VELASQUEZ-RIOS

    Cite as 

 (BIA 2018)                           Interim Decision #3939




           Matter of Eduardo VELASQUEZ-RIOS, Respondent
                              Decided October 4, 2018

                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals


  The amendment to section 18.5 of the California Penal Code, which retroactively
lowered the maximum possible sentence that could have been imposed for an alien’s
State offense from 365 days to 364 days, does not affect the applicability of section
237(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 

(a)(2)(A)(i)(II)
(2012), to a past conviction for a crime involving moral turpitude “for which a sentence of
one year or longer may be imposed.”
FOR RESPONDENT: Richard Benavidez, Esquire
FOR THE DEPARTMENT OF HOMELAND SECURITY: Hye Chon, Assistant Chief
Counsel
BEFORE: Board Panel: GUENDELSBERGER, MALPHRUS, and LIEBOWITZ, Board
Members.
GUENDELSBERGER, Board Member:


    In a decision dated December 11, 2014, an Immigration Judge found the
respondent removable on his own admissions under section 212(a)(6)(A)(i)
of the Immigration and Nationality Act, 

(a)(6)(A)(i) (2012),
as an alien present in the United States without being admitted or paroled,
denied his application for cancellation of removal under section 240A(b)(1)
of the Act, 8 U.S.C. § 1229b(b)(1) (2012), and ordered him removed. On
April 25, 2016, we dismissed the respondent’s appeal from that decision.
This case is now before us on remand from the United States Court of
Appeals for the Ninth Circuit for further consideration of the respondent’s
eligibility for cancellation of removal. The appeal will again be dismissed.
    The respondent is a native and citizen of Mexico who entered the United
States without inspection at an unknown time and place. On July 22, 2003,
he was convicted of possession of a forged instrument in violation of section
475(a) of the California Penal Code. 1 Although the respondent was only
sentenced to 12 days of incarceration, the Immigration Judge found that his

1
   The respondent was also convicted of burglary in violation of California law, but in
light of our disposition in this case, we need not address the immigration consequences of
that conviction.

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 (BIA 2018)                            Interim Decision #3939




offense was a crime involving moral turpitude “for which a sentence of one
year or longer may be imposed” under section 237(a)(2)(A)(i) of the Act,

(a)(2)(A)(i) (2012), because the maximum possible sentence
for his crime at the time of his conviction was 365 days. Since the respondent
had been convicted of an “offense under . . . section 237(a)(2),” the
Immigration Judge concluded that he is ineligible for cancellation of removal
under section 240A(b)(1)(C).
    After the respondent appealed that decision, section 18.5 of the California
Penal Code was enacted, effective January 1, 2015, to provide:

        Every offense which is prescribed by any law of the state to be punishable by
        imprisonment in a county jail up to or not exceeding one year shall be punishable by
        imprisonment in a county jail for a period not to exceed 364 days.

(Emphasis added.) 2 Notwithstanding that change in the law, we concluded
that the respondent had been convicted of an “offense under” section
237(a)(2)(A)(i) of the Act because, at the time of his conviction, the
maximum possible sentence for his crime was 1 year. We noted that section
18.5 did not become effective until after he had been convicted and that
nothing indicated the provision had retroactive effect. We therefore
dismissed his appeal.
    While the respondent’s petition for review of our decision was pending,
the California Legislature amended section 18.5 to “apply retroactively” to
all convictions, “whether or not the case was final before January 1, 2015.”

(a) (West 2018) (effective January 1, 2017). 3 The
Government filed a motion requesting that the case be remanded to allow us
to consider the impact of this provision on the respondent’s eligibility for
cancellation of removal. The court granted the unopposed motion.
    An applicant for cancellation of removal under section 240A(b)(1) must
demonstrate that he or she has not been “convicted of an offense under
section 212(a)(2), 237(a)(2), or 237(a)(3).” Section 240A(b)(1)(C) of the
Act; see also 

(d) (2018). The respondent’s forgery offense

2
    Section 18.5 was enacted to “align[] the definition of misdemeanor between state and
federal law” and to ensure that aliens “who committed low level and non-violent crimes
[would not be] subject to deportation.” Office of S. Floor Analyses, Cal. Legis. Info.,
SB 1242, at 2 (Aug. 19, 2016), https://leginfo.legislature.ca.gov/faces/billAnalysisClient
.xhtml?bill_id=201520160SB1242#. This provision is necessarily limited to California
convictions and does not affect crimes committed in other States, even if the convicted
alien resides in California.
3
    Section 18.5(b) provides for a sentence reduction from 365 days to 364 days. However,
because the respondent was sentenced to 12 days in jail, this aspect of section 18.5 is not
before us.


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is clearly a “crime involving moral turpitude” within the meaning of
section 237(a)(2)(A)(i)(I) because it necessarily involved the “specific intent
to defraud another.” Cal. Jury Instr.—Crim. (“CALJIC”) 15.07 (Sept. 2018);
see also Jordan v. De George, 

 (1951) (“[C]rimes
involving fraud have universally been held to involve moral turpitude.”). 4
Therefore, the sole issue before us is whether, in light of section 18.5 of the
California Penal Code, the respondent’s forgery offense remains “a crime for
which a sentence of one year or longer may be imposed” within the meaning
of section 237(a)(2)(A)(i)(II) of the Act. 5 For the following reasons, we
conclude that it does and that his conviction renders him ineligible for
cancellation of removal under section 240A(b)(1)(C).
    Although we recognize that section 18.5 may have retroactively modified
the maximum possible sentence for the respondent’s forgery offense for
purposes of State law, it does not affect the immigration consequences of his
conviction under section 237(a)(2)(A)(i)(II) of the Act, a Federal law. By
its plain terms, that provision is concerned with whether an alien has been
convicted of a crime involving moral turpitude for which a sentence of 1 year
or longer “may be imposed.” (Emphasis added.) In other words, it calls for
a backward-looking inquiry into the maximum possible sentence the alien
could have received for his offense at the time of his conviction. See, e.g.,
Matter of Cortez, 

 (BIA 2010) (concluding that an
alien had been convicted of an offense under section 237(a)(2)(A)(i)
because she was convicted of “a crime involving moral turpitude for which
she could have been sentenced to a year in county jail” (emphasis added)). 6
4
    Because the respondent’s crime qualifies for the petty offense exception under section
212(a)(2)(A)(ii)(II) of the Act, he has not been convicted of a crime involving moral
turpitude under section 212(a)(2)(A)(i)(I). See Matter of Ortega-Lopez, 

,
384 n.5 (BIA 2018).
5
    For section 237(a)(2)(A)(i)(I) of the Act to be applicable, a crime involving moral
turpitude must also be “committed within five years . . . after the date of admission.” The
respondent has made no argument that because he committed forgery more than 5 years
after he entered the United States, his crime is not an “offense under” that section. In any
event, such a contention is foreclosed by our decision in Matter of Ortega-Lopez, 

 (concluding that “the temporal ‘admission’ requirement[]” of section
237(a)(2)(A)(i)(I) is inapplicable to “determining whether section 240A(b)(1)(C) of the
Act operates to disqualify an applicant for cancellation of removal by virtue of an ‘offense
under’ section[] 237(a)(2)”).
6
    We recognize that certain California crimes may, as a matter of discretion, be punished
as a felony or a misdemeanor, for which there are different maximum possible sentences.
See Ewing v. California, 

, 16–17 (2003) (describing so-called “wobbler”
statutes). However, the maximum sentence a defendant could have received at the time of
conviction is clear from looking at the sentencing scheme as a whole, even if the offense
is treated as a misdemeanor. Ceron v. Holder, 

 (9th Cir. 2014) (en banc).


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We therefore hold that the amendment to section 18.5 of the California Penal
Code, which retroactively lowered the maximum possible sentence that
could have been imposed for an alien’s State offense from 365 days to 364
days, does not affect the applicability of section 237(a)(2)(A)(i)(II) of the Act
to a past conviction for a crime involving moral turpitude “for which a
sentence of one year or longer may be imposed.” 7 We find support for our
holding in Federal court precedent.
    Like the respondent, the defendant in United States v. Diaz, 

(9th Cir. 2016), cert. denied sub nom. Vasquez v. United States, 

 (2017), had one of his crimes retroactively reclassified as a misdemeanor
pursuant to intervening California legislation. Because one of his two State
felony drug offenses was now a misdemeanor under State law, he argued
that he was no longer subject to 

(b)(1)(A) (2006), which
enhanced sentences for defendants convicted of a Federal offense following
the commission of two or more State drug felonies. The court rejected this
argument, noting that “federal law, not California law,” must be used “to
determine the effect of California’s reclassification on [the defendant’s]
federal sentence enhancement . . . .” Id. at 972 (emphases added).
    As the Ninth Circuit explained, the only thing that mattered under Federal
law was whether the defendant had been convicted of two or more State
felony drug offenses prior to his Federal offense. The fact that California
decided to retroactively reclassify one of his State felonies as a misdemeanor
did not change “the historical fact that, for purposes of § 841, the defendant
had been convicted of the felony in the past.” Id. at 973 (emphasis added).
Thus, the State actions had “no bearing on whether § 841’s requirements
[were] satisfied.” Id. at 972. This was so “even if California decided to give
[its new law] retroactive effect for purposes of its own state law,” because,
according to the court, that decision “would not retroactively make [the
defendant’s] felony conviction a misdemeanor for purposes of federal law.”
Id. at 975. In reaching its conclusion, the court relied on the Supreme Court’s
decision in McNeill v. United States, 

 (2011), which rejected a
similar argument.
    In that case, the defendant asserted that he had not been convicted of
“a serious drug offense” for purposes of enhancing his sentence under

(e)(2)(A)(ii) (2006) because he had not been convicted of a
State crime “for which a maximum term of imprisonment of ten years or
more is prescribed by law.” Although the defendant had been convicted in
the early 1990s of a North Carolina drug offense for which the maximum

7
   This holding is consistent with the long-standing practice of examining the statute of
conviction and applicable penalty that existed under the law in effect at the time the
conviction was entered. See, e.g., Matter of Esfandiary, 

 (BIA 1979);
Matter of A-, 

, 381 (C.O. 1951).

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penalty was at least 10 years, he argued that this crime no longer qualified as
a “serious drug offense” under Federal law because North Carolina reduced
the maximum sentence for his State offense to less than 10 years in 1994.
The Court disagreed, holding that North Carolina’s changes to its law
regarding the defendant’s State conviction had no effect on his Federal
sentence.
    The Court explained that the plain language of § 924(e)(2)(A)(ii) requires
a Federal sentencing court to determine “the maximum sentence applicable
to a defendant’s previous drug offense at the time of his conviction for that
offense. . . . The only way to answer this backward-looking question is to
consult the law that applied at the time of that conviction.” Id. at 820
(emphases added). The Court concluded that this “natural reading of
[§ 924(e)(2)(A)(ii)] . . . avoids the absurd results that would follow from
consulting current state law to define a previous offense.” Id. at 822. 8
    The logic embodied in McNeill and Diaz applies with equal force to this
case. We must use Federal law, rather than State law, to determine the
immigration consequences of the respondent’s California conviction. See
Diaz, 

 (“Federal law, not state law, governs our interpretation
of federal statutes.”). Section 237(a)(2)(A)(i)(II), like the Federal sentencing
provisions at issue in McNeill and Diaz, requires a backward-looking inquiry
into the maximum possible sentence the respondent could have received for
his forgery offense at the time of his conviction. 9
    The respondent’s conviction for his forgery offense was entered in 2003,
prior to the effective date of section 18.5 of the California Penal Code. At
that time, the maximum possible sentence for the crime was 365 days.
Because we look to the maximum possible sentence he could have received
for his offense at the time of his conviction, section 18.5 does not affect the
applicability of section 237(a)(2)(A)(i)(II) of the Act to his forgery offense.
Consequently, we conclude that the respondent’s offense remains “a crime
for which a sentence of one year or longer may be imposed” and that his
conviction renders him ineligible for cancellation of removal under section
240A(b)(1)(C). Accordingly, the respondent’s appeal will be dismissed.
    ORDER: The appeal is dismissed.

8
    The Court declined to address whether a Federal sentencing court could consider “a
situation in which a State subsequently lowers the maximum penalty applicable to an
offense and makes that reduction available to defendants previously convicted and
sentenced for that offense.” McNeill, 

 n.1.
9
    In this regard, section 237(a)(2)(A)(i)(II) differs from other provisions of the Act that
require us to consider the actual sentence imposed, necessitating a fact-based inquiry into
a State court judge’s specific sentence or into subsequent modifications to that sentence.
See, e.g., section 101(a)(43)(G) of the Act, 

(a)(43)(G) (2012); Matter of
Cota, 

 (BIA 2005).

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