                                                                                  FILED
                                                                      United States Court of Appeals
                                         PUBLISH                              Tenth Circuit

                          UNITED STATES COURT OF APPEALS                  November 14, 2017

                                                                         Elisabeth A. Shumaker
                                 FOR THE TENTH CIRCUIT                       Clerk of Court
                             _________________________________

JUAN ALBERTO LUCIO-RAYOS,

       Petitioner,

v.                                                         No. 15-9584

JEFFERSON B. SESSIONS III, United
States Attorney General,

       Respondent.

------------------------------

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.
                             _________________________________

                       Appeal from the Board of Immigration Appeals
                                   (Petition for Review)
                          _________________________________
James S. Lamb, Chan Law Firm, Denver, Colorado, for Petitioner.

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


1
  The Honorable Neil Gorsuch participated in the oral argument but not in the
decision in this case. The practice of this court permits the remaining two panel
judges, if in agreement, to act as a quorum in resolving the appeal. See 28 U.S.C.
§ 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997)
(noting that this court allows remaining panel judges to act as a quorum to resolve an
appeal). In this case, the two remaining panel members are in agreement.

                                           2
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 8 U.S.C. § 1252(a)(2)(D), we

DENY Lucio-Rayos’s petition for review.2

                                 I. BACKGROUND

      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 8 U.S.C.

§ 1229b(b). The IJ ruled that Lucio-Rayos is not eligible to apply for cancellation of

removal because his prior theft conviction under the Westminster, Colorado

Municipal Code, WMC 6-3-1(A), is for a CIMT. The BIA affirmed. Lucio-Rayos

has petitioned this court to review the BIA’s decision. See 8 U.S.C. § 1252. We

have jurisdiction to consider his constitutional claims and questions of law involving

statutory construction. Id. § 1252(a)(2)(D); see Flores-Molina v. Sessions, 850 F.3d

1150, 1157 (10th Cir. 2017). We review these matters de novo, although in

appropriate circumstances we may defer to the BIA’s interpretation of the

immigration laws it implements. See Flores-Molina, 850 F.3d at 1157.




2
  The panel GRANTS Lucio-Rayos’s motion to file a supplemental brief and has
considered that brief.
                                           3
                                  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 due 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.3d 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 (6th Cir.).


3
 Contrary to the Government’s argument, Lucio-Rayos adequately raised his recusal
argument to the BIA.
4
 Because Lucio-Rayos, to prevail, must show prejudice from a due process violation,
his blanket suggestion that the IJ must recuse from all removal proceedings initiated
and prosecuted by the Denver ICE office does not warrant relief.
                                           4
      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 bias 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 (9th Cir.), or

3) the IJ has an inherent bias, see Hassan, 604 F.3d at 923 (6th Cir.).

      Lucio-Rayos presents extrajudicial-influence and inherent-bias arguments,

relying by analogy on 28 U.S.C. § 455(a), which requires a federal judge to recuse

“in any proceeding in which his impartiality might reasonably be questioned.”5

However, the record indicates that the Denver ICE office has a plan in place to

ensure that the IJ’s spouse has no involvement in cases pending before the IJ. And

Lucio-Rayos has not asserted any evidence suggesting that the IJ’s spouse played any

role in Lucio-Rayos’s removal proceedings. A reasonable person, knowing these




5
  28 U.S.C. § 455 applies to the recusal of federal judges and does not expressly
apply to IJs. See Yosd v. Mukasey, 514 F.3d 74, 78 n.4 (1st Cir. 2008).
Nonetheless, courts rely on § 455 to inform their analysis of recusal issues involving
IJs. See Shewchun v. Holder, 658 F.3d 557, 570-71 (6th Cir. 2011); Yosd, 514 F.3d
at 78 n.4.

                                           5
facts, would not question the IJ’s impartiality to conduct Lucio-Rayos’s removal

proceeding.6

       Lucio-Rayos also relies by analogy on 28 U.S.C. § 455(b)(5)(i), which

requires a federal judge to recuse if her spouse “[i]s a party to the proceeding, or an

officer, director, or trustee of a party.” But that is not the situation presented here.

While the IJ’s spouse represents a party to this case, the spouse is not himself a party,

nor an officer, director, or trustee of a party.

       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 of the proceedings,” Vargas-

Hernandez, 497 F.3d at 926 (9th Cir.) (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




6
  If Lucio-Rayos is also challenging the IJ’s decision to deny Lucio-Rayos’s
application for a subpoena to the Denver ICE office to produce the conflict-
avoidance plan and the names, contact information and supervisor for all members of
that office, we decline to address that argument, which Lucio-Rayos did not
adequately raise to the BIA. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion of
administrative remedies); see also Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th
Cir. 2007) (stating that this court will “generally assert jurisdiction only over those
arguments that a petitioner properly presents to the BIA”). However, we note that
the record indicates that Lucio-Rayos, in his motion to the IJ seeking the IJ’s recusal,
was able to set forth the general details of the conflict-avoidance plan and that the
ICE office informed the Colorado Chapter of the American Immigration Lawyers
Association of this plan at the time of the IJ’s appointment.

                                             6
        To be eligible for cancellation of removal, Lucio-Rayos had to meet four

requirements. See 8 U.S.C. § 1229b(b)(1).7 The only one of those requirements at

issue here is whether, under 8 U.S.C. § 1229b(b)(1)(C), Lucio-Rayos’s Westminster

conviction for theft is a crime involving moral turpitude (“CIMT”) as defined by the

Immigration and Nationality Act (“INA”) in 8 U.S.C. § 1182(a)(2)(A)(i)(I) or

§ 1227(a)(2)(A)(i). If it is, and if no exceptions apply, Lucio-Rayos is ineligible for

cancellation of removal. Id. § 1229b(b)(1)(c); see, e.g., Flores-Molina, 850 F.3d at

1155-56.

        1. Convictions under WMC 6-3-1(A) do not categorically qualify as
        CIMTs


7
    8 U.S.C. § 1229b(1) provides:

        The Attorney General may cancel removal of, and adjust to the status of an
        alien lawfully admitted for permanent residence, an alien who is
        inadmissible or deportable from the United States if the alien--

              (A) has been physically present in the United States for a
              continuous period of not less than 10 years immediately
              preceding the date of such application;

              (B) has been a person of good moral character during such
              period;

              (C) has not been convicted of an offense under section
              1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to
              paragraph (5) [regarding waiver for domestic violence
              victims]; and

              (D) establishes that removal would result in exceptional and
              extremely unusual hardship to the alien’s spouse, parent, or
              child, who is a citizen of the United States or an alien
              lawfully admitted for permanent residence.

                                            7
      We 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


8
  Before this Court, the Government suggests that the BIA had “not definitively
resolved whether . . . [,] if the [theft] offense required only an intent to temporarily
deprive the owner of the use or benefit of the property taken, the crime would not be
one of moral turpitude.” (Resp. Br. 22 (internal quotation marks omitted).) To the
                                            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 issuance. 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 authorization, 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

contrary, in In re Diaz-Lizarraga, a case decided after the BIA ruled in Lucio-Rayos’s
case, the BIA indicated that “[f]rom the Board’s earliest days we have held that a
theft offense categorically involves moral turpitude if—and only if—it is committed
with the intent to permanently deprive an owner of property.” 26 I&N Dec. at 849.

                                           9
              (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.9

      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, Colo. Rev. Stat. 18-

4-401(1), and stating that “[a]ll of the subsections of 18-4-401, except (d) [which is

9
 Lucio-Rayos further argues in his petition for review that WMC 6-3-1(A)(2), which
applies when the perpetrator “[k]nowingly uses, conceals, or abandons the thing of
value in such manner as to deprive the other person permanently of its use or
benefit,” does not require proof that the perpetrator intends to deprive the victim
permanently of his property. But because Lucio-Rayos did not exhaust this argument
by making it to the BIA, we lack jurisdiction to address it. See Molina v. Holder,
763 F.3d 1259, 1262-63 (10th Cir. 2014).
                                           10
the same as WMC 6-3-1(A)(4)], contain an express culpable mental state element”);

People v. Meyers, 609 P.2d 1104, 1104-05 (Colo. Ct. App. 1979) (addressing

sufficiency of evidence to support conviction under § 18-4-401(1)(d) without

addressing intent to deprive owner of property permanently).

      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, Colo. Rev. Stat. § 18-4-401(1), which, with

regard to the issue before us, is nearly identical to WMC 6-3-1. See Colo. Rev. Stat.

§ 18-4-401(8) (2017) (giving municipalities “concurrent power to prohibit theft, by

ordinance, where the value of the thing involved is less than one thousand dollars.”).

See generally Flores-Molina, 850 F.3d at 1166 (looking to analogous Colorado

statutes when interpreting a Denver municipal ordinance). Colorado’s Criminal Jury

Instructions indicate that the intent to deprive the victim permanently of his property

is not an element of “theft (demanding consideration).” See Colo. Jury Instructions

4-4:04 (2016). Further, the BIA and the Government have not cited any Colorado

case that construes the crime of “theft (demanding consideration)” to require proof

                                          11
that the defendant intended to deprive the victim of his property permanently.

Instead, the BIA and the Government rely only on Colorado cases making general

statements about theft offenses as a whole.10 Those cases do not persuade us that,

contrary to the plain language of the Westminster municipal ordinance and the

analogous Colorado Criminal Jury Instructions, proof that the defendant intended to

deprive the victim of his property permanently is an element of “theft (demanding

consideration).” We hold, therefore, in light of WMC 6-3-1(A)(4), that not all

convictions under the Westminster code’s theft provision require proof that the

defendant intended to deprive the victim of his property permanently. A conviction

generally under WMC 6-3-1(A), thus, does not categorically qualify as a CIMT.11

      2. WCM 6-3-1(A) is divisible

10
  See People v. Warner, 801 P.2d 1187, 1188-89 (Colo. 1990) (explaining, in a case
addressing theft by deception from a person, Colo. Rev. Stat. § 18-4-401(1)(a), (5),
that Colorado’s current theft statute, id. § 18-4-401, incorporates the common-law
offenses of larceny, embezzlement, false pretenses, and confidence games); People v.
Sharp, 104 P.3d 252, 254-58 (Colo. Ct. App. 2004) (stating, in holding that there was
sufficient evidence to support a conviction for theft under Colo. Rev. Stat. § 18-4-
401(1)(b), by knowingly using, concealing, or abandoning “the thing of value in such
manner as to deprive the other person permanently of its use or benefit,” that jury can
infer intent to deprive another permanently of the use of benefits of a thing of value
from defendant’s conduct and the circumstances of the case). The Colorado case on
which Lucio-Rayos relies, People v. Quick, 713 P.2d 1282, 1285-89 (Colo. 1986),
also is not directly on point because it addressed theft offenses under § 18-4-
401(1)(a), (b), and (c), rather than the analogous state provision relevant here, § 18-
4-401(1)(d), and theft cases brought under an earlier state theft statute.
11
   In light of our conclusion that a theft conviction under WMC 6-3-1(A) is not
categorically a CIMT, the Government asks us to remand this case to the BIA to
allow it to consider whether a conviction under WMC 6-3-1(A) qualifies
categorically as a CIMT for some other reason. But the Government did not argue to
the IJ or the BIA any other grounds for deeming Lucio-Rayos’s theft conviction to
qualify as a CIMT.
                                          12
       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, 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 § 18-4-401(1)(a) through (e). See Colo. Jury

Instructions 4-4:01 through 4-4:05 (2016). See generally United States v. Titties, 852

F.3d 1257, 1267-71 (10th Cir. 2017) (applying Mathis and looking, e.g., to the text of

the statute, state-court decisions and state pattern jury instructions to determine

whether state criminal statute is divisible).

       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

pretenses, and confidence games, into a general, consolidated theft statute, while

retaining “much of the substantive elements for the offenses.” Warner, 801 P.2d at

1189. For these reasons, we conclude that WMC 6-3-1(A) is divisible. The parties

do not argue to the contrary.




                                            13
      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

record.

      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


12
  Although the BIA held that WMC 6-3-1(A) was not divisible, the BIA went on to
conclude, alternatively, that if it were divisible (as we have concluded), Lucio-Rayos
failed to establish, under the modified categorical analysis, that his theft conviction
was not a CIMT. We, therefore, continue to review the BIA’s decision by applying
the modified categorical approach.

                                           14
requirements . . . .” 8 U.S.C. § 1229a(c)(4)(A); see also Gutierrez-Orozco v. Lynch,

810 F.3d 1243, 1246 (10th Cir. 2016) (applying § 1229a(c)(4)(A) to alien’s

application for cancellation of removal). 8 C.F.R. § 1240.8(d) reiterates that the alien

has “the burden of establishing that he or she is eligible for any requested benefit or

privilege,” and further provides that where, as here, “the evidence indicates that one

or more of the grounds for mandatory denial of the application for relief may apply,

the alien shall have the burden of proving by a preponderance of the evidence that

such grounds do not apply.” See generally R-S-C v. Sessions, 869 F.3d 1176, 1186

(10th Cir. 2017) (affording Chevron13 deference to Attorney General’s regulation that

was consistent with reasonable interpretation of statutory scheme). This authority

clearly indicates it is the alien that bears the burden of proving he is eligible to seek

discretionary relief from removal.

         Relying on 8 C.F.R. § 1240.8(d), we have previously held, in a case like this

one, that it is the undocumented alien who bears the burden of proof, under the

modified categorical approach, to show that his prior conviction was not a CIMT that

would make him ineligible for relief from removal. See Garcia v. Holder, 584 F.3d

1288, 1289-90 (10th Cir. 2009) (holding alien failed to meet his burden of proving he

was eligible to seek cancellation of removal because the documents used to inform

the modified categorical analysis in that case were inconclusive as to whether his




13
     Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

                                            15
prior conviction was a CIMT).14 “The fact that [the alien] is not to blame for the

ambiguity surrounding his criminal conviction does not relieve him of his obligation

to prove eligibility for discretionary relief.” Id. at 1290.15

       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 (2013), has

overruled Garcia. Other circuits are divided as to whether Moncrieffe applies to the

14
   We disagree with Lucio-Rayos that Garcia involved an improper fact-based, rather
than elements-based, inquiry into whether Garcia’s prior assault conviction involved
the requisite mens rea to qualify as a CIMT. But, in any event, that does not affect
Garcia’s holding that it is the alien who bears the burden of proving that he has not
been convicted of a CIMT and, thus, is eligible for discretionary relief from removal.
Lucio-Rayos’s argument appears to be that the question of whether his prior theft
conviction qualifies as a CIMT is a legal, rather than a factual, question and so the
BIA erred in relying on whose burden of proof it is to show Lucio-Rayos is eligible
for discretionary relief from removal. But the modified categorical approach relies
on documentary evidence to determine of which of the several offenses set forth in a
divisible statute the alien was convicted. See Marinelarena v. Sessions, 869 F.3d
780, 791 (9th Cir. 2017) (noting this “is, if not factual, at least a mixed question of
law and fact”); Le v. Lynch, 819 F.3d 98, 105 (5th Cir. 2016) (“When an alien’s prior
conviction is at issue, the offense of conviction is a factual determination, not a legal
one.”). So burdens of proof are relevant and can be dispositive. See Marinelarena,
869 F.3d at 789-90, 792; cf. Sauceda v. Lynch, 819 F.3d 526, 533-34 (1st Cir. 2016)
(stating that “the categorical approach—with the help of its modified version—
answers the purely ‘legal question of what a conviction necessarily established. As a
result, the question of the allocation of the burden of proof when the complete record
of conviction is present does not come into play.” (emphasis added; quoting Mellouli
v. Lynch, —U.S.—, 135 S. Ct. 1980, 1987 (2015))).
15
   Other circuits have reached similar conclusions. See, e.g., Marinelarena, 869 F.3d
at 788, 792 (9th Cir.); Syblis v. Att’y Gen., 763 F.3d 348, 355-57 (3d Cir. 2014)
(joining Fourth, Seventh, Ninth, and Tenth Circuits, citing cases); Salem v. Holder,
647 F.3d 111, 116 (4th Cir. 2011).

                                            16
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 (9th Cir.) (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 (1st Cir.) (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 modified 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

Georgia drug conviction qualified as an “aggravated felony” under the INA, which

would warrant the noncitizen’s removal from the United States. 569 U.S. at 187. It

is the Government burden to establish, by clear and convincing evidence, that the

noncitizen has a prior conviction that warrants his removal. See Cruz-Garza v.

Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005) (citing 8 U.S.C. § 1229a(c)(3)(A)).

That differs from the issue presented in this case, where it is the noncitizen’s burden

                                           17
to establish, by a preponderance of the evidence, that he is eligible to seek

cancellation of removal. See 8 U.S.C. § 1229a(c)(4)(A); see also 8 C.F.R.

§ 1240.8(d). Although Moncrieffe stated that its analysis in that removal case “is the

same” in the context of cancellation of removal, 569 U.S at 191 n.4, “that is true, so

far as the discussion in Moncrieffe goes: ‘[c]onviction is the relevant statutory hook’

whether determining removability or eligibility for relief from removal,”

Marinelarena, 869 F.3d at 790 (quoting Moncrieffe, 569 U.S. at 191). In either

context, then, a court applies the categorical approach generally, focusing on the

elements of the offense of conviction rather than the actual conduct underlying the

offense. “But Moncrieffe did not discuss the differences in the burden of proof in

those two contexts; it had no reason to.” Marinelarena, 869 F.3d at 790.

      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. Unlike here, there was no question as to what offense Moncrieffe was

convicted under Georgia law; he was convicted of possession of a controlled

substance with the intent to distribute it. Id. at 192. 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, 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

                                           18
amounts of controlled substances for distribution without remuneration. Id. 194. A

conviction under that Georgia statute, then, did not categorically meet the federal

definition. Id. at 194-95.

      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, 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 (9th Cir.); Le, 819 F.3d at 105 (5th Cir.), 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 inconclusive on a critical point.”

Marinelarena, 869 F.3d at 789.

      For these reasons, then, we cannot say that Moncrieffe “indisputeabl[y]”

overruled Garcia. See Barnes v. United States, 776 F.3d 1134, 1147 (10th Cir. 2015).

Therefore, we remain bound to apply Garcia here. Therefore, “[b]ecause it is unclear

from [Lucio-Rayos’s] record of conviction whether he committed a CIMT, we

conclude he has not proven eligibility for cancellation of removal.” Garcia, 584 F.3d

at 1290.

                                           19
      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.” 8

U.S.C. § 1229b(b)(1)(C) provides that Lucio-Rayos is ineligible for cancellation of

removal if his Westminster theft conviction is a CIMT as defined under either 8

U.S.C. § 1182(a)(2)(A)(i)(I) or § 1227(a)(2)(A)(i). But Lucio-Rayos contends that

his Westminster theft conviction meets the “petty offense” exception listed in 8

U.S.C. § 1182(a)(2)(A)(ii)(II), which applies when an alien has “committed only one

crime if”

      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
      imprisonment 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 8 U.S.C. § 1182. There is no similar exception for CIMTs defined by




                                          20
8 U.S.C. § 1227(a)(2)(A)(i).16 In such a situation, the BIA has held that § 1182’s

“petty offense” exception does not prevent an immigrant’s CIMT conviction from

disqualifying him from eligibility for discretionary cancellation of removal under

§ 1227. See In re Cortez Canales, 25 I&N Dec. 301, 303-04 (BIA 2010); see also

Mancilla-Delafuerte v. Lynch, 804 F.3d 1262, 1265-66 (9th Cir. 2015); Hernandez v.

Holder, 783 F.3d 189, 191-96 (4th Cir. 2015).

                                 III. CONCLUSION

      For the foregoing reasons, we DENY Lucio-Rayos’s petition for review and

uphold the BIA’s ultimate determination that he is not eligible for cancellation of

removal.




16
  8 U.S.C. § 1227(a)(2)(A)(i) includes CIMTs “for which a sentence of one year or
longer may be imposed.” See Andrade-Zamora, 814 F.3d 945, 950-51 (8th Cir.
2016).

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