e Court precedent plainly establish that “an essential elem ent o f the generic offense of forgery is the false m aking or alteration o f

a docum ent, such that the docum ent is not what it purports to be.” Vizcarra-Ayala , 514 F.3d at 875.E S C O B AR S A N T O S V

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W e then held that § 4 75(c) encom passes broader conduct than the generic definition o f forgery because it crim inalizes the possessio n o r use of genuine instrum ents with the intent t o defraud but not to forge. Id

. at 876–77; see id. at 8 7 5 (explaining that “forgery requires the falsification of a d ocum ent o r instrum ent”). W e noted several instances i n which California used § 475(c) to prosecute such co n du c t

. See id. at 875–77. For exam ple, California charged a wom an under § 4 75(c) for attem

pting to cash a check she received in the m ail issued to a youth foundation that had a storefront underneath her apartm ent. Id. at 8 76 (citing People v. Viel
, No. D044101, 2005 W L 904806 (Cal. C t. App. 4th Dist. Apr. 20, 2005)). B ecause the defend a nt endorsed the check with her o wn signature and did not alter the identity of the payee, the docum ent was not falsified in any way. She m ight have b een guilty of f

raud, but she h ad not comm itted gener ic forgery. See i d

. S im ilarly, California prosecuted an o ffice

m anager who was an approv ed s i g natory on the com pany’s checking account for writing several checks for personal u se, including one for “cash” on the com pany’s bank account. Id. at 876–77 (citing People v. Leonard
, No. G032720, 2004 W L 2610365 (Cal. Ct. App. 4th Di st. Nov. 17, 2004)). The

m anager m ay have comm itted generic em bezzlem ent or theft, but her crim e did not constitute g eneric forgery. That neither

case involved false docum ents solidified our conclusion that § 475(c) encom

passes “conduct th a t plainly is n ot g eneric forgery.” Id . at 877.

There are m arked differences between § 475(c) and § 4 7 0 a

. Section 470a plainly does not crim inalize “poss es sion”; rather, a separate provision of the CPC specifically prohibits th e display or possession of a f orged driver’s license. See C PC § 470b. Nor does § 470a include § 475(c)’s reference to “real or fictitious” ins tru m ents.E S C O B AR S A N T O S V

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Section 470a thus does not contem plate prosecution for conduct akin to attem

pt ing to cash a genuine, unaltered check—by say, representing another pe rson’s genuine driver’s license as one’s own. Unlike in Viz c a rr a -Ayala
, Escobar does n o t o ffer—nor can we locate—any cases in which C alifornia has p rosecuted individuals under § 470a for conduct involving genuine docum ents. 2

Escobar points to § 470a’s reference to “duplicat[ing] o r in a n y m anner reproduc[ing]” a driver’s license o r governm ent ID as e vidence that the statute sweeps too broa dly. But California only punishes the duplication o r reproduction of such id e n tification when it is “used to facilitate the comm ission of any forgery.” Escobar ha s n o t referred us to any evidence th a t California uses a broader

2 Our dissenting colleague cites People v. Brown
, 2010 W L 3871856, at *1 (Cal. Ct. App. 6th Dist. 2 010) (unpublished) as an exam ple of a case in which California p rosecuted an ind i vi du al under § 470a “ where the identification card at issue appeared to b e g enuine.” Dissent Op. at 17–18. In Brown t

he defendant pled n o contest t o the forged driver’s l icense and checks; as such, his appea l d id n ot concern or provide substantial inform ation as to the specifi c fa cts giving rise to his § 4 70a conviction. 2010 W L 3871856, at *1.

In any event, w e respectfully disagree with the dissent’s reading o f the case. Brown does not, as the dissent concludes, state th a t the d efendant possessed another i ndividual’s genuine driver’s license an d

m erely p resented it as his own, which would constitute fraud and not forgery. Rather, as we read Brow n , t he fact that the defendant had a driver’s l icense with d ata th a t b e l o n g ed to two different people is, b y definition, indicative of som e alteration, m aking the driver’s license false. See 2010 W L 3871856, at *1 (stating that Brown had “a driver’s license showing som e d ata belonging to [Brown], but the license had been issued to a different person”). That is classic forgery.E S C O B AR S A N T O S V

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definition o f “forgery” than the g eneric understanding. 3 Thus, by d efinition, § 470a requires proof of a false writing capable of procuring fraud. A person who takes the affirm ative step to photocopy a genuine docume n t with the intent to deceive has m ade a false instrum ent—an action that falls squarely within the generic definitio n of forgery. W e thus conclude that § 470a is categorically an offense “relating . . . to forgery” under INA § 101(a)(43)(R).

IV. CONCLUSION

For the foregoing reaso n s , CPC § 470a constitutes an offense “relating to . . . forgery.” The petition is D ENIED

.

3 Nor do we have any concerns that § 470a’s reference t o “any forgery” incorporates § 4 75(c)’s broader definition of forgery. In the unlikely event that an individual is convicted un de r b oth statutes, an individual’s conviction under § 470a rem ains an independent offense t hat

m atches the generic d efinition of f o rgery. So, fo r exam

ple, if an individual used a duplicated d river’s license to pass a genuine, unaltered check i n violation of § 475(c), in order to b e convicted under § 470a t hat person would still need to u se an altered ID to facilitate the crim e. Stated otherwise, § 470a is itself a com plete crim e involving the falsifying of I Ds

a n d i s not d erivative of 4 75(c)’s broader definition involving “any

com p leted check, m oney order, traveler’s check, warrant or county o rder, whether real or fictitious[.]”E S C O B AR S A N T O S V

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W HALEY, District Judge, dissenting:

This case presents the question o f whether the proscribed conduct of o ne who “alters, f alsifies, forges, duplicates or in any m anner reproduces or counterfeits any driver’s license o r identification card ” under California Penal Code (CPC) § 470a encom

passes conduct that is broader th a n the “false

m aking o f som e instrum ent in wr i ting” under the federal

comm on law definition of fo r g e ry

. For the reasons set forth below, I conclude that CPC § 470a is broader than the federal definition; and in turn, Appellant Escobar Santos’ (Escobar) underlying co n v iction d oes not q ualify as an aggravated felony. I respectfully dissent.

I. DISCUSSION

The Imm igration and Nationali ty Ac t (INA) defines an “aggravated felony ” as any one of a series of offenses, including “an offense relating to

. . . forgery

. . . for which the term of im

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

. Whether an offense is an aggravated felony for purposes of the INA is a q uestion of law this court reviews de novo. Vizcarra-Ayala v. Mukasey
, 514 F.3d 870, 872–73 (9th Cir. 2008).

In the present case, th e Bo ard of Imm igration Appeals (BIA) determ ined that E scobar’s convictio n un der CPC § 470a was categori c a l ly an aggravated felony m aking him ineligible for voluntary departure.

To determ ine whether Escobar’s state conviction is o ne relating to forgery, and therefore qualifies as a n a g g ravated felony under the INA, this court em ploys the cate g o r i c al approach outlined in Taylor v. United States
, 495 U

. S. 5 7 5,E S C O B AR S A N T O S V

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600 (1990). Vizcarra-Ayala
, 514 F.3d a t 8 7 4. Under this approach, the court looks only to the statutory definitions o f the underlying crim e and not the part i cular facts of the offe n d er’s case. Taylor
, 495 U.S. at 600. First, the court determ ines whether the state statute encom passes conduct

narrower than or equal to the federal definition of an o ffense relat i ng to forgery. 1 Vizcarra-Ayala
, 514 F .3d at 874 (internal quotation m arks om itted); Taylor
, 495 U.S. at 599. If so, then a conviction of th e s tate statute constitutes a
con v i c t i on relating to forgery. Vizcarra-Ayala
, 514 F.3d at 874. If the statute is overinclusive, the “m odified categorical approach perm its an exam ination of certain docum ents in the record ‘to determ ine if the recor d un equivocally establishes that the d efendant was convicted of the generically de fined crim e.’” Id. (quoting United States v. Cor o n a-Sanchez
, 291 F.3d 1201, 1211 (9th Cir. 2002) (en banc)).

“Forgery d eveloped f

rom the comm on[]law crim e o f larceny and thus shou l d be defined by its ‘generic, core
m eaning.’” Vizcarra-Ayala
, 514 F .3d at 874 ( quoting Morales-Alegria v. Gonzales
, 449 F.3d 1051, 1054 (9th Cir. 2006)). The essential elem ents of the comm on law crim e o f forgery are “(1) a false m aking o f som e instrum ent in writing; (2) a fraudulent intent; [ and] (3) an instrum ent appar e ntly capable o f effecting a fr au d .” Id. (internal quotation m arks and citation om itted) (brackets in original).

1 For inst a n c e , in Taylor
, the Suprem e Court noted that state convictions for first degree or aggravated burglary are exam ples of crim es that are clearly narrower than t he general definition o f burglary. 495 U .S. at 599 (the g eneric definition having the basic elem ents o f “un la wfu l o r unprivileged entry into, or rem aining i n, a building or structure, with intent to comm i t a crim e.”).E S C O B AR S A N T O S V

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Like the present case, in V i zca rra -A ya la
, th e n on-citizen’s challenge focused o n the first elem ent of comm o n law forgery—the false nature of the d ocum ent. 514 F.3d a t 8 75. There, we held that forgery requires a lie about the docum ent itself, and “the lie m

ust relate to the genuineness of the docum ent.” Id. (ci ti ng 3 W ayne R. L aFave, Substantive Crim inal Law § 19.7(j)(5) (2d ed.) [hereinafter “LaFave”]). Forgery requires “the falsification of a d ocum ent o r instrum ent.” Vizcarra-Ayala
, 5 1 4 F.3d at 875. “Forgery is a crim e aim ed prim arily at safeguarding confidence i n the genuineness of docum ents relied upo n i n comm ercial and business activity.” Id. (quoting LaFave § 19.7(j)(5)).

“ Wh ere the falsity lies in the representation of f acts , n o t in the genuineness of execution, it is not forgery.” Gilbert v United States
, 370 U .S. 650, 658 (1962); s e e a lso VizcarraAyala
, 51 4 F. 3 d at 875. According to the Tenth Circuit, shortly before the U.S. Suprem e Court decided Gilbert
,
the words ‘falsely m ade’ and ‘forged’ are hom ogeneous, p artaking of each other. They have always been synonym ously construed to describe a spurious or fictitious m aking as dis t inguished from a false or fraudulent statem ent. The w ords relate to genuineness o f execution and not falsity of content.

Selvidge v. U

nited States
, 290 F .2d 894, 897 (10th Cir. 1961).

As the m ajority notes, in Vi z carra-Ayala this court determ ined that CPC § 475(c) did n ot categorically m atch the definition o f comm on law forgery because that statute crim inalizes the possession of “real” d ocum ents wi th the requisite intent to d efraud. 514 F .3d at 875. Th ere, theE S C O B AR S A N T O S V

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governm ent contended the s t a tu te’s reference to “real o r fictitious” m erely incl ud es genuine docum ent form s that contain a forged signature

. Id. In rejecting this argum ent, this court considered actual instances where the State h ad p rosecuted CPC § 475(c) cases in which the o ffend e r s h a d utilized genuine, unaltered docum ents. Id. at 876, & n.3.

Because CPC § 470a penalizes duplicating identification cards that are no t falsely m ade, the statute sweeps m ore broadly than the f

ederal comm o n law definition of forgery. For instance, if an o ffender used a photo copy of an identification card with the requisite inte n t t o defraud, he would b e in violation of § 470a, but he would not be guilty o f

comm on law forgery because there would be n o lie about the genuineness of the docum ent itself.

For a court “t o f

ind that a state statute creates a crim e outside the [federal] g eneric definition[,]

. . . requires m ore th a n the application of legal im agination to a state statute’s language. It requires a realistic p robability, not a theoretical possibility, that the State wo u ld apply its statute to conduct that falls outside the generic d efinition of a crim e.” Gonzales

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

m ust point to h is own case or other cases i n which the state courts have applied the statute i n a b r oader m anner than the federal d efinition. Id. This court has held that when a “state statute explicitly defines a crim e m ore broadly than the gen eric definition, no legal im agination is required to hold that a r e a listic probability exists

. . .” that the state will prosecute conduct outside the generic de finition. United Sta tes v. Grisel
, 488 F.3d 844, 850 (9th Cir. 2007) (internal quotation m arks om itted) abrogated by United States v. Stitt
, 139 S. Ct. 399, 406–07 (2018). In Grisel
, this court held that the statute in question w as overbroad sim ply by reviewing theE S C O B AR S A N T O S V

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statutory text. Id. ; b u t see United States v. R odriguezGamboa
, 9 72 F.3d 1148, 1154 (9th Cir. 202 0 ) ( h o lding that Ca l i fo rnia’s prohibition of possession of geom etric isom ers of m etham

phetam ine did not m ake the state statute overbroad because such geom etric isom ers do not scientifica lly exist, and the State could not p ossibly prosecute their possession). The Oregon burglary statute in Grisel included entrance into places such as a booth, v ehicle, boat, and aircraft, which were explicitly excluded from the federal definition o f bur g l ary. 2 488 F.3d at 850.

The m ajority finds that C PC § 470a does not contem p late prosecution in the non-forgery c o n t ext, for instance, when “representing another person’ s genuine driver’s license as one’s own.” Majority Op. at 11. A lthough I generally agree that the typical CPC § 47 0 a p r o s ecution involves a fake o r f a l s i f i e d i d e n t i f

i c a t i o n , 3 C a l i f

o rn i a h a s s u c c e s s f

u l l y p ro s e cuted at least one case where the identification card at

2 The Suprem e Court has subsequently held that a burglary statute’s p ro h i bited entry of a vehicle designed or adapted for overnight us e d o es not render the statute categorically overbroad under the Taylor test. Stitt
, 139 S. Ct. at 407.

3 See, e.g. , Pe o

p le v. E stournes , 2009 WL 807568, at *1 (Cal. Ct. App. 2009) (unpublished) (§ 470a prosecution prem ised on identification

c a rd w ith appellant’s picture glued on t op of another picture); M unoz v

. Robertson
, No. 1 9-cv-00092-ODW
, 2020 W L 4905845, at *2 (C.D. Cal. 2020) (unpublished) (§ 470a prosecution m aintained when defendant

a t tem p ted to purchase a vehicle at car dealership and deal e rs hi p determ ined that the identification was fo rged because it failed m ultiple authent icity tests); People v. S antos , 2005 W L 3065868, at *1 (Cal. Ct. App. 2005) (unp ub l ished) (§ 470a prosecution sustained when search warrant uncovered com

p uter and other equipm ent for m anufacturing false identifications).E S C O B AR S A N T O S V

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issue appeared to be genuine. 4 See People v. Brown
, 2010 W L 3871856, at *1 (Cal. Ct. App. 2010) (unpublished). In Brown
, law enforcem ent f ound de fendant R obert Brown in possession o f ten forged checks and “a driv er’s license showing som e data belonging to defendant, but the license had been i s s u e d to a different person.” Id. B rown was charged w ith possessing a forged driver’s license with intent to u se it to facilitate the comm ission of a forgery under CPC § 470a, and the California court of ap p eal affirm ed his

c o n v i c tion. Id. The opinion m akes no m ention of th e driver’s license being falsely m ade; i n s tead, it appears that Brown possessed another individual ’ s genuine d river’s licens e which he purported to be his o wn. See id. Under Vizcarra-Ayala
, such po ssession w o u l d not constitute f orgery because there was no lie relating to the genuine n e s s o f the docum ent itself. 514 F.3d at 875.

Even though the p l ain text which prohibits “duplicating

or in any m anner reproducing” is s u ffi c i ent to find that the statute is overbroad, there is nonetheless a realistic probability that California would apply CPC § 470a to

co nduct o utside the comm on law definition of forgery. Accordingly, Escobar ’ s underlying conviction d oes not constitute an aggravated felony under Taylor

.

Even were this court to consider certain docum ents from the record under the m odified categorical ap p roach, my conclusion rem ains unchanged. There is no indication from

4 California Rules o f Court 8.1115 restricts citation of unpublished op inions in California courts. However, t he unpublished cases in t h is dissent are not cited as precedent but rather as exam ples of what conduct California prosecutes under CPC § 470a

. S e e Vizcarra-Ayala
, 514 F.3d at 876 n.3.E S C O B AR S A N T O S V

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the adm inistrative record, and the governm ent does not

c o n t e n d o th e rw i s e , tha t E s c o b a r ’ s c o n v i c t i o n wa s indisputably f

or forgery—as opposed t o non-forgery— conduct.

I would grant Escob a r’ s petition for review and rem and to the BIA to consider h is appeal with the understanding that his conviction un d e r CPC § 470a w as not an aggravated felony.