Claudette Schwarzmann v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDETTE SCHWARZMANN, AKA No. 17-71551
Claudette Mannix,
Agency No. A012-157-978
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2021**
San Francisco, California
Before: WARDLAW and BERZON, Circuit Judges, and PREGERSON,***
District Judge.
Claudette Schwarzmann, a native and citizen of Canada, petitions for review
*
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 Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
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of a Board of Immigration Appeals (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) order denying Schwarzmann’s motion to terminate removal
proceedings and upholding her removability for having been convicted of an
aggravated felony, specifically California Revenue and Taxation Code (“CRTC”)
§ 7152(a). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
In 2015, Schwarzmann pled guilty to one count of filing a false or fraudulent
tax return with intent to evade in violation of CRTC § 7152(a) and enhancements
under CRTC § 7153.5 for intentionally evading an amount in excess of $25,000
and California Penal Code (“CPC”) § 12022.6(a)(1) for a loss in excess of
$65,000. The sole issue on appeal is whether Schwarzmann’s conviction under
CRTC § 7152(a) constitutes an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(M)(i) as “an offense that involves fraud or deceit in which the loss
to the victim or victims exceeds $10,000,” rendering her subject to removal
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).1
“We review de novo the BIA’s determination of purely legal questions.”
Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018) (cleaned up).
To determine whether a state conviction qualifies as an aggravated felony, we
apply the “categorical approach” laid out in Taylor v. United States, 495 U.S. 575,
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There is no dispute that Schwarzmann’s conviction meets the $10,000
threshold requirement under 8 U.S.C. § 1101(a)(43)(M)(i).
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600–02 (1990) and Descamps v. United States, 570 U.S. 254, 257 (2013). Under
this framework, we first compare the elements of the state criminal conviction
against the “federal, generic crime” to determine if the state crime conviction “has
the same elements as, or is narrower than, the federal generic crime.” Rendon v.
Holder, 764 F.3d 1077, 1083 (9th Cir. 2014) (internal citation omitted). However,
when applying the categorical approach to 8 U.S.C. § 1101(a)(43)(M)(i), “no
identification of generic offense elements [is] necessary.” Shular v. United States,
140 S. Ct. 779, 783 (2020). Rather, “we simply ask[],” id., whether the elements
required for conviction “necessarily entail fraudulent or deceitful conduct,” id.(quoting Kawashima v. Holder, 565 U.S. 478, 484 (2012)).
The BIA did not err in concluding that Schwarzmann’s conviction under
CRTC § 7152(a) categorically matches an offense involving fraud or deceit under
8 U.S.C. § 1101(a)(43)(M)(i). As the BIA explained, the elements of a crime
under CRTC § 7152(a) are (1) “that a person be required to file a return,” (2) “that
the filing be false or fraudulent,” and (3) “that the false or fraudulent filing be done
with the intent to defeat or evade a determination that taxes are due.” Although the
elements of CRTC § 7152(a) do not expressly require any showing of fraud or
deceit, “[t]he scope of [8 U.S.C. § 1101(a)(43)(M)(i)] is not limited to offenses that
include fraud or deceit as formal elements.” Kawashima, 565 U.S. at 483–84.
Even presuming that Schwarzmann’s conviction “rested upon nothing more than
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the least of the acts criminalized,” Wang v. Rodriguez, 830 F.3d 958, 961 (9th Cir.
2016) (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)), CRTC
§ 7152(a) requires, at a minimum, that Schwarzmann filed an affirmatively false
return and that she did so with the intent to evade or defeat paying a tax owed.
Under the definition of deceit articulated in Kawashima, crimes evincing both
affirmative acts of falsification or misrepresentation and the requisite mens rea
involve deceit. Given the intent to evade or defeat requirement in § 7152(a),
Schwarzmann’s conviction plainly meets the Kawashima standard. 565 U.S. at
484. As the BIA correctly noted, the filing of a “false return with the intent of
evading or defeating a determination that taxes are due necessarily involves deceit
because it requires a knowing and intentional misrepresentation of a material fact.”
Thus, a conviction under CRTC § 7152(a) necessarily involves deceitful conduct
and therefore categorically matches “an offense that involves fraud or deceit”
under 8 U.S.C. § 1101(a)(43)(M)(i). Kawashima, 565 U.S. at 483–84.
Because we conclude Schwarzmann’s conviction under CRTC § 7152(a)
categorically matches an offense involving fraud or deceit under 8 U.S.C.
§ 1101(a)(43)(M)(i), we need not proceed to the remaining steps of the categorical
approach. See Myers v. Sessions, 904 F.3d 1101, 1107 (9th Cir. 2018).
DENIED.
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