Tijani v. Holder

**Credit card fraud, CPC section 532(a)(1), CIMT; deference to BIA precedent**

Tijani’s string of credit card fraud crimes in violation of Cal. Penal Code § 532a(1) are categorically crimes involving moral turpitude.  Fraud is implicit in the nature of a crime under section 532a(1).  While the statute of conviction does not explicitly list intent to defraud as an element, “ a crime nevertheless may involve moral turpitude if such intent is implicit in the nature of the crime.” A crime under § 532a(1) is committed only when a person by a knowing falsehood obtains property, money, or credit.  In addition, an intent to repay is not a defense.  the Court’s recent decision in Marmolejo- Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc) does not require the Court to direct the BIA to adhere to its decision in In re Kinney, 10 I & N Dec. 548 (1964).  Marmolejo-Campos concerned the deference this Court should give a BIA opinion when reviewing a challenge to a BIA decision.  Deference is not due the agency in construing state law, i.e. determining that an element of a California statute is fraud.

Concurring, dissenting: Tashima

The majority employs an unauthorized noncategorical mode of analysis in concluding that the petitioner was  convicted of a crime involving moral turpitude.  “In open defiance of our recent en banc holding in Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc), that the determination of whether a crime is a CIMT is committed to the Board of Immigration Appeals (“BIA”), the majority refuses to grant the BIA’s published,
precedential decision that the crime involved here is not a CIMT the deference to which it is entitled and, instead, makes its own free-wheeling determination that the crime involved is a CIMT. It not only ignores the BIA’s precedential decision, but fails to adhere to the categorical-approach analysis of Taylor v. United States, 495 U.S. 575 (1990).”

http://www.ca9.uscourts.gov/datastore/opinions/2010/03/11/05-70195.pdf