Florentino-Francisco v. Lynch
611 F. App'x 936
10th Cir.2015Background
- Abel Florentino-Francisco, a Mexican national, challenges the BIA’s denial of cancellation of removal.
- Florentino unlawfully entered the United States in 1999.
- He was convicted of soliciting prostitution under Denver Municipal Code § 38-158(A)(1).
- In 2012 DHS began removal proceedings; Florentino conceded removability and sought cancellation based on hardship to his US citizen children.
- IJ denied cancellation, holding the offense was a CIMT; BIA affirmed, tying the CIMT to solicitation of prostitution.
- On review, the court evaluates whether the state conviction is a CIMT and whether the BIA’s reasoning warrants deference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether soliciting prostitution is a CIMT under the categorical approach | Florentino argues solicitation is not a CIMT. | BIA and district view prostitution-related crimes as CIMTs. | Solicitation is a CIMT; court agrees with BIA and Ninth Circuit. |
| Whether the BIA’s reasoning on CIMT is entitled to Chevron deference | Chevron deference applies to BIA interpretations of immigration statutes. | BIA interpretation is reasonable; deference appropriate. | Chevron deference applies due to reasonable construction of CIMT by BIA. |
| Whether a modified categorical analysis applies to the statute | A modified categorical approach should be used for solicitation statutes | Statutory text does not permit a modified categorical look | Court rejects modified categorical analysis; looks to the statute alone. |
Key Cases Cited
- Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) (CIMT-based ineligibility for cancellation)
- Sarr v. Gonzales, 474 F.3d 783 (10th Cir. 2007) (de novo CIMT determination when reviewing BIA single-member decision)
- Rodriguez-Heredia v. Holder, 639 F.3d 1264 (10th Cir. 2011) (categorical approach for CIMT determination)
- Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) (Chevron deference to BIA interpretation of CIMT)
- Padilla-Caldera v. Holder, 637 F.3d 1140 (10th Cir. 2011) (agency construction of statute; Chevron deference principle)
- Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (solicitation of prostitution as CIMT and deference framework)
- United States v. Bitty, 208 U.S. 393 (1908) (prostitution-related conduct deemed harmful to public morality)