C ite as 27 I&N Dec. 4 70 (BIA 2018 ) Interim Decision #393 9

470 

### Matter of Eduardo VELASQUEZ

- RIOS

, Respondent

Decided October 4, 2018

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration A ppeals

The amendment to s ection 18 .5 of the California Penal Code , which retroactively lowered the maximum possible sentence that could have been imposed for an alien’s

State offense from 365 days to 364 days , does not affect the applicability of section 237(a)(2)(A)(i)(II) o f the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i)(II) (2012), to a past conviction for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed.”

FOR RESPONDENT: Richard Benavidez, Esquire

F OR THE DEPARTMENT OF HOMELAND SECURITY: Hye Chon, Assistant Chief

Counsel

BEFORE: Board Panel: GUENDELSBERGER, MALPHRUS, and LIEBOWITZ

, Board

Member s

.

GUENDELSBERGER , Board Member:

In a decision dated December 11, 2014, an Immigration Judge found the respondent removable on his own admissions under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as an alien present in the United St ates without being admitted or paroled, denied his application for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012), and ordered him removed. On April 25 , 2016, w e dismissed the respondent’s appeal from that dec ision.

This case is now before us on remand from the United States Court of Appeals for the Ninth Circuit for further consideration of the respondent’s eligibility for cancellation of removal. The appeal will again be dismissed. The respondent is a nativ e and citizen of Mexico who entered the United States without inspection at an unknown time and place

. On July 22, 2003

, he was convicted of possession of a forged instrument in violation of section 475(a) of the California Penal Code

. 1 Although the resp ondent was only sentenced to 12 days of incarceration , t he Immigration Judge found that his

1 T he respondent was also convicted of burglary in violation of California law , but in light of our disposition in this case, we need not address the immigration consequences of

th at conviction.C ite as 27 I&N Dec. 4 70 (BIA 2018 ) Interim Decision #393 9

471 offense was a crime involving moral turpitude “for which a sentence of one year or longer may be imposed” under section 237(a)(2)(A)(i) of the Act,

8 U.S.C. § 1227(a)(2)(A)(i) (2012) , because the maximum possible sentence

for his crime at the time of his conviction was 365 days

. Since the respondent

h a d been convicted of an “offense under

. . . section 237(a)(2) ,” the Immigration Judge concluded that he is ineligible for cancellation of removal under section 240A(b)(1)(C)

. After the respondent appeal ed that decision , section 18.5 of the California

Penal Code was enacted

, effective January 1, 2015 , to provide :

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days

.

( E mphasis added

. ) 2 No twithstanding that change in the law , we concluded

that the respondent had been convicted of an “ offense under” section 237(a)(2)(A)(i) of the Act because , at the time of his conviction, the maximum possible sentence for his c rime was 1 year. We noted th at section

18.5 did not become effective until after he had been convicted and that nothing indicated th e provision had retroactive effect. We therefore dismissed his appeal

. While t he respondent ’s petition for review of our decision was pending,

the California L egislature amended section 18.5 to “apply retroactively ” to all convictions, “ whether or not the case was final before January 1, 2015. ” Cal. Penal Code § 18.5 (a) (West 201 8 ) (effective January 1, 2017). 3 T he

Government file d a motion requesting that the case be remanded to allow us to consider the impact of this p rovision on the respondent’s eligibility for cancellation of removal. The court granted th e unopposed motion. An applicant for cancellation of removal under section 240A(b)(1) must
demonstrate that he or she has not been “convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3).” Section 240A(b)(1)(C) of the
Act; see also 8 C.F.R. § 1240.8(d) (2018). The respondent’s forgery offense

2 Section 18.5 was enacted to “align[] the definition of misdemeanor between state and

federal law” and to ensure that aliens “who committed low level and non

- violent crimes [would not be] subject to deportation.” Office of S. Floor Analys e s, Cal. Legis. Info.,

SB 1242 , at 2 (Aug. 1 9, 2016), https://leginfo.legislature.ca.gov/faces/billAnalysisClient

.xhtml?bill _id=201520160SB 1242#

. This provision is necessarily limited to California
convictions and does not affect crimes committed in other States, even if the convicted

alien resides in California.

3 S e ction 18.5 (b) provides for a sentence reduction from 365 days to 364 days

. However

, because the respondent was sentenced to 12 days in jail, this aspect of section 18.5 is not

before us

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472 is clearl y a “ crime involving moral turpitude ” within the meaning of

sectio n 237(a)(2)(A)(i) (I) because it necessarily involved the “specific intent

to defraud another.” Cal. Jury Instr.

— Crim. (“CALJIC”) 15.07 (Sept. 2018);

see also Jordan v. De George , 341 U.S. 223, 228 (1951) (“[C]rimes involving fraud have universally been held to involve moral turpitude.”). 4

Th erefore , the sole issue before us is whether , in light of section 18.5 of the California Penal Code, the respondent’s forgery offense remains “a c rime for which a sentence of one year or longer may be imposed” within the meaning of section 237(a)(2)(A)(i)( I I) of the Act. 5 For the following reasons, we conclude that it does and that his conviction renders him ineligible for cancellation of removal under section 240A(b)(1)(C)

. A lthough we recognize that section 18.5 may have retroactively modified the maximum possible sentence for the respondent’s forgery offense for purposes of State law

, it does not affect the immigration consequences of his

conviction under section 237(a)(2)(A)(i)(II) of the Act , a Federal law

. By its plain terms, th at provision is concerned with whether an alien h as been

convicted of a crime involving moral turpitude for which a sentence of 1 year or longer “ may be imposed .” (Emphas i s added.) In other words, it calls for

a backward

- looking inquiry into the maximum possible sentence the alien

could have received for his offense at the time of his conviction

. See

, e.g.
, Matter of Cortez , 25 I&N Dec. 301, 311 (BIA 2010) (concluding that an

alien had been convicted of an offense under section 237(a)(2)(A)(i)

because she was convicted of “a crime involving moral turpitude for which

she could have been sentenced to a year in county jail” (emphasis added)). 6

4 Because the respondent’s crime qualifies for the petty offense exception u n der section 212(a)(2)(A)(ii)(II) of th e Act, he has not been con vict ed of a crime involving moral turpitude under section 212(a)(2)(A)(i)(I). See Matter of Ortega

- Lopez , 27 I&N Dec. 382, 384 n.5 (BIA 2018).

5 For s ection 237(a)(2)(A)(i)(I) of the Act to be applicable, a crime involving moral turpitude must also be “ committed within five years . . . after the date of admission .” T he respondent h as mad e no argument that because he committed forgery more than 5 years
after he entered the United States, his crime is not an “offense u n der” th at section

. In any

event , s uch a contention is foreclosed by our decision in Matter of Ortega

- Lopez

, 27 I&N

Dec. at 398 (concluding that “the temporal ‘admission’ requirement[]” of section 237(a)(2)(A)(i)(I) is inapplicable to “determining whether section 240A(b)(1)(C) of the

Act o perates to disqualify an applicant for cancellation of removal by virtue of an ‘offense under’ section[] 237(a)(2)”).

6 We recognize that certain California crimes may

, as a matter of discretion, be punished as a felony or a misdemeanor

, for which there are different maximum possible sentence s

. See Ewing v. California , 53 8 U.S. 11, 16

– 17 (2003) (describing so

- called “wobbler” statutes). However, the maximum sentence a defendant could have received at the time of conviction is clear from looking at the sentencing scheme as a whole, even if the offense

is treated as a misdemeanor. Ceron v. Holder , 747 F.3d 773, 777 (9th Cir. 2014) (en banc).C ite as 27 I&N Dec. 4 70 (BIA 2018 ) Interim Decision #393 9

473 We therefore hold that t he amendment to section 18.5 of the California Penal Code, which retroactively lowered the maximum possible sentence that could have been imposed for an alien’s State offense from 365 days t o 364 days, does not affect the applicability of section 237(a)(2)(A)(i)(II) of the Act to a past conviction for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed.” 7 We find support for our holding in Federal court precedent. Like the respondent , t he defendant i n United States v. Diaz , 838 F.3d 968 (9th Cir. 2016), cert. denied sub nom. Vasquez v. United States , 137 S. Ct. 840 (2017), had one of his crimes retroactively reclassified as a misdemeanor pursuant to intervening California legislation. Because one of his two State felony drug offenses was now a misdemeanor under State law, he argued

that he was no longer subject to 21 U.S.C. § 841(b)(1)(A) (2006), which

enha nced sentences for defendants convicted of a Federal offense following

the commission of two or more State drug felonies. The court rejected this

argument , noting that “ federal law

, not California law

, ” must be used “ to
determine the effect of California ’s reclassification on [the defendant’s] federal sentence enhancement . . . .” Id. at 972 (emphases added).

As the Ninth Circuit explained , the only thing that mattered under Federal

law was whether the defendant had been convicted of two or more State

f

elony drug offenses prior to his Federal offense

. T he fact that California decided to retroactively reclassify one of his State felonies as a misdemeanor did not change “the historical fact that, for purposes of § 841 , the defendant

had been convicted of the felony in the past.” Id. at 973 (emphasis added)

. Th us

, the State actions had “no bearing on whether § 841’s requirements
[w ere ] satisfied

. ” Id. at 972. Thi s was so “even if Californi a decide d to give
[ its new law ] retroactive effect for purposes of its own state law,” because

, according to the court, that decision “ would not retroactively make [the defendant’s] felony conviction a misdemeanor for purposes of federal law.”

Id. at 975. In reaching its conclusion, the court relied on the Supreme Court ’s

decision in McNeill v. United States , 563 U.S. 816 (2011) , which rejected a similar argument. In that case, the defendant asserted that he had not been convicted of

“a serious drug offense” for purpo ses of enhancing his sentence under

18 U.S.C. § 924 (e) (2)(A)(ii) (2006) because he had not been convicted of a

State crime “for which a maximum term of imprisonment of ten years or more is prescribed by law.” Although the defendant had been convicted in the early 1990s of a North Carolina drug offense for which the maximum

7 This holding is consistent with the long

- standing practice of examin ing the statute of

conviction and applicable penalty that existed under the law in effect at the time the

conviction was entered. See, e.g.

, Matter of Esfandiary , 16 I&N Dec. 659, 660 (BIA 1979); Matter of A

- , 4 I&N Dec. 378, 381 (C

. O

. 1951).C ite as 27 I&N Dec. 4 70 (BIA 2018 ) Interim Decision #393 9

474 penalty was at least 10 years, he argued that this crime no longer qualified as a “serious drug offense” under Federal law because North Carolina reduced

the maximum sentence for his St ate offense to less than 10 years in 1994

. The Court disagreed, holding that North Carolina’s changes to its law regarding the defendant’s State conviction had no effect on his Federal

sentence. The Court explained that the plain language of § 924(e)(2)(A)(ii) requires

a F ederal sentencing court to determine “the maximum sentence applicable to a defendant’s previous drug offense at the time of his conviction for that offense

. . . . The only way to answer this backward

- looking question is to

cons ult the law that applied at the time of that conviction

. ” Id. at 820 (emphases added). The C ourt concluded that this “natural reading of [§ 924(e)(2)(A)(ii)] . . . avoids the absurd results that would follow from consulting current state law to define a previous offense.” Id. at 822. 8

T he logic embodied in McNeill and Diaz applies with equal force to this

case. We must use Federal law , rather than State law , to determine the immigration consequences of the respondent’s California conviction. See

Diaz , 838 F.3d at 972 (“Federal law, not state law, governs our interpretation of federal statutes.”). S ection 237(a)(2)(A)(i)(II), like the Federal sentencing provisions at issue in McNeill and Diaz , requires a backward

- looking inquiry into the maximum possi ble sentence the respondent could have received for his forgery offense at the time of his conviction

. 9

T he respondent’s conviction for his forgery offense was entered in 2003

, prior to the effective date of section 18.5 of the California Penal Code

. A t
that time

, t he maximum possible sentence for the crime was 365 days

. Because we look to the maximum possible sentence h e could have received

for his offense at the time of his conviction

, section 18.5 does not affect the applicability of section 237(a) (2)(A)(i)(II) of the Act to his forgery offense

. Consequently, we conclude that t he respondent’s offense remains “a crime

for which a sentence of one year or longer may be imposed ” and that his

conviction renders him ineligible for cancellation of removal under section 240A(b)(1)(C) . Accordingly, the respondent’s appeal will be dismissed. 

### ORDER: The appeal is dismissed.

8 The Court declined to address whether a Fe deral sentencing court could consider “a situation in which a State subsequently lowers the maximum penalty applicable to an offense and makes that reduction available to defendants previously convicted and

sentenced for that offense.” McNeill , 563 U.S. a t 825 n.1.

9 In this regard, section 237(a)(2)(A)(i)(II) differs from other provisions of the Act that require us to consider the actual sentence imposed, necessitating a fact

- based inquiry into a State court judge’s specific sentence or into subsequent mo difications to that sentence.

See , e.g.
, section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012); Matter of

Cota , 23 I&N Dec. 849, 852 (BIA 2005).