Jimenez v. Sessions

• Decision Date: 19 June 2018
• Docket Number: Nos. 16-9555 & 17-9527,s. 16-9555 & 17-9527
• Citation: 893 F.3d 704
• Parties: Alejandro Lujan JIMENEZ, Petitioner, v. Jefferson B. SESSIONS, III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

893 F.3d 704

Alejandro Lujan JIMENEZ, Petitioner,
v.
Jefferson B. SESSIONS, III, United States Attorney General, Respondent.

Nos. 16-9555 & 17-9527

United States Court of Appeals, Tenth Circuit.

June 19, 2018

James S. Lamb (Catherine A. Chan, on the briefs), Chan Law Firm, Denver, Colorado, for Petitioner.

Jessica A. Dawgert, Senior Litigation Counsel (Chad A. Readler, Acting Assistant Attorney General, and Melissa Neiman–Kelting, Assistant Director, with her on the brief), U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges.

LUCERO, Circuit Judge.

Alejandro Lujan Jimenez petitions for review from a final order of removal and an order by the Bureau of Immigration Appeals ("BIA") declining to sua sponte reopen removal proceedings. We dismiss the latter petition for lack of jurisdiction. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the former.

The BIA incorrectly determined that Lujan’s¹ Colorado conviction for first degree criminal trespass, Colo. Rev. Stat. § 18-4-502, was a crime involving moral turpitude. Under the portion of the statute at issue, a defendant must have unlawfully entered a "motor vehicle with intent to commit a crime therein." Id. The BIA held that the crime intended is an element of the offense such that the statute is divisible on this basis. However, the Colorado Supreme Court has held an information charging only that a defendant intended to commit "a crime" contains "all essential elements of the crime of first degree criminal trespass." People v. Williams, 984 P.2d 56, 63 (Colo. 1999). And in numerous Colorado cases involving similar crimes, juries have been instructed as to alternative ulterior offenses. We conclude that the Colorado statute is not divisible as to the particular ulterior offense. A prior decision of this court stating otherwise, United States v. Venzor–Granillo, 668 F.3d 1224 (10th Cir. 2012), cannot be reconciled with the approach to divisibility set forth in Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016).

I

Lujan is a native and citizen of Mexico. He first entered the United States as a child sometime in the 1990s. His most recent entry into the United States occurred in May 2004. In January 2007, Lujan pled guilty in Colorado state court to Criminal Trespass of a Motor Vehicle with the Intent to Commit a Crime Therein, in violation of Colo. Rev. Stat. § 18-4-502. He was sentenced to thirty-five days in jail.

On May 12, 2008, the Department of Homeland Security issued Lujan a Notice

893 F.3d 708

to Appear. It later filed an amended notice charging that he was removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. Lujan appeared in immigration court in September 2008 and received a continuance to hire an attorney. After retaining counsel, he obtained two additional continuances in November 2008 and February 2009. In April 2009, he conceded removability.

Lujan then applied for adjustment of status and cancellation of removal. He obtained four additional continuances of his removal proceedings. In August 2011, Lujan submitted documents in support of his applications for relief. His case was set for a final merits hearing in January 2014. However, on May 6, 2013, an Immigration Judge ("IJ") rescheduled the hearing for June 5, 2013. Lujan requested a continuance on May 13, which was denied. His counsel moved to withdraw on May 24.

Lujan appeared in immigration court on June 5, 2013, and the IJ granted counsel’s motion to withdraw. Lujan stated that he was attempting to obtain new counsel, but proceeded pro se at the hearing. The IJ denied relief, concluding that Lujan was ineligible for adjustment of status based on his immigration history and that he was ineligible for cancellation of removal because he had been convicted of a crime involving moral turpitude—his criminal trespass offense in Colorado.

Lujan appealed to the BIA, arguing that the IJ’s denial of a continuance violated his right to due process and that his Colorado conviction was not a crime involving moral turpitude. The BIA affirmed the IJ’s ruling. Lujan then filed an untimely petition for review, which we dismissed. Lujan–Jimenez v. Holder, No. 14-9608 (10th Cir. Jan. 30, 2015) (unpublished). He also filed a motion requesting that the BIA reopen his removal proceedings or reissue its removal order, which the BIA denied. We granted his petition for review of that order, remanding to the BIA to explain its reasons for declining to reissue the removal order. Lujan–Jimenez v. Lynch, 643 Fed.Appx. 737, 738 (10th Cir. 2016) (unpublished).

On remand, the BIA reissued Lujan’s removal order. Lujan filed a petition for review of the reissued order. Several months later, he filed a request that the BIA sua sponte reopen his proceedings. The BIA declined to do so, and Lujan filed a second petition for review. We consolidated the two petitions.

II

We first consider our jurisdiction over Lujan’s petitions for review. See Margheim v. Buljko, 855 F.3d 1077, 1083 (10th Cir. 2017) ("As a federal court of limited jurisdiction, we have an independent obligation to confirm that our jurisdiction is proper."). In petition number 16-9555, Lujan seeks review of the BIA’s final order of removal. We possess jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1). Lujan’s petition was timely filed within thirty days of entry of the order. See § 1252(b)(1) ; Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (petition for review deadline is jurisdictional). And Lujan seeks review of statutory and constitutional questions rather than discretionary issues or other matters over which jurisdiction is barred by § 1252(a)(2).

However, we lack jurisdiction over petition number 17-9527. In that petition, Lujan seeks review of the BIA’s decision declining to sua sponte reopen his removal proceedings. Our court has previously held that "we do not have jurisdiction to consider [a] petitioner’s claim that the BIA should have sua sponte reopened the proceedings

893 F.3d 709

... because there are no standards by which to judge the agency’s exercise of discretion." Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004). We accordingly review the merits only as to petition number 16-9555.

III

We review the ruling of the BIA as the agency’s final decision. Cruz–Funez v. Gonzales, 406 F.3d 1187, 1190 (10th Cir. 2005). However, "[w]e may consult the IJ’s decision to give substance to the BIA’s reasoning." Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). In doing so, we review legal issues de novo and factual findings for substantial evidence. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004).

A

Because Lujan conceded removability, he bears the burden of establishing eligibility for relief from removal. 8 U.S.C. § 1229a(c)(4)(A). An alien is ineligible for cancellation of removal if he has been previously convicted of a crime involving moral turpitude. 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). A prior conviction qualifies if it involves "conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality." Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011).

In determining whether a prior conviction is for a crime involving moral turpitude, we generally apply the categorical approach. See Flores–Molina v. Sessions, 850 F.3d 1150, 1158 (10th Cir. 2017). Under that approach, "we must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed" within the definition. Moncrieffe v. Holder, 569 U.S. 184, 190–91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (quotation and alterations omitted). The actual facts of a prior crime are irrelevant. Id. at 190, 133 S.Ct. 1678. If a state statute "sweeps more broadly" than the definition at issue, it does not qualify under the categorical approach. Descamps v. United States, 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

If a statute is divisible, however, we employ the modified categorical approach. Id. Divisible statutes "list elements in the alternative, and thereby define multiple crimes." Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). Under the modified categorical approach, courts may look to a limited set of documents to determine which elements formed the basis of a prior conviction. Descamps, 570 U.S. at 262, 133 S.Ct. 2276. We then apply the categorical approach to determine whether those alternative elements necessarily qualify as a crime involving moral turpitude. See id. at 263–64, 133 S.Ct. 2276.

The Colorado statute at issue provides: "A person commits the crime of first degree criminal trespass if such person knowingly and unlawfully enters or remains in a dwelling of another or if such person enters any motor vehicle with intent to commit a crime therein." Colo. Rev. Stat. § 18-4-502. The record shows that Lujan pled guilty to trespass of an...