Marin-Gonzales v. Sessions, 17-9503

Background

Petitioner Araceli Marin-Gonzales, a Mexican national who entered without inspection, pleaded guilty in Utah (2011) to attempted public-assistance fraud under Utah Code § 76-8-1203 and the Utah attempt statute § 76-4-101.
DHS initiated removal proceedings (2015); Marin-Gonzales applied for cancellation of removal.
The Immigration Judge pretermitted her cancellation application, finding her attempted public-assistance fraud conviction is a crime involving moral turpitude (CIMT).
The BIA affirmed, reasoning that an attempt requires intent or knowledge and one cannot logically attempt to be reckless, so the attempt conviction necessarily involved a culpable mental state sufficient for CIMT.
On appeal to the Tenth Circuit, Marin-Gonzales argued (1) Utah’s attempt statute can encompass recklessness when a particular-result element exists, and (2) attempting a recklessly defined offense is a legal contradiction (citing Knapik).
The Tenth Circuit denied the petition, concluding Marin-Gonzales failed to show a realistic probability Utah would apply its statutes to reach reckless conduct in her attempted conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attempted public-assistance fraud under Utah law is categorically a CIMT	Marin-Gonzales: Utah attempt statute can be satisfied by recklessness (when a particular-result element exists), so attempted offense might be non-CIMT	Government/BIA: Attempt requires intent/knowledge; one cannot attempt to be reckless, so attempted offense necessarily involves intent/knowledge and is a CIMT	Held: Attempt conviction is categorically a CIMT for petitioner because she failed to show a realistic probability Utah would treat attempt as reckless in her case
Whether the alternative attempt definition (awareness of reasonably certain result) equals recklessness	Marin-Gonzales: § 76-4-101(b)(ii) restates Utah recklessness and thus could allow an attempted-recklessness theory	Government: That language matches Utah’s definition of knowing conduct, not recklessness	Held: Court agrees it tracks knowing mens rea, not recklessness; plaintiff’s argument fails
Whether Knapik’s logic (attempt cannot be reckless) controls	Marin-Gonzales: Knapik supports that attempted reckless offenses are nonsensical and thus her attempt might be non-CIMT	Government/BIA: Knapik supports concluding that attempt imports intent/knowledge, making the conviction a CIMT	Held: Court applies Knapik’s logic to support BIA; but requires petitioner to show Utah actually uses the fiction—she did not
Burden to show statute could be applied to reach non-CIMT conduct	Marin-Gonzales: Must be realistic probability statute would be applied to reach reckless conduct	Government: No such realistic probability shown; petitioner’s briefs lack supporting state-court examples or evidence	Held: Petitioner failed to identify her plea or other Utah cases showing attempted reckless public-assistance fraud; burden unmet, petition denied

Key Cases Cited

Moncrieffe v. Holder, 569 U.S. 184 (explains categorical approach and realistic-probability test)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (describes limiting inquiry to realistic probability a state would apply statute to nongeneric conduct)
Flores-Molina v. Sessions, 850 F.3d 1150 (10th Cir. application of categorical approach to CIMT analysis)
Rodriguez-Heredia v. Holder, 639 F.3d 1264 (de novo review and categorical-analysis framework)
De Leon v. Lynch, 808 F.3d 1224 (identifying least culpable conduct under a statute for categorical inquiry)
Knapik v. Ashcroft, 384 F.3d 84 (Third Circuit held attempt inconsistent with recklessness)
United States v. Castro-Gomez, 792 F.3d 1216 (treating substantive statute and attempt statute together to determine elements)
Gomez-Perez v. Lynch, 829 F.3d 323 (discussing that reckless statutes typically do not qualify as CIMTs)