Lucio-Rayos v. Sessions
875 F.3d 573
| 10th Cir. | 2017Background
- Juan Alberto Lucio-Rayos, a Mexican national conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b).
- He has a municipal theft conviction under Westminster, Colo., Mun. Code § 6-3-1(A), a provision that lists multiple alternative theft offenses.
- The IJ and then the BIA concluded the conviction was a crime involving moral turpitude (CIMT), rendering him ineligible for cancellation; Lucio-Rayos petitioned for review in the Tenth Circuit.
- The record documents do not specify which subsection of the divisible ordinance (including subsection (4), which does not require intent to permanently deprive) formed the basis of his conviction.
- The pivotal legal questions were (1) whether the municipal theft offense categorically is a CIMT or divisible, (2) whether the modified categorical approach can identify the exact offense here, (3) who bears the burden when the record is inconclusive, and (4) whether the IJ should have recused.
- The court affirmed denial of relief: it held the ordinance is divisible, the record is inconclusive under the modified categorical approach, and Lucio-Rayos (the alien) bears the burden to prove eligibility for cancellation; recusal was not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ should recuse for spouse’s ICE role | Lucio-Rayos: spouse’s ICE supervisory role creates impartiality concern | Government/BIA: conflict-avoidance plan and no evidence of spouse’s involvement; §455 inapplicable | IJ did not deprive petitioner of due process; recusal not required |
| Whether Westminster §6-3-1(A) categorically is a CIMT | Lucio-Rayos: his conviction may fall under subsection that is not a CIMT (no permanent-deprivation element) | Government/BIA: theft convictions generally are CIMTs if intent to permanently deprive | Not categorical: §6-3-1(A) includes at least one subsection (¶4) that lacks permanent-deprivation element, so not categorically a CIMT |
| Whether §6-3-1(A) is divisible and whether the modified categorical approach identifies the subsection of conviction | Lucio-Rayos: record inconclusive, so should be treated as least culpable conduct or otherwise found not a CIMT | Government: BIA found not divisible (alternatively argued conviction still a CIMT) | Court: statute is divisible; modified categorical approach applied but record documents are inconclusive as to which subsection was the basis of conviction |
| Who bears burden when record is inconclusive under modified categorical approach | Lucio-Rayos: relies on Moncrieffe to argue ambiguity favors the alien | Government/BIA: alien must prove eligibility for cancellation; record ambiguity defeats alien | Held: under binding Tenth Circuit precedent (Garcia), alien bears burden to prove eligibility; because record is inconclusive, petitioner failed to meet burden and is ineligible |
Key Cases Cited
- Flores-Molina v. Sessions, 850 F.3d 1150 (10th Cir. 2017) (categorical/modified categorical approach framework and deference to BIA on immigration-law interpretation)
- Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) (alien bears burden to prove prior conviction is not a CIMT when record is inconclusive)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach and focusing on least conduct criminalized in certain removability contexts)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility doctrine: statutes that list alternative elements define multiple crimes)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits of modified categorical approach; use of limited documents to identify offense of conviction)
- Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) (discussing burden allocation and applicability of Moncrieffe where modified categorical documents are inconclusive)