630 F. App'x 870
10th Cir.2015Background
- Salvador Portillo Perez, a Mexican national who entered the U.S. unlawfully in 1993, was convicted in Denver (2002) of soliciting prostitution and of prostitution under Denver Mun. Code §§ 38‑158(A)(1) & (A)(7).
- DHS initiated removal proceedings in 2010; Portillo conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- The Immigration Judge found Portillo’s prostitution-related convictions were crimes involving moral turpitude (CIMTs) and denied cancellation of removal (but granted voluntary departure).
- The Board of Immigration Appeals (single-member) affirmed, holding Portillo failed to prove his convictions were not CIMTs; Portillo petitioned for review in the Tenth Circuit.
- The Tenth Circuit reviewed de novo whether the convictions are CIMTs, applying the categorical approach and Chevron/Skidmore principles to defer to the BIA’s longstanding view treating prostitution-related offenses as morally turpitudinous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Portillo’s Denver municipal convictions are crimes involving moral turpitude (CIMTs) | Portillo: Not all prostitution-related offenses are CIMTs; some acts (e.g., non‑intercourse sexual acts) and "victimless" conduct lack maliciousness, identifiable victim, or actual harm | Government/BIA: BIA has long held prostitution and solicitation are inherently base and thus are CIMTs; these specific Denver offenses fall within that view | The court held Portillo’s convictions are CIMTs; he failed to carry burden to show otherwise and is ineligible for cancellation of removal |
Key Cases Cited
- Mena-Flores v. Holder, 776 F.3d 1152 (10th Cir. 2015) (alien bears burden to prove eligibility for cancellation of removal)
- Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) (conviction for CIMT renders an alien inadmissible and ineligible for cancellation)
- Rodriguez-Heredia v. Holder, 639 F.3d 1264 (10th Cir. 2011) (review of whether a state conviction constitutes a CIMT is de novo)
- Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) (defining moral turpitude and requiring malicious or evil intent for CIMT)
- Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (solicitation of prostitution constitutes moral turpitude)
- Padilla-Caldera v. Holder, 637 F.3d 1140 (10th Cir. 2011) (applying Chevron deference to the BIA’s reasonable construction of "moral turpitude")