Aggravated Felony (AF)
Get 364 days or less on any one count to avoid an AF as perjury.
If the perjury resulted in loss > $10k, it may be an AF as a crime of deceit.
Crime Involving Moral Turpitude (CIMT)
Ninth Circuit held that written perjury is not a CIMT, and that the statute is divisible. Plead specifically to written, but also see Advice.
The Ninth Circuit did not rule on whether oral perjury is a CIMT, but BIA held that it (as well as written perjury) is a CIMT.
Other Removal Grounds
No other removal ground.
Advice and Comments
CIMT. If it is critical to avoid a CIMT, consider other offenses, e.g., 529(a)(3), 530.5 (which can take a year) or 496 (which cannot), because the law on 118 may be volatile. The Ninth Circuit declined to defer to a BIA opinion finding that 118, including written, always is a CIMT, on the grounds that the BIA had failed to explain its reasoning.1Pen C § 118 as a CIMT. The Ninth Circuit found that Pen C § 118 is divisible between making a false statement under oath before a tribunal and making a false written statement under penalty of perjury (e.g., in a driver’s license application). Rivera v. Lynch, 816 F.3d 1064 (9th Cir 2016). The court found that written perjury is not a CIMT, because it includes “non-case related lying,” does not exclude statements by incompetent defendants, and lacks the solemnity of an oral oath-taking. Defenders should plead specifically to written perjury.
The court did not rule on whether oral perjury under Pen C § 118 is a CIMT. Defenders should assume conservatively that it is, but immigration advocates can explore arguments that it is not. As with any argument that may not prevail, at the same time advocates should explore other defense strategies, including obtaining post-conviction relief.
While this is a good decision, be aware that the BIA might challenge the Ninth Circuit on the CIMT issue in the future and it is possible that the court would defer to the Board. In Rivera, the Ninth Circuit declined to defer to the BIA’s holding in Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001) that § 118 is categorically (always) a CIMT, on the grounds that the BIA had provided no explanation for its holding. Rivera, 816 F.3d at 1017-71. In a subsequent case that ruled only on aggravated felonies, the BIA acknowledged without comment the Rivera reasoning in refusing to defer. Matter of Alvarado, 26 I&N Dec 895, 902 at n. 12 (BIA 2016).
In Rivera, the Ninth Circuit noted that California has multiple other perjury statutes for different contexts (see, e.g., Financial Code § 460, Gov’t Code § 1368). Because each of these has distinct elements, each requires a separate CIMT analysis. In future, the BIA might issue a new opinion and the Ninth Circuit might decide to defer—so while the current rule is that 118 is not a CIMT could change and defenders should not rely on it.
AF. The Ninth Circuit held that PC 118 meets the generic definition of perjury and thus any conviction of 118 is an AF if a year or more is imposed, regardless of whether perjury was written or oral.2Pen C §118 as an AF. The BIA and the Ninth Circuit have held that Pen C 118 is categorically (always) “perjury” and thus is an AF if a sentence of a year or more is imposed. See Matter of Alvarado, 26 I&N Dec 895 (BIA 2016) and Yim Barr, 972 F.3d 1069 (9th Cir. 2020), deferring to the BIA’s definition. Compare this to the Ninth Circuit’s ruling for Pen C 118 as a CIMT, discussed in Rivera v. Lynch, 816 F.3d 1064 (9th Cir 2016) in above endnote.
If the loss to victim/s exceeds $10k, see instructions at PC 484, 470.