                                                                              FILED
                             NOT FOR PUBLICATION                               JUL 28 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


HO SANG YIM,                                       No. 12-73079

               Petitioner,                         Agency No. A037-993-102

 v.
                                                   MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                         Argued and Submitted July 9, 2015
                               Pasadena, California

Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.

      Ho Sang Yim pled nolo contendere to a charge of perjury under California

Penal Code section 118(a). He was sentenced to three years in state prison. The

BIA affirmed the IJ’s decision that Yim was removable under INA §

237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of

an aggravated felony, which includes “an offense relating to . . . perjury . . . for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
which the term of imprisonment is at least one year. . . .” INA § 101(a)(43)(S), 8

U.S.C. § 1101(a)(43)(S). Because the BIA did not perform the analysis “which we

use to determine generic crimes for the purposes of categorical analysis of prior

convictions,” United States v. Garcia-Santana, 774 F.3d 528, 543 (9th Cir. 2014)

(citing Taylor v. United States, 495 U.S. 575 (1990), and “its progeny”), we

remand to the BIA for a proper Taylor analysis.

      To determine whether a specific crime is an aggravated felony, we apply the

categorical approach. Rendon v. Holder, 764 F.3d 1077, 1082 (9th Cir. 2014)

(citing Taylor, 495 U.S. 575). Under this approach, we compare the statutory

definition of a petitioner’s prior offense to a federal “generic crime.” Id. at 1082-

83. Generally, we must defer to the BIA where, as here, it defined a generic crime

that the INA itself did not define. See, e.g., Parrilla v. Gonzales, 414 F.3d 1038,

1041-42 (9th Cir. 2005). However, the BIA is not entitled to deference where the

BIA “ignores . . . the mode of analysis derived from Taylor and its progeny . . . to

determine generic crimes.” Garcia-Santana, 774 F.3d at 543.

      To arrive at the generic definition, the BIA must look to “contemporary

usage” by “survey[ing] the definitions codified in state and federal statutes,

adopted by the Model Penal Code . . . , and endorsed by scholarly commentary” to

find the generic crime. Id. at 534 (holding that a Nevada conspiracy statute was


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broader than the generic definition of conspiracy, and therefore not an aggravated

felony under the INA).

      Here, the IJ and the BIA relied on In re Martinez-Recinos, 23 I. & N. Dec.

175, 177 (BIA 2001), for the proposition that California Penal Code section 118(a)

may constitute an aggravated felony. In that case, the BIA “examine[d] the

California statute” of conviction at issue “and the federal statute defining perjury.”

Id. The BIA determined that section 118(a) is an aggravated felony because, it

concluded, section 118(a) and 18 U.S.C. § 1621, the federal perjury statute, were

“essentially the same.” Id. Importantly, in deciding that § 1621 provided the

“generic” definition of perjury, the BIA performed no survey to determine the

“contemporary usage.” Id.; see Garcia-Santana, 774 F.3d at 534. Nor did it

consider its prior decision in Matter of H—, 1 I. & N. Dec. 669, 670 (BIA 1943),

which looked to the common-law definition of perjury to define the generic crime.

It simply adopted the federal definition, without any additional analysis. Martinez-

Recinos, 23 I. & N. Dec. at 177. Under Garcia-Santana, this conclusory statement

does not warrant our deference.

      We grant the petition for review and remand to the BIA to determine the

generic definition of perjury in accordance with the principles discussed above.

      GRANTED and REMANDED.


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