                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                       December 24, 2019
                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

    KAREN SAMANTHA ROBLES-
    GARCIA,

         Petitioner,

    v.                                                        No. 18-9511

    WILLIAM BARR, United States Attorney
    General,

         Respondent.
                         _________________________________

         Petition for Review of an Order from the Board of Immigration Appeals
                          _________________________________

Aaron Elinoff, Elinoff & Associates (Danielle C. Jefferis, with him on the supplemental
brief), Denver, Colorado, for Petitioner.

Chad A. Readler and Joseph H. Hunt, Acting Assistant Attorneys General, Civil
Division, Kohsei Ugumori, Senior Litigation Counsel, and Aric A. Anderson, Trial
Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice,
Washington, D.C., on the briefs for Respondent. 1
                       _________________________________

Before HARTZ, EBEL, and McHUGH, Circuit Judges.
                  _________________________________

EBEL, Circuit Judge.
                         _________________________________


1
  Although the panel heard argument on this petition for review, Respondent’s
counsel was unable to appear due to a medical emergency. Respondent’s counsel
filed a brief written response to Petitioner’s counsel’s oral argument, and Petitioner’s
counsel has replied.
       Petitioner Karen Robles-Garcia, a Mexican citizen unlawfully in the United

States, was ordered removed. She challenges that removal order in two ways. First,

relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Robles-Garcia argues for the

first time that the immigration judge (“IJ”) who initially presided over her removal

proceedings never acquired jurisdiction over those proceedings because the

Department of Homeland Security (“DHS”) initiated those proceedings by serving

Robles-Garcia with a defective Notice to Appear. Because Robles-Garcia has not yet

made that argument to the IJ or the Board of Immigration Appeals (“BIA”), it is

unexhausted and we, therefore, cannot address it in the first instance here. Second,

Robles-Garcia contends that the BIA erred in concluding that she was ineligible to

apply for discretionary cancellation of removal. We uphold that determination

because Robles-Garcia was unable to show that her theft conviction was not a

disqualifying crime involving moral turpitude. We, therefore, DENY Robles-

Garcia’s petition for review challenging the BIA’s determination that she was

ineligible for cancellation of removal, and we DISMISS the petition for lack of

jurisdiction to the extent that it asserts the Pereira question.

                                   I. BACKGROUND

       In 1991, at age three, Robles-Garcia was admitted to the United States as a

nonimmigrant visitor authorized to remain in this country for up to seventy-two hours

and to travel within twenty-five miles of the Mexican border. She stayed longer and

traveled further than permitted. In 2008, DHS served Robles-Garcia with a Notice to

Appear (“NTA”)—the document that DHS issues an immigrant to initiate removal

                                             2
proceedings—charging her with violating her visitor permissions from almost

seventeen years earlier. Robles-Garcia admitted the five factual allegations charged

in the NTA and conceded she is removable. But she applied for cancellation of

removal and adjustment of her status, asserting that her removal would work an

“exceptional and extremely unusual hardship” on her two children, 8 U.S.C.

§ 1229b(b)(1)(D), who are U.S. citizens. To be eligible to request such discretionary

relief from removal, however, Robles-Garcia had to show, among other things, that

she did not have a conviction for a crime involving moral turpitude (“CIMT”). See 8

U.S.C. § 1229b(b)(1)(C) (applying 8 U.S.C. §§ 1182(a)(2), 1227(a)(2)). The IJ

determined that Robles-Garcia had failed to show that her 2007 theft conviction was

not a CIMT; the BIA upheld that determination. Our review here is of the BIA’s

decision. See Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007).

                                    II. ANALYSIS

A. We lack jurisdiction to consider Robles-Garcia’s unexhausted Pereira
argument

      As an initial matter, before this court Robles-Garcia now asserts for the first

time a new argument challenging the BIA’s order removing her from the United

States. While her petition for review was already pending before us, the Supreme

Court decided Pereira v. Sessions, 138 S. Ct. 2105 (2018). Pereira addressed an NTA

that failed to give statutorily required notice of the time and place for the removal

proceedings, see 8 U.S.C. § 1229(a)(1)(G)(i), holding that NTA was inadequate to

trigger a statutory stop-time rule. Pereira, 138 S. Ct. at 2109-10. Based on Pereira,


                                           3
Robles-Garcia argues for the first time here that the NTA that DHS served her was

similarly deficient and, therefore, was inadequate to vest the IJ with jurisdiction over

these removal proceedings. Because Robles-Garcia has not yet raised that argument

to the IJ or BIA, it is unexhausted and we, therefore, cannot address it here.

         “A court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right . . . .”

8 U.S.C. § 1252(d)(1). The Tenth Circuit has applied this statutory exhaustion

requirement to conclude that “[t]he failure to raise an issue on appeal to the [BIA]

constitutes failure to exhaust administrative remedies with respect to that question

and deprives the Court of Appeals of jurisdiction to hear the matter.” Rivera-Zurita

v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991) (emphasis added); see also Lucio-

Rayos v. Sessions, 875 F.3d 573, 579 n.9 (10th Cir. 2017). This exhaustion

requirement is based generally on “a fundamental principle of administrative law that

an agency must have the opportunity to rule on a challenger’s arguments before the

challenger may bring the arguments to court.” Garcia-Carbajal v. Holder, 625 F.3d

1233, 1237 (10th Cir. 2010). See generally City of Arlington v. FCC, 569 U.S. 290,

293, 296-301, 307 (2013) (holding courts should afford Chevron 2 deference to

agency’s determination of its statutory authority to act when that statute is

ambiguous).




2
    Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984).
                                             4
       Here, then, because Robles-Garcia has not yet made her Pereira argument to

the IJ or the BIA, we lack jurisdiction to consider it. We reach this conclusion with

some reluctance, for several reasons.

       First, the Supreme Court has warned us that we should be sparing in our use of

the word “jurisdiction.” See Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1848-50

(2019); Gonzalez v. Thaler, 565 U.S. 134, 141-42 (2012); see also Sky Harbor Air

Serv., Inc. v. Reams, 491 F. App’x 875, 891 n.17 (10th Cir. 2012) (unpublished)

(listing some of the Supreme Court cases “differentiating between ‘jurisdictional’ and

‘claims processing’ rules”).

       Second, the statute at issue here requiring exhaustion, 8 U.S.C. § 1252(d)(1),

does not use the term “jurisdiction.” See Gonzalez, 565 U.S. at 141-42 (recognizing

“principle” that “[a] rule is jurisdictional if the Legislature clearly states that a

threshold limitation on a statute’s scope shall count as jurisdictional,” “[b]ut if

Congress does not rank a statutory limitation on coverage as jurisdictional, courts

should treat the restriction as nonjurisdictional” (internal quotation marks, alteration

omitted)).

       Third, we have previously created exceptions to this so-called “jurisdictional”

exhaustion requirement, and we have recognized the possibility of other exceptions, 3


3
 See Sidabutar v. Gonzales, 503 F.3d 1116, 1118-22 (10th Cir. 2007) (recognizing
exception to exhaustion where BIA sua sponte raised and addressed issue); id. at
1121 n.5 (suggesting DHS might be able to waive exhaustion); Garcia-Carbajal, 625
F.3d at 1240 n.** (assuming, without deciding, that court of appeals can waive
exhaustion under § 1252(d) if exhaustion would be futile, but holding exhaustion
would not be futile in that case in any event); Batrez Gradiz v. Gonzales, 490 F.3d
                                             5
further suggesting that exhaustion under § 1252(d)(1) is not really a jurisdictional

requirement, but is instead more of an issue of deference or comity left to our

discretion to exercise or not. See Bowles v. Russell, 551 U.S. 205, 213-14 (2007)

(stating that Supreme “Court has no authority to create equitable exceptions to

jurisdictional requirements”).

      Of course, it is completely appropriate for the BIA to use its expertise to

address and decide an issue first. But here the BIA, in another case, has already

addressed and rejected the same Pereira argument that Robles-Garcia is now

asserting. See In re Bermudez-Cota, 27 I&N Dec. 441 (BIA Aug. 31, 2018). So, too,

has the Tenth Circuit. See Lopez-Munoz v. Barr, 941 F.3d 1013, 1014, 1017-18

(10th Cir. 2019). In light of these rulings, if we had discretion, we might decide that

it would be most expedient for us to address Robles-Garcia’s unexhausted Pereira

argument now. Nevertheless, our cases make clear that we cannot do so because

failure to exhaust an issue, as § 1252(d)(1) requires in the immigration removal

context, deprives us of “jurisdiction” to consider that issue. See, e.g., Lucio-Rayos,

875 F.3d at 579 n.9; Rivera-Zurita, 946 F.2d at 120 n.2. We are bound by our prior

Tenth Circuit precedent. See Lucio-Rayos, 875 F.3d at 582. We conclude, therefore,

that we lack jurisdiction to review Robles-Garcia’s unexhausted Pereira claim.

B. The BIA did not err in concluding Robles-Garcia was ineligible to apply for
cancellation of removal


1206, 1209-10 (10th Cir. 2007) (recognizing exception to exhaustion requirement to
prevent “fundamental miscarriage of justice”).

                                           6
       Turning now to the merits of the issue in the petition for review that is

properly before us, the question presented is whether Robles-Garcia’s 2007 theft

conviction was for a crime involving moral turpitude (“CIMT”). This is an issue that

Robles-Garcia has administratively exhausted by raising it to the IJ and BIA. We

have jurisdiction to consider this legal issue, see 8 U.S.C. § 1252(a)(2)(D), which we

review de novo. See Lucio-Rayos, 875 F.3d at 576. Of critical importance here,

because the applicant must establish her eligibility for cancellation of removal, see 8

U.S.C. § 1229a(c)(4)(A)(i), it was Robles-Garcia’s burden to prove that her theft

conviction was not a CIMT that would disqualify her from being eligible for

cancellation of removal. See Lucio-Rayos, 875 F.3d at 581-84 (following Garcia v.

Holder, 584 F.3d 1288 (10th Cir. 2009)).

       We apply a categorical approach to determine whether Robles-Garcia’s theft

conviction is a CIMT, “comparing the elements of that offense to the [Immigration

and Nationality Act’s] definition of a CIMT.” Id. at 578. “Although the INA does not

provide a generic definition of ‘crime involving moral turpitude,’ . . . established BIA

precedent provides that a theft conviction like [Robles-Garcia’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.” 4 Id.


4
  BIA precedent now treats a theft involving less than a permanent taking as a CIMT
if it involves “circumstances where the owner’s property rights are substantially
eroded.” (A.R. 4 n.1 (citing In re Diaz-Lizarraga, 26 I&N Dec. 847, 853 (BIA
2016).) But the BIA did not apply that definition to this case, which was initiated
before the BIA issued Diaz-Lizarraga. (A.R. 4 n.1 (citing Lucio-Rayos, 875 F.3d at
578).)
                                              7
      To decide whether Robles-Garcia’s theft conviction required proof that she

intended to deprive the victim permanently of his or her property, we look to the

ordinance under which she was convicted, Aurora Municipal Code § 94-74(a). That

ordinance provides, in relevant part, the following:

      (a) A person commits theft when that person knowingly obtains or
      exercises control over anything having value less than $1,000.00 of
      another without authorization, or by threat or deception, and:

              (1) Intends to deprive the other person permanently of the
              use or benefit of the thing of value;

              (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;

              (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 or benefit; or

              (4) Demands any consideration to which that person is not
              legally entitled as a condition of restoring the thing of value
              to the other person.

(A.R. 269.)

      Aurora Municipal Code § 94-74 also has a subsection (b), with which Robles-

Garcia was not charged, but which enters into the analysis that follows. That

subsection (b) provides:

      (b) It shall be unlawful to knowingly transfer a label or other designation
      of price from one item to another or alter the item with intent to purchase
      such item at a lesser cost.

(A.R. 269.)




                                            8
      The parties do not dispute that Aurora Municipal Code § 94-74(a) is divisible

because it sets forth separate offenses. See Lucio-Rayos, 875 F.3d at 578-81

(holding similar Colorado municipal theft ordinance to be divisible); see also 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”). While

subparagraphs 1–3 of § 94-74(a) require proof that the accused intended to deprive

the victim permanently of his property, § 94-74(a)(4) does not. See Lucio-Rayos,

875 F.3d at 579-80 (holding almost identically worded Colorado municipal theft

provision did not require proof of permanent deprivation). A § 94-74(a) offense,

then, is not categorically a CIMT because subsection (4) does not satisfy the test for a

CIMT. We, therefore, use the modified categorical approach—considering “the

charging documents, jury instructions, plea agreement, plea colloquy, and similar

sources,” Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 n.1 (2017)—to

determine, if possible, of which § 94-74(a) offense Robles-Garcia was convicted.

See Descamps v. United States, 570 U.S. 254, 257 (2013); see also Lucio-Rayos, 875

F.3d at 577-81.

      As noted, the documents that Robles-Garcia submitted to the IJ established

only that she was charged with, and pled guilty to, violating § 94-74(a). The

summons issued to Robles-Garcia, “Summons # J 94028,” charged her with violating

“§ 94-74(a), theft.” (A.R. 344.) She was arraigned on “[t]he charge on the ticket . . .

theft.” (A.R. 303.) The municipal court, during both her arraignment and her guilty

plea, announced that the proceeding was in regard to the same summons, indicating

                                           9
that the charge against Robles-Garcia was not changed or amended before her guilty

plea. The documents in the administrative record, then, establish that Robles-Garcia

was charged with, and pled guilty to, an offense under § 94-74(a), but they do not

further establish which of the four offenses set forth in § 94-74(a) was the crime of

conviction.

       Based on these documents, the BIA determined that Robles-Garcia was unable

to show that her theft conviction was not a CIMT, for two alternative reasons. First,

the BIA purported to apply the modified categorical approach to determine that

Robles-Garcia was convicted, not under any of the four provisions of § 94-74(a), but

instead under § 94-74(b). That was error.

       The BIA made that determination based on the actual conduct to which

Robles-Garcia admitted during her plea colloquy. As the prosecutor described it,

       [t]his was about $52 worth of merchandise from Gordman’s as observed
       by the shoplifting through the closed circuit system. They observed her
       switching tags to cheaper gift boxes and cheaper fragrance. She was
       doing the switch to get the cheaper items than the price was for the items.

(A.R. 312.) Robles-Garcia agreed that is what she did: “I thought it was easy for me

to change the prices, and I wasn’t stealing though, well, I already know that’s

stealing too . . . .” (A.R. 312.)

       The actual conduct to which Robles-Garcia admitted mirrors the language in

§ 94-74(b), “It shall be unlawful to knowingly transfer a label or other designation of

price from one item to another or alter the item with intent to purchase such item at a

lesser cost.” (A.R. 269.) In light of that, the BIA, purporting to apply the modified


                                           10
categorical approach, deemed Robles-Garcia to have been convicted under § 94-

74(b). But as previously explained, all of the documents in the administrative record

indicate that Robles-Garcia was charged with, and pled guilty to, violating § 94-

74(a), not (b).

       In applying the modified categorical approach, our focus is on the elements

necessarily proved or admitted in support of the offense of conviction. See

Descamps, 570 U.S. at 257, 260-65; see also Mellouli v. Lynch, 135 S. Ct. 1980,

1986 n.4 (2015) (noting “inquiry into the particular facts” at issue in a given case is

“[o]ff limits” when applying modified categorical approach). Where, as here, the

documents in the administrative record clearly indicate that Robles-Garcia was

convicted under § 94-74(a), the modified categorical approach does not permit a

court to determine that the defendant should have been charged and convicted instead

under some other statutory provision. Instead, the modified categorical approach can

only assist us here in trying to determine under which provision of § 94-74(a)

Robles-Garcia was convicted. The answer cannot be some other uncharged provision

of that ordinance, like § 94-74(b). The BIA, therefore, erred in concluding Robles-

Garcia was convicted of theft under § 94-74(b). 5

       Alternatively, the BIA held that Robles-Garcia could not meet her burden of

establishing under which of the four offenses set forth in § 94-74(a) she was charged


5
 The facts to which Robles-Garcia admitted in pleading guilty might be helpful,
under the modified categorical approach, if the documents in the record indicated that
Robles-Garcia was convicted generally under § 94-74. But the documents here
already narrowed down for us that Robles-Garcia was convicted under § 94-74(a).
                                           11
and convicted. We agree. Robles-Garcia was unable to provide the BIA with any

documents that further narrowed down under which of the four subsections of § 94-

74(a) she was convicted. Three of those four offenses are CIMTs because they

expressly require proof of a permanent deprivation of property, or of the offender’s

intent to deprive the victim permanently of property. Nothing Robles-Garcia

provided the BIA suggested that her theft conviction was under § 94-74(a)(4), the

lone non-CIMT offense under § 94-74(a). Therefore, the BIA correctly determined

that Robles-Garcia did not meet her burden of establishing that her Aurora conviction

was not a CIMT and, thus, she failed to prove that she is eligible to apply for

cancellation of removal. We, therefore, uphold the BIA’s decision on that basis.

                                  III. CONCLUSION

       For the foregoing reasons, we DENY Robles-Garcia’s petition for review

challenging the BIA’s determination that she was not eligible to apply for

cancellation of removal, and we DISMISS her petition for lack of jurisdiction to the

extent that it asserts her Pereira argument for the first time.




                                            12
18-9511, Robles-Garcia v. Barr
HARTZ, J., Concurring in the judgment and joining in Section II(B) of the opinion.




                                          13
