                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                            July 15, 2019
                       _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 ARTURO CERROS-GUTIERREZ, a/k/a
 Arturo Cerros,

       Petitioner,

 v.                                                         No. 18-9555
                                                        (Petition for Review)
 WILLIAM P. BARR, United States
 Attorney General,

       Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

      Arturo Cerros-Gutierrez, a native and citizen of Mexico, seeks review of the

Board of Immigration Appeals’ (BIA) determination that he is removable because he

committed an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Exercising

jurisdiction under 8 U.S.C. § 1252(a)(1), (2)(D), we deny review.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                 I. BACKGROUND

      The United States admitted Mr. Cerros-Gutierrez as a lawful permanent

resident in 1988. Ten years later, he pled guilty to residential burglary under

Ark. Code Ann. § 5-39-201(a)(1) (1997). An Arkansas court sentenced him to five

years in prison.1 In 2005, Mr. Cerros-Gutierrez pled guilty to battery upon a peace

officer under N.M. Stat. Ann. § 30-22-24.

      The Department of Homeland Security (“DHS”) commenced removal

proceedings in 2017, alleging that these convictions support removal under 8 U.S.C.

§ 1227(a)(2)(A)(ii), (iii).2 Those sections provide that if an alien commits two or

more crimes involving moral turpitude, or commits an aggravated felony, the alien is

deportable. Mr. Cerros-Gutierrez sought termination of the removal proceedings,

arguing that his prior crimes (1) did not involve the moral turpitude required by

§ 1227(a)(2)(A)(ii), and (2) were not aggravated felonies within the meaning of

§ 1227(a)(2)(A)(iii).

      The immigration judge (IJ) initially ruled in favor of Mr. Cerros-Gutierrez.

But the IJ reconsidered his initial ruling and ordered removal based solely on his

conclusion that Mr. Cerros-Gutierrez’s Arkansas burglary was an aggravated felony



      1
          The Arkansas court suspended imposition of the sentence for two years.
      2
        The initial notice to appear sought removal under only § 1227(a)(2)(A)(iii)
due to the Arkansas burglary conviction. DHS later added charges that sought
removal under (1) § 1227(a)(2)(A)(ii) because Cerros-Gutierrez had allegedly been
convicted of two crimes involving moral turpitude, and (2) § 1227(a)(2)(A)(iii) due
to the New Mexico battery conviction.
                                            2
under § 1227(a)(2)(A)(iii). Mr. Cerros-Gutierrez appealed this decision to the BIA,

which dismissed the appeal.

                                  II. DISCUSSION

                                A. Legal Background

      We review de novo the BIA’s legal determination that Mr. Cerros-Gutierrez’s

burglary conviction qualifies as an aggravated felony. See Herrera-Castillo v.

Holder, 573 F.3d 1004, 1007 (10th Cir. 2009).

      “The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U.S.C. § 1101

et seq., provides that a noncitizen who has been convicted of an ‘aggravated felony’

may be deported from this country.” Moncrieffe v. Holder, 569 U.S. 184, 187

(2013). The term “aggravated felony” includes a “burglary offense for which the

term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). “When the

Government alleges that a state conviction qualifies as an ‘aggravated felony’ under

the INA, we generally employ a ‘categorical approach’ to determine whether the state

offense is comparable to an offense listed in the INA.” Moncrieffe, 569 U.S. at 190.

“Under this approach we look not to the facts of the particular prior case, but instead

to whether the state statute defining the crime of conviction categorically fits within

the generic federal definition of a corresponding aggravated felony.” Id. (internal

quotation marks omitted).

      The generic federal definition of burglary is “‘an unlawful or unprivileged

entry into, or remaining in, a building or other structure, with intent to commit a



                                           3
crime.’” United States v. Stitt, 139 S. Ct. 399, 405–06 (2018) (quoting Taylor v.

United States, 495 U.S. 575, 598 (1990)).

      The Arkansas statute underlying Mr. Cerros-Gutierrez’s conviction reads as

follows: “A person commits residential burglary if he enters or remains unlawfully

in a residential occupiable structure of another person with the purpose of committing

therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201(a)(1)

(1997).

                                     B. Analysis

      Comparing the language of the Arkansas statute to the generic federal

definition of burglary, we conclude the Arkansas statute categorically fits within the

generic federal definition.

1. Unlawful Entry

      Mr. Cerros-Gutierrez argues the Arkansas statute defines burglary more

broadly than the generic federal definition because the statute does not require an

illegal entry. He asserts the adverb “unlawfully” in § 5-39-201(a)(1) modifies only

the verb “remains,” and not the verb “enters,” so a person could commit residential

burglary by legally entering a residence with intent to commit a crime.

      Mr. Cerros-Gutierrez’s argument runs counter to Arkansas statutory and

judicial authority. Arkansas Code Ann. § 5-39-101(4) (1997) states that the phrase

“‘[e]nter or remain unlawfully’ means to enter or remain in or upon premises when

not licensed or privileged to do so.” And the Arkansas Supreme Court has confirmed

that “Section 5-39-201 encompasses two separate and distinct elements, the first

                                            4
being the illegal entering of the residence and then, second, having the purpose to

commit a felony in that residence.” Sherman v. State, 448 S.W.3d 704, 711

(Ark. 2014) (emphasis added).3 Mr. Cerros-Gutierrez’s argument thus lacks merit.

2. Residential Occupiable Structure

       Mr. Cerros-Gutierrez argued to the IJ and to the BIA that § 5-39-201(a)(1)

covers more conduct than the generic federal burglary definition due to its

proscription of entry into “residential occupiable structure[s].” He reasoned that

because a “residential occupiable structure” is defined in Ark. Code Ann. § 5-39-

101(1) (1997) to include a “vehicle,” Arkansas’ residential burglary statute goes

beyond the generic federal definition’s requirement that entry be into a “building” or

“other structure.”

       Although Mr. Cerros-Gutierrez mentions this issue in his opening brief to this

court, he states that the “Court can pass on this issue,” noting that he raises it only “to

preserve it for further appeal if necessary.” Pet’r Br. at 12. He does not present an

argument, so we do not address this issue. See United States v. Williamson, 746 F.3d

987, 993 n.1 (10th Cir. 2014) (“We do not address arguments that are not raised, or

are inadequately presented, in an appellant’s opening brief.” (internal quotation



       3
        The Sherman court was interpreting the version of Ark. Code Ann.
§ 5-39-201(a)(1) that was in force in 2007. That version differs slightly from the
1997 version at issue here, but the difference is not material. The following shows
the changes that the 2007 version made to the 1997 version: “A person commits
residential burglary if he or she enters or remains unlawfully in a residential
occupiable structure of another person with the purpose of committing therein in the
residential occupiable structure any offense punishable by imprisonment.”
                                            5
marks omitted)); Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1194 n.2 (10th Cir.

2006) (“An issue mentioned in a brief on appeal, but not addressed, is waived.”).

      In any event, the Supreme Court recently rejected the argument that Ark. Code

Ann. § 5-39-201(a)(1) (1997) goes beyond the generic federal burglary definition just

because it criminalizes unlawful entry into certain types of vehicles. Stitt, 139 S. Ct.

at 407 (“[C]overage of vehicles designed or adapted for overnight use” does not

“take[] the statute outside the generic burglary definition.”).4

                                  III. CONCLUSION

      The petition for review is denied.


                                             Entered for the Court


                                             Scott M. Matheson, Jr.
                                             Circuit Judge




      4
        The Court remanded the case for consideration of the appellant’s argument
that because § 5-39-201(a)(1) “might cover a car in which a homeless person
occasionally sleeps,” the “statute is too broad to count as generic burglary.” Id.
Cerros-Gutierrez did not make this argument to the IJ, to the BIA, or in his opening
brief. Accordingly, we will not consider it. See 8 U.S.C. § 1252(d)(1); Akinwunmi v.
INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (“The failure to raise an issue
on appeal to the Board constitutes failure to exhaust administrative remedies with
respect to that question and deprives the Court of Appeals of jurisdiction to hear the
matter.” (internal quotation marks omitted)).


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