Veloz-Luvevano v. Lynch

• Decision Date: 31 August 2015
• Docket Number: No. 15–9522.,15–9522.
• Citation: 799 F.3d 1308
• Parties: Manuel VELOZ–LUVEVANO, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

799 F.3d 1308

Manuel VELOZ–LUVEVANO, Petitioner

v.Loretta E. LYNCH, United States Attorney General, Respondent.

No. 15–9522.

United States Court of Appeals, Tenth Circuit.

Aug. 31, 2015.

Submitted on the briefs:^* Patrick C. Hyde, Law Office of Patrick C. Hyde, P.C., Denver, Colorado, for Petitioner.

Mary Jane Candaux, Assistant Director, Jeremy Michael Bylund, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before GORSUCH, O'BRIEN, and BACHARACH, Circuit Judges.

Opinion

O'BRIEN, Circuit Judge.

In February 2010, after being on the lam for almost a decade after his initial arrest, Manuel Veloz–Luvevano, a native and citizen of Mexico, pled guilty to criminal impersonation in violation of Colorado law: Col.Rev.Stat. § 18–5–113(1)(d), a class 6 felony and a crime involving moral turpitude (CIMT). He now rues his decision and seeks to be excused from the resulting consequences by offering a number of conveniently contrived arguments. Stripped of procedural and rhetorical gloss his arguments come down to this: even though the crime to which he pled guilty is, categorically, a CIMT his acts did not amount to a CIMT. Stated a bit differently, regardless of the tenor of his arguments what he actually says is that immigration officials should look past his conviction and recognize that he pled guilty to a crime he did not commit, thereby excepting him from a statutory bar to cancellation of removal. The Board of Immigration Appeals (BIA) didn't buy it and neither do we.

I. Background

Veloz–Luvevano entered the United States on February 14, 1998, with a B–2 (visitor) visa, which allowed him to remain in this country for six months. But he did not leave.¹ In July 2000, he was arrested by Colorado authorities for possessing a forged social security card, which he purchased to enable him to work in the United States. He was released on bond, but failed to appear for court proceedings. On September 25, 2009, he was found and re-arrested on those criminal charges and three days later the federal government initiated removal proceedings against him under 8 U.S.C. § 1182(a)(6)(A)(i). In February 2010, while removal proceedings were pending, he pled guilty to the § 18–5–113(1)(d) violation and was sentenced.

In December 2010, he conceded removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b), claiming removal would cause hardship to his citizen wife and children. He was represented by counsel. The government moved to pretermit his application because his Colorado conviction for criminal impersonation is a CIMT, making him ineligible for cancellation of removal. See 8 U.S.C. §§ 1182(a)(2)(A) (“any alien convicted of ... a crime involving moral turpitude ... is inadmissible”), 1229b(b)(1)(C) (the Attorney General may cancel the removal of any deportable alien if, among other things, he has not been convicted of a CIMT). As an alternative to pretermitting his application, the government offered him the opportunity to accept a preconclusion voluntary departure² if he agreed to waive his right to appeal. See 8 U.S.C. § 1229c(a) ; 8 C.F.R. § 1240.26(b)(1)(i)(D). He accepted the government's offer and he was given until July 30, 2012, to depart from the United States.

In May 2012, through newly retained counsel he sought relief from the BIA, claiming the Immigration Judge (IJ) erred in pretermitting the application for cancellation of removal. Not surprisingly, on July 27, 2012, the BIA summarily dismissed the appeal. The IJ had not pretermitted the application; Veloz–Luvevano accepted voluntary departure and agreed not to appeal.

As before, Veloz–Luvevano did not leave the United States; this time in spite of his explicit promise to do. Instead, on November 23, 2012, he filed a motion to reopen the removal proceedings. See 8 U.S.C. § 1229a(c)(7) ; 8 C.F.R. § 1003.23(b)(1). According to him, his previous counsel was ineffective by failing to provide relevant documents which would have shown HIS criminal acts did not amount to a CIMT. He also claimed his waiver of his right to appeal (a condition of his voluntary departure) was neither knowing nor voluntary.

The IJ denied the motion to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (motions to reopen generally must be filed within 90 days of the date of entry of a final order of removal); see also 8 C.F.R. § 1003.23(b)(1) (same). However, the IJ also reviewed the documents from the criminal conviction (which were attached to the motion to reopen) and, as an alternative holding, concluded they demonstrated his Colorado conviction did, in fact, amount to a CIMT. Veloz–Luvevano was, accordingly, not eligible for cancellation of removal and he suffered no prejudice from any failure to submit documents. As to his claim of not knowingly and voluntarily waiving his right to appeal in the immigration proceedings, the IJ said the record showed otherwise—it “reflects that [he] was provided a Spanish interpreter during [the] proceedings and that he made an informed decision to accept voluntary departure after having been made aware of the consequences of accepting that relief.” (R. at 79 n.2.).

Veloz–Luvevano again appealed to the BIA, this time for relief from the denial of his motion to reopen. Like the IJ, the BIA decided his criminal impersonation conviction was a CIMT. But, unlike the IJ, it did not look to the underlying documents. Rather, it concluded criminal impersonation under Colo.Rev.Stat. § 18–5–113(1)(d) is a categorical CIMT. Its reasoning: 1) criminal impersonation under § 18–5–113(1)(d) implicitly involves fraud and fraud has always been found to involve moral turpitude, 2) because his crime was categorically a CIMT the immigration statutes barred cancellation of removal, and 3) he could not, therefore, show prejudice from counsel's failure to submit irrelevant documents. In the same vein, it determined he could not show prejudice from his waiver of his right to appeal (assuming, arguendo, the waiver was not knowing and voluntary) because he received the only relief to which he was entitled-voluntary departure.

II. Discussion

We review a BIA order denying a motion to reopen for abuse of discretion. See Wei v. Mukasey, 545 F.3d 1248, 1254 (10th Cir.2008). “The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir.2013) (quotations omitted). “Whether a conviction constitutes a [CIMT] is a question of law that we review de novo.” Rodriguez–Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir.2011).

Here Veloz–Luvevano repeats the argument made to the BIA: had his first attorney presented additional documents they would have shown him to be eligible for cancellation of removal and he would not have agreed to a voluntary departure.

“[A]lthough there is no right to appointed counsel in deportation proceedings, a petitioner ... can state a Fifth Amendment violation if he proves that retained counsel was ineffective and, as a result, the petitioner was denied a fundamentally fair proceeding.” Osei v. INS, 305 F.3d 1205, 1209 (10th Cir.2002). But, in order to prevail on an ineffective assistance of counsel claim, the petitioner must show he was prejudiced by his attorney's performance. Matter of Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988) ; see also Ochieng v. Mukasey, 520 F.3d 1110, 1115 (10th Cir.2008). Veloz–Luvevano cannot make the required showing. He is not eligible for cancellation of removal, regardless of what the documents may reveal.

To be eligible for cancellation of removal, a petitioner must show, among other things, that he has not been convicted of a CIMT.³ 8 U.S.C. § 1229b(b)(1)(C) ; see also Garcia v. Holder, 584 F.3d 1288, 1289 (10th Cir.2009) (“An alien convicted of a CIMT is considered inadmissible and is therefore not eligible for cancellation of removal....”). The statute does not define CIMT. However, we have said “[m]oral turpitude refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between man and man, either one's fellow man or society in general.”

Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir.1997) (quotations omitted). “[C]rimes in which fraud [is] an ingredient [are] regarded as involving moral turpitude.” Id. (quotations omitted).

“To determine whether a state conviction is a [CIMT], we ordinarily employ the categorical approach.” Rodriguez–Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir.2011). Under that approach, we consider only “the statutory definition of the crime, not the underlying factual circumstances of the crime.” Id.; see also Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). “If every conviction under a given state statute [involves moral turpitude], then the state conviction is categorically a [CIMT].” Ibarra v. Holder, 736 F.3d 903, 907 (10th Cir.2013).

At the time of Veloz–Luvevano's 2010 conviction,⁴ Colo.Rev.Stat. § 18–5–113(1)(d) read in pertinent part:

(1) A person commits criminal impersonation if he knowingly assumes a false or fictitious identity or capacity, and in such identity or capacity he:

...

(d) Does an act which if done by the person falsely impersonated, might subject such person to an action or special proceeding, civil or criminal, or to liability, charge, forfeiture, or penalty.

It constitutes a categorical CIMT because fraud is inherent in the statute.⁵ “[F]raud is generally defined as a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” See Wolford v. Pinnacol Assurance, 107 P.3d 947, 952 n. 6 (Colo.2005) (quotations omitted); see also Black's Law Dictionary 775 (10th ed.2014). Indeed, the Colorado Court of Appeals has described the criminal...