Introduction: Matter of Alvadrado, 26 I&N Dec. 895 (BIA 2016)

On December 29, 2016, the Board of Immigration Appeals (BIA) issued its final precedent decision of 2016 in the Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016) [PDF version]. The decision concerned the immigration aggravated felony provision for perjury found in section 101(a)(43)(S) of the Immigration and Nationality Act (INA). The Board held that “perjury,” as that term is employed in section 101(a)(43)(S), references a generic offense of perjury, which the Board found “requires that an offender make a material false statement knowingly or willfully while under oath or affirmation where an oath is authorized or required by law.” In accordance with this definition, the Board found that section 118(a) of the California Penal Code is categorically an offense relating to perjury under section 101(a)(43)(S).

In this article, we will examine the facts of the case, the Board’s reasoning and decision, and what the new precedent will mean going forward. Please see the section tiled “Board’s Definition of Generic Perjury for the INA: 26 I&N Dec. at 901” for the new definition.

Factual and Procedural History: 26 I&N Dec. at 895-96

The respondent, a native and citizen of Guatemala, had entered the United States without inspection in 1985. In 1993, the respondent was convicted of perjury in violation of section 118(a) of the California Penal Code. The respondent was sentence to 2 years’ incarceration as a result of his California perjury conviction.

In 2004, the Department of Homeland Security (DHS) charged the respondent with inadmissibility under section 212(a)(6)(A)(i) of the INA as an alien present in the United States without having been admitted or paroled. The respondent was placed into removal proceedings.

The respondent conceded removability on the basis of being an alien present in the United States without having been admitted or paroled. The respondent sought three forms of relief as a defense from removal:

1. Cancellation of removal under section 240A(b)(1) of the INA [see article];
2. Special rule cancellation of removal under NACARA [see article]; and
3. Suspension of deportation under former section 244(a) of the INA.

The Immigration Judge (IJ) rejected the respondent’s applications for relief. The IJ relied on the Board’s precedent decision in the Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001) (en banc) [PDF version], in holding that the respondent’s 1993 California perjury conviction was for an aggravated felony under section 101(a)(43)(S) of the INA, the aggravated felony provision for an offense relating to perjury. The IJ concluded that the respondent’s aggravated felony conviction precluded the respondent from being eligible for the three forms of relief that he sought. Significantly, in reaching this decision the IJ was considering the same California criminal perjury statute that was in issue in the Martinez-Recinos case.

The respondent filed a petition for review to the U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over California. The Ninth Circuit granted a motion to remand to the BIA. The Ninth Circuit asked the Board to reconsider its determination in Martinez-Recinos that 18 U.S.C. 1621 (1994), a federal criminal statute, provides the controlling generic definition for perjury for purposes of the aggravated felony provision in section 101(a)(43)(S) of the INA.

The Board was tasked with, first, reconsidering its interpretation of the aggravated felony provision covering perjury and, second, with determining whether the respondent’s California criminal conviction was categorically an offense related to perjury.

Analysis: 26 I&N Dec. at 896-902

Section 101(a)(43)(S) defines as an aggravated felony:

An offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.

The Board excepted the relative portion of section 101(a)(43)(S). As it noted, the relevant portion of section 101(a)(43)(S) in the instant case is “[a]n offense relating to … perjury … for which the term of imprisonment is at least one year.”

In the second footnote of its decision in the instant case, the Board excerpted the relevant portion of section 118(a) of the California Penal Code, the criminal statute of conviction for the respondent:

Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person in any of the cases in which oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false is guilty of perjury.

In Martinez-Recinos, the Board had not explained why it relied on 18 U.S.C. 1621 for the generic definition of perjury as that term is used in section 101(a)(43)(S) of the INA. The Board, in reconsidering that decision at the direction of the Ninth Circuit, explained that when it decided Martinez-Recinos neither the INA nor prior case law “described the Federal generic definition of aggravated felony perjury.” For that reason, the Board had looked to 18 U.S.C. 1621, the federal statute defining perjury, to define the generic crime of perjury to use for section 101(a)(43)(S) of the INA. In Martinez-Recinos, the Board had found that the provisions of section 118(a) of the California Penal Code and 18 U.S.C. 1621 were “essentially the same,” and therefore that section 118(a) matched the generic definition of perjury.

Upon further consideration, the Board held that 18 U.S.C. 1621 does not alone provide the generic definition of perjury for purpos of section 101(a)(43)(S) of the INA. Rather, the Board held that it would be “appropriate to adopt a generic definition based on how the crime of perjury was commonly defined at the time section 101(a)(43)(F)” was enacted. The Board’s reasoning for this is that Congress would have contemplated the common definition of perjury at the time it added section 101(a)(43)(F) to the INA in 1996. To this effect, the Board cited to the Supreme Court decisions in Taylor v. United States, 495 U.S. 575, 592, 598 (1990), and Perrin v. United States, 444 U.S. 37, 42 (1979), as support for looking for the common definition of a generic crime at the time Congress enacted a statute.

The Board opted to “survey the definitions codified in State and Federal Statutes, the Model Penal Code, and scholarly commentary that existed in 1996 to determine the contemporary usage of the term “perjury” at the time section 101(a)(43)(S) was enacted.” Accordingly, the Board withdrew from the Matter of Martinez-Recinos to the extent that it is inconsistent with the Board’s decision in the instant case.

Survey of Perjury Statutes: 26 I&N Dec. at 898-900

The Board explained that the offense of perjury “has a long history in American jurisprudence” and that it “has not diverged significantly from its common law roots.” To this effect, the Board cited to the Supreme Court decision in United States v. Norris, 300 U.S. 564, 574 (1937), wherein the Supreme Court noted that “the conception embodied in the common law definition of perjury has been embodied in statutes.” The Board explained that common law perjury was defined as “a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears willfully, absolutely, and falsely in a matter material to the issue or point in question.” (Citing to 4 William Blackstone, Commentaries on the Laws of England, 136-37 (1769).)

The Board then looked at the Model Penal Code definition of perjury. The Model Penal Code is a text designed to help standardize penal law across the United States. The Board notes that the Model Penal Code definition of perjury is similar to the common law definition, but expanded on the common law definition to include false statements made “in any official proceeding” as opposed to only “judicial proceedings.” (Citing to Model Penal Code sec. 241.1(1) (1985).) Section 240.0(4) of the Model Penal Code states that a perjury offense may occur “before any legislative, judicial, administrative or other governmental agency authorized to take evidence under oath.”

The Board explained that at the time of the enactment of section 101(a)(43)(S) in 1996, the majority of State perjury statutes were had “many similarities” to the common law and Model Penal Code definitions of perjury. The Board stated that the majority of states agreed that perjury must include “(1) a material (2) false statement (3) made knowingly or willfully (4) while under oath, affirmation, or penalty of perjury.”

The Board noted that some State perjury statutes as well as the Federal perjury statute “included language reflecting that a false statement must be made under oath at a ‘proceeding’ before it will be considered perjury.” Most states, along with the Federal government, required that the oath be taken at an “official proceeding,” while some states “did not clearly include this requirement.” The Board opted to follow the majority of States as well as the Federal and Model Penal Code requirements.

The Board explained that, because removal proceedings are a function of federal law, it was and is appropriate to rely on 18 U.S.C. 1621, as it existed in 1996, “to discern the elements of generic perjury.” In short, the Board’s reassessment that 18 U.S.C. 1621 (as it was in effect in 1996) should not be relied upon exclusively does not mean that it is not of value. The Board cited to the Supreme Court decision in United States v. Dunnigan, 507 U.S. 87, 94 (1993), where the Supreme Court explained that 18 U.S.C. 1621 dated back at least to the Perjury Statute of 1563, and that the statute had “remained unchanged in its material aspects for over a century.” For this reason, the Board presumed that Congress was aware of 18 U.S.C. 1621 when it enacted section 101(a)(43)(F) in 1996.

In Dunnigan, the Board explained that the Supreme Court “clarified that a witness violates [18 U.S.C. 1621] when, while testifying under oath or affirmation, he or she ‘gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” (See Dunnigan, 507 U.S. at 94.) The Board assessed that the Supreme Court decision in Dunnigan was “consistent with the central elements of perjury … in the majority of State statutes, the Model Penal Code, and the common law.”

Board’s Definition of Generic Perjury for the INA: 26 I&N Dec. at 901

The Board concluded that “the generic definition of the term ‘perjury’ in section 101(a)(43)(S) of the [INA] requires that an offender make a material false statement knowingly or willfully while under oath or affirmation where an oath is authorized or required by law.”

The foregoing definition constitutes the generic definition of perjury that the Board will rely upon in adjudicating cases involving section 101(a)(43)(S) going forward. The Board moved to compare this definition of generic perjury with the elements of section 118(a) of the California Penal Code to determine of a conviction under that California state statute is categorically aggravated felony perjury under section 101(a)(43)(S) of the INA.

California Perjury Statute: 26 I&N Dec. at 901-903

The Board concluded that section 118(a) of the California Penal Code is categorically an offense relating to perjury under section 101(a)(43)(S) of the INA. Although the Board did not rely exclusively on 18 U.S.C. 1611 as it did in the Matter of Martinez-Recinos, it ended up reaching the same conclusion regarding section 118(a) of the California Penal Code.

The Board noted that it has “consistently ascribed an expansive meaning to the phrase ‘relating to’ under the [INA].” To this effect, the Board cited to its precedent decisions in the Matter of Oppedisano, 26 I&N Dec. 202, 204 (BIA 2013) [PDF version], and the Matter of Gruenangerl, 25 I&N Dec. 351, 356 (BIA 2010) [PDF version]. The Supreme Court took the same position on reading “relating to” in Mellouli v. Lynch, 135 S.Ct. 1980, 1990 (2015) [PDF version]. In effect, this means that “relating to” when it appears in the INA is generally read to encompass a broad range of conduct. In this case, section 101(a)(43)(S) is written broadly as covering conduct “relating to” perjury instead of, for example, only committing perjury in a specific context.

The Board notes that section 118(a) of the California Penal code “criminalizes both oral and written perjury.” The Ninth Circuit held in Rivera v. Lynch, 816 F.3d 1064, 1072 (9th Cir. 2015) [PDF version] that oral perjury under the statute requires proof of a “a willful statement, under oath, of any material matter which the witness knows to be false.” In the same decision, the Ninth Circuit explained that written perjury has the same requirements as oral perjury, but additionally requires that the false statement must be provided “under penalty of perjury” in circumstances “permitted by law.”

The Board held that because a person who is convicted in violation of section 118(a) of the California Penal Code “must make a material false statement knowingly or willfully while oath or affirmation where an oath is authorized or required by law,” the elements required for a conviction under section 118(a) are a categorical match with the elements of the generic definition of perjury adopted by the Board in the instant case. The Board further noted that section 118(a) “substantially emulates” the federal definition of perjury in 18 U.S.C. 1621, which in turn “has its roots in the common law.”

Decision: 26 I&N Dec. at 902-93

The Board held that section 118(a) of the California Penal Code is categorically an offense relating to perjury under section 101(a)(43)(S) of the INA. Because the respondent pled guilty to section 118(a) abd was sentenced to more than 1 year of imprisonment, the Board held that his conviction was categorically for an aggravated felony under section 101(a)(43)(S). For this reason, the Board found that the respondent was ineligible for the forms of relief from removal that he sought, and dismissed his appeal.

Conclusion

In the Matter of Alvarado, the Board established a new generic definition of perjury for purpose of section 101(a)(43)(S) that it will rely upon as precedent going forward. The decision does not represent a significant shift as a practical manner from the Matter of Martinez-Recinos. The new definition is likely to encompass a large number of State perjury statutes. For the time being and absent any contrary circuit court rulings, the Matter of Alvarado will be used by adjudicators to determine whether a perjury conviction falls under section 101(a)(43)(S) nationwide.

Perjury is a serious offense, and section 101(a)(43)(S) ensures that many perjury convictions will lead to severe immigration consequences as well. The aggravated felony provision provides another reason to a long list of reasons why it is always unwise to lie under oath. If an individual is charged with having committed aggravated felony perjury under section 101(a)(43)(S), he or she should consult with an experienced immigration attorney immediately for an individualized case evaluation.