FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


MARIA JAUREGUI-CARDENAS,                           No. 16-71309
                      Petitioner,
                                                   Agency No.
                     v.                           A205-320-208

WILLIAM P. BARR, Attorney General,                   OPINION
                        Respondent.

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

         Argued and Submitted November 15, 2019
                   Pasadena, California

                     Filed January 13, 2020

  Before: Marsha S. Berzon and Paul J. Watford, Circuit
     Judges, and Robert H. Whaley, * District Judge.

                  Opinion by Judge Whaley;
                 Concurrence by Judge Berzon




     *
       The Honorable Robert H. Whaley, United States District Judge for
the Eastern District of Washington, sitting by designation.
2                JAUREGUI-CARDENAS V. BARR

                          SUMMARY **


                           Immigration

    The panel granted Maria Jauregui-Cardenas’ petition for
review of a decision of the Board of Immigration Appeals
concluding that she was ineligible for cancellation of
removal due to her conviction for using false documents to
conceal citizenship, in violation of California Penal Code
(“CPC”) § 114, and reversed and remanded, holding that
CPC § 114 is neither an aggravated felony under 8 U.S.C.
§ 1101(43)(P) nor a crime involving moral turpitude.

   The panel observed that the necessary elements for
conviction under CPC § 114 are: (1) the use; (2) of a false
document; (3) to conceal citizenship or alien status; (4) with
specific intent.

    The panel held that CPC § 114 is not an aggravated
felony under 8 U.S.C. § 1101(43)(P). The definition of an
aggravated felony set out in § 1101(43)(P) incorporates an
offense described in 18 U.S.C. § 1546(a), which, as relevant
here, provides that “[w]hoever . . . uses . . . any such visa,
permit, border crossing card, alien registration card, or other
document prescribed by statute or regulation for entry into
or as evidence of authorized stay or employment in the
United States, knowing it to be . . . falsely made” shall be
punished by law. The panel concluded that CPC § 114 is not
a match to 18 U.S.C. § 1546(a), explaining that, in contrast
to the elements of the state statute, which allow for the use


    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
               JAUREGUI-CARDENAS V. BARR                      3

of any false document, the federal offense narrowly
proscribes the use of specific, enumerated documents.

    The panel also concluded CPC § 114 is not divisible,
noting that there are no subsections or separate elements
expressed in the statute that could be independently proven.
Thus, the panel concluded that the application of the
modified categorical approach would be improper,
explaining that the inquiry ends here with the state statute of
conviction being broader than its federal counterpart and
thus, not a match for an aggravated felony.

    The panel further held that CPC § 114 is not a CIMT. In
so concluding, the panel observed that this court has defined
a CIMT as an offense involving either fraud or base, vile,
and depraved conduct that shocks the public conscience, and
that a state conviction qualifies as a fraudulent CIMT when
the intent to defraud is explicit in the statutory definition of
the crime or implicit in the nature of the crime. Looking to
CPC § 114, the panel noted that a violation occurs when a
person has specific intent to use any false document to
conceal his or her citizenship for any reason, and therefore,
intent to defraud is not explicit in the definition.

    Considering whether the crime is inherently fraudulent,
the panel observed that this court has held that intent to
defraud is implicit in the nature of the crime when the
individual makes false statements in order to procure
something of value, either monetary or non-monetary. Here,
the panel explained that CPC § 114 does not require that
there be any specific benefit to any specific person—it
permits conviction simply for the use of a document to show
another that the holder is a legal resident, even where that
representation does not incur any benefit to the defendant.
Accordingly, the panel held that because CPC § 114 does not
4              JAUREGUI-CARDENAS V. BARR

require fraudulent intent, it is overbroad, and therefore, not
categorically a CIMT.

    Concurring, Judge Berzon wrote that she concurred in
the majority opinion in full, but wrote separately to reiterate
her view that the phrase, “crime involving moral turpitude”
is unconstitutionally vague. Observing that persistent efforts
have failed to establish a standard of what a crime involving
moral turpitude is, Judge Berzon wrote that it is time to
revisit whether this phrase is unconstitutionally vague.


                         COUNSEL

Richard Flores Lemus (argued), Law Offices of Richard F.
Lemus, Fullerton, California, for Petitioner.

Yanal H. Yousef (argued), Trial Attorney, Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.


                         OPINION

WHALEY, District Judge:

    Maria Jauregui-Cardenas petitions for review of a final
order of removal, arguing the Board of Immigration Appeals
(“BIA”) erred in holding that she is an inadmissible alien
who is not eligible for discretionary relief. The BIA
concluded Jauregui-Cardenas is ineligible for cancellation of
removal because her conviction for using false documents to
conceal citizenship, in violation of California Penal Code
(“CPC”) § 114, categorically qualifies as an aggravated
felony and alternatively, a crime involving moral turpitude
                JAUREGUI-CARDENAS V. BARR                          5

(“CIMT”). Because the BIA erred in concluding that a
conviction under CPC § 114 qualifies as an aggravated
felony and a CIMT, we grant Jauregui-Cardenas’ petition
and remand for further consideration. 1

  FACTUAL AND PROCEDURAL BACKGROUND

    Jauregui-Cardenas, a native of Mexico, has been living
in the United States since 1992. In July 2013, Jauregui-
Cardenas was convicted of using a false document to conceal
citizenship, in violation of CPC § 114, and was sentenced to
five years’ imprisonment. Shortly thereafter, the Department
of Homeland Security issued Jauregui-Cardenas a Notice to
Appear and initiated removal proceedings against her.
Jauregui-Cardenas sought relief from removal in the form of
an application for cancellation of removal, pursuant to
8 U.S.C. § 1229b(b).

    An immigration judge (“IJ”) concluded that Jauregui-
Cardenas was statutorily ineligible for cancellation of
removal because her state conviction was categorically an
aggravated felony pursuant to the Immigration and
Nationality Act (“INA”), § 1101(a)(43)(P). The IJ issued a
written decision denying Jauregui-Cardenas’ request for
relief and ordering that she be removed from the United
States.

    On appeal, the BIA affirmed the IJ’s determination that
Jauregui-Cardenas’ conviction under CPC § 114 constitutes
a categorical aggravated felony. The BIA further concluded,
sua sponte, that the statute of conviction also qualifies as a

    1
       Because we hold that Jauregui-Cardenas’ conviction under CPC
§ 114 is not an aggravated felony or a CIMT that would bar her from
cancellation of removal, we need not and do not reach the continuance
issue in this matter.
6             JAUREGUI-CARDENAS V. BARR

categorical CIMT because it requires the use of a false
document. Jauregui-Cardenas was declared ineligible for
cancellation of removal and her appeal was dismissed. She
now timely petitions for review.

   Whether a conviction under CPC § 114 constitutes an
aggravated felony or a CIMT for immigration purposes are
novel issues before this court.

               STANDARD OF REVIEW

    This Court has jurisdiction to review final orders of
removal. See Galindo-Romero v. Holder, 

, 877
(9th Cir. 2011). The proper standard for reviewing
immigration proceedings depends on the nature of the
decision being reviewed. Viridiana v. Holder, 

, 1233 (9th Cir. 2011). We review questions of law de
novo, including whether a state statutory crime qualifies as
an aggravated felony or a CIMT. See Roman-Suaste v.
Holder, 

, 1038 (9th Cir. 2014); see also
Cuevas-Gasper v. Gonzales, 

, 1017 (9th Cir.
2005), abrogated in other part by Holder v. Martinez
Gutierrez, 

(2011). Where, as here, the BIA
“has reviewed the IJ’s decision and incorporated portions of
it as its own, we treat the incorporated parts of the IJ’s
decision as the BIA’s.” Monlina-Estrada v. INS, 

, 1093 (9th Cir. 2002). When concluding that a
particular crime constitutes a predicate offense, if the BIA
does not issue or rely on a published opinion we defer to its
conclusion only to the extent that it has the “power to
persuade.” See Nunez v. Holder, 

, 1129 (9th
Cir. 2010), superseded in other part by rule as recognized in
Betansos v. Barr, 

(9th Cir. 2019) (internal
citation and quotation marks omitted).
               JAUREGUI-CARDENAS V. BARR                       7

                   LEGAL STANDARD

    Pursuant to the INA, certain noncitizens who are
convicted of a predicate state offense are removable.
8 U.S.C. § 1227(a). In determining whether a conviction
constitutes a disqualifying offense, such as an aggravated
felony or a CIMT, courts apply the multi-step categorical
approach set forth in Taylor v. United States, 

,
599–602 (1990). See Hernandez-Cruz v. Holder, 

, 1100 (9th Cir. 2011). A state offense categorically
qualifies as an aggravated felony or a CIMT when its
elements, without any consideration of the facts underlying
the individual case, are fully encompassed by the generic
federal offense. Moncrieffe v. Holder, 

, 191
(2013). Thus, the first step of this approach is identifying the
elements of the statute of conviction.

    The second step involves comparing the elements of the
statute of conviction to the generic federal definition to
determine whether the statute of conviction is broader than
the federal definition. See Ceron v. Holder, 

,
778 (9th Cir. 2014) (en banc). A state statute is overbroad if
“there is a ‘realistic probability’ of its application to conduct
that falls beyond the scope of the generic federal offense.”
Castrijon-Garcia v. Holder, 

, 1212 (9th Cir.
2013) (quoting 

).

    If the statute is overbroad, the third step requires
determining whether the statute is divisible, thus warranting
application of the modified categorical approach. See
Descamps v. United States, 

, 263–65 (2013).
Under Descamps, a divisible statute is one that “sets out one
or more elements of the offense in the alternative—for
example, stating that burglary involves entry into a building
or an automobile.” 

When a statute is indivisible,
8                  JAUREGUI-CARDENAS V. BARR

the inquiry ends and the overbroad statute cannot be used as
a predicate offense. 

                                    I

    At issue on review is whether a conviction for a violation
of CPC § 114 constitutes a predicate offense rendering
Jauregui-Cardenas ineligible for discretionary relief from
removal. Thus, our inquiry centers around the statutory
language of CPC § 114, which provides as follows:

          Any person who uses false documents to
          conceal his or her true citizenship or resident
          alien status is guilty of a felony, and shall be
          punished by imprisonment pursuant to
          subdivision (h) of Section 1170 for five years
          or by a fine of twenty-five thousand dollars
          ($25,000).

    In determining whether the California statute
categorically qualifies as an aggravated felony, we employ
the steps of the categorical approach. 

at pp. 7–8.
Based on the above, the necessary elements for conviction
under CPC § 114 are: (1) the use; (2) of a false document;
(3) to conceal citizenship or alien status; (4) with specific
intent. Having identified the elements of the statute of
conviction, we then compare these elements with the
relevant federal definition of an aggravated felony. 2
18 U.S.C. § 1546(a) provides:


    2
        INA Section 1101provides, in relevant part:

          (43) The term “aggravated felony” means—
                JAUREGUI-CARDENAS V. BARR                          9

       Whoever . . . utters, uses, attempts to use,
       possesses, obtains, accepts, or receives any
       such visa, permit, border crossing card, alien
       registration receipt card, or other document
       prescribed by statute or regulation for entry
       into or as evidence of authorized stay or
       employment in the United States, knowing it
       to be forged, counterfeited, altered, or falsely
       made, or to have been procured by means of
       any false claim or statement, or to have been
       otherwise procured by fraud or unlawfully
       obtained [shall be punished according to
       law].

    In contrast to the elements in the state statute, which
allow for the use of any false document, the federal offense
narrowly proscribes only the use of the specific documents
enumerated in § 1546(a). Thus, the California statute cannot
be a match to the federal offense because it includes
documents, such as fake drivers’ licenses, that are not
enumerated in the description of the federal crime. See
United States v. Wei Lin, 

, 1084 (9th Cir.
2013) (the fraudulent use of a driver’s license did not
establish a violation of 18 U.S.C. § 1546(a) because it is not
the type of document enumerated in the statute); People v.
Galvan, 

, at *1 (Cal. Ct. App. 2008)
(defendant pleaded no contest to a CPC § 114 charge after



       (P) an offense (i) which either is falsely making,
       forging, counterfeiting, mutilating, or altering a
       passport or instrument in violation of section 1543 of
       title 18 or is described in section 1546(a) of such title
       (relating to document fraud) and (ii) for which the term
       of imprisonment is at least 12 months.
10               JAUREGUI-CARDENAS V. BARR

admitting to obtaining “a fake DMV identification card in
order to work”). The California statute is overbroad.

    Further, the California statute is not divisible, as there are
no subsections or separate elements expressed in the statute
that could be independently proven. As such, application of
the modified categorical approach would be improper. The
inquiry ends with the state statute of conviction being
broader than its federal counterpart and thus, not a match.
Accordingly, we hold that CPC § 114 does not constitute an
aggravated felony for purposes of eligibility for cancellation
of removal.

                                  II

    In the alternative, the BIA concluded that a state
conviction under CPC § 114 constitutes a CIMT. We
disagree. 3 In reaching our conclusion we again employ the
categorical approach. 

at pp. 7–8.

    Having already determined the necessary elements for
the statute of conviction, we begin by comparing these
elements with the federal definition of a CIMT. Although the
INA instructs that certain noncitizens who are convicted of
a CIMT may not receive cancellation of removal pursuant to
8 U.S.C. § 1229b(b)(1)(C), the INA does not provide a
definition for the term “crime involving moral turpitude.” In
the absence of a statutory definition, this court has defined a
CIMT as an offense involving “either fraud or base, vile, and
depraved conduct that shocks the public conscience.” 

(brackets and internal quotation marks
     3
      In addition to arguing that CPC § 114 is not a CIMT under the
categorical approach, Jauregui-Cardenas asserts that she was denied her
due process right to be heard because that issue was never argued before
the BIA or IJ. As we hold that CPC § 114 does not constitute a CIMT,
we do not reach Jauregui-Cardenas’ due process argument.
                JAUREGUI-CARDENAS V. BARR                        11

omitted). As relevant here, a state conviction qualifies as a
fraudulent CIMT when the intent to defraud is explicit in the
statutory definition of the crime or implicit in the nature of
the crime. Blanco v. Mukasey, 

, 719 (9th Cir.
2008).

    Looking first to the state statute, the text of CPC § 114
provides that a violation of the statute occurs when a person
has specific intent to use any false document to conceal his
or her citizenship for any reason. Intent to defraud is
therefore not explicit in the statutory definition of the crime.
Turning to whether the crime is inherently fraudulent, this
court has held that “intent to defraud is implicit in the nature
of the crime when the individual makes false statements in
order to procure something of value, either monetary or non-
monetary.” 

. However, where the
purpose of deception is to obtain an intangible government
benefit, there is no CIMT. 

the only
‘benefit’ the individual obtains is to impede the enforcement
of the law, the crime does not involve moral turpitude.” See
Latu v. Mukasey, 

, 1074 (9th Cir. 2008)
(citation omitted).

    CPC § 114 does not require that there be any specific
benefit to any specific person—it permits conviction simply
for the use of a document to show another that the holder is
a legal resident, even where that representation does not
incur any benefit to the defendant. Thus, on its face, the
California statute is overbroad. On that basis alone, it fails to
qualify as a match with its federal counterpart and our
inquiry is over. 4 As such, we hold that because CPC § 114



   4
      As previously noted, CPC § 114 is not divisible and thus, the
modified categorical approach is not applicable. 

at p. 10.
12             JAUREGUI-CARDENAS V. BARR

does not require fraudulent intent, it is not categorically a
crime involving moral turpitude.

                       CONCLUSION

    A conviction under CPC § 114 it is not an aggravated
felony or a crime involving moral turpitude under the INA.
Thus, the BIA erred in holding that Jauregui-Cardenas’ state
conviction precludes her from consideration for cancellation
of removal.

   Accordingly, the petition for review is GRANTED, the
BIA’s decision is REVERSED, and the matter is
REMANDED to the agency for further proceedings
consistent with this opinion.



BERZON, Circuit Judge, concurring:

    I concur in the majority opinion in full. I write separately
to reiterate my view that the phrase “crime involving moral
turpitude” is unconstitutionally vague. See Barbosa v. Barr,

, 1060–61 (9th Cir. 2019) (Berzon, J.,
concurring). The majority opinion provides yet another
example of our “failed enterprise” to consistently determine
whether a crime involves moral turpitude when there is no
“coherent criteria” as to what that phrase encompasses.
Islas-Veloz v. Whitaker, 

, 1258–61 (9th Cir.
2019) (Fletcher, J., concurring). As “persistent efforts” have
failed “to establish a standard” of what a “crime involving
moral turpitude” is, it is time to revisit whether this phrase is
unconstitutionally vague. See Johnson v. United States, —
U.S. —, 

, 2558 (2015) (internal citation and
quotation marks omitted).