Morones-Quinones v. Holder
591 F. App'x 660
10th Cir.2014Background
- Morones-Quinones is a Mexican citizen who entered the U.S. without inspection in 1996.
- DHS issued a Notice to Appear in 2011 charging removability for unlawful presence.
- She applied for cancellation of removal under 8 U.S.C. § 1229b(b); the IJ found she was ineligible due to a CIMT conviction.
- Her Colorado conviction under § 18-5-113(1)(e) (2010) was held categorically to be a CIMT by the IJ.
- The BIA agreed that § 18-5-113(1)(e) offenses inherently involve fraud and thus CIMTs, rejecting alternative theories.
- This court exercises jurisdiction under 8 U.S.C. § 1252(a) and reviews the BIA’s CIMT determination as a question of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 18-5-113(1)(e) categorically involves moral turpitude | Morones-Quinones argues the offense can be committed without fraud, so not categorically CIMT | BIA held all violations inherently involve fraud and are CIMTs | Statute categorically CIMT; all convictions inherently involve fraud |
| Whether the modified categorical approach is available | If not categorically CIMT, the statute is not divisible and the approach is inappropriate | If divisible, the approach could determine which alternative applies | Not reached; the statute is held to be categorically CIMT, so modified approach unnecessary |
| Whether the record demonstrates a CIMT conviction under an element independent of fraud | Morones-Quinones contends non-turpitudinous element could apply | Even the non-turpitudinous conduct involves deception to obtain an unlawful benefit | No; the Court rejects non-turpitudinous readings given the statute’s fraud-focused nature |
| Scope of review for CIMT determination | Questions of law should be reviewed de novo | Agency factual determinations reviewed for substantial evidence | Court reviews legal questions de novo and sustains the CIMT determination |
Key Cases Cited
- Wittgenstein v. INS, 124 F.3d 1244 (10th Cir. 1997) (fraud can be inherent even without explicit fraud language)
- Rodriguez-Heredia v. Holder, 639 F.3d 1264 (10th Cir. 2011) (categorical approach; focus on statute's generic definition)
- United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) (divisibility requirement for modified categorical approach)
- Matter of Flores, 17 I. & N. Dec. 225 (BIA 1980) (fraud can be inherent in an offense even without explicit fraud language)
- Gonzales v. Gonzales (Colorado v. Gonzales), 534 P.2d 626 (Colo. 1975) (false impersonations undertaken to accomplish unlawful purposes)
- Rodriguez-Heredia v. Holder, 639 F.3d 1264 (10th Cir. 2011) (see above (duplicate for completeness in list))
- Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006) (review of agency's legal conclusions in removal proceedings)