Mandujano-Real v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL MANDUJANO-REAL, 
Petitioner, No. 06-74186
v.
 Agency No.
A91-070-275
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 10, 2008—Seattle, Washington
Filed May 22, 2008
Before: Stephen Reinhardt, M. Margaret McKeown, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Reinhardt
5927
5930 MANDUJANO-REAL v. MUKASEY
COUNSEL
Matt Adams, Esq., Northwest Immigrant Rights Project, Seat-
tle, Washington, for the petitioner.
Peter D. Keisler, Esq., Allen W. Hausman, Esq., Brooke M.
Maurer, Esq., Office of Immigration Litigation, U.S. Depart-
ment of Justice, Civil Division, Washington, D.C., for the
respondent.
OPINION
REINHARDT, Circuit Judge:
We consider whether a conviction for identity theft under
Oregon Revised Statute § 165.800 is a conviction for an
aggravated felony theft offense for the purposes of 8 U.S.C.
§ 1101(a)(43)(G) of the Immigration and Nationality Act
(“INA”). We hold that it is not.
I. Factual and Procedural Background
Petitioner, Miguel Mandujano-Real, is a thirty-three year
old native and citizen of Mexico. He entered the United States
at the age of six. In 1989, at the age of fourteen, he became
a lawful permanent resident.
In March 2006, the U.S. Department of Homeland Security
(“DHS”) commenced removal proceedings against
Mandujano-Real.1 The Government charged him with being
1
On March 1, 2003, the functions of the former Immigration and Natu-
ralization Service (“INS”) were transferred from the Department of Justice
MANDUJANO-REAL v. MUKASEY 5931
removable on the basis of each of two criminal convictions.
First, on June 6, 2005, Mandujano-Real was convicted, and
sentenced to six months, for unlawful possession of a con-
trolled substance pursuant to Oregon Revised Statute
§ 475.992(4b). The Government alleged that this conviction
rendered him removable under 8 U.S.C. § 1227(a)(2)(B)(i)
(making removable an alien who, at any time after admission,
has been convicted of an offense relating to a controlled sub-
stance). Second, that same day, Mandujano-Real was con-
victed, and sentenced to thirteen months, for identity theft
pursuant to Oregon Revised Statute § 165.800. The Govern-
ment alleged that this conviction also rendered him remov-
able, this time under 8 U.S.C. § 1227(a)(2)(A)(iii) for having
been convicted of an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(G) (defining as an aggravated felony a theft
offense for which the term of imprisonment is at least one
year).
Mandujano-Real appeared pro se at his removal hearing on
April 3, 2006.2 During the hearing, Mandujano-Real admitted
that he had been convicted of both crimes and conceded
removability on the basis of each of his convictions. Relying
on these concessions, the Immigration Judge (“IJ”) sustained
both charges of removability and in addition found that
because Mandujano-Real’s identity theft conviction was for
an aggravated felony he was also ineligible for relief in the
form of cancellation of removal.3 The IJ ordered Mandujano-
Real removed to Mexico.
to three agencies (the U.S. Immigration and Customs Enforcement, U.S.
Customs and Border Protection, and U.S. Citizenship and Immigration
Services) in the newly formed Department of Homeland Security
(“DHS”). See Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135 (Nov. 25, 2002).
2
Mandujano-Real was previously granted two, week-long continuances
so that he could obtain counsel for the proceedings. The IJ informed him,
however, that at the April 3 hearing he would have to respond to the
charges, whether he was represented or not. He was unable to obtain coun-
sel in time for the April 3 hearing.
3
A lawful permanent resident is eligible for cancellation of removal if
he “(1) has been an alien lawfully admitted for permanent residence for
5932 MANDUJANO-REAL v. MUKASEY
Mandujano-Real filed a pro se appeal to the Board of
Immigration Appeals (“BIA” or “Board”). On appeal,
Mandujano-Real challenged only the IJ’s determination that
he was removable on the ground that his identity theft convic-
tion constituted an aggravated felony theft offense and that he
was therefore ineligible for cancellation of removal. He did
not contest that he was removable for the offense of possess-
ing a controlled substance. The BIA summarily affirmed the
decision of the IJ. See 8 C.F.R. § 1003.1(e)(4).4
Mandujano-Real, now represented by counsel, renews
before us his argument that an identity theft conviction under
Oregon Revised Statute § 165.800 is not a conviction for an
aggravated felony theft offense under 8 U.S.C.
§ 1101(a)(43)(G) of the INA. Although we lack jurisdiction to
review a final order of removal based upon an aggravated fel-
ony conviction, see 8 U.S.C. § 1252(a)(2)(C), we retain juris-
diction to determine whether a conviction constitutes an
aggravated felony as a matter of law. See 8 U.S.C.
§ 1252(a)(2)(D); Martinez-Perez v. Gonzales, 417 F.3d 1022,
1024-25 (9th Cir. 2005) (exercising jurisdiction to determine
whether an alien’s conviction qualifies as an aggravated fel-
ony). We review this legal question de novo. Id. at 1025.
II. Discussion
A.
As a preliminary matter, we reject the Government’s
request that we remand for the BIA to decide in the first
not less than 5 years, (2) has resided in the United States continuously for
7 years after having been admitted in any status, and (3) has not been con-
victed of any aggravated felony.” See 8 U.S.C. § 1229b(a)(1)-(3).
4
Where, as here, the BIA summarily affirms the opinion of the IJ, we
review the IJ’s decision as the final agency determination. See Lanza v.
Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004).
MANDUJANO-REAL v. MUKASEY 5933
instance whether Mandujano-Real’s conviction constitutes an
aggravated felony theft offense. The Government contends
that a remand is appropriate in order to afford the Board an
opportunity to clarify the basis upon which it summarily
affirmed the IJ’s decision. We agree that the BIA’s use of its
summary affirmance procedure makes it difficult for us to dis-
cern whether the Board affirmed the IJ’s decision on the basis
of Mandujano-Real’s pro se concession or because, notwith-
standing his concession, it independently reached the conclu-
sion that Mandujano-Real’s identity theft conviction was an
aggravated felony. See, e.g., Lanza, 389 F.3d at 919 (explain-
ing that when the BIA uses its summary affirmance proce-
dure, “it endorses the result but not necessarily the reasoning
of the IJ . . . . [and may] affirm the IJ’s decision based on dif-
ferent reasons than those set forth by the IJ”) (internal citation
and quotation marks omitted). We disagree, however, that any
lack of clarity in this case requires a remand.
The Government does not argue, nor could it, that the IJ’s
reliance on Mandujano-Real’s concession would suffice as a
basis for removal if the BIA or the court were to determine
that his conviction does not, as a matter of law, constitute an
aggravated felony. See, e.g., Garcia-Lopez v. Ashcroft, 334
F.3d 840, 844 n.4 (9th Cir. 2003) (explaining that an alien’s
“belief about the nature of his offense is irrelevant to the
purely legal question of how the offense was categorized . . . .
The INS’s contention that [the alien] is bound by [his coun-
sel’s admission] must fail”); see also Huerta-Guevara v. Ash-
croft, 321 F.3d 883, 886 (9th Cir. 2003) (rejecting
Government’s argument that “Huerta waived her ability to
challenge deportability before the BIA by conceding that she
was removable”). We are not willing to assume that the BIA
may have affirmed the IJ’s decision on a ground that is
directly contrary to well-established law.
[1] The only question before us is, therefore, whether as a
matter of law Mandujano-Real’s identity theft conviction con-
stitutes an aggravated felony theft offense. The answer to this
5934 MANDUJANO-REAL v. MUKASEY
question lies in the interpretation of an Oregon criminal stat-
ute: this is a matter that is not committed to the BIA’s exper-
tise. Accordingly, we owe no deference to the BIA’s
resolution of this question on appeal. See, e.g., Fernandez-
Ruiz v. Gonzales, 466 F.3d 1121, 1133 (9th Cir. 2006) (en
banc); Garcia-Lopez, 334 F.3d at 843 (explaining that
because the BIA does not “administer[ ] or ha[ve] any particu-
lar expertise in interpreting [state criminal statutes], no defer-
ence is accorded to the BIA’s interpretation”). Thus, even if
we were to remand this question to the Board, “we would not
‘later determine whether [the BIA’s] decision exceeds the lee-
way that the law provides.’ ” Fernandez-Ruiz, 466 F.3d at
1134 (quoting INS v. Ventura, 537 U.S. 12, 17 (2002)).
Rather, we would review the Board’s determination de novo
and without deference. Under these circumstances, a remand
would be of no purpose and would lead to an unnecessary
expenditure of time and resources. Cf. Lanza, 389 F.3d at 932(remanding for clarification of whether BIA’s summary affir-
mance was based on a reviewable or unreviewable ground
where doing so “would [ ] avoid the unnecessary expenditure
of time and effort [and] forestall the possibility of issuing a
nondispositive opinion”). Neither case law nor common sense
dictates such a result.5 We therefore decline the Government’s
request for a remand and turn to the only actual legal issue
presented in this case.
B.
[2] To determine whether Mandujano-Real’s identity theft
conviction constitutes an aggravated felony theft offense
under 8 U.S.C. § 1101(a)(43)(G), we apply the analysis set
5
The futility of a remand in the present case is further illustrated by the
fact that there is now no dispute among the parties (or the court) as to the
proper resolution of the legal question. As we explain infra, the Govern-
ment now concedes that Mandujano-Real’s conviction was not for an
aggravated felony and, for the reasons set forth below, we agree with that
position.
MANDUJANO-REAL v. MUKASEY 5935
forth in Taylor v. United States, 495 U.S. 575, 598 (1990).
See Li v. Ashcroft, 389 F.3d 892, 895 (9th Cir. 2004). Our first
task is to conduct a categorical comparison of the generic def-
inition of a “theft offense” and the elements of Oregon’s iden-
tity theft statute. See, e.g., Martinez-Perez, 417 F.3d at 1025-
26; Randhawa v. Ashcroft, 298 F.3d 1148, 1152-54 (9th Cir.
2002). If there is a match, such that the “full range of conduct
covered by [Oregon’s identity theft statute] falls within the
meaning” of a generic theft offense, then Mandujano-Real’s
crime constitutes an aggravated felony. Martinez-Perez, 417
F.3d at 1026 (internal citation and quotation marks omitted).
If there is not a “categorical” match, we sometimes proceed
to the modified categorical approach, whereby we “conduct a
limited examination of documents in the record of conviction
to determine if there is sufficient evidence to conclude that a
defendant was convicted of the elements of the generically
defined crime even though his or her statute of conviction was
facially overinclusive.” Chang v. INS, 307 F.3d 1185, 1189
(9th Cir. 2002). The Government does not suggest that we do
so in this case. See also Navarro-Lopez v. Gonzales, 503 F.3d
1063, 1073 (9th Cir. 2007) (en banc). We therefore consider
only whether the categorical approach is satisfied.
[3] The INA defines an aggravated felony as “a theft
offense . . . for which the term of imprisonment [is] at least
one year.” 8 U.S.C. § 1101(a)(43)(G). The generic definition
of a “theft offense” is “[1] a taking of property or an exercise
of control over property [2] without consent [3] with the crim-
inal intent to deprive the owner of the rights and benefits of
ownership, even if such deprivation is less than total or per-
manent.” United States v. Corona-Sanchez, 291 F.3d 1201,
1205 (9th Cir. 2002) (en banc) (quoting Hernandez-Mancilla
v. INS, 246 F.3d 1002, 1009 (7th Cir. 2001)); see also Gon-
zales v. Duenas-Alvarez, 127 S. Ct. 815, 820 (2007) (citing
with approval Ninth Circuit’s definition of generic theft
offense).
[4] Oregon’s identity theft statute provides, inter alia, that:
5936 MANDUJANO-REAL v. MUKASEY
(1) A person commits the crime of identity theft if
the person, with the intent to deceive or to defraud,
obtains, possesses, transfers, creates, utters or con-
verts to the person’s own use the personal identifica-
tion of another person.
....
(4) As used in this section:
(a) “Another person” means a real person, whether
living or deceased, or an imaginary person.
OR. REV. STAT. § 165.800.
[5] As the Government concedes, Oregon’s identity theft
statute plainly encompasses conduct not comprehended within
the scope of a generic theft offense. First, and perhaps most
obviously, the Oregon statute is broader than the generic defi-
nition of a theft offense because it extends to the creation and
use of fictitious identities. Oregon law criminalizes the
obtaining, possession, transfer, creation, utterance or conver-
sion of the personal identification of “an imaginary person.”
OR. REV. STAT. § 165.800(4)(a). As a result, an individual
may be convicted under the Oregon law if, for example, he
possesses a fake social security card containing a fabricated
social security number. See OR. REV. STAT. § 165.800(4)(a);
see, e.g., State v. Porter, 108 P.3d 107, 109 (Or. Ct. App.
2005) (defendant convicted under section 165.800 for creating
what appeared to be templates for Oregon identification cards
or driver’s licenses). In such case, none of the elements of the
generic theft offense is satisfied. There is no “taking of prop-
erty or [ ] exercise of control over property” because a false
social security number belongs to, and is therefore the prop-
erty of, no one. Corona-Sanchez, 291 F.3d at 1205 (internal
citation omitted). Similarly, lack of consent is missing
because a false social security number has no rightful
“owner” whose consent the offender failed to receive before
MANDUJANO-REAL v. MUKASEY 5937
placing the number on a fake card. Id. (listing “without con-
sent” as an element of a generic theft offense). Finally, for the
same reason, the offender’s intent in using such a number
cannot be to “deprive [an] owner of the rights and benefits of
ownership.” Id. The same is true, of course, with respect to
using the identities of dead persons, also a violation under the
statute. See OR. REV. STAT. § 165.800(4)(a).
[6] Second, even if a living person’s identity is involved,
the Oregon law still encompasses conduct that is broader than
that proscribed by the generic theft definition — conduct that
does not constitute theft. For example, a person may be con-
victed under the law even if the owner of the identity consents
to or participates in the identity fraud by encouraging his
friend to use the owner’s alien identification number on a job
application. A defendant may also be convicted under Ore-
gon’s identity theft provision if he uses another’s home
address in order to secure the enrollment of his child in a par-
ticular school or to obtain a residential parking permit. OR.
REV. STAT. § 165.800(4)(b)(A). Although such acts may be
undertaken without the address owner’s consent, the defen-
dant’s intent in such a case is not to defraud the homeowner
but to deceive the city into providing a benefit to which he
would otherwise not be entitled. An intent to deceive a third
party by using another’s address is not akin to an intent to
deprive the owner of the property of the rights and benefits to
which his ownership entitles him.
[7] Because Oregon’s identity theft statute encompasses
conduct that is beyond the scope of the generic definition of
a theft offense, we hold that Mandujano-Real’s conviction
under that law is not categorically an aggravated felony for
the purposes of 8 U.S.C. § 1101(a)(43)(G).
III. Conclusion
[8] Having determined that Mandujano-Real’s identity theft
conviction is not for an aggravated felony offense, there is the
5938 MANDUJANO-REAL v. MUKASEY
question of a remedy. Mandujano-Real remains removable for
his controlled substance conviction, a ground of removability
that he did not challenge either before the BIA or this court.
Unlike an aggravated felony offense, Mandujano-Real’s con-
trolled substance conviction does not render him ineligible for
relief in the form of cancellation of removal. See 8 U.S.C.
§ 1229b(a)(1)-(3). We therefore grant the petition for review
and remand for the agency to provide Mandujano-Real with
an opportunity to apply for cancellation of removal.
GRANTED and REMANDED.