Hope Ayiyi v. Merrick Garland ( 2022 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HOPE AYIYI, AKA Hope Egaranna, AKA No. 19-72766
Hope Eguakum Ayiyi, AKA Hope Eguakun
Ayiya, AKA Hope Eguakun Ayiyi, AKA Agency No. A024-937-911
Tracy Green, AKA Michael Greenwood,
AKA Bob Jones, AKA Hope Mitchell, AKA
Charles Monday Ayiyi, AKA Monday Osas ORDER
Ayiyi, AKA Larry Parker, AKA Peter Toto,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
Before: MURGUIA, Chief Judge, GRABER, Circuit Judge, and L. BURNS,*
District Judge.
Respondent’s Motion to Amend is GRANTED (Doc. 60). The Clerk shall
file the amended memorandum disposition concurrently with this order.
*
The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOPE AYIYI, AKA Hope Egaranna, AKA No. 19-72766
Hope Eguakum Ayiyi, AKA Hope Eguakun
Ayiya, AKA Hope Eguakun Ayiyi, AKA Agency No. A024-937-911
Tracy Green, AKA Michael Greenwood,
AKA Bob Jones, AKA Hope Mitchell, AKA
Charles Monday Ayiyi, AKA Monday Osas AMENDED MEMORANDUM*
Ayiyi, AKA Larry Parker, AKA Peter Toto,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2022
Phoenix, Arizona
Before: MURGUIA, Chief Judge, GRABER, Circuit Judge, and L. BURNS,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
Hope Ayiyi petitions for review of the Board of Immigration Appeals’
(“BIA”) ruling that Arizona’s forgery statute, Ariz. Rev. Stat. Ann. (“A.R.S.”) § 13-
2002(A), categorically “relates to” the federal definition of forgery, see 8 U.S.C.
§ 1101(a)(43)(R),1 and is therefore an aggravated felony under 8 U.S.C.
§ 1227(a)(2)(A)(iii). For the reasons set forth below, we grant the petition and
remand to the BIA.
Whether a crime is as an aggravated felony under the Immigration and
Nationality Act (“INA”) “is a question of law subject to de novo review.” Gomez
Fernandez v. Barr, 969 F.3d 1077, 1085 (9th Cir. 2020).
Under the categorical approach, we “compare the elements of the statute
forming the basis of the defendant’s conviction with the elements of the ‘generic’
crime—i.e., the offense as commonly understood.” Descamps v. United States, 570
U.S. 254, 257 (2013). “A state offense with the same or narrower elements as the
generic offense defined by federal law is a categorical match.” Gomez Fernandez,
969 F.3d at 1085. A state statute is overbroad, however, “if there is a realistic
probability of its application to conduct that falls beyond the scope of the generic
federal offense.” Id. at 1085–86 (quoting Jauregui-Cardenas v. Barr, 946 F.3d
1116, 1119 (9th Cir. 2020)).
1
Forgery is an aggravated felony under 8 U.S.C. § 1101(a)(43)(R), which includes
any “offense relating to . . . forgery for which the term of imprisonment is at least
one year.”
2
In accordance with this framework, we ascertain the generic definition of
“forgery” for comparison to A.R.S. § 13-2002(A).
“The essential elements of the common law crime of forgery are ‘(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) (quoting Morales-Alegria v. Gonzalez, 449 F.3d 1051, 1055 (9th
Cir. 2006)).”
A.R.S. § 13-2002(A), on the other hand, provides that
[a] person commits forgery if, with intent to defraud, the person:
1. Falsely makes, completes or alters a written instrument; or
2. Knowingly possesses a forged instrument; or
3. Offers or presents, whether accepted or not, a forged instrument or
one that contains false information.
A.R.S. § 13-2002(A)(1)–(3). Here, “[f]alsely mak[ing], complet[ing] or alter[ing] a
written instrument” and “knowingly possess[ing] a forged instrument” nearly mirror
common law forgery. See A.R.S. § 13-2002(A)(1)–(2). Subsection three is a closer
call because it criminalizes the offer or presentation of “a forged instrument or one
that contains false information.” A.R.S. § 13-2002(A)(3) (emphasis added). “False
information” is not specifically defined by Arizona’s forgery statute and, during oral
argument, the government acknowledged that subsection three as written is
somewhat unclear.
3
Given the ambiguity surrounding subsection three, we disagree with the
BIA’s unequivocal conclusion that A.R.S. § 13-2002 “defines a categorical
aggravated felony.” Instead, the BIA should analyze, at a minimum, “common-law
definitions, the generic sense in which the term is now used in the criminal codes of
most states, as well as other circuits’ analyses of the generic offense’” to ascertain
whether Arizona’s definition of forgery “relates to” the federal and thereby generic
definition of forgery. Vizcarra-Ayala, 514 F.3d at 874 (quoting Morales-Alegria,
449 F.3d at 1054).
If the BIA concludes that Arizona’s forgery statute is not a categorical match
because of subsection three, then the BIA should analyze whether Arizona’s forgery
statute is divisible under the modified categorical approach and, if so, whether
Petitioner’s conviction qualifies under that approach. Applying the modified
categorical approach is in large part a fact-intensive inquiry, see Pereida v.
Wilkinson, 141 S. Ct. 754, 764 (2021), which we cannot undertake in the first
instance because we lack general fact-finding authority, particularly when the
question before us is committed to agency determination in the first instance, see
SEC v. Chenery, 318 U.S. 80, 88 (1943).
PETITION GRANTED AND CASE REMANDED.
4