Malcolm Alarmo Addy v. Jefferson Sessions , 696 F. App'x 801 ( 2017 )

NOT FOR PUBLICATION FILED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, 526 F.3d 585, 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, 798
F.3d 863, 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, 133 S. Ct. 1678, 1684 (2013) (alterations omitted) (quoting
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Shepard v. United States, 544 U.S. 13, 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, 221 F.3d 1070, 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, 514 F.3d 870,
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, 9 Cal. Rptr. 842, 846 (Ct. App. 1960); People
v. Sutherland, 21 Cal. Rptr. 2d 752, 761 (Ct. App. 1993); see also Albertson v.
Millard, 345 U.S. 242, 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. Vizcarra-Ayala, 514 F.3d
at 877. 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, 215 F.3d 906, 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, 245 F.3d 1054, 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
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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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