DAMASO-MENDOZA v. Holder
653 F.3d 1245
10th Cir.2011Background
- Petitioner Manuel Damaso-Mendoza, a Mexican citizen, seeks review of removal after a BIA finding his Colorado felony menacing conviction is a crime of violence and an aggravated felony.
- Petitioner pleaded guilty in Colorado to felony menacing and misdemeanor assault in 2008; concurrent sentences were two years for menacing and 18 months for assault.
- Colorado menacing statute 18-3-206 defines felonious conduct when committed by use of a deadly weapon or when one represents being armed; it also covers simulated weapons.
- The state judgment states conviction under Colo. Rev. Stat. § 18-3-206(1)(a)/(b); the specific subsection was not identified in the judgment.
- In 2010 the Department of Homeland Security issued a Notice to Appear; an IJ held the conviction was a crime of violence and ordered removal.
- The BIA dismissed the appeal, and the petition for review is before the Tenth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Colorado 18-3-206 (menacing) qualify as a crime of violence under § 16(a)? | Damaso-Mendoza argues not identified which subsection; argues variance in elements may defeat. | BIA held both subsections involve threatened force, thus a crime of violence under § 16(a). | Yes; conviction under § 18-3-206(1) (a) or (b) constitutes a crime of violence under § 16(a). |
| If an offense has alternative means, must the government prove the specific means used? | Government must show the exact subsection proven. | If both subsections are crimes of violence, proving one suffices. | If either § 18-3-206(1)(a) or (b) is a crime of violence, proof that one was violated suffices. |
| What standard of review governs BIA legal determinations and application of immigration law to state convictions? | Review de novo for legal issues; but argue for rigorous scrutiny of BIA reasoning. | Defer to BIA’s application of immigration law to the state conviction where appropriate. | De novo review for legal questions; defer to BIA’s application of immigration law to the conviction. |
| Does authority from Herron/Armijo support treating the Colorado menacing statute as a crime of violence under § 16(a)? | Use statutes’ wording to limit to actual force only. | Colorado menacing’s threatened use of force satisfies § 16(a). | Yes; Herron and Armijo logic apply, making the present statute a crime of violence. |
Key Cases Cited
- United States v. Herron, 432 F.3d 1127 (10th Cir. 2005) (menacing as violent felony under ACCA; threat of force suffices)
- United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011) (older Colorado menacing statute deemed crime of violence for USSG purposes)
- United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010) (18 U.S.C. § 16(a) and related violence definitions align with ACCA guidance)
- United States v. Melchor-Meceno, 620 F.3d 1180 (9th Cir. 2010) (Colorado menacing threat constitutes violence under USSG § 2L1.2)
- United States v. Forrest, 611 F.3d 908 (8th Cir. 2010) (Colorado felony menacing conviction recognized as crime of violence)