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U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals


Office of the Clerk

5107 Leesburg Pike, Suite 2000


Falls Church. Virginia 220.//

DHS/ICE Office of Chief Counsel - SND


880 Front St., Room 2246
San Diego, CA 92101-8834

Name: PANGILINAN, ZORINA A 046-403-539

Date of this notice: 4/26/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

.17
V
Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket
. U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A046 403 539 - San Diego, CA Date:


APR 2 6 2017
In re: ZORINA PANGILINAN

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS: Jeffrey Lindblad


Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] -


Convicted of two or more crimes involving moral turpitude

APPLICATION: Termination

The Department of Homeland Security ("DHS"), appeals from the Immigration Judge's
May 29, 2014, decision terminating the removal proceedings against the respondent, a native and
citizen of the Philippines and a lawful permanent resident of the United States (Exh. 1). The
DHS's appeal will be dismissed.

We review for clear error the findings of fact, including any determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.1(d)(3 )(ii).

The procedural history of this case is as follows. The respondent pled guilty to petty theft
under Cal. Penal Code 484 on October 21, 2010, and to unauthorized use of personal
identifying information of another person under Cal. Penal Code 530.S(a) on July 17, 2013
(I.J. at 1; Exhs. 2A, 3). The Immigration Judge found that the respondent's petty theft conviction
constitutes a crime involving moral turpitude (I.J. at 2). The Immigration Judge also found,
however, that the respondent's conviction for unauthorized use of personal identifying
information of another person is not categorically a crime involving moral turpitude, and is
indivisibly overbroad such that a modified categorical analysis is inappropriate (I.J. at 2-3). The
Immigration Judge therefore terminated proceedings, finding that the DHS did not carry its
burden of establishing by clear and convincing evidence that the respondent is removable for
having been convicted of two or more crimes involving moral turpitude (I.J. at 3). See
sections 237(a)(2)(A)(ii) and 240(c)(3) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(2)(A)(ii), 1229a(c)(3).
. A046 403 539

On appeal, the DHS argues that the Immigration Judge erred in finding that the respondent's
conviction under Cal. Penal Code 530.5(a) is not categorically for a crime involving moral
turpitude (DHS's Brief at 6-11). During the pendency of this appeal, however, the United States
Circuit Court for the Ninth Circuit held that Cal. Penal Code 530.5(a) is not categorically a
crime involving moral turpitude. See Linares-Gonzalez v. Lynch, 823 F.3d 508 (9th Cir. 2016).
In Linares-Gonzalez, the Ninth Circuit, in whose jurisdiction this case arises, held that the
offense defined by Cal. Penal Code 530.5(a) is not categorically a crime involving moral
turpitude because (1) no fraudulent intent is required, (2) no harm to a victim is required, and
(3) there is a realistic probability that non-turpitudinous conduct could be punished under the
statute.1 823 F.3d at 515-18.

The DHS filed a subsequent brief,2 arguing that the Board is not bound by Linares-Gonzalez
because the decision relied on an erroneous determination that crimes involving moral turpitude
only consist of either fraud crimes or non-fraudulent crimes that involve harm to a person
(DHS's Supplemental Brief at 5). 3 However, the DHS does not dispute the holding in
Linares-Gonzalez that Cal. Penal Code 530.5(a) does not require fraudulent intent or harm to a
victim, and instead argues that the statute defines a crime involving moral turpitude as a theft
offense involving intangible property (DHS's Supplemental Brief at 8-12). 4
1
The Ninth Circuit expressed no opinion, however, on whether Cal. Penal Code 530.S(a) is
divisible such that the modified categorical approach applies. Id. at 519.
2
The DHS's July 5, 2016, motion to accept supplemental briefing is granted.
3
Specifically, the DHS urges the Board to issue a published decision holding that
Cal. Penal Code 530.5(a) is categorically a crime involving moral turpitude, which would be
entitled to deference from the Ninth Circuit pursuant to National Cable & Telecommunications
Association et al. v. Brand X Internet Services et al. (Respondent's Supplemental Brief at 2-4).
545 U.S. 967, 980 (2005) (holding that Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 461 U.S. 837 (1984) requires a federal court to accept an agency's reasonable
interpretation of an ambiguous statute even if the agency's reading differs from what the court
believes is the best statutory interpretation); see Marmolejo-Campos v. Holder, 558 F.3d 903,
909-12 (9th Cir. 2009) (en bane) (holding that the statutory phrase "crime involving moral
turpitude" is ambiguous).
4
The DHS also argues that the Ninth Circuit did not sufficiently distinguish its decision in
Linares-Gonzalez from Ibarra-Hernandez v. Holder, a case involving a similar identity theft
statute from Arizona which was deemed not to be categorically a crime involving moral
turpitude (DHS's Supplemental Brief at 10-11). 770 F.3d 1280 (9th Cir. 2014). Specifically, the
DHS argues that the Arizona statute was only overbroad in that it punishes the use of a fictional
person's identity, a provision that is not included in the California statute (DHS's Supplemental
Brief at 11). In reaching its conclusion on whether the statute categorically involved moral
turpitude, however, the Ninth Circuit in Ibarra-Hernandez also highlighted that it was possible
to violate the Arizona identity theft statute without "the intent to cause loss to anyone."
770 F.3d. at 1282.

2
A046 403 539

The California offense of unauthorized use of personal identifying information of another


person punishes a person who "willfully obtains personal identifying inforrnation5 of another
person and uses that information for any unlawful purpose." Cal. Penal Code 530.5(a). Upon
our de novo review, we agree with the Immigration Judge that the respondent's conviction under
Cal. Penal Code 530.5(a) is not categorically for a crime involving moral turpitude (1.J. at 2).
We agree with the DHS's argument that moral turpitude is not limited to offenses that involve
fraud or injury to a victim (DHS's Supplemental Brief at 5-7). However, we are not persuaded
by the DHS's argument, which the Ninth Circuit did not explicitly address in Linares-Gonzalez,
that Cal. Penal Code 530.S(a) is categorically a crime involving moral turpitude on the
alternative theory that it is a theft offense involving intangible property (DHS's Supplemental
Brief at 8-12). Thus, without a viable alternative theory presented by the OHS illustrating that
Cal. Penal Code 530.S(a) categorically defines a crime involving moral turpitude, we decline
the invitation to issue a published decision pursuant to Brand X

We have long held that certain theft offenses are crimes involving moral turpitude. See, e.g.,
Matter of Diaz-Lizarraga, 26 I&N Dec. 847, 849-50 (BIA 2016). Moreover, we have held that
offenses involving the wrongful appropriation or dissemination of certain types of intangible
property are morally turpitudinous. See Matter of Zaragoza-Vaquero, 26 l&N Dec. 814
(BIA 2016) (criminal copyright infringement); Matter ofKochlani, 24 I&N Dec. 128 (BIA 2007)
(trafficking in counterfeit goods or services). Specifically, we based these decisions on the
understanding that copyright infringement and trafficking in counterfeit goods and services were
offenses that involved the theft of someone else's intellectual property in the form of a copyright
or trademark. See Matter of Kochlani, supra, at 131; Matter of Zaragoza-Vaquero, supra,
at 815-17.

The crimes at issue in Matter of Kochlani and Matter of Zaragoza-Vaquero, however, are
distinguishable from Cal. Penal Code 530.S(a) in that they both categorically involved
categories of intellectual property that are clothed with special legal protection under the
copyright and trademark laws, 6 an intended financial gain by the perpetrator, and significant

5
Personal identifying information ("PII") is defined as "any name, address, telephone number,
health insurance number, taxpayer identification number, school identification number, state or
federal driver's license, or identification number, social security number, place of employment,
employee identification number, professional or occupational number, mother's maiden name,
demand deposit account number, savings account number, checking account number,
PIN (personal identification number) or password, alien registration number, government
passport number, date of birth, unique biometric data including fingerprint, facial scan identifiers,
voiceprint, retina or iris image, or other unique physical representation, unique electronic data
including information identification number assigned to the person, address or routing code,
telecommunication identifying information or access device, information contained in a birth or
death certificate, or credit card number of an individual person, or an equivalent form of
identification." Cal. Penal Code 530.55(b).
6
We are also not convinced that PII is properly considered intellectual property, which may be
stolen or infringed, in that it typically falls under privacy law and is protected by tort theories of
(continued ...)

3
. A046 403 539

societal harm. See Matter of Kochlani, supra, at 131; Matter of Zaragoza-Vaquero, supra,
at 815-17; see also Linares-Gonzalez v. Lynch, supra, at 517-18 (highlighting that the defendant
in Matter of Rolando S., 129 Cal. Rptr. 3d 49 (Cal. Ct. App. 2011), need not derive tangible
benefit from using the victim's "Facebook" account to commit libel tort, nor intend or actually
harm the victim to be convicted under Cal. Penal Code 530.S(a)). Furthermore, the
California Court of Appeal has held that the purpose of Cal. Penal Code 530.5(a) is to
criminalize the willful use of another's PII, regardless of whether the user intends to defraud or
whether any actual loss or harm occurs. People v. Johnson, 147 Cal. Rptr. 3d 391, 406-07
(Cal. Ct. App. 2012), as modified (Oct. 4, 2012). Thus, we are not convinced that
Cal. Penal Code 530.5(a) is essentially understood as a theft offense that is categorically a
crime involving moral turpitude.

Furthermore, the defendant in Matter ofRoland S., who was convicted under Cal. Penal Code
530.S(a) for using.someone's "Facebook" account, demonstrates that the "unlawful purpose"
required under the statute includes the civil tort of libel. Matter of Rolando S., supra, at 54
(holding that "intentional civil torts, such as libel, constitute an 'unlawful purpose' for purposes
of Cal. Penal Code 530.S(a)"). Libel is not inherently morally turpitudinous. See
Cal. Civ. Code 45 (libel); Matter of D-, 1 l&N Dec. 190 (BIA 1942) (holding that criminal
libel under 18 U.S.C. 334 is not a crime involving moral turpitude). Thus, we are not
convinced that the "unlawful purpose" element categorically inheres Cal. Penal Code 530.S(a)
with moral turpitude.

Finally, although not explicitly argued by the DHS on appeal, we are not convinced that the
Immigration Judge erred in finding that the respondent's conviction is indivisible as to morally
turpitudinous conduct (I.J. at 3). In Matter ofSilva-Trevino, we recently held that the divisibility
principles outlined in Descamps v. United States, 133 S. Ct. 2276 (2013), and
Mathis v. United States, 136 S. Ct. 2243 (2016), apply to moral turpitude determinations in
immigration proceedings, and that Immigration Judges and the Board are bound by applicable
circuit law in determining the divisibility of criminal statutes and whether the realistic
probability test7 applies pursuant to these cases. 26 I&N Dec. 826, 831-33 (BIA 2016).

(... continued)
control and consent. See generally Samuel D. Warren & Louis D. Brandeis,
The Right to Privacy, 4 Harv. L. Rev. 193 (1890); William L. Prosser, Privacy, 48 Cal. L. Rev.
383 (1960). This is further evidenced by the language of the statute in this case, which punishes
someone who "obtains" and "uses" the PII of another "without the consent" of that person. See
Cal. Penal Code 530.S(a).
7
Although not explicitly argued by the OHS on appeal, given our rejection of the DHS's
argument that Cal. Penal Code 530.S(a) is a crime involving moral turpitude on a theory that it
is a theft offense involving intangible property, we also find the reasoning in Linares-Gonzalez,
persuasive that there is a realistic probability that non-turpitudinous conduct could be punished
under the statute. 823 F.3d at 515-18.

4
. A046 403 539

Here, the plain language of the statute punishes the use of willfully obtained personal
identifying information for "any unlawful purpose." Cal. Penal Code 530.5(a). California
state courts have held that the broad use of personal identifying information "for any unlawful
purpose" is an element of the offense. See People v. Barba, 149 Cal. Rptr. 3d 371, 377
(Cal. Ct. App. 2012). Furthermore, jury instructions and sentencing guidelines do not point to
any differences among the statutory alternatives of "any unlawful purpose." See
Cal. Jury Instr. Crim. 15.60 (stating that an element of the crime is that a person used personally
identifiable information "for any unlawful purpose" without consent of the victim);
Cal. Penal Code 530.S(a). The list of "unlawful purposes" set forth in the statute is preceded
by the word "including," thereby indicating that the alternatives are mere "illustrative examples"
and not "elements." See Mathis v. United States, supra, at 2256. Finally, a peek at the record
documents for the sole purpose of determining whether specific unlawful purposes are elements
of the offense is inconclusive (Exh. 2A). Thus, we agree with the Immigration Judge that
Cal. Penal Code 530.5(a) is indivisible as to morally turpitudinous conduct (1.J. at 3). See
Mathis v. United States, supra, at 2256-57.

In sum, we agree with the Immigration Judge that the respondent's conviction under .
Cal. Penal Code 530.5(a) is not categorically for a crime involving moral turpitude and that the
statute is indivisibly overbroad as to morally turpitudinous conduct (I.J. at 2-3). Thus, we agree
with the Immigration Judge that the DHS has not met its burden of establishing by clear and
convincing evidence that the respondent is removable for having been convicted of two or more
crimes involving moral turpitude (I.J. at 3). See section 240(c)(3) of the Act, 8 U.S.C.
1229a(c)(3).

Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

5
,, UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
446 Alta Road
San Diego, California 92158

File No.: A046 403 539 ) Date: May 29, 2014


)
In the Matter of )
) IN REMOVAL PROCEEDINGS
Zorina PANGILINAN, )
)
Respondent )

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DHS:

Pro se Jeff Lindblad, Esquire


880 Front Street, Suite 2246
San Diego, California 92101

CHARGE: Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act


(Alien convicted of two or more CIMTs after admission).

DECISION AND ORDER OF THE IMMIGRATION JUDGE

On February 25, 2014 the Department of Homeland Security ("DHS") served upon the
respondent a Notice to Appear ("NTA"), charging her with removability under section
237(a)(2)(A)(ii) of the Immigration and Nationality Act ("Act") as an alien convicted of two or more
crimes involving moral turpitude ("CIMTs") at any time after admission. (NTA.) The DRS filed
the NTA with the Immigration Court in San Diego on February 28, 2014, thereby vesting it with
jurisdiction over these proceedings. 8 r.F.R. 1003.14(a) (2014).

The OHS alleges that the respondent's convictions under sections 484 and 530.S(a) of the
California Penal Code qualify as crimes involving moral turpitude and should be sufficient evidence
to establish that the respondent is removable as charged. Government counsel is referring to the petty
theft conviction in case CN282856 entered on October 21, 2010 and the Identity theft conviction in
case CN319208 entered on July 17, 2013.

Defining Crimes Involving Moral Turpitude

The Immigration and Nationality Act, as amended, does not specifically define offenses
constituting crimes involving moral turpitude. A crime involving moral turpitude is generally a
crime that (1) is vile, base, or depraved and (2) violates accepted moral standards." Ceron v. Holder,
747 F.3d 773 (9th Cir. 2014); Latte-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir.2012). Crimes
involving moral turpitude require intentional, willful, or reckless intent and reprehensible "conduct
that shocks the public conscience." Matter of Silva-Trevino, 24 l&N Dec. 687, 706 n.5 (AG 2008);
Matter ofPerez Contreras, 20 I&N Dec. 615, 618 (BIA 1992). A crime in which fraud is an
ingredient involves moral turpitude when the elements of the offense include "a knowingly false
representation to gain something of value" or to gain something tangible. Jordan v. De George, 341
(
.

U.S. 223, 227 (1951); Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1 069 (9th Cir. 2007).
Hernandez-Cruz v. Holder, 651 F.3d 1094, 1108 (9th Cir. 2011).

The issue before the Court is whether or not California Penal Code Section 484 relating to
theft and California Penal Code 530.S(a) relating to identity theft categorically define "a crime
involving moral turpitude." "The determination whether a conviction under a criminal statute is
categorically a crime involving moral turpitude involves two steps.... " Castrijon-Garcia v. Holder,
704 F.3d 1205, 1208 (9th Cir.2013). "The first step is to identify the elements of the statute of
conviction." Id The categorical approach is then applied to determine whether a state conviction
meets the federal generic definition for the offense in question. Taylor v. United States, 495 U.S. 575,
110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) "We do not look to the facts of the underlying conviction, but
rather to the state statute defining the conviction." United States v. Laurico-Yeno, 590 F.3d 818, 821
(9th Cir.2010). "In order for a violation of the state statute to qualify [under the federal definition], the
full range of conduct covered by the state statute must fall within the scope of the federal statutory
provision defining a crime that involves moral turpitude. Id

The Respondent 's theft conviction


The Respondent 's identity theft conviction

California Penal Code Section 484 defines theft in pertinent part: Every person who shall . . .
steal, take, carry away. . . the personal property of another. The generic definition of theft is "a taking
of property or exercise of control over property without consent with the criminal intent to deprive the
owner of rights and benefits of ownership, even if such deprivation is less than total or permanent."
Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026 (9th Cir. 2005). Because California's petty offense
statute is divisible the Court has the authority, unaffected by Decamps v. United States, _U.S. __,
133 S.Ct. 2276 (2013) to consider that the respondent pied guilty, in that she, "took $60 of property
from Wal-Mart with the intent to perm[anently] deprive." An appropriate review of the record
establishes that the respondent pied guilty to the generic definition of a theft offense. United States v.
Rivera, 658 F.3d 1073-78 (9th Cir. 2011). Hence, there is no dispute that the respondent's 2010 theft
conviction is a crime involving moral turpitude. Castillo-Cruz, 581 F.3d 1154, 1160 (9th Cir. 2009)
(recognizing petty theft under California law as a categorical crime involving moral turpitude);
Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 594-96 (BIA 2003) (petty offense exception is
only available for one crime involving moral turpitude).

Having found that the respondent has been convicted for at least one crime that involves moral
turpitude, the respondent is subject to removal as charged only if the "identity theft" conviction under
California law is also a crime involving moral turpitude. California Penal Code Section 530.5(a) reads
in part, "Every person who wilfully obtains personal identifying information . . . of another person and
uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit,
goods, services, real property, or medical information without the consent of that person is guilty of a
public offense." California courts have convicted individuals under section 530.5(a) who have used
another's identity for reasons other than to gain something tangible or of value. See, e.g., Matter of
Rolando S., 197 Cal. App. 4th 936, 941 (2011) (minor used another's ''Facebook" account to commit
a libel tort) People v. Tillotson, 157 Cal. App. 4th 517, 533 (2007). Section 530.5(a) require that an
individual "willfully," not necessarily fraudulently, obtain another's personal identifying
information, and use that information for any unlawful purpose. California state courts have held that
a conviction under section 530.5(a), does not require intent to defraud." See People v. Hagedorn, 127
2
Cal. App. 4th 734 (2005).

Although Section 530.5(a) lists any number of "personal identifying information" detailed at
California Penal Code Section 530.55i the statute does not list multiple, alternative ways of
committing identity theft, but rather, criminalizes identity theft done for any unlawful purpose.
Identity theft under section 530.5(a) criminalizes a broader range of conduct than the generic federal
theft offense, and thus is not categorically a fraud crime involving moral turpitude. See Descamps v.
United States, 1 33 S. Ct. 2276, 228 1 , 2285 (201 3); Tijan v. Holder, 628 F.3d1 071 , 1 078 (9th Cir
201 0). Similarly, section 530.5(a) is not categorically a crime that defines inherently "base, vile, or
depraved" conduct. See Turijan v. Holder, 144 F.3d 617, 621 (9th Cir. 2014) (a crime involving
moral turpitude addresses only "truly unconscionable conduct" that "shocks the public conscience").

Where this Court has found that California Penal Code Section 530.5(a) is not categorically a
theft offense and not categorically a crime involving moral turpitude, the Court cannot reach the
modified categorical analysis, and the respondent's section 530.5(a) conviction does not qualify as a
crime involving moral turpitude for removal purposes. See id at 2285-86; Mandujano-Real v.
Mukasey, 526 F.3d 585, 589-590 (9th Cir. 2008). The DHS has failed to establish that the
respondent has been convicted of two or more crimes involving moral turpitude or that she is
removable by clear and convincing evidence.

Accordingly, given the DHS's failure to meet its burden as a matter oflaw, these proceedings
are hereby terminated.

SO ORDERED.

cc: The respondent.


Mr. Lindblad for the DHS.

i California Penal Code 530.55


(a) For purposes of this chapter, "person" means a natural person, living or deceased, firm, association, organization,
partnership, business trust, company, corporation, limited liability company, or public entity, or any other legal entity.
(b) For purposes of this chapter, "personal identifying information" means any name, address, telephone number, health
insurance number, taxpayer identification number, school identification number, state or federal driver's license, or
identification number, social security number, place of employment, employee identification number, professional or
occupational number, mother's maiden name, demand deposit account number, savings account number, checking
account number, PIN (personal identification number) or password, alien registration number, government passport
number, date of birth, unique biometric data including fingerprint, facial scan identifiers, voiceprint, retina or iris image,
or other unique physical representation, unique electronic data including information identification number assigned to
the person, address or routing code, telecommunication identifying information or access device, information contained in
a birth or death.certificate, or credit card number of an individual person, or an equivalent form of identification.