FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE JAIRO ESCOBAR SANTOS, No. 17-72334 Petitioner, Agency No. v. A205-465-618 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 13, 2021* San Francisco, California Filed July 9, 2021 Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges, and Robert H. Whaley,** District Judge. Opinion by Judge Bybee; Dissent by Judge Whaley * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. 2 ESCOBAR SANTOS V. GARLAND SUMMARY*** Immigration Denying Jose Jairo Escobar Santos’s petition for review of a decision of the Board of Immigration Appeals, the panel held that Escobar’s forgery conviction under section 470a of the California Penal Code categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. § 1101(a)(43)(R), thus rendering him ineligible for voluntary departure. Section 470a penalizes “[e]very person who alters, falsifies, forges, duplicates or in any manner reproduces or counterfeits any driver’s license or identification card issued by a governmental agency with the intent that such driver’s license or identification card be used to facilitate the commission of any forgery.” Escobar argued that section 470a’s first element sweeps more broadly than the generic definition of forgery because the proscribed conduct encompasses mere duplication or any manner of reproduction, and thus a person could be liable for photocopying a genuine driver’s license with the requisite intent. The panel disagreed that photocopying a driver’s license with the intent to facilitate the commission of any forgery falls outside the generic definition of forgery. As a helpful comparison, the panel looked to Vizcarra- Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008), in which the *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ESCOBAR SANTOS V. GARLAND 3 court addressed California Penal Code section 475(c), which proscribes possession of any completed check, money order, traveler’s check, warrant or county order, whether real or fictitious, with the intent to utter or pass or facilitate the utterance or passage of the same, in order to defraud any person. The panel observed that in Vizcarra-Ayala, the court determined that an essential element of the generic offense of forgery is the false making or alteration of a document, such that the document is not what it purports to be, and that Vizcarra-Ayala held that section 475(c) encompassed broader conduct than the generic definition of forgery because it criminalized the possession or use of genuine instruments with the intent to defraud but not to forge. The panel observed that in Vizcarra-Ayala, the court identified several instances in which California used section 475(c) to prosecute such conduct. The panel pointed out several marked differences between section 475(c) and section 470a, …
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