Franklin David Marquez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANKLIN DAVID MARQUEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-71028
Agency No. A094-171-072
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2022**
San Francisco, California
Before: McKEOWN and KOH, Circuit Judges, and SESSIONS,*** District Judge.
Franklin David Marquez (“Marquez”), a native and citizen of El Salvador
and lawful permanent resident of the United States, petitions for review of a
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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decision of the Board of Immigration Appeals (“BIA”) affirming an order of an
Immigration Judge (“IJ”) finding him removable based on his conviction for an
aggravated felony, specifically Nevada Revised Statutes (“NRS”) § 205.372(2).
We review de novo whether a conviction constitutes an aggravated felony.
Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1068 (9th Cir. 2020) (citation
omitted). We deny the petition.
As an initial matter, we reject the government’s request to remand for the
BIA to reassess its divisibility and modified categorical analyses. Neither issue
warrants remand. As to divisibility, “[w]e owe no deference to the decision of the
BIA on [divisibility] and there is no reason to remand for the BIA to decide the
issue of divisibility.” Sandoval v. Sessions, 866 F.3d 986, 993 (9th Cir. 2017). As
to the modified categorical approach, remand may be warranted if a petitioner’s
conviction record before the BIA was “incomplete,” Flores-Lopez v. Holder, 685
F.3d 857, 866 (9th Cir. 2012), or if “new evidence has developed” since the BIA’s
decision, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1133 (9th Cir. 2006) (en
banc). Here, however, “all relevant evidence regarding the conviction had been
presented to the BIA in earlier proceedings,” and the government does not contend
otherwise. See Flores-Lopez, 685 F.3d at 865 (internal quotation marks and
citation omitted). Accordingly, we decline the government’s request for a remand
and turn to the issue before us.

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In 2015, Marquez pled guilty to one count of a pattern of mortgage lending
fraud in violation of NRS § 205.372(2). The issue on appeal is whether Marquez’s
conviction under NRS § 205.372(2) constitutes an aggravated felony under 8
U.S.C. § 1101(a)(43)(M)(i) as “an offense that involves fraud or deceit in which
the loss to the victim or victims exceeds $10,000,” rendering him subject to
removal under 8 U.S.C. § 1227(a)(2)(A)(iii). To determine whether a conviction
constitutes an aggravated felony, we apply the three-step categorical and modified
categorical approach. Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir. 2015).
1. The first step is to determine whether NRS § 205.372(2) categorically
matches “an offense that involves fraud or deceit” under 8 U.S.C.
§ 1101(a)(43)(M)(i). “We compare the elements of the state offense to the
elements of the generic offense defined by federal law.” Id. If “the statute of
conviction prohibits some conduct that does not constitute an aggravated felony,
then there is no categorical match.” Carlos-Blaza v. Holder, 611 F.3d 583, 587
(9th Cir. 2010) (internal quotation marks and citation omitted). “[W]e simply ask[]
whether the prior conviction[] before us,” Shular v. United States, 140 S. Ct. 779,
783 (2020), “necessarily entail[s] fraudulent or deceitful conduct,” id. (quoting
Kawashima v. Holder, 565 U.S. 478, 484 (2012) (emphasis omitted)). Here, NRS
§ 205.372(2) proscribes, in part, conspiracy to engage in a pattern of mortgage
lending fraud. Under Nevada law, a conspiracy is “a completed act upon the

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making of an unlawful agreement regardless of whether the object of the
conspiracy is effectuated.” Nunnery v. Eighth Judicial Dist. Court ex rel. Cnty. of
Clark, 186 P.3d 886, 889 (Nev. 2008). Thus, because the making of an unlawful
agreement does not “necessarily entail fraudulent or deceitful conduct,” NRS
§ 205.372(2) is not a categorical match to an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(M)(i). See Kawashima, 565 U.S. at 484.
2. The second step is to determine whether the statute is divisible. A statute
is divisible if it sets out distinct offenses comprised of “substantively different
elements concerning different conduct and involving different proof.” United
States v. Buck, 23 F.4th 919, 925 (9th Cir. 2022). In determining a statute’s
divisibility, we look “first to the statute itself.” Sandoval, 866 F.3d at 993. Our
inquiry ends if “the statute on its face . . . resolve[s] the issue.” Mathis v. United
States, 579 U.S. 500, 518 (2016). Here, the text of NRS § 205.372(2) indicates
that it is divisible into three distinct offenses: (1) engaging in a pattern of mortgage
lending fraud, (2) conspiracy to engage in a pattern of mortgage lending fraud, and
(3) attempt to engage in a pattern of mortgage lending fraud. The well-established
distinction between substantive offenses and inchoate offenses makes that clear.
See Callanan v. United States, 364 U.S. 587, 593 (1961) (“[I]t has been long and
consistently recognized by the [Supreme] Court that the commission of the

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substantive offense and a conspiracy to commit it are separate and distinct
offenses.” (citation and internal quotation marks omitted)).
Because a “conspiracy is committed upon reaching the unlawful agreement”
under Nevada law, Nunnery, 186 P.3d at 888 (citation omitted), a conviction for
conspiring to engage in a pattern of mortgage lending fraud requires proof that the
defendant agreed to commit “one or more violations of a provision of subsection 1
committed in two or more mortgage lending transactions,” NRS § 205.372(8)(d).
By contrast, a conviction for the offense of engaging in a pattern of
mortgage lending fraud requires proof that the defendant committed “one or more
violations of a provision of subsection 1 committed in two or more mortgage
lending transactions.” NRS § 205.372(8)(d). In still further contrast, the elements
of an attempt to engage in a pattern of mortgage lending fraud center on the
“performance of some act toward the commission of the crime” and “the failure to
consummate its commission.” See Powell v. State, 934 P.2d 224, 227 (Nev. 1997).
Therefore, NRS § 205.372(2) is divisible because, rather than enumerate
“alternative factual means of committing a single offense,” see Buck, 23 F.4th at
925, it “list[s] elements in the alternative, and thereby define[s] multiple crimes,”
Mathis, 579 U.S. at 505.
3. The third and final step is to apply the modified categorical approach.
“At this step, we may examine certain documents from the defendant’s record of

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conviction to determine what elements of the divisible statute he was convicted of
violating.” Lopez-Valencia, 798 F.3d at 868. Here, Marquez’s conviction record
reflects that he pled guilty to the elements of the offense of engaging in a pattern of
mortgage lending fraud.
A conviction for the offense of engaging in a pattern of mortgage lending
fraud requires proof that a person (1) as a participant in a mortgage lending
transaction (2) engaged (3) in one or more violations of NRS § 205.372(1)(a)–(e)
in two or more mortgage lending transactions. See NRS §§ 205.372(2), (8)(d).
Marquez’s first amended indictment, which was incorporated into his guilty plea
agreement, charged Marquez with “the crime of one (1) count of Pattern of
Mortgage Lending Fraud.” Marquez admitted that he “knowingly and unlawfully
committed mortgage lending fraud in two or more mortgage lending transactions.”
Marquez further admitted to violations of NRS § 205.372(1). Although the first
amended indictment does not designate which subsections of NRS § 205.372(1)
Marquez violated, the allegations track the language of NRS § 205.372(1)(a), NRS
§ 205.372(1)(c), and NRS § 205.372(1)(d). See Vasquez-Valle v. Sessions, 899
F.3d 834, 843–44 (9th Cir. 2018) (concluding that a petitioner was convicted under
a subsection because the plea agreement, which “did not designate which
subsection of the statute he violated,” “tracked” the language of the subsection). In

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further confirmation, the first amended indictment lacks any text referencing the
attempt or conspiracy offenses in NRS § 205.372(2).
Finally, having identified Marquez’s crime of conviction, “we repeat step
one—the categorical approach—but limited to the actual crime of conviction
described in the relevant subpart of the divisible criminal statute.” Diego v.
Sessions, 857 F.3d 1005, 1010 (9th Cir. 2017). Among the violations of NRS
§ 205.372(1) that formed the basis of Marquez’s conviction, NRS § 205.372(1)(a)
is plainly “an offense that involves fraud or deceit” under 8 U.S.C.
§ 1101(a)(43)(M)(i).
A person violates NRS § 205.372(1)(a) if he “[k]nowingly makes a false
statement or misrepresentation concerning a material fact or knowingly conceals or
fails to disclose a material fact.” “Although the words ‘fraud’ and ‘deceit’ are
absent from the text of” NRS § 205.372(1)(a), the scope of 8 U.S.C.
§ 1101(a)(43)(M)(i) “is not limited to offenses that include fraud or deceit as
formal elements.” See Kawashima, 565 U.S. at 483–84. Rather, 8 U.S.C.
§ 1101(a)(43)(M)(i) “refers more broadly to offenses . . . that necessarily entail
fraudulent or deceitful conduct.” Id. at 484. NRS § 205.372(1)(a) requires, at a
minimum, that Marquez knowingly failed to disclose a material fact in a mortgage
lending transaction. That conduct “necessarily entail[s]” fraud or deceit. See id.

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(noting that “concealment” is a form of deceit). Because Marquez pled guilty to
such an offense, his conviction constitutes an aggravated felony.
The temporary stay of removal remains in place until the mandate issues.
The motion for a stay of removal is otherwise denied.
PETITION DENIED.

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