On December 29, 2016, in a case remanded by the Ninth Circuit Court of Appeals, the Board of Immigration Appeals (BIA or Board) upheld the decision of the Immigration Judge (IJ) that a conviction for perjury under California Penal Code §118(a) is a categorical aggravated felony per INA §101(a)(43)(S) as an offense relating to perjury where the term of imprisonment is at least one year. Initially, the respondent had conceded removability and applied for various forms of relief but the IJ found him to be an aggravated felon ineligible for relief and the BIA affirmed. After the filing of a petition for review, the Ninth Circuit granted a motion to remand so the Board could consider its previous holding in Matter of Martines-Recinos, 23 I&N Dec. 175 (BIA 2001)(en banc), which found that a violation of §118(a) is a categorical aggravated felony perjury offense by comparing 18 USC §1621, the Federal perjury statute, with the elements of the California statute.
In its analysis, the BIA first noted that the Martinez-Recinos decision had not explained why the Board relied on §1621 for a generic definition of perjury. The BIA then found that “18 USC §1621 alone does not provide the generic definition of perjury for purposes of “INA §101(a)(43)(S), instead adopting a generic definition “based on how the crime of perjury was commonly defined at the time §101(a)(43)(S) was enacted”. Looking to the 1996 definitions of perjury codified in state and Federal law, the Model Penal Code, and scholarly commentary to articulate a uniform definition of perjury, the Board withdrew from Martinez-Recinos to the extent it conflicts with its’ new framework.
The decision’s survey of perjury statutes led the BIA to conclude that when “perjury” was added to (a)(43)(S) in 1996, the majority of states agreed the definition included 1) a material 2) false statement 3) made knowingly or willfully 4) while under oath, affirmation or penalty of perjury, e.g., made at an official proceeding or where an oath was required or authorized by law. This definition, held the Board, also embodies “the level of criminal liability that Congress intended when it added the offense of perjury” to the INA in 1996. Comparing the elements of §118(a) to this definition, the BIA concluded that respondent’s conviction is categorically for an offense relating to perjury under §101(a)(43)(S) as the state law “substantially emulates” the Federal crime proscribed by §1621, which is generally accepted as the acknowledged definition of perjury. In a footnote, the Board agreed with the Ninth Circuit that §118(a) is broader than that common law definition but noted that its analysis concerned the generic definition of the offense when §101(a)(43)(S) was enacted, a definition which may diverge from the common law. As such, the decision concluded that respondent’s conviction was for a categorical aggravated felony rendering him ineligible for relief and dismissed the appeal. Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016).