Garcia-Morales v. Barr

MIGUEL ANGEL GARCIA-MORALES, Petitioner, v. WILLIAM P. BARR,^* United States Attorney General, Respondent.

No. 17-9559

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 25, 2019

ORDER AND JUDGMENT^**

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.

Miguel Garcia-Morales petitions for review from an order of the Bureau of Immigration Appeals ("BIA") affirming and adopting a decision by an immigration judge ("IJ") to pretermit his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(b).Mr. Garcia-Morales argues that, contrary to the BIA's conclusion, his accessory conviction under Idaho Code ("I.C.") § 18-205 is categorically not a crime involving moral turpitude ("CIMT"). We agree with him. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition and remand the case to the BIA for further proceedings consistent with this order and judgment.

I

Mr. Garcia-Morales is a citizen and native of Mexico who entered the United States without inspection. After he pleaded guilty in 2015 to a count of Injury to Children under I.C. § 18-1501(1), the Department of Homeland Security ("DHS") served him with a Notice to Appear and charged him with two grounds of removability. The first ground was being present without admission or parole, pursuant to section 212(a)(6)(A)(i) of the INA, and the second ground was having been convicted of a CIMT, pursuant to section 212(a)(2)(A)(i)(I) of the INA.

At a March 2016 hearing, the IJ sustained the first removability ground—which Mr. Garcia-Morales had conceded—but not the second, finding that I.C. § 18-1501(1) "does not require sufficiently culpable mens rea" to qualify as a CIMT. A.R. at 74-75 (Hr'g Tr., dated Mar. 7, 2016). Mr. Garcia-Morales subsequently filed an application for cancellation of removal under section 240A(b) of the INA, 8 U.S.C. § 1229b(b).

In September 2016, an Idaho court granted Mr. Garcia-Morales's request for post-conviction relief based on ineffective assistance of counsel, allowing him to withdraw his guilty plea to a violation of I.C. § 18-1501(1) and instead plead guilty to an amended charge of Accessory to Felony in violation of I.C. § 18-205.

That statute states the following:

All persons are accessories who, having knowledge that a felony has been committed:

(1) Willfully withhold or conceal it from a peace officer, judge, magistrate, grand jury or trial jury; or

(2) Harbor and protect a person who committed such felony or who has been charged with or convicted thereof.

I.C. § 18-205.

Mr. Garcia-Morales's amended criminal information did not identify the particular underlying felony as to which he was an accessory, stating only that he "did willfully withhold or conceal knowledge that a felony has been committed by another person and withheld that information from law enforcement." A.R. at 166 (Am. Information, filed Oct. 4, 2016). The other records related to this conviction similarly did not identify the underlying felony.

In February 2017, the IJ pretermitted Mr. Garcia-Morales's application for cancellation of removal, ruling that he had not met his burden, in accordance with 8 C.F.R. § 1240.8(d), to establish by a preponderance of the evidence that aground for mandatory denial—here, a CIMT conviction—did not apply. Relying on Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011), the IJ stated that determining whether an accessory conviction is a CIMT requires examining the underlying felony: where the principal's act was a CIMT, so was the related accessory crime, but "where the principal's act was not a [CIMT], it follows that a person who harbored or concealed the principal would also not have committed a [CIMT]." A.R. at 54-55 (IJ Order, dated Feb. 7, 2017) (emphasis added).

Applying this reasoning to Mr. Garcia-Morales's circumstances, the IJ concluded that it was not possible to determine whether his § 18-205 conviction was a CIMT because the underlying felony was unclear: Mr. Garcia-Morales's conviction-related documents did not mention the underlying felony, he had not submitted any other evidence of the underlying felony, and his Injury to Children conviction under § 18-1501(1) could not be deemed to be the underlying felony because that conviction had been vacated. Given this uncertainty, the IJ concluded that Mr. Garcia-Morales did not meet his burden to show that a ground for mandatory denial of cancellation of removal did not apply.

More specifically, the IJ rejected Mr. Garcia-Morales's argument that § 18-205 is overbroad—effectively encompassing more than underlying felonies that are CIMTs—and that, consequently, the statute is categorically not a CIMT. See A.R. at 108 (Resp. to Dep't's Mot. to Pretermit, filed Dec. 13, 2016) (arguingthat his conviction is not categorically a CIMT because § 18-205's general term, "a felony"—an element of the offense—is "broad and encompasses both conduct that involves moral turpitude and conduct that does not"). In response, the IJ indicated that the particular underlying felony is inherently an element of an accessory offense, stating that "[b]y its very nature, an accessory conviction requires analysis of the underlying crime." Id. at 56. Thus, the IJ concluded, "[the] underlying crime is subject to the categorical analysis." Id.

Mr. Garcia-Morales appealed from the IJ's decision to the BIA. Expressly relying on the Supreme Court's decision in Mathis v. United States, --- U.S. ----, 136 S. Ct. 2243 (2016), he stressed that the IJ's belief that "whether § 18-205(1) is a crime of moral turpitude turns on the 'underlying' crime" was erroneous. A.R. at 26 (Resp't's Br. on Appeal, filed July 20, 2017). That is because, he reasoned, "jury unanimity [is not required] as to which [underlying] felony was committed" under Idaho law. Id. Under this Idaho authority, he contended, all that § 18-205 requires is a defendant's knowledge that a felony (i.e., some felony) has been committed, which could very well include a non-CIMT felony. See id. Accordingly, Mr. Garcia-Morales urged the BIA to conclude that § 18-205 is categorically "overbroad" and that his conviction is "therefore not" a CIMT. Id.

The BIA, however, "adopt[ed] and affirm[ed] the decision of the [IJ]," concluding that Mr. Garcia-Morales did not meet his burden of showing that his§ 18-205 conviction is not a CIMT. Id. at 3 (BIA Order, dated Nov. 20, 2017). Without directly addressing Mr. Garcia-Morales's contention that the particular underlying felony is not an element of the § 18-205 offense, the Board stated that Matter of Rivens compels an IJ to "consider the turpitudeness of the underlying offense" in order "to determine if the respondent's accessory crime is a [CIMT]." Id. at 4.

Mr. Garcia-Morales now petitions for review of the BIA's decision. He maintains that his § 18-205 conviction is not a CIMT because the statute both sweeps more broadly than the definition of a CIMT and is indivisible.¹

II

"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) . . . ." Flores-Molina v. Sessions, 850 F.3d 1150, 1157 (10th Cir. 2017) (citation omitted). And, though "[w]e review the ruling of the BIA as the agency's final decision," Jimenez v. Sessions, 893 F.3d 704, 709 (10th Cir. 2018), "[w]e mayconsult the IJ's decision to give substance to the BIA's reasoning," Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). "This is especially appropriate where the BIA incorporates by reference the IJ's rationale or repeats a condensed version of its reasons while also relying on the IJ's more complete discussion." Id. (quoting Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006)).

We review de novo the BIA's legal determinations in a denial of a motion for cancellation of removal, "although in appropriate circumstances we may defer to the BIA's interpretation of the immigration laws it implements." Lucio-Rayos v. Sessions, 875 F.3d 573, 576 (10th Cir. 2017), cert. denied, --- U.S. ----, 139 S. Ct. 865 (2019). But, to be clear, we "owe no deference to the BIA's interpretation of the substance of the state-law offense at issue." De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (alterations omitted) (quoting Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011)).

A

As part of his burden to establish eligibility for cancellation of removal, see 8 U.S.C. § 1229a(c)(4)(A), Mr. Garcia-Morales must prove by a preponderance of the evidence that grounds for mandatory denial of relief do not apply, see 8 C.F.R. § 1240.8(d). One such ground is a prior conviction for a CIMT. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). If his record is inconclusive as to whethera prior conviction was for a CIMT, Mr. Garcia-Morales fails to meet his burden. See Lucio-Rayos, 875 F.3d at 583-84.

A prior conviction qualifies as a CIMT if it involves "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." Veloz-Luvevano v. Lynch, 799 F.3d 1308, 1312-13 (10th Cir. 2015) (quoting Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir. 1997)). To make the CIMT determination, we apply the categorical approach and, where appropriate, the modified categorical approach. See Flores-Molina, 850 F.3d at 1158 & n.3; see also Matter of Mendez, 27 I. & N. Dec. 219, 221 (BIA 2018) ("We have held that the categorical and modified categorical approaches provide the proper framework for determining whether a conviction is for a [CIMT].").

Under the categorical approach, "we look only to the elements that must be proven to convict a person under [the statute] in the abstract, 'and not to the particular facts underlying'" the conviction. United States v. Mann, 899 F.3d 898, 901-02 (10th Cir. 2018) (quotin...