BIA: CA Perjury Conviction Is Aggravated Felony (Matter of Martinez-Recinos)

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA: CALIFORNIA PERJURY CONVICTION IS AGGRAVATED FELONY (MATTER OF MARTINEZ-RECINOS)
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

The Board of Immigration Appeals has issued a unanimous en banc precedent decision finding that a California conviction for perjury constitutes an aggravated felony under section 101(a)(48)(S) of the Immigration and Nationality Act. The decision upholds an immigration judge's decision finding a lawful permanent resident Salvadoran respondent removable and ineligible for any relief from removal as a result of an aggravated felony conviction.

The respondent in this case, a Mr. Martinez-Recinos, adjusted to LPR status in 1990. In December 1998, he was convicted of perjury under section 118(a) of the California Penal Code and sentenced to two years' incarceration. The Immigration and Naturalization Service then initiated removal proceedings against Martinez-Recinos based on the conviction.

At his hearing, the immigration judge ruled that Martinez-Recinos was removable as an aggravated felon and not eligible for adjustment of status. Martinez-Recinos appealed, contending that his conviction is not an aggravated felony and that his application for a 212(h) waiver should have been considered in conjunction with his application for adjustment of status.

The BIA began its consideration of the appeal by examining subsection (S) of the "aggravated felony" definition of INA section 101(a)(48). Subsection (S) applies to "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 BIA then compared the California statute under which Martinez-Recinos was convicted with the federal statute defining the crime of perjury in order "to determine whether the state law shares common material elements with the federal law." The California statute applies to persons who, "having taken an oath" to "testify, declare, depose, or certify truly" in any case where an oath may by California law be administered, or having declared or certified under penalty of perjury in any case where such declaration or certification is permitted by California law, "willfully states as true any material matter which he or she knows to be false." The BIA concluded that the federal statute defining perjury, 18 U.S.C. section 1621 (1994), contains essentially the same requirements. The BIA therefore concluded that the California conviction is a crime of perjury.

In reaching this conclusion, the BIA considered the respondent's contention that the California statute is divisible and that the BIA therefore must examine the record of conviction to determine whether the conviction is an aggravated felony. However, the BIA found that although the statute contains several parts, each of those parts constitutes perjury as defined by the federal statute, so that there was no need to look further into the record of conviction.

The BIA also upheld the IJ's conclusion that the perjury offense is a crime of moral turpitude, rendering Martinez-Recinos ineligible for adjustment of status without a 212(h) waiver. And the BIA agreed with the INS that Martinez-Recinos is ineligible for a 212(h) waiver because he was previously admitted to the U.S. as an LPR and has been convicted of an aggravated felony. For these reasons, the BIA dismissed the appeal.

Matter of Martinez-Recinos, 23 I. & N. Dec. 175, Int. Dec. #3456 (BIA Oct. 15, 2001).