850 F.3d 1150 (10th Cir. 2017), 16-9516, Flores-Molina v. Sessions

Docket Nº:16-9516
Citation:850 F.3d 1150
Opinion Judge:McHUGH, Circuit Judge.
Party Name:FRANCISCO FLORES-MOLINA, Petitioner, v. JEFF SESSIONS, [*] United States Attorney General, Respondent
Attorney:Shawn D. Meade, MyRights Immigration Law Firm, Denver, Colorado, for Petitioner. Rebecca Hoffberg Phillips, Attorney, Office of Immigration Litigation (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Brianne Whelan Cohen, Senior Litigation Counsel, Office of Immigr...
Judge Panel:Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
Case Date:March 07, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

Francisco Flores-Molina was an undocumented alien subject to removal from the United States. An immigration judge determined he was ineligible for cancellation of removal because he has been convicted of a “crime involving moral turpitude.” The Board of Immigration Appeals agreed and dismissed Flores-Molina’s appeal. Flores-Molina then appealed to the Tenth Circuit, arguing the Board of... (see full summary)

 
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Page 1150

850 F.3d 1150 (10th Cir. 2017)

FRANCISCO FLORES-MOLINA, Petitioner,

v.

JEFF SESSIONS, [*] United States Attorney General, Respondent

No. 16-9516

United States Court of Appeals, Tenth Circuit

March 7, 2017

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Petition for Review from an Order of the Board of Immigration Appeals.

Shawn D. Meade, MyRights Immigration Law Firm, Denver, Colorado, for Petitioner.

Rebecca Hoffberg Phillips, Attorney, Office of Immigration Litigation (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Brianne Whelan Cohen, Senior Litigation Counsel, Office of Immigration Litigation, and Laura M.L. Maroldy, Trial Attorney, with her on the briefs), United States Department of Justice, Washington, D.C., for Respondent.

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.

OPINION

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McHUGH, Circuit Judge.

Francisco Flores-Molina is an undocumented alien subject to removal from the United States. An immigration judge determined he is ineligible for cancellation of removal because he has been convicted of a " crime involving moral turpitude." The Board of Immigration Appeals agreed and dismissed Mr. Flores-Molina's appeal. Mr. Flores-Molina then filed a petition in this court, arguing the Board of Immigration Appeals erred in finding that his crime of conviction, Denver Municipal Code § 38-40, is a crime involving moral turpitude.

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We agree. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition and remand for further proceedings.

I. BACKGROUND

Mr. Flores-Molina is a citizen of Mexico who came to the United States illegally and has remained here continuously since 1998. In March 2000, he pled guilty to violating Denver Municipal Code (" DMC" ) § 38-40, which prohibits giving false information to a city official during an investigation. In November 2011, following Mr. Flores-Molina's conviction of a Colorado driving-related offense, the federal government issued a Notice to Appear in which it charged Mr. Flores-Molina with removability as " [a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General." 8 U.S.C. § 1182(a)(6)(A)(i). In the Notice to Appear, the government alleged, among other things, that Mr. Flores-Molina (1) is not a citizen or national of the United States, (2) is a citizen and national of Mexico, and (3) was not admitted or paroled in the United States after inspection by an immigration officer.

Mr. Flores-Molina admitted to these allegations in a written response submitted to the immigration court. He also conceded that he was removable as charged. The immigration judge held a hearing on August 22, 2013, and found Mr. Flores-Molina removable based on his admissions and concession.

At the same hearing, Mr. Flores-Molina submitted an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b), which allows the Attorney General to cancel the removal of a noncitizen when four conditions are satisfied. See 8 U.S.C. § 1229b(b)(1)(A)-(D). One of these conditions is that the applicant must not have been convicted of a " crime involving moral turpitude." See id. § 1229b(b)(1)(C); id. § 1182(a)(2)(A)(i); id. § 1227(a)(2)(A)(i). The government moved to set aside Mr. Flores-Molina's application, arguing that his DMC § 38-40 conviction is a conviction of a crime involving moral turpitude (" CIMT" ) and that he is therefore barred from seeking relief under § 1229b(b).1

On December 10, 2013, the immigration judge held a status eligibility conference to determine whether Mr. Flores-Molina was barred from seeking cancellation of removal. After hearing arguments from both sides, the immigration judge found him statutorily barred because of his DMC § 38-40 conviction, concluding DMC § 38-40 is categorically a CIMT. Specifically, the judge found that, because DMC § 38-40 requires " knowingly and willfully giving false information during an investigation," a violation of the ordinance involves " deceptive conduct that results in an impairment of governmental functions" and is therefore " inherently morally turpitudinous." Turning to the first step of a three-step CIMT framework set forth by the Attorney General in Matter of Silva-Trevino ( Silva-Trevino I ), 24 I& N Dec. 687 (A.G. 2008), the immigration judge further concluded " there is no reasonable probability

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in which a violation of [DMC § 38-40] could criminalize non-morally turpitudinous conduct." For these reasons, the immigration judge denied Mr. Flores-Molina's application for cancellation of removal.

Mr. Flores-Molina timely appealed to the Board of Immigration Appeals (" BIA" ), arguing the immigration judge erred in finding he had been convicted of a CIMT because DMC § 38-40 does not contain " an express or inherent intent to [de]fraud, deceive, or obstruct justice." While the appeal was pending, the Attorney General vacated Silva-Trevino I. See Matter of Silva-Trevino, 26 I& N Dec. 550, 553 (A.G. 2015).

On February 29, 2016, the BIA dismissed Mr. Flores-Molina's appeal in a decision issued by a single Board Member. The BIA first acknowledged that the immigration judge relied in part on Silva-Trevino I and that the Attorney General had since vacated that decision. But the BIA noted that, in doing so, " the Attorney General specifically stated that he does not intend to affect the [BIA]'s determinations as to whether or not an offense entails 'reprehensible conduct committed with some degree of scienter,' and is or is not a crime involving moral turpitude for that reason." The BIA thus concluded that the vacatur of Silva-Trevino I did not affect the immigration judge's decision because her decision was based on " well-established [BIA] precedent decisions relating to whether these types of offenses involve the necessary reprehensible conduct and degree of scienter to constitute crimes involving moral turpitude."

The BIA then determined there was no basis for disturbing the immigration judge's decision on the merits. In its brief substantive discussion, the agency explained that it has " consistently found that an offense that involves impairing or obstructing a function of the Government by deceit, graft, trickery, or dishonest means is a crime involving moral turpitude." Rejecting Mr. Flores-Molina's argument that DMC § 38-40 lacks a sufficient intent element, the BIA stated that it has held " intent may be implied where, as here, the statute of conviction does not explicitly include intent as an element but where such intent is implicit in the nature of the offense." The BIA found that " knowingly and willfully" providing false information satisfies the requisite intent and thus concluded DMC § 38-40 is categorically a CIMT. Mr. Flores-Molina appeals.

II. DISCUSSION

The sole issue in this appeal is whether the BIA properly concluded DMC § 38-40 is a " crime involving moral turpitude" within the meaning of the Immigration and Nationality Act (" INA" ). If it is a CIMT, Mr. Flores-Molina's conviction precludes him from seeking cancellation of removal. See 8 U.S.C. § 1229b(b)(1); Garcia v. Holder, 584 F.3d 1288, 1289 (10th Cir. 2009) (" An alien convicted of a CIMT is . . . not eligible for cancellation of removal . . . ." ). If it is not, he may be able to seek cancellation, depending on whether he can satisfy the other statutory prerequisites on remand. See 8 U.S.C. § 1229b(b)(1).2

We begin our discussion by addressing the applicable scope and standard of review, as well as the general legal principles relevant to this case. We then turn to the

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parties' arguments concerning DMC § 38-40 and consider whether the ordinance is categorically a CIMT. For the reasons set forth below, we conclude it is not.

A.

Scope and Standard of Review

" Our scope of review directly correlates to the form of the BIA decision." Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012) (citation omitted). Here, because a single member of the BIA decided Mr. Flores-Molina's appeal and issued a brief opinion pursuant to 8 C.F.R. § 1003.1(e)(5), we review the BIA's decision as the agency's final order of removal. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006); see also

Morones-Quinones v. Holder, 591 Fed.Appx. 660, 661-62 (10th Cir. 2014) (unpublished). Although we usually lack jurisdiction to review BIA orders concerning cancellation under § 1229b, see 8 U.S.C. § 1252(a)(2)(B)(i), we have jurisdiction to review questions of law decided in those orders, id. § 1252(a)(2)(D); Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011).

Whether a cancellation-of-removal...

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