Offense
Knowingly offers false or forged instrument to be registered
Aggravated Felony (AF)
Try to get 364 days or less, and/or plead to “false,” not forged, document. See Advice.
AF if loss to victim/s exceeds $10k.
Crime Involving Moral Turpitude (CIMT)
Likely charged as CIMT, but advocates should explore defenses: it does not require a material misstatement, or intent to defraud.1Advocates can explore arguments that Pen C § 115 is not a CIMT. It does not require an intent to defraud. See, e g., People v. Geibel (1949) 93 Cal. App. 2d 147, 169 and see CALCRIM 1945. Further, although some courts have stated without discussion that the false fact must be material, that does not appear to be accurate. See People v. Feinberg (1997) 51 Cal. App. 4th 1566, 1579 (“‘The core purpose of Penal Code section 115 is to protect the integrity and reliability of public records.’ This purpose is served by an interpretation that prohibits any knowing falsification of public records. Accordingly, we will not insert into section 115 a requirement of materiality that the Legislature did not see fit to include.”) (citations omitted), and see CALCRIM 1945 and People v. Murphy (2011) 52 Cal. 4th 81, which do not cite materiality as an element. Section 115 extends to a wide range of offenses involving filing any document with any government agency, such as filing a false fishing report. People v. Powers (2004), 117 Cal. App. 4th 291.
Other Removal Grounds
See 112, 113.
Advice and Comments
AF with 1 year. Forgery with a sentence of 1 yr or more is an AF. But PC 115 also reaches a “false” instrument (not forged but containing false information) and there is a strong argument that this is not “forgery.”2Conviction of an offense “relating to … forgery” is an aggravated felony if a sentence of a year or more was imposed. 8 USC 1101(a)(43)(R). Section 115 can be violated by filing a “false” instrument, which simply contains false information without any forgery. See People v. Gangemi, 13 Cal. App. 4th 1790 (1993) (Pen C § 115 conviction upheld where the filed government documents contained false information regarding financial assets); Generes v. Justice Court, 106 Cal. App. 3d 678, 682 (1980) (Pen C § 115 conviction upheld “even though [the document] does not bear a forged signature or otherwise meet the technical requirements of a forged instrument.”). If it is not possible to avoid an imposed sentence of a year or more, defenders should at least plead to conduct involving a “false” rather than forged document. At least in the Ninth Circuit, a document does not meet the generic definition of forgery based solely on the fact that it contains false information. The Ninth Circuit stated that “it is clear 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.” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 875 (9th Cir. 2008) (holding that conviction for conduct involving a false document under Pen C § 475(c) is not forgery) (emphasis added). The generic definition of forgery does not include conduct “that does not fall within the generic definition of forgery; namely, possession or use of a genuine instrument with intent to defraud but not to forge.” Id. at 876. However, the Third Circuit appeared to find that a false statement in a document could be an aggravated felony with a year’s sentence, by applying an expanded definition of the term “relating to” forgery. See Williams v. Attorney Gen. United States, 880 F.3d 100, 108 (3d Cir. 2018). The Ninth Circuit rejected that argument in Vizcarra, above, but the BIA and other circuits courts of appeals have not weighed in on it. Immigration advocates can consider this defense, but defenders should try to get 364 days or less on each count.