Ninth Circuit Holds Nevada Statute to be Categorically a CIMT

Written by Alexander J. Segal on

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On November 2, 2015, the Ninth Circuit rendered an interesting decision in a case titled Mancilla-Delafuente v. Lynch [PDF version].1

At issue in the case was an alien (Mancilla) who was placed in removal proceedings in connection with his conviction for conspiracy to possess a credit card without consent under Nevada state law.2 The charges of removability were based upon Mancilla being present in the United States without having been admitted or paroled.3

The Immigration Judge hearing the case found that Mancilla was ineligible to apply for non-LPR cancellation of removal because his conviction for credit card fraud was a “crime of moral turpitude” (CIMT) under section 237(a)(2)(A)(i)(I) of the Immigration and Nationality Act, which constitutes a bar to eligibility for this form of cancellation of removal under section 240b(b)(1)(C). That decision was upheld by the Board of Immigration Appeals (BIA), which prompted Mancilla's appeal to the Ninth Circuit. Mancilla argued both that his conviction was not for a categorical CIMIT and that even if it was, he was eligible for the “petty offense exception” from inadmissibility stemming from a CIMT that is listed in section 212(a)(2)(A)(ii). The Ninth Circuit rejected Mancilla's arguments and found that he was ineligible for cancellation of removal.

First, the Ninth Circuit noted that the Supreme Court held in 1951 [PDF version] that “a crime in which fraud is an ingredient is a CIMT.”4 Furthermore, the BIA has held [PDF version] than an offense is a CIMT if the statute contains an element of “the intent to defraud.”5 The Nevada statute that Mancilla was convicted under criminalizes “possession of a credit card or debit card without the consent of the cardholder and with the intent to circulate, use, sell, or transfer the credit card or debit card with the intent to defraud.”

Mancilla argued that the Ninth Circuit should apply the “modified categorical approach” because the statute lists different types of criminal conduct. However, the Ninth Circuit applied Descamps v. United States [link] and found both that the statute does not list alternative elements, is not divisible, and thus requires the use of the categorical approach rather than the modified categorical approach.6 Please follow this link to learn more about Descamps. The Ninth Circuit used the categorical approach established by Taylor v. United States [PDF version] to find that because all of the conduct listed in the Nevada statute entails “the intent to defraud,” any conviction under the statute is categorically a CIMT.7

Finally, the Ninth Circuit rejected Mancilla's argument that he was eligible for the petty offense exception because, notwithstanding his actual sentence, the maximum possible sentence for his conviction was for 1 year, and the petty offense exception is only available if the maximum possible sentence for the conviction is less than 1 year.

Although the statute lists “with the intent to use, sell, or transfer” a credit cart with the intent to defraud, both the Ninth Circuit and the BIA held that this statute was not divisible, and that a conviction under the statute is categorically a CIMT.

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  1. Mancilla-Delafuente v. Lynch, No. 12-73469 (9th Cir. 2015)
  2. Nev. Rev. Stat. §§ 199.480 and 205.690(2)
  3. Inadmissibility ground found in INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i)
  4. Jordan v. De George, 341 U.S. 223, 227 (1951)
  5. Matter of Cortez, 25 I&N Dec. 301, 306 (BIA 2010)
  6. Descamps v. United States, 133 S.Ct 2276, 2283-86 (2013)
  7. Taylor v. United States, 495 U.S. 575, 598-602 (1990)