NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 29 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MALCOLM ALARMO ADDY, AKA                        No.    11-73315
Malcolm Alarmo King,
                                                Agency No. A092-578-405
                Petitioner,

 v.                                             MEMORANDUM*
                                                   and
JEFFERSON B. SESSIONS III, Attorney               ORDER
General,

                Respondent.

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

                               Submitted June 7, 2017**
                                 Pasadena, California

Before: GRABER and MURGUIA, Circuit Judges, and BOLTON,*** District
Judge.

      Petitioner Malcolm Alarmo Addy seeks review of the Board of Immigration



      *
             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 Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
Appeals’ (“BIA”) dismissal of his appeal from an immigration judge’s (“IJ”) order

finding Petitioner removable because his 1999 conviction under California Penal

Code (“Cal. P.C.”) § 470 constitutes an aggravated felony. Petitioner argues that

we should grant his petition because his conviction under Cal. P.C. § 470 is not

categorically an aggravated felony. He requests in the alternative that we remand

his case to the BIA to allow him to request a continuance to apply for an

adjustment in status based on his son’s status as a United States citizen. Reviewing

de novo whether Petitioner’s conviction under Cal. P.C. § 470 constitutes an

aggravated felony, Mandujano-Real v. Mukasey, 

, 588 (9th Cir.

2008), we deny the petition in part. Because we lack jurisdiction to review issues

that were not raised before the IJ or BIA, we dismiss the petition in part. 8 U.S.C.

§ 1252(d)(1).

      1. The Immigration and Nationality Act (“INA”) provides that “an offense

relating to . . . forgery . . . for which the term of imprisonment is at least one year”

is an aggravated felony. 8 U.S.C. § 1101(a)(43)(R). We use the categorical

approach to determine whether Petitioner’s state statute of conviction categorically

fits within the federal generic definition of forgery. Lopez-Valencia v. Lynch, 

, 867 (9th Cir. 2015). California state forgery matches federal forgery if

the conviction “necessarily involved facts equating to the generic federal offense.”

Moncrieffe v. Holder, 

, 1684 (2013) (alterations omitted) (quoting


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Shepard v. United States, 

, 24 (2005) (plurality)). Additionally, the

phrase “relating to” in § 1101(a)(43)(R) broadens the definition of an aggravated

felony under the INA and “necessarily covers a range of activities beyond those of

counterfeiting or forgery itself.” Albillo-Figueroa v. INS, 

, 1073 (9th

Cir. 2000). The generic federal offense of forgery consists of “(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, 

,

874 (9th Cir. 2008) (internal quotation marks omitted). California state courts have

traditionally held that, to be convicted under Cal. P.C. § 470, one must forge an

instrument with intent to defraud, or use a forged instrument with the intent to

defraud. See, e.g., People v. Luizzi, 

, 846 (Ct. App. 1960); People

v. Sutherland, 

, 761 (Ct. App. 1993); see also Albertson v.

Millard, 

, 244 (1953) (per curiam) (“The construction given to a state

statute by the state courts is binding upon federal courts.”). Both the federal and

state crimes require a fraudulent intent and a false instrument designed to defraud,

and the making of a forged instrument squarely aligns with the federal generic

definition. The use of a forged instrument is also clearly related to forgery because

it is an activity “ancillary to the core offense” of forgery. 

. Therefore, a conviction under Cal. P.C. § 470 is categorically a crime

“relating to . . . forgery” and an aggravated felony under the INA.


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      2. Petitioner’s 32-month prison sentence for his conviction under Cal. P.C.

§ 470 satisfies the “at least one year” imprisonment requirement of 8 U.S.C.

§ 1101(a)(43)(R). See Alberto-Gonzalez v. INS, 

, 909–10 (9th Cir.

2000) (holding that we should consider the actual sentence imposed by the trial

judge to determine whether the term of imprisonment was longer than a year).

Because Petitioner’s sentence was greater than one year, the BIA properly

concluded that his conviction was for an aggravated felony.

      3. We reject Petitioner’s argument that he should have been charged with

removability under a different statute. The Attorney General has prosecutorial

discretion over the initiation of removal proceedings, and that discretion is not

reviewable. Cortez-Felipe v. INS, 

, 1057 (9th Cir. 2001).

      4. We also reject Petitioner’s argument that it violates Congress’ intent to

remove persons for an offense resulting in a loss of less than $10,000. Congress

expressed its intent regarding the types of crimes that should be considered

aggravated felonies through the text of the INA, and Petitioner’s conviction under

Cal. P.C. § 470 meets the definition of an aggravated felony in 8 U.S.C.

§ 1101(a)(43)(R).

      5. We lack jurisdiction to remand Petitioner’s case to allow him time to file

for an adjustment of status based on his son’s status because he did not raise the

issue before the IJ or BIA. See 8 U.S.C. § 1252(d)(1) (providing that we may


                                          4
review a final order of removal only if an alien has exhausted all available

administrative remedies). Therefore, we deny Petitioner’s motion to take judicial

notice of his approved visa petition and other documents relating to his request for

remand and dismiss this portion of Petitioner’s appeal.

      Petition is DENIED in part and DISMISSED in part. Motion for

judicial notice is DENIED.




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