New 9th Circuit case on fraud and removability

The Ninth Circuit has today filed a new opinion in the case of Planes v. Holder, holding that a conviction under California Penal Code section 476a(a)(passing a bad check with intent to defraud) is categorically a Crime Involving Moral Turpitude (CIMT) rendering an alien removable (deportable) from the United States. That is, it is sufficient for the Department of Homeland Security to merely submit evidence of a conviction, without going to the trouble of adding conviction records that could provide a context for the offense, in order to prove their case against the alien.

This was an interesting read for me because I have been arguing in a current case before the Immigration Court that my client's conviction under a similar fraud statute, albeit this one is for forgery under section 470(a), is not categorically a CIMT. Neither counsel for the Department of Homeland Security (DHS) nor I could find a case exactly on point, although I tried to argue that the Ninth Circuit has already found forgery not to categorically be a CIMT in Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 872 (9th Cir. 2008), a case involving a conviction for possession of a forged document under California Penal Code 475(c). In Vizcarra-Ayala, the Ninth Circuit looked at criminal court cases in California that involved section 475(c) and found one case where it was used to successfully prosecute a woman who tried to cash a fictitious check in the sincere belief that it was intended for her. Because of that sincere belief, the woman, though in possession of a forged document, could not by any conceivable means be considered to have acted in a manner “inherently base, vile, or depraved”, which is one of the murky definitions of a CIMT. Foolish, yes. A CIMT, no. As such, the Ninth Circuit found that Mr. Vizcarra-Ayala could not be found removable by virtue of a conviction under section 475(c) alone. Crucial in its conclusion was the fact that the Department of Homeland Security had not provided any conviction documents for Mr. Vizcarra-Ayala save for a bare abstract of judgment and as such, the Department had failed to provide any “indication of the context surrounding [the] offense” that could shed light on whether the respondent’s conduct could be qualified as inherently base, vile, or depraved. The Judge's decision in my client's case is still pendng at this point.

In today's opinion, Planes v. Holder, the Ninth Circuit, in a very short paragraph of a fourteen page decision, dismissed Mr. Planes' argument that his conviction for passing a bad check was not categorically a CIMT. The Ninth Circuit made a sweeping statement that all fraud crimes are categorically crimes involving moral turpitude, simply by virtue of their fraudulent nature, adding that this is a “clearly established rule” that has existed “since at least 1951”. Accordingly, none of the arguments advanced by Mr. Planes could disturb the "longstanding rule that crimes that have fraud as an element... are categorically crimes involving moral turpitude." This is so perplexing to me because, as I mentioned above, in the case of Vizcarra-Ayala, whose forgery conviction was under a section that also had fraud as an element, the Ninth Circuit found the opposite. So, in my humble opinion, there could be a contradiction here between precedents.

The full text of the opinion can be found here.