Hope Ayiyi v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2022
• Docket: 19-72766
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HOPE AYIYI, AKA Hope Egaranna, AKA No. 19-72766 Hope Eguakum Ayiyi, AKA Hope Eguakun Ayiya, AKA Hope Eguakun Ayiyi, AKA Agency No. A024-937-911 Tracy Green, AKA Michael Greenwood, AKA Bob Jones, AKA Hope Mitchell, AKA Charles Monday Ayiyi, AKA Monday Osas MEMORANDUM* Ayiyi, AKA Larry Parker, AKA Peter Toto,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted February 11, 2022 Phoenix, Arizona

Before: MURGUIA, Chief Judge, GRABER, Circuit Judge, and L. BURNS,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Larry A. Burns, United States District Judge for the Southern District of California, sitting by designation. Hope Ayiyi petitions for review of the Board of Immigration Appeals’

(“BIA”) ruling that Arizona’s forgery statute, Ariz. Rev. Stat. Ann. (“A.R.S.”) § 13-

2002(A), categorically “relates to” the federal definition of forgery, see 8 U.S.C.

§ 1101(a)(43)(R),1 and is therefore an aggravated felony under 8 U.S.C.

§ 1227(a)(2)(A)(iii). For the reasons set forth below, we grant the petition and

remand to the BIA.

Whether a crime is as an aggravated felony under the Immigration and

Nationality Act (“INA”) “is a question of law subject to de novo review.” Gomez

Fernandez v. Barr, 969 F.3d 1077, 1085 (9th Cir. 2020).

Under the categorical approach, we “compare the elements of the statute

forming the basis of the defendant’s conviction with the elements of the ‘generic’

crime—i.e., the offense as commonly understood.” Descamps v. United States, 570

U.S. 254, 257 (2013). “A state offense with the same or narrower elements as the

generic offense defined by federal law is a categorical match.” Gomez Fernandez,

969 F.3d at 1085. A state statute is overbroad, however, “if there is a realistic

probability of its application to conduct that falls beyond the scope of the generic

federal offense.” Id. at 1085–86 (quoting Jauregui-Cardenas v. Barr, 946 F.3d

1116, 1119 (9th Cir. 2020)).

1 Forgery is an aggravated felony under 8 U.S.C. § 1101(a)(43)(R), which includes any “offense relating to . . . forgery for which the term of imprisonment is at least one year.”

2 In accordance with this framework, we ascertain the generic definition of

“forgery” for comparison to A.R.S. § 13-2002(A).

“The essential elements of the common law crime of forgery are ‘(1) a false

making of some instrument in writing; (2) a fraudulent intent; [and] (3) an instrument

apparently capable of effecting a fraud.’” Vizcarra-Ayala v. Mukasey, 514 F.3d 870,

874 (9th Cir. 2008) (quoting Morales-Alegria v. Gonzalez, 449 F.3d 1051, 1055 (9th

Cir. 2006)).”

A.R.S. § 13-2002(A), on the other hand, provides that

[a] person commits forgery if, with intent to defraud, the person: 1. Falsely makes, completes or alters a written instrument; or 2. Knowingly possesses a forged instrument; or 3. Offers or presents, whether accepted or not, a forged instrument or one that contains false information.

A.R.S. § 13-2002(A)(1)–(3). Here, “[f]alsely mak[ing], complet[ing] or alter[ing] a

written instrument” and “knowingly possess[ing] a forged instrument” nearly mirror

common law forgery. See A.R.S. § 13-2002(A)(1)–(2). Subsection three is a closer

call because it criminalizes the offer or presentation of “a forged instrument or one

that contains false information.” A.R.S. § 13-2002(A)(3) (emphasis added). “False

information” is not specifically defined by Arizona’s forgery statute and, during oral

argument, the government conceded that subsection three as written is overbroad.

Given the ambiguity surrounding subsection three, we disagree with the

BIA’s unequivocal conclusion that A.R.S. § 13-2002 “defines a categorical

3 aggravated felony.” Instead, the BIA should analyze, at a minimum, “common-law

definitions, the generic sense in which the term is now used in the criminal codes of

most states, as well as other circuits’ analyses of the generic offense’” to ascertain

whether Arizona’s definition of forgery “relates to” the federal and thereby generic

definition of forgery. Vizcarra-Ayala, 514 F.3d at 874 (quoting Morales-Alegria,

449 F.3d at 1054).

If the BIA concludes that Arizona’s forgery statute is not a categorical match

because of subsection three, then the BIA should analyze whether Arizona’s forgery

statute is divisible under the modified categorical approach and, if so, whether

Petitioner’s conviction qualifies under that approach. Applying the modified

categorical approach is in large part a fact-intensive inquiry, see Pereida v.

Wilkinson, 141 S. Ct. 754, 764 (2021), which we cannot undertake in the first

instance because we lack general fact-finding authority, particularly when the

question before us is committed to agency determination in the first instance, see

SEC v. Chenery, 318 U.S. 80, 88 (1943).

PETITION GRANTED AND CASE REMANDED.