Lujan-Jimenez v. Sessions
893 F.3d 704
| 10th Cir. | 2018Background
- Alejandro Lujan Jimenez, a Mexican national, pled guilty in Colorado (2007) to first-degree criminal trespass of a motor vehicle (Colo. Rev. Stat. § 18-4-502) and was later placed in removal proceedings; the IJ denied relief based on an alleged conviction for a crime involving moral turpitude (CIMT).
- Lujan conceded removability, applied for cancellation of removal, and argued his Colorado trespass conviction was not a CIMT because the statute’s required ulterior crime was not identified in the record.
- The BIA affirmed, treating the statute as divisible and applying the modified categorical approach to require proof that the specific intended crime involved moral turpitude; Lujan’s record was ambiguous, so he was deemed ineligible.
- Lujan filed petitions for review: one challenging the BIA’s final removal order (timely) and another challenging the BIA’s refusal to sua sponte reopen (untimely / discretionary).
- The Tenth Circuit dismissed review of the BIA’s refusal to sua sponte reopen for lack of jurisdiction, and reached the merits of the removal order, focusing on whether the motor-vehicle trespass statute is divisible as to the intended ulterior offense.
- The court held Colorado authority (notably People v. Williams) shows the statute does not require charging a particular ulterior offense and that Colorado practice permits alternative underlying offenses, so the motor-vehicle clause is not divisible; thus Lujan’s conviction is not categorically a CIMT and his removal order was vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review BIA’s refusal to sua sponte reopen proceedings | Lujan sought review of BIA’s denial of sua sponte reopening | Government argued such discretionary denials are unreviewable | Dismissed for lack of jurisdiction (BIA’s sua sponte refusals are discretionary and not reviewable) |
| Whether Colo. Rev. Stat. § 18-4-502 (motor-vehicle clause) is divisible as to the specific ulterior crime, permitting use of the modified categorical approach to determine CIMT status | Lujan: statute is indivisible; Colorado law does not require charging a specific ulterior offense, so modified categorical approach is inappropriate and conviction is not a CIMT | Government/BIA: the statute is divisible because the ulterior crime is an element and some ulterior crimes may be CIMTs while others not; ambiguity in record bars relief | Held: statute is not divisible as to the particular ulterior offense; modified categorical approach does not apply; conviction does not categorically constitute a CIMT; removal order vacated |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (modified categorical approach applies only when statute lists alternative elements, not alternative means)
- United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012) (earlier Tenth Circuit decision treating Colorado trespass as divisible; court holds this part of precedent superseded by Mathis)
- People v. Williams, 984 P.2d 56 (Colo. 1999) (Colorado Supreme Court: an information alleging intent to commit "a crime" in a vehicle sets forth essential elements of first-degree trespass and need not identify a specific ulterior offense)
- Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004) (BIA’s refusal to sua sponte reopen is discretionary and not judicially reviewable)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach presumes conviction rests on least culpable conduct criminalized)
- Descamps v. United States, 570 U.S. 254 (2013) (if statute sweeps more broadly than the relevant definition, conviction doesn’t qualify under the categorical approach; modified categorical approach limited to divisible statutes)
- Afamasaga v. Sessions, 884 F.3d 1286 (10th Cir. 2018) (to qualify as a CIMT, the minimum conduct criminalized must necessarily satisfy definition of CIMT)