Obtain any personal identifying info and use for “any unlawful purpose, including “to obtain credit, goods, services, or medical information” (part (a)) or
Transfer any such information, knowing transferee will use for unlawful purpose (part (d)(2))
Aggravated Felony (AF)
Not AF based on 1 year imposed, but 364 is always best. See Advice.
Assume AF if loss to victim/s exceeds $10,000. To avoid that, consider plea to 484/487 and see Advice to 470, above.
Crime Involving Moral Turpitude (CIMT)
Not a CIMT. Ninth Circuit held it is not, but in at least one case, USCIS wrongly asserted it is divisible. See Advice re best practice for ROC.
Other Removal Grounds
No other removal ground.
Advice and Comments
AF with 1 yr. Conviction of theft, forgery, or counterfeiting is an AF if 1 yr or more is imposed. These are not elements of 530.5 and it can’t properly be held an AF under any of these categories regardless of underlying conduct.1If a sentence of a year or more is imposed, “theft” is an AF under 8 USC § 1101(a)(43)(G), and “forgery” and “counterfeiting” are AFs under § 1101(a)(43)(R). Under the categorical approach, § 530.5(a) lacks elements required for the generic definition of these offenses and thus cannot be an AF under any of these categories. (See Categorical Approach Advisory for more information.) “Theft” requires a taking by stealth, without consent. See discussion at Pen C § 484. “Forgery” and “counterfeiting” require, at a minimum, use of a written instrument. But to avoid a possible wrongful AF charge, keep sentence under 1 yr for each count and/or keep conduct involving forgery, counterfeiting, or obtaining goods out of the ROC. If D must take 1 yr or more, however, 530.5 is a reasonable choice.
CIMT. The Ninth Circuit held that the minimum conduct to commit 530.5(a) or (d)(2) is not a CIMT because it involves using the info for “any unlawful purpose” with no requirement of harm, loss, or intent to defraud, for example, working under another person’s name. Under the categorical approach, the sections cannot be held divisible as to the type of unlawful conduct.2Section 530.5(a) is overbroad and indivisible as a CIMT, so that no conviction is a CIMT for any immigration purpose, regardless of information in the record of conviction.
The Ninth Circuit found that it is not a CIMT because the minimum conduct does not require fraud or harm. Linares-Gonzalez v Lynch, 823 F.3d 508 (9th Cir. 2016); see also Tijani v. Holder, 628 F.3d 1071, 1078 (9th Cir. 2010), distinguishing § 530.5(a), which does not have an element of fraud, from § 532(a)(1), which it found to have such an element. Section 530.5(a) criminalizes the willful use of another’s personal identifying information, regardless of whether the user intends to defraud and regardless of whether any actual harm is caused. See People v. Hagedorn (2005) 127 Cal.App.4th 734, 818 (upheld conviction for working under another’s name, and using the identifying information to cash the paycheck); People v. Johnson, (2012) 209 Cal.App.4th 800, 818.
Section 530.5(a) should be held indivisible under Supreme Court precedent on the categorical approach. (See Categorical Approach Advisory for more information.) The section provides, “(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty.…” The term “any unlawful purpose” is a single term, not set out in statutory alternatives, and therefore it is not divisible. See, e.g., Descamps v. United States, 570 U.S. 254 (2013).
The statutory list of purposes—“any unlawful purpose, including to obtain … credit, goods, services …”—are illustrative examples, described by the term “including.” As such, the statute is not divisible between them, because they are mere “means” rather than “elements.” In Mathis v. United States, 136 S.Ct. 2243, 2256 (2016) the Supreme Court stated:
Conversely, if a statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s means of commission. United States v. Howard, 742 F. 3d 1334, 1348 (CA11 2014); see United States v. Cabrera-Umanzor, 728 F. 3d 347, 353 (CA4 2013).”
The use of the term “including” in § 530.5(a) shows that this is a quintessential list of illustrative examples. In the above quotation, the Court in Mathis approvingly cited two cases, Howard and Cabrera-Umanzor, that both found statutes to be indivisible because they employed the term “includes” or “including.”
See also CALCRIM No. 2040. “To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully obtained someone else’s personal identifying information; 2. The defendant willfully used that information for an unlawful purpose; AND 3. The defendant used the information without the consent of the person whose identifying information (he/she) was using.” But best practice is to avoid a plea to obtaining credit or goods, and try to plead to specific conduct that does not involve loss, harm, or fraud.