Lucio-Rayos v. Sessions

• Decision Date: 14 November 2017
• Docket Number: No. 15-9584,15-9584
• Citation: 875 F.3d 573
• Parties: Juan Alberto LUCIO-RAYOS, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent. Immigrant Defense Project ; National Immigration Project of the National Lawyers Guild; American Immigration Lawyers Association; Detention Watch Network; Rocky Mountain Immigrant Advocacy Network ; Colorado Lawyers Committee; New Mexico Criminal Defense Lawyers Association ; Utah Association of Criminal Defense Lawyers ; Professor Christopher Lasch; Professor Noah B. Novogrodsky; Professor Violeta Chapin, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

875 F.3d 573

Juan Alberto LUCIO-RAYOS, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.

Immigrant Defense Project ; National Immigration Project of the National Lawyers Guild; American Immigration Lawyers Association; Detention Watch Network; Rocky Mountain Immigrant Advocacy Network ; Colorado Lawyers Committee; New Mexico Criminal Defense Lawyers Association ; Utah Association of Criminal Defense Lawyers ; Professor Christopher Lasch; Professor Noah B. Novogrodsky; Professor Violeta Chapin, Amici Curiae.

No. 15-9584

United States Court of Appeals, Tenth Circuit.

FILED November 14, 2017

James S. Lamb, Chan Law Firm, Denver, Colorado, for Petitioner.

Corey L. Farrell (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri J. Scadron, Assistant Director, and Lisa Morinelli, on the brief), United States Department of Justice, Washington, D.C. for Respondent.

Aaron Scherzer (Jayashri Srikantiah and Lisa Weissman-Ward, Mills Legal Clinic, Stanford, California; Manuel Vargas and Andrew Wachtenheim, Immigrant Defense Project, New York, New York, on the brief), Orrick, Harrington & Sutcliffe, LLP, New York, New York, for Amici Curiae.

Before HARTZ and EBEL, Circuit Judges.¹

EBEL, Circuit Judge.

The question presented in this petition for review is whether Petitioner Juan Alberto Lucio-Rayos's municipal theft conviction qualifies as a crime involving moral turpitude ("CIMT"), which would make him ineligible for cancellation of removal. Lucio-Rayos was convicted under a divisible municipal code provision that sets forth several different theft offenses, some of which qualify as CIMTs and some of which do not. Applying the modified categorical approach, it is not possible to tell which theft offense was the basis of Lucio-Rayos's conviction. However, because it is Lucio-Rayos's burden to establish his eligibility for cancellation of removal, he bears the brunt of this inconclusive record. We, therefore, uphold the Board of Immigration Appeals ("BIA")'s determination that Lucio-Rayos has not shown that he is eligible for cancellation of removal. We also conclude that the immigration judge ("IJ") did not deprive Lucio-Rayos of due process by refusing to recuse from hearing his case. Thus, having jurisdiction under 8 U.S.C. § 1252(a)(2)(D), we DENY Lucio-Rayos's petition for review.²

I. BACKGROUND

Lucio-Rayos, a citizen of Mexico who entered the United States without authorization, conceded that he is subject to removal, but seeks discretionary relief from the Attorney General in the form of cancellation of removal under 8 U.S.C. § 1229b(b). The IJ ruled that Lucio-Rayos is not eligible to apply for cancellation of removal because his prior theft conviction under the Westminster, Colorado Municipal Code, WMC 6-3-1(A), is for a CIMT. The BIA affirmed. Lucio-Rayos has petitioned this court to review the BIA's decision. See 8 U.S.C. § 1252. We have jurisdiction to consider his constitutional claims and questions of law involving statutory construction. Id. § 1252(a)(2)(D) ; see Flores-Molina v. Sessions, 850 F.3d 1150, 1157 (10th Cir. 2017). We review these matters de novo, although in appropriate circumstances we may defer to the BIA's interpretation of the immigration laws it implements. See Flores-Molina, 850 F.3d at 1157.

II. DISCUSSION

A. The IJ did not deprive Lucio-Rayos of due process by refusing to recuse

As an initial matter, Lucio-Rayos contends that the IJ erred in refusing to recuse from considering Lucio-Rayos's case because the IJ's spouse is one of two supervising Deputy Chief Counsel for the Immigration and Customs Enforcement ("ICE") office in Denver, the office which initiated this removal proceeding against Lucio-Rayos.³ The BIA rejected this argument. We do, too.

Lucio-Rayos's recusal argument is essentially a due process claim, which we review de novo. See Hassan v. Holder, 604 F.3d 915, 923 (6th Cir. 2010). He is entitled to a full and fair removal hearing that comports with due process. See Kapcia v. INS, 944 F.2d 702, 705 (10th Cir. 1991) (quoting Vissian v. I.N.S., 548 F.2d 325, 329 (10th Cir. 1977) ). That includes a fair and impartial decision-maker. See Vargas-Hernandez v. Gonzales, 497 F.3d 919, 925 (9th Cir. 2007) (citing In re Exame, 18 I. & N. Dec. 303, 306 (BIA 1982) ). In order to prevail on his due process claim, Lucio-Rayos must establish both that he was deprived of due process and that that deprivation prejudiced him.⁴ See Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009) ; see also Hassan, 604 F.3d at 923 (6th Cir.).

Lucio-Rayos has not made such a showing. Generally speaking, an IJ must recuse if 1) she has "a personal, rather than a judicial, bias stemming from an 'extrajudicial' source which resulted in an opinion on the merits on some basis other than what the immigration judge learned from [her] participation in the case," 2) "such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party," In re Exame, 18 I. & N. Dec. at 306 (internal quotation marks omitted); see also Vargas-Hernandez, 497 F.3d at 925 (9th Cir.), or 3) the IJ has an inherent bias, see Hassan, 604 F.3d at 923 (6th Cir.).

Lucio-Rayos presents extrajudicial-influence and inherent-bias arguments, relying by analogy on 28 U.S.C. § 455(a), which requires a federal judge to recuse "in any proceeding in which his impartiality might reasonably be questioned."⁵ However, the record indicates that the Denver ICE office has a plan in place to ensure that the IJ's spouse has no involvement in cases pending before the IJ. And Lucio-Rayos has not asserted any evidence suggesting that the IJ's spouse played any role in Lucio-Rayos's removal proceedings. A reasonable person, knowing these facts, would not question the IJ's impartiality to conduct Lucio-Rayos's removal proceeding.⁶

Lucio-Rayos also relies by analogy on 28 U.S.C. § 455(b)(5)(i), which requires a federal judge to recuse if her spouse "[i]s a party to the proceeding, or an officer, director, or trustee of a party." But that is not the situation presented here. While the IJ's spouse represents a party to this case, the spouse is not himself a party, nor an officer, director, or trustee of a party.

In addition, Lucio-Rayos has not shown that he was prejudiced by the IJ's refusal to recuse; that is, Lucio-Rayos has not shown that "his rights were violated in a manner so as potentially to affect the outcome of the proceedings," Vargas-Hernandez, 497 F.3d at 926 (9th Cir.) (internal quotation marks omitted). We, therefore, uphold the IJ's refusal to recuse from hearing Lucio-Rayos's case.

B. The BIA did not err in concluding that Lucio-Rayos is ineligible for cancellation of removal

To be eligible for cancellation of removal, Lucio-Rayos had to meet four requirements. See 8 U.S.C. § 1229b(b)(1).⁷ The only one of those requirements at issue here is whether, under 8 U.S.C. § 1229b(b)(1)(C), Lucio-Rayos's Westminster conviction for theft is a crime involving moral turpitude ("CIMT") as defined by the Immigration and Nationality Act ("INA") in 8 U.S.C. § 1182(a)(2)(A)(i)(I) or § 1227(a)(2)(A)(i). If it is, and if no exceptions apply, Lucio-Rayos is ineligible for cancellation of removal. Id. § 1229b(b)(1)(c) ; see, e.g., Flores-Molina, 850 F.3d at 1155-56.

1. Convictions under WMC 6-3-1(A) do not categorically qualify as CIMTs

We first apply the "categorical approach" to determine whether Lucio-Rayos's Westminster theft conviction qualifies as a CIMT by comparing the elements of that offense to the INA's definition of a CIMT. See Flores-Molina, 850 F.3d at 1158. Although "the INA does not provide a generic definition of 'crime involving moral turpitude,' " the Attorney General, the BIA, and federal courts have generally defined "moral turpitude" to "refer[ ] to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality," and to "reach[ ] conduct that is inherently wrong, ... rather than conduct deemed wrong only because of a statutory proscription." Id. at 1158-59 (internal quotation marks omitted). "Alongside these very general translations, the BIA and courts have espoused what might be characterized as subsidiary definitions and rules applicable to narrower classes of conduct." Id. at 1159 (citation, internal quotation marks, alteration omitted). Relevant here, established BIA precedent provides that a theft conviction like Lucio-Rayos's qualifies as a CIMT only if one element of the theft offense is that the perpetrator intended to deprive the victim permanently of his property. See In re Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973), overruled by In re Diaz-Lizarraga, 26 I. & N. Dec. 847, 849-52 (BIA 2016) ; see also De Leon v. Lynch, 808 F.3d 1224, 1229 (10th Cir. 2015) (referencing this line of BIA decisions). The BIA applied that definition of a CIMT involving theft to Lucio-Rayos's case.⁸

Later, after the BIA's decision in this case, the BIA "updated" its definition of theft offenses that qualify as a CIMT to provide that "a theft offense is a [CIMT] if it involves an intent to deprive the owner of his property either permanently or under circumstances where the owner's property rights are substantially eroded," In re Diaz-Lizarraga, 26 I. & N. Dec. at 853. That new definition, however, does not apply retroactively here to Lucio-Rayos's case because a revised rule adopted by the BIA in the exercise of its delegated legislative policymaking authority is presumed to apply prospectively only to cases initiated after its issuance. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1145-46 & 1146 n.1 (10th Cir. 2016). Neither party suggests any reason why that presumption does not apply here.

We, therefore, turn to the categorical approach to determine whether a Westminster theft conviction categorically requires proof that the perpetrator intended to deprive the victim permanently of his property, see In re Grazley, 14 I. & N. Dec. at 333. The...