Claudette Schwarzmann v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 29, 2021
• Docket: 17-71551
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CLAUDETTE SCHWARZMANN, AKA No. 17-71551 Claudette Mannix, Agency No. A012-157-978 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 5, 2021** San Francisco, California

Before: WARDLAW and BERZON, Circuit Judges, and PREGERSON,*** District Judge.

Claudette Schwarzmann, a native and citizen of Canada, petitions for review

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation.

1 of a Board of Immigration Appeals (“BIA”) decision affirming the Immigration

Judge’s (“IJ”) order denying Schwarzmann’s motion to terminate removal

proceedings and upholding her removability for having been convicted of an

aggravated felony, specifically California Revenue and Taxation Code (“CRTC”)

§ 7152(a). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

In 2015, Schwarzmann pled guilty to one count of filing a false or fraudulent

tax return with intent to evade in violation of CRTC § 7152(a) and enhancements

under CRTC § 7153.5 for intentionally evading an amount in excess of $25,000

and California Penal Code (“CPC”) § 12022.6(a)(1) for a loss in excess of

$65,000. The sole issue on appeal is whether Schwarzmann’s conviction under

CRTC § 7152(a) constitutes an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(M)(i) as “an offense that involves fraud or deceit in which the loss

to the victim or victims exceeds $10,000,” rendering her subject to removal

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).1

“We review de novo the BIA’s determination of purely legal questions.”

Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018) (cleaned up).

To determine whether a state conviction qualifies as an aggravated felony, we

apply the “categorical approach” laid out in Taylor v. United States, 495 U.S. 575,

1 There is no dispute that Schwarzmann’s conviction meets the $10,000 threshold requirement under 8 U.S.C. § 1101(a)(43)(M)(i).

2 600–02 (1990) and Descamps v. United States, 570 U.S. 254, 257 (2013). Under

this framework, we first compare the elements of the state criminal conviction

against the “federal, generic crime” to determine if the state crime conviction “has

the same elements as, or is narrower than, the federal generic crime.” Rendon v.

Holder, 764 F.3d 1077, 1083 (9th Cir. 2014) (internal citation omitted). However,

when applying the categorical approach to 8 U.S.C. § 1101(a)(43)(M)(i), “no

identification of generic offense elements [is] necessary.” Shular v. United States,

140 S. Ct. 779, 783 (2020). Rather, “we simply ask[],” id., whether the elements

required for conviction “necessarily entail fraudulent or deceitful conduct,” id.

(quoting Kawashima v. Holder, 565 U.S. 478, 484 (2012)).

The BIA did not err in concluding that Schwarzmann’s conviction under

CRTC § 7152(a) categorically matches an offense involving fraud or deceit under

8 U.S.C. § 1101(a)(43)(M)(i). As the BIA explained, the elements of a crime

under CRTC § 7152(a) are (1) “that a person be required to file a return,” (2) “that

the filing be false or fraudulent,” and (3) “that the false or fraudulent filing be done

with the intent to defeat or evade a determination that taxes are due.” Although the

elements of CRTC § 7152(a) do not expressly require any showing of fraud or

deceit, “[t]he scope of [8 U.S.C. § 1101(a)(43)(M)(i)] is not limited to offenses that

include fraud or deceit as formal elements.” Kawashima, 565 U.S. at 483–84.

Even presuming that Schwarzmann’s conviction “rested upon nothing more than

3 the least of the acts criminalized,” Wang v. Rodriguez, 830 F.3d 958, 961 (9th Cir.

2016) (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)), CRTC

§ 7152(a) requires, at a minimum, that Schwarzmann filed an affirmatively false

return and that she did so with the intent to evade or defeat paying a tax owed.

Under the definition of deceit articulated in Kawashima, crimes evincing both

affirmative acts of falsification or misrepresentation and the requisite mens rea

involve deceit. Given the intent to evade or defeat requirement in § 7152(a),

Schwarzmann’s conviction plainly meets the Kawashima standard. 565 U.S. at

484. As the BIA correctly noted, the filing of a “false return with the intent of

evading or defeating a determination that taxes are due necessarily involves deceit

because it requires a knowing and intentional misrepresentation of a material fact.”

Thus, a conviction under CRTC § 7152(a) necessarily involves deceitful conduct

and therefore categorically matches “an offense that involves fraud or deceit”

under 8 U.S.C. § 1101(a)(43)(M)(i). Kawashima, 565 U.S. at 483–84.

Because we conclude Schwarzmann’s conviction under CRTC § 7152(a)

categorically matches an offense involving fraud or deceit under 8 U.S.C.

§ 1101(a)(43)(M)(i), we need not proceed to the remaining steps of the categorical

approach. See Myers v. Sessions, 904 F.3d 1101, 1107 (9th Cir. 2018).

DENIED.