Hernandez-Perez v. Gonzales

241 F. App'x 430

Opinions

MEMORANDUM

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Raquel Hernandez-Perez, a Mexican national, petitions for review of the Board of Immigration Appeals’ (BIA) order affirming the Immigration Judge’s (IJ) determination that because Hernandez-Perez was previously convicted of a crime involving moral turpitude, she is ineligible for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition.

Hernandez-Perez pled guilty in 2005 to violating Oregon Revised Statute § 165.022, criminal possession of a forged instrument in the first degree, which prohibits the possession of a forged instrument, including a public record such as the forged resident alien card, “knowing it to be forged and with intent to utter same.” Or.Rev.Stat. § 165.022; see id. § 165.013. We conclude that § 165.022 is not categorically a crime of moral turpitude, because the “intent to ... defraud” is not a necessary element of criminal possession of a forged instrument in the first degree. Rather, Oregon has explicitly provided that uttering a forged instrument “with intent to defraud” is punishable as forgery. Compare Or.Rev.Stat. § 165.022, with Or. Rev.Stat. §§ 165.007(1) (“A person commits the crime of forgery in the second degree if, with intent to injure or defraud, the person ... [ujtters a written instrument which the person knows to be forged.”), 165.013 (providing that a person commits the crime of forgery in the first degree by uttering a particular form of written instrument, including public records, which the person knows to be forged, with the intent to injure or defraud).

Given this facial distinction between criminal possession — the crime of conviction — and forgery, we cannot accept that an intent to defraud is categorically “implicit in the nature of the crime” charged under § 165.022. Winestock v. INS, 576 F.2d 234, 235 (9th Cir.1978). Had Hernandez-Perez actually uttered the forged resident alien card with intent to defraud, she presumably would have been charged under § 165.013. Moreover, one can certainly utter (i.e., use, as in “publish”) a forged document without intending to defraud someone. For example, when the bearer shows a forged resident alien card that is in all other respects truthful as to name, date of birth and current address to prove to a bartender that she is old enough to buy a drink legally, no intent to defraud has occurred. See Matter of Serna, 20 I. & N. Dec. 579, 586 (BIA 1992) (stating that mere possession of a counterfeit immigration document insufficient to constitute a crime of moral turpitude because “[c]ircumstances may exist under which the [petitioner] might not have had the intent to use the altered immigration document in his possession unlawfully”).

Therefore, absent judicially noticeable evidence that Hernandez-Perez intended to utter her forged resident alien card with the intent to defraud, her prior conviction does not qualify as a crime of moral turpitude. See Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.1962); see also Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir.2006) (citing Hirsch and stating that “this circuit’s precedent generally requires ‘willfulness’ or ‘evil intent’ in order for a crime to be classified as one involving moral turpitude”). Under the modified categorical approach, however, the government has not established that Hernandez-Perez pled guilty to a fraudulent use of her card, because the information she pled to simply tracked the language of § 165.022. We cannot discern from the record whether Hernandez-Perez intended to utter the card for the purpose of deceiving immigration officials, which would be a crime involving moral turpitude; or, for example, to prove to a bartender that she was born in 1969 and may lawfully drink alcohol, which would not.

PETITION GRANTED; REMANDED to the BIA for further proceedings.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.