Juan Alberto LUCIO-RAYOS, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
No. 15-9584
United States Court of Appeals, Tenth Circuit.
November 14, 2017
875 F.3d 573
To its credit, the majority adds two caveats to its broad Littlejohn I claim that evidence of organic mental deficits ranks among the “most powerful types” of mitigation evidence. Littlejohn I, 704 F.3d at 864. First, not all evidence of organic brain damage has the same potency. Maj. Op. at 559-60. Second, evidence of organic brain damage can sometimes have an aggravating, not mitigating, effect on the sentencing jury. Id. at 22-23, 130 S.Ct. 383. Yet the majority still asserts that evidence of organic brain damage is “as a categorical matter ... likely at the apex of its potency when a psychiatrist (or other qualified physician), like Dr. Saint Martin, provides it....” Maj. Op. at 570.
These proceedings demonstrate that evidence of organic brain damage is not categorically more persuasive than other types of mental-health evidence. And mental-health evidence is not necessarily at “the apex of its potency” when presented by a physician rather than a psychologist. Maj. Op. at 571. Jurors are complex, unpredictable, and, above all, different. Some jurors may agree evidence a defendant suffers from organic brain damage is most рersuasive when a physician presents it; others may be skeptical of science and persuaded by holistic and less scientific testimony. See Littlejohn I, 704 F.3d at 878 (Tymkovich, J., concurring in part and dissenting in part). Just as “the decision of which witnesses to call is quintessentially a matter of strategy for the trial attorney,” Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008), so too is the strategic decision about which type of mitigation evidence will best resonate with a jury.
Nothing has changed my view that at the penalty phase of a capital trial, a lawyer‘s choice to present holistic, psychology-based testimony instead of scientific testimony on organic brain damage is a reasonablе strategic choice. In fact, the last chapter of this case proves the point.
Immigrant Defense Project; National Immigration Project of the National Lawyers Guild; American Immigration Lawyers Association; Detention Watch Network; Rocky Mountain Immigrant Advocacy Network; Colorado Lawyers Committee; New Mexico Criminal Defense Lawyers Association; Utah Association of Criminal Defense Lawyers; Professor Christopher Lasch; Professor Noah B. Novogrodsky; Professor Violeta Chapin, Amici Curiae.
Corey L. Farrell (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri J. Scadron, Assistant Director, and Lisa Morinelli, on the brief), United States Department of Justice, Washington, D.C. for Respondent.
Aaron Scherzer (Jayashri Srikantiah and Lisa Weissman-Ward, Mills Legal Clinic, Stanford, California; Manuel Vargas and Andrew Wachtenheim, Immigrant Defense Project, New York, New York, on the brief), Orrick, Harrington & Sutcliffe, LLP, New York, New York, for Amici Curiae.
Before HARTZ and EBEL, Circuit Judges.1
EBEL, Circuit Judge.
The question presented in this petition for review is whether Petitioner Juan Alberto Lucio-Rayos‘s municipal theft conviction qualifies as a crime involving moral turpitude (“CIMT“), which would make him ineligible for cancellation of removal. Lucio-Rayos was convicted under a divisible municipal code provision that sets forth several different theft offenses, some of which qualify as CIMTs and some of which do not. Applying the modified categorical approach, it is not possible to tell which theft offense was the basis of Lucio-Rayos‘s conviction. However, because it is Lucio-Rayos‘s burden to establish his eligibility for cancellation of removal, he bears the brunt of this inconclusive record. We, therefore, uphold the Board of Immigration Appeals (“BIA“)‘s determination that Lucio-Rayos has not shown that he is eligible for cancellation of removal. We also conclude that the immigration judge (“IJ“) did not deprive Lucio-Rayos of due process by refusing to recuse from hearing his case. Thus, having jurisdiction under
Lucio-Rayos, a citizen of Mexico who entered the United States without authorization, conceded that he is subject to removal, but seeks discretionary relief from the Attorney General in the form of cancellation of removal under
II. DISCUSSION
A. The IJ did not deprive Lucio-Rayos of due process by refusing to recuse
As an initial matter, Lucio-Rayos contends that the IJ erred in refusing to recuse from considering Lucio-Rayos‘s case because the IJ‘s spouse is one of two supervising Deputy Chief Counsel for the Immigration and Customs Enforcement (“ICE“) office in Denver, the office which initiated this removal proceeding against Lucio-Rayos.3 The BIA rejected this argument. We do, too.
Lucio-Rayos‘s recusal argument is essentially a duе process claim, which we review de novo. See Hassan v. Holder, 604 F.3d 915, 923 (6th Cir. 2010). He is entitled to a full and fair removal hearing that comports with due process. See Kapcia v. INS, 944 F.2d 702, 705 (10th Cir. 1991) (quoting Vissian v. I.N.S., 548 F.2d 325, 329 (10th Cir. 1977)). That includes a fair and impartial decision-maker. See Vargas-Hernandez v. Gonzales, 497 F.3d 919, 925 (9th Cir. 2007) (citing In re Exame, 18 I. & N. Dec. 303, 306 (BIA 1982)). In order to prevail on his due process claim, Lucio-Rayos must establish both that he was deprived of due process and that that deprivation prejudiced him.4 See Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009); see also Hassan, 604 F.3d at 923.
Lucio-Rayos has not made such a showing. Generally speaking, an IJ must recuse if 1) she has “a personal, rather than a judicial, bias stemming from an ‘extrajudicial’ source which resulted in an opinion on the merits on some basis other than what the immigration judge learned from [her] participation in the case,” 2) “such pervasive biаs and prejudice is shown by otherwise judicial conduct as would constitute bias against a party,” In re Exame, 18 I. & N. Dec. at 306 (internal quotation marks omitted); see also Vargas-Hernandez, 497 F.3d at 925, or 3) the IJ has an inherent bias, see Hassan, 604 F.3d at 923.
Lucio-Rayos presents extrajudicial-influence and inherent-bias arguments, relying by analogy on
Lucio-Rayos also relies by analogy on
In addition, Lucio-Rayos has not shown that he was prejudiced by the IJ‘s refusal to recuse; that is, Lucio-Rayos has not shown that “his rights were violated in a manner so as potentially to affect the outcome оf the proceedings,” Vargas-Hernandez, 497 F.3d at 926 (internal quotation marks omitted). We, therefore, uphold the IJ‘s refusal to recuse from hearing Lucio-Rayos‘s case.
B. The BIA did not err in concluding that Lucio-Rayos is ineligible for cancellation of removal
To be eligible for cancellation of removal, Lucio-Rayos had to meet four requirements. See
1. Convictions under WMC 6-3-1(A) do not categorically qualify as CIMTs
Wе first apply the “categorical approach” to determine whether Lucio-Rayos‘s Westminster theft conviction qualifies as a CIMT by comparing the elements of that offense to the INA‘s definition of a CIMT. See Flores-Molina, 850 F.3d at 1158. Although “the INA does not provide a generic definition of ‘crime involving moral turpitude,‘” the Attorney General, the BIA, and federal courts have generally defined “moral turpitude” to “refer[] to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality,” and to “reach[] conduct that is inherently wrong, ... rather than conduct deemed wrong only because of a statutory proscription.” Id. at 1158-59 (internal quotation marks omitted). “Alongside these very general translations, the BIA and courts have espoused what might be characterized as subsidiary definitions and rules applicable to narrower classes of conduct.” Id. at 1159 (citation, internal quotation marks, alteration omitted). Relevant here, established BIA precedent provides that a theft conviction like Lucio-Rayos‘s qualifies as a CIMT only if one element of the theft offense is that the perpetrator intended to deprive the victim permanently of his property. See In re Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973), overruled by In re Diaz-Lizarraga, 26 I. & N. Dec. 847, 849-52 (BIA 2016); see also De Leon v. Lynch, 808 F.3d 1224, 1229 (10th Cir. 2015) (referencing this line of BIA decisions). The BIA applied that definition of a CIMT involving theft to Lucio-Rayos‘s case.8
Later, after the BIA‘s decision in this case, the BIA “updated” its definition of theft offenses that qualify as a CIMT to provide that “a theft offense is a [CIMT] if it involves an intent to deprive the owner of his property either permanently or under circumstances where the owner‘s property rights are substantially eroded,” In re Diaz-Lizarraga, 26 I. & N. Dec. at 853. That new definition, however, does not apply retroactively here to Lucio-Rayos‘s case because a revised rule adopted by the BIA in the exercise of its delegated legislative policymaking authority is presumed to apply prospectively only to cases initiated after its issuаnce. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1145-46 & 1146 n.1 (10th Cir. 2016). Neither party suggests any reason why that presumption does not apply here.
We, therefore, turn to the categorical approach to determine whether a Westminster theft conviction categorically requires proof that the perpetrator intended to deprive the victim permanently of his property, see In re Grazley, 14 I. & N. Dec. at 333. The Westminster Municipal Code provision at issue, 6-3-1(A), provides:
It shall be unlawful to commit theft. A person commits theft when he knowingly obtains or exercises control over anything of value of another without author
ization, or by threat or deception, where the value of the thing involved is less than five hundred dollars ($500), and: (1) Intends to deprive the other person permanently of the use or benefit of the thing of value; or (2) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit; or (3) Uses, conceals, or abandons the thing of value intending that such use, concealment or abandonment will deprive the other person permanently of its use and benefit; or (4) Demands any consideration to which he is not legally entitled as a condition of restoring the thing of value to the other person.
(A.R. 555.)
Lucio-Rayos contends that a conviction under WMC 6-3-1(A)(4) does not require proof that the perpetrator intended to deprive the victim permanently of his property. We agree.
The fact that other provisions of this municipal code provision expressly require proof of the perpetrator‘s intent to deprive the victim of his property permanently, but WMC 6-3-1(A)(4) does not, strongly indicates that the intent to deprive the victim permanently of his property is not an element under WMC 6-3-1(A)(4). Cf. People v. Mendro, 731 P.2d 704, 706 & n.1 (Colo. 1987) (addressing almost identically worded provisions of Colorado‘s theft statute,
The Government nevertheless argues, and the BIA concluded, that WMC 6-3-1(A)(4) implies “that the deprivation will be permanent if the rightful owner of the property is unwilling or unable to pay the consideration demanded for return of the property.” (Resp. Br. 24.) Owing the BIA no deference to its interpretation of state or local criminal statutes, see Flores-Molina, 850 F.3d at 1157, we disagree that this is sufficient to make the intent to deprive a victim of his property permanently an element of a theft offense under WMC 6-3-1(A)(4).
In reaching that conclusion, we consider, as the BIA did, Colorado‘s application of its analogous theft statute,
2. WCM 6-3-1(A) is divisible
The BIA further erred in concluding that WMC 6-3-1(A) is not divisible. It is, instead, divisible because it sets forth different crimes in its four separate provisions. See Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 2249 (2016) (explaining that a divisible statute “list[s] elements in the alternative, and thereby define[s] multiple crimes“). The parties have not cited, and we have not found, any cases specifically addressing whether WMC 6-3-1(A), or the state‘s analogous theft statute, is divisible. But Colorado‘s Criminal Jury Instructions indicate the analogous state theft statute is divisible by setting forth different pattern instructions, each with different elements, for theft offenses prosecuted under
Our conclusion that WMC 6-3-1(A) is divisible is bolstered by the history of the analogous Colorado theft statute, by which the state legislature incorporated the common-law crimes against property, including larceny, embezzlement, false pretеnses, and confidence games, into a general, con-
3. Applying the modified categorical approach does not establish under which provision of WMC 6-3-1(A) Lucio-Rayos was convicted12
Having concluded that WMC 6-3-1(A) is divisible, we then apply the modified categorical approach to determine under which provision of WMC 6-3-1(A) Lucio-Rayos was convicted, looking to charging documents, jury instructions, or plea agreement and colloquy. See Mathis, 136 S.Ct. at 2249. We do not spend time addressing those documents here because it is undisputed that none of the documents in the record indicates under what provision Lucio-Rayos was convicted.
4. Lucio-Rayos bears the burden of proving that he was not convicted of a CIMT
Because, after applying the modified categorical approach, we cannot determine under which section of WMC 6-3-1(A) Lucio-Rayos was convicted (e.g., whether his conviction was under WMC 6-3-1(A)(4), which we have held does not satisfy the definition of a CIMT, or under another provision of WMC 6-3-1(A) which may satisfy the test for a CIMT), we must decide who bears the brunt of this unclear recоrd.
Congress has placed the burden of proving eligibility for relief from removal squarely on the alien: “An alien applying for relief or protection from removal has the burden of proof to establish that the alien—(i) satisfies the applicable eligibility requirements....”
Relying on
We are bound by Garcia “absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” Leatherwood v. Allbaugh, 861 F.3d 1034, 1042 n.6 (10th Cir. 2017) (internal quotation marks omitted). Lucio-Rayos contends that the Supreme Court‘s decision in Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), has overruled Garcia. Other circuits are divided as to whether Moncrieffe applies to the circumstances at issue here, where the documents relevant to the modified categorical analysis are inconclusive as to the alien‘s offense of conviction. Compare Marinelarena, 869 F.3d at 788-92 (holding Moncrieffe does not apply to question of whether noncitizen met her burden of showing she was not convicted of a controlled substance offense that would disqualify her from seeking relief from removal where documents informing the modified categorical analysis are inconclusive), with Sauceda, 819 F.3d at 528, 530-32 (holding Moncrieffe governs question of whether noncitizen was convicted of domestic violence offense that would disqualify him from seeking relief from removal, where documents relevant to modifiеd categorical analysis are inconclusive). Lucio-Rayos and Amici specifically argue here that, after Moncrieffe, notwithstanding any ambiguity in the noncitizen‘s record of conviction, the prior conviction is presumed to have been for the least conduct criminalized under the statute of conviction, which presents a legal, rather than a factual, question for which burdens of proof are irrelevant. Like the Ninth Circuit, we conclude Moncrieffe does not apply to the question at issue here.
In Moncrieffe, the Supreme Court considered whether a noncitizen‘s prior
In Moncrieffe, then, the Supreme Court considered whether the noncitizen‘s prior Georgia drug conviction categorically matched the relevant federal definition of “aggravated felony” at issue there, possession of more than a small amount of a controlled substance with the intent to distribute it for remuneration. 569 U.S. at 193-94, 133 S.Ct. 1678. Unlike here, there was no question as to what offense Moncrieffe was convicted under Georgia law; hе was convicted of possession of a controlled substance with the intent to distribute it. Id. at 192, 133 S.Ct. 1678. The question at issue in Moncrieffe, in applying the categorical approach, was how Georgia courts defined the elements of that offense, id. at 193-94, 133 S.Ct. 1678, clearly a legal question. Focusing its categorical analysis on the least conduct criminalized under the state statute, Moncrieffe noted that Georgia courts applied the state statute to possession of small amounts of controlled substances for distribution without remuneration. Id. at 194, 133 S.Ct. 1678. A conviction under that Georgia statute, then, did not categorically meet the federal definition. Id. at 194-95, 133 S.Ct. 1678.
Unlike in Moncrieffe, here we do not know of which theft offense set forth in WMC 6-3-1(A) Lucio-Rayos was convicted. That requires us to resort to the modified categorical approach. See Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283-85 (2013). The Tenth Circuit‘s decision in Garcia addressed the modified categorical approach; Moncrieffe did not. Furthermore, as previously mentioned, the determination of which offense listed in a divisible, multi-offense statute the petitioner was convicted is a question of fact or at least a question of law and fact, see Marinelarena, 869 F.3d at 791; Le, 819 F.3d at 105, that turns on findings made from the limited category of documents relevant to the modified categorical approach, see Descamps, 133 S.Ct. at 2283-85. The burden of proof remains relevant to that determination: “It is well-established that the party who bears the burden of proof loses if the record is inсonclusive on a critical point.” Marinelarena, 869 F.3d at 789.
For these reasons, then, we cannot say that Moncrieffe “indisputably” overruled Garcia. See Barnes v. United States, 776 F.3d 1134, 1147 (10th Cir. 2015). There-
5. The “petty theft” exception does not restore Lucio-Rayos‘s eligibility for cancellation of removal
Lastly, Lucio-Rayos contends that if, as we have concluded, his Westminster theft conviction is a CIMT which makes him ineligible for cancellation of removal, he nevertheless meets an exception to ineligibility available for “petty offenses.”
the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imрrisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
Lucio-Rayos‘s theft offense was punishable by imprisonment “for a period not to exceed 365 days.” WMC 1-8-1(A). Even if Lucio-Rayos‘s theft conviction met this “petty offense” exception, however, the exception would only apply to CIMTs defined under
III. CONCLUSION
For the foregoing reasons, we DENY Lucio-Rayos‘s petition for review and uphold the BIA‘s ultimatе determination that he is not eligible for cancellation of removal.