NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HOPE AYIYI, AKA Hope Egaranna, AKA No. 19-72766 Hope Eguakum Ayiyi, AKA Hope Eguakun Ayiya, AKA Hope Eguakun Ayiyi, AKA Agency No. A024-937-911 Tracy Green, AKA Michael Greenwood, AKA Bob Jones, AKA Hope Mitchell, AKA Charles Monday Ayiyi, AKA Monday Osas MEMORANDUM* Ayiyi, AKA Larry Parker, AKA Peter Toto, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 11, 2022 Phoenix, Arizona Before: MURGUIA, Chief Judge, GRABER, Circuit Judge, and L. BURNS,** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Larry A. Burns, United States District Judge for the Southern District of California, sitting by designation. Hope Ayiyi petitions for review of the Board of Immigration Appeals’ (“BIA”) ruling that Arizona’s forgery statute, Ariz. Rev. Stat. Ann. (“A.R.S.”) § 13- 2002(A), categorically “relates to” the federal definition of forgery, see 8 U.S.C. § 1101(a)(43)(R),1 and is therefore an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). For the reasons set forth below, we grant the petition and remand to the BIA. Whether a crime is as an aggravated felony under the Immigration and Nationality Act (“INA”) “is a question of law subject to de novo review.” Gomez Fernandez v. Barr, 969 F.3d 1077, 1085 (9th Cir. 2020). Under the categorical approach, we “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps v. United States, 570 U.S. 254, 257 (2013). “A state offense with the same or narrower elements as the generic offense defined by federal law is a categorical match.” Gomez Fernandez, 969 F.3d at 1085. A state statute is overbroad, however, “if there is a realistic probability of its application to conduct that falls beyond the scope of the generic federal offense.” Id. at 1085–86 (quoting Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1119 (9th Cir. 2020)). 1 Forgery is an aggravated felony under 8 U.S.C. § 1101(a)(43)(R), which includes any “offense relating to . . . forgery for which the term of imprisonment is at least one year.” 2 In accordance with this framework, we ascertain the generic definition of “forgery” for comparison to A.R.S. § 13-2002(A). “The essential elements of the common law crime of forgery are ‘(1) a false making of some instrument in writing; (2) a fraudulent intent; [and] (3) an instrument apparently capable of effecting a fraud.’” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008) (quoting Morales-Alegria v. Gonzalez, 449 F.3d 1051, 1055 (9th Cir. 2006)).” A.R.S. § 13-2002(A), on the other hand, provides that [a] person commits forgery if, with intent to defraud, the person: 1. Falsely makes, completes or alters a written instrument; or 2. Knowingly possesses a …
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