Robles-Garcia v. Barr
944 F.3d 1280
| 10th Cir. | 2019Background
- Robles-Garcia, a Mexican citizen admitted briefly as a nonimmigrant in 1991, overstayed her authorized stay and was served an NTA in 2008 charging unlawful presence.
- She admitted removability but applied for cancellation of removal, asserting exceptional and extremely unusual hardship to her two U.S. citizen children.
- Cancellation eligibility required she not have a conviction for a crime involving moral turpitude (CIMT); she had a 2007 Aurora, Colorado theft conviction under Aurora Mun. Code § 94-74(a).
- The IJ found, and the BIA affirmed, that her theft conviction was a CIMT; she appealed to the Tenth Circuit.
- While her appeal was pending, Pereira v. Sessions was decided; for the first time on appeal she argued the NTA was defective under Pereira and thus the IJ lacked jurisdiction—court held that claim unexhausted and dismissed for lack of jurisdiction.
- On the merits, the court applied the (modified) categorical approach to the divisible Aurora ordinance, concluded the record did not show she was convicted under the sole non‑CIMT subsection, and upheld the BIA’s denial of eligibility because she failed to meet her burden to prove her conviction was not a CIMT.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court may consider Robles‑Garcia’s Pereira challenge to the NTA when raised for the first time on appeal | Pereira renders NTA deficient; IJ never acquired jurisdiction | Claim is unexhausted because not raised to IJ or BIA; §1252(d)(1) bars review | Dismissed for lack of jurisdiction (unexhausted) |
| Whether the 2007 theft conviction is a CIMT making her ineligible for cancellation of removal | Theft conviction not necessarily a CIMT; the specific subsection of §94‑74(a) could be non‑CIMT | Three of four §94‑74(a) alternatives are CIMTs; record does not show conviction under the lone non‑CIMT subsection; petitioner bears burden to prove non‑CIMT | Upheld: petitioner failed to prove conviction was not a CIMT; BIA’s alternative holding sustained (BIA erred in calling it §94‑74(b) but relief still denied) |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA that omits statutorily required time/place notice may be inadequate)
- Descamps v. United States, 570 U.S. 254 (2013) (explains limits of modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (defines divisible statutes and use of modified categorical approach)
- Esquivel‑Quintana v. Sessions, 137 S. Ct. 1562 (2017) (sources usable under modified categorical approach)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (limits inquiry into particular facts when categorical rules apply)
- Lucio‑Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017) (Tenth Circuit application of categorical approach to similar municipal theft provision)
- Rivera‑Zurita v. INS, 946 F.2d 118 (10th Cir. 1991) (failure to raise issue to BIA constitutes failure to exhaust)
- Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019) (Supreme Court guidance on treating rules as jurisdictional)
- Gonzalez v. Thaler, 565 U.S. 134 (2012) (statutory limits are jurisdictional only if Congress says so)
- City of Arlington v. FCC, 569 U.S. 290 (2013) (deference to agency interpretations when statute ambiguous)