                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 02 2015

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



                            FOR THE NINTH CIRCUIT


JESUS IVAN MORENO-AVENDANO,                       No. 14-70998

              Petitioner,                         Agency No. A074-384-365

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

              Respondent.


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

                      Argued and Submitted October 20, 2015
                            San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.

      Jesus Ivan Moreno-Avendano, a citizen of Mexico and a lawful permanent

resident of the United States, petitions this court for review of a Board of Immigration

Appeals (“BIA”) decision finding him removable under the Immigration and

Nationality Act for the commission of an aggravated felony. The immigration judge



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“IJ”) found that Moreno-Avendano was removable because his conviction under

Nevada Revised Statute § 205.090 for forgery fell within the federal categorical

definition of an “offense relating to . . . forgery.” 8 U.S.C. § 1101(a)(43)(R). The

BIA affirmed, stating that Moreno-Avendano did not “meaningfully dispute” in his

appeal brief to the BIA that he is subject to removal but rather only made a collateral

attack on his underlying Nevada conviction.

      1. At the outset, the Government argues that we do not have jurisdiction to hear

this petition because Moreno-Avendano failed to exhaust both his claim that the

Nevada forgery conviction was not an aggravated felony and his due-process claim

that he did not receive a full and fair hearing with the IJ. We may review an order of

removal only if a non-citizen has exhausted administrative remedies. 8 U.S.C. §

1252(d)(1). Although a petitioner cannot meet the exhaustion requirement by simply

challenging an IJ’s decision as wrong, the petitioner “need not . . . raise the precise

argument below.” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008)

(emphasis in original). In the context of exhaustion, pro se petitioners’ claims are

given particular latitude. Id.

      Moreno-Avendano exhausted his argument that his Nevada conviction was not

an aggravated felony, but he did not exhaust his due-process argument. In his brief

to the BIA, Moreno-Avendano stated that his Nevada conviction “did not involve


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drugs, weapons or violence in any way.” Contrary to the BIA’s finding, this language

does not collaterally attack Moreno-Avendano’s forgery sentence; indeed, the absence

of drugs, weapons, or violence has nothing to do with forgery. Rather, this argument

is what might well be expected of a lay person who was trying to contest the finding

that forgery, like crimes involving drugs, weapons, or violence, is an aggravated

felony. Moreover, the only ground for the IJ’s decision was that forgery constituted

an aggravated felony. The BIA should have been on notice that Moreno-Avendano’s

language, even though it did not include precise legal terminology, was challenging

this sole basis for his removal.           See Vizcarra-Ayala, 514 F.3d at 873.

Moreno-Avendano, however, did not raise his due-process contention to the BIA, and

we therefore lack jurisdiction to hear that argument.

      2. To establish that a lawful permanent resident, such as Moreno-Avendano,

is removable, the Government must prove that the Nevada forgery conviction meets

the generic definition of an “offense relating to . . . forgery” under federal immigration

law. See 8 U.S.C. § 1101(a)(43)(R). In evaluating whether the government carried

this burden, we start with the categorical approach. Ragasa v. Holder, 752 F.3d 1173,

1175-76 (9th Cir. 2014). “Under the categorical approach, we ‘examine only the

statutory definition of the crime to determine whether the state statute of conviction

renders an alien removable under the statue of removal, without looking to the actual


                                      Page 3 of 7
conduct underlying the petitioner’s offense.’” Id. at 1176 (quoting Myielewczyk v.

Holder, 575 F.3d 992, 996 (9th Cir. 2009)). There must be a “realistic probability, not

a theoretical possibility, that the State would apply its statute to conduct that falls

outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183,

193 (2007). A realistic probability can be shown through case law or when “a state

statute explicitly defines a crime more broadly than the generic definition.” U.S. v.

Grisel, 488 F.3d 844, 850 (9th Cir. 2007); see also Chavez-Solis v. Lynch, --- F.3d

----, 2015 WL 5806148, at *5 (9th Cir. Oct. 6, 2015). Here, the Nevada statute is

broader than the federal one because it includes the destruction of a document in its

definition of forgery while the federal definition only includes the altering or making

of a document. The Nevada statute states, “A person who falsely makes, alters, forges

or counterfeits any record . . . with the intent to damage or defraud any person . . . is

guilty of forgery.” NRS § 205.090. The verb “forges” includes “false making,

‘counterfeiting’ and the alteration, erasure or obliteration of a genuine instrument in

whole or in part . . . .” NRS § 205.085(2) (emphasis added). The word obliterate

includes to erase or destroy, OBLITERATE, Black's Law Dictionary (10th ed. 2014),

and the inclusion of “in whole or in part” means that the complete obliteration or the

complete erasure of a document is included in Nevada’s forgery definition in addition

to a partial erasure or obliteration. In sum, the Nevada forgery statute on its face


                                      Page 4 of 7
punishes a person who erases or obliterates a whole document—that is, destroys the

document—with the intent to defraud or damage.

       This destruction of a document is not included in the federal definition. In

Vizcarra-Ayala, 514 F.3d at 874, we defined the “essential elements of the common

law crime of forgery” as “(1) a false making of some instrument in writing; (2) a

fraudulent intent; [and] (3) an instrument apparently capable of effecting a fraud.” We

elaborated, “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.” Id. at 875. Both of these definitions underscore that forgery includes

the “making” or “alteration” of a document and not simply the destruction of a

document, as allowed under Nevada law.

       Furthermore, the federal statute’s ‘relating to’ clause does not broaden the

federal definition to include the destruction of documents.1            As explained in

Vizcarra-Ayala, conduct relating to forgery applies to “activities ancillary to the core

offense,” such as possession of counterfeit documents or knowing use of a counterfeit

mark. Id. at 877. Because including the destruction of a document, rather than the

       1
          The Government argues that we should remand this question as well as any
analysis of the modified categorical approach to the BIA. However, “remand is
not required where, as here, the issue is purely legal and involves an interpretation
of . . . a statute which the BIA is not charged with administering.” Aguiluz-
Arellano v. Gonzalez, 446 F.3d 980, 984 (9th Cir. 2006).

                                      Page 5 of 7
making or alteration of a document, would eliminate an essential element of forgery,

the ‘relating to’ clause may not be read so broadly.

       3. Finally, we do not apply the modified categorical approach because the

statute is not divisible. A statute is divisible only if the jury “must unanimously agree

on the particular offense of which the petitioner has been convicted.” Rendon v.

Holder, 764 F.3d 1077, 1085 (9th Cir. 2014). “Any statutory phrase that—explicitly

or implicitly—refers to multiple, alternative means of commission must still be

regarded as indivisible if the jurors need not agree on which method of committing

the offense the defendant used.” Id. Here, nothing in Nevada case law suggests that

the statute is divisible. Indeed, given that the words used in the Nevada forgery

definition—alteration, obliteration, and erasure—all have overlapping meanings, it

would be illogical to require that a Nevada jury unanimously conclude that a

defendant erased as opposed to obliterated or altered a document to convict under the

statute. In any event, we need not consider this issue further as the government

conceded at oral argument that the Nevada forgery statute is not divisible. In sum,

because the Nevada statute under which Moreno-Avendano was convicted

encompasses more conduct than the federal definition of an offense relating to

forgery, he is not removable on the ground of his conviction for violation of that

statute.


                                      Page 6 of 7
PETITION GRANTED.




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