Chung Ham v. Eric Holder, Jr.

MEMORANDUM

Chung Wei Ham, a native and citizen of Taiwan, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s order denying him a waiver of inadmissibility based on his aggravated felony conviction. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review de novo “[wjhether an offense is an aggravated felony under 8 U.S.C. § 1101 (a)....” Martinez-Perez v. Gonzales, 417 F.3d 1022, 1025 (9th Cir.2005).

Ham challenges the BIA’s finding that his conviction for knowingly possessing for sale articles bearing a counterfeit mark, in violation of CaLPenal Code § 350(d)(3), constitutes an aggravated felony. 8 U.S.C. § 1101 (a)(43)(R); see 8 U.S.C. § 1182 (h). Ham claims that the definition of the term “spurious mark” in CaLPenal Code § 350 regulates activities outside the core counterfeiting offense. While the felony complaint alleges that Ham committed his crimes before the “spurious mark” definition became effective, Ham maintains that the categorical approach of Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), precludes us from “concluding] that [he] committed the offense ...…