Daniel Avendano-Silva v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2019
• Docket: 15-70856
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 17 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL AVENDANO-SILVA; YESICA No. 15-70856 VILLANUEVA-MARTINEZ, Agency Nos. A200-864-979 Petitioners, A200-864-986

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 13, 2019** Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit Judges.

Petitioners Daniel Avendano-Silva and Yesica Villanueva-Martinez seek

review of the Board of Immigration Appeals’ (BIA) final order of removal. We

have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition.

* 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). After presenting fake permanent resident cards in the course of applying for

passports for their three children, the petitioners were convicted of three counts

under 18 U.S.C. § 1542, which criminalizes making false statements in support of

a passport application. The government initiated removal proceedings, and the

petitioners sought cancellation of removal, but both the Immigration Judge and the

BIA denied them that relief after concluding that violations of 18 U.S.C. § 1542

qualified as crimes of moral turpitude and therefore rendered the petitioners

ineligible for cancellation.1

We have previously indicated that the crime of making a false statement in a

passport application is a crime of moral turpitude. See Bisaillon v. Hogan, 257

F.2d 435, 437–38 (9th Cir. 1958). That decision, however, pre-dated the Supreme

Court’s delineation of the categorical and modified categorical approaches in

Taylor v. United States, 495 U.S. 575, 599–602 (1990) and subsequent cases. We

have since explained that “[t]o determine whether a conviction is for a crime

involving moral turpitude, we apply the categorical and modified categorical

approaches established by the Supreme Court.” Tall v. Mukasey, 517 F.3d 1115,

1 Because the parties are familiar with the underlying facts of this case, we recount them only briefly here. 2 1119 (9th Cir. 2008) (quoting Navarro–Lopez v. Gonzales, 503 F.3d 1063, 1067

(9th Cir. 2007) (en banc)).

Applying the categorical approach here, we agree that a conviction under 18

U.S.C. § 1542 constitutes a crime of moral turpitude. The elements of the crime of

making a false statement in a passport application plainly include fraud—e.g.,

making the false statement knowingly and willingly for the purpose of inducing the

government to rely on it and issue a passport. See 18 U.S.C. § 1542. And crimes

that involve fraud categorically qualify as crimes of moral turpitude. See

Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016) (“[F]raud crimes are

categorically crimes involving moral turpitude, simply by virtue of their fraudulent

nature.” (quoting Planes v. Holder, 652 F.3d 991, 997 (9th Cir. 2011))).

Accordingly, the petitioners are barred from seeking cancellation of removal

because they have been convicted of a crime of moral turpitude. 8 U.S.C. §

1229b(b)(1)(c).

PETITION DENIED.