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

                            FOR THE TENTH CIRCUIT                            August 24, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
LUIS ALONSO-BERNABE,
a/k/a Luis Alonso,

      Petitioner,

v.                                                           No. 16-9563
                                                         (Petition for Review)
JEFFERSON B. SESSIONS, III,
United States Attorney General,

      Respondent.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
                   _________________________________

      Luis Alonso-Bernabe, a native and citizen of Mexico who is represented by

counsel, petitions for review of the denial of his applications for cancellation of

removal and voluntary departure. Exercising jurisdiction under 8 U.S.C.

§ 1252(a)(1), (2)(D), we deny the petition.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
                                  BACKGROUND

      After conceding removability, Mr. Alonso applied for cancellation of removal

and voluntary departure. While his immigration proceedings were pending, he was

convicted of assault in violation of Utah Code Ann. § 76-5-102. This conviction

included a domestic-violence enhancement.

      The immigration judge (IJ) determined that § 76-5-102 is a divisible statute.

Employing the modified categorical approach under Descamps v. United States,

133 S. Ct. 2276 (2013), he held the conviction qualified as a crime of domestic

violence that disqualified Mr. Alonso from cancellation of removal. He further held

that the conviction was a crime involving moral turpitude (CIMT) that precluded

Mr. Alonso from establishing good moral character for the purposes of voluntary

departure. The IJ therefore denied relief.

      On appeal, the BIA held that the IJ had not adequately explained why the

conviction qualified as a crime of domestic violence or how he used the modified

categorical approach as set forth in Descamps. It remanded for the IJ to further

consider these issues.

      On remand, the IJ again denied relief. As before, he concluded that the

conviction was not categorically a crime of violence. He then held, however, that he

was unable to employ the modified categorical approach because the record did not

contain the jury instructions to show the elements underlying Mr. Alonso’s

conviction. Without such evidence, the IJ could not determine under which portion

of the statute Mr. Alonso was convicted and whether that portion would qualify as a

                                             2
crime of violence or a CIMT. Placing the burden of proof on Mr. Alonso, the IJ

stated, “since [he] has not provided the Court with sufficient evidence to ascertain

divisibility in his state court Assault case, [he] has failed to show he has not been

convicted of a disqualifying conviction,” namely, a crime of domestic violence or a

CIMT. R. at 66, 67.

      The BIA affirmed, rejecting Mr. Alonso’s arguments that the government had

the burden of proof and that the CIMT issue had not been raised earlier. The BIA

further denied his motion to remand the record, concluding that he had, in fact, been

given notice and an opportunity to respond.

                                      ANALYSIS

      Because Mr. Alonso raises only legal questions, our review is de novo.

Mena-Flores v. Holder, 776 F.3d 1152, 1162 (10th Cir. 2015).

      Mr. Alonso agrees with the agency that § 76-5-102 is a divisible statute. He

contends, however, that the agency erred in placing the burden on him to disprove the

nature of the conviction, rather than placing the burden on the government to show

the conviction qualified. It is patently clear, however, that the agency did not err.

      Under 8 U.S.C. § 1229a(c)(4)(A)(i), “[a]n alien applying for relief or

protection from removal has the burden of proof to establish that [he] . . . satisfies the

applicable eligibility requirements.” Under 8 C.F.R. § 1240.8(d), “[i]f 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.” And in Garcia v. Holder, 584 F.3d 1288,

                                            3
1289-90 (10th Cir. 2009), this court held that when a criminal record is inconclusive

as to whether an alien committed a CIMT, the alien has not satisfied his burden of

showing eligibility for cancellation of removal or voluntary departure. This is so

even when the alien is not at fault for the ambiguity in the record. Id. at 1290.

      Mr. Alonso next suggests that the agency denied him due process. With regard

to whether the conviction was a crime of domestic violence, he requests a remand to

the agency for the opportunity to introduce conviction documents into the record.

And with regard to whether the conviction was a CIMT, he asserts that the issue “is

completely inexplicable”: “Not even the [government] counsel had argued for this,

and the CIMT analysis was not a part of the IJ’s previous order nor the appeal to [the

BIA] nor [the BIA’s] remand to the IJ.” Pet. Br. at 16. “Mr. Alonso was never given

any kind of opportunity to be heard about the CIMT issues, and thus there is a

quintessential due-process violation.” Id.

      “While the cancellation of removal is not a liberty or property interest, aliens

challenging eligibility for the cancellation of removal are entitled to an opportunity to

be heard at a meaningful time and in a meaningful manner.” Torres de la Cruz v.

Maurer, 483 F.3d 1013, 1020 (10th Cir. 2007) (internal quotation marks omitted).

As in Torres de la Cruz, however, Mr. Alonso received all the process he was due.

        In the hearing preceding the first IJ order, the government raised the fact of

the conviction, suggesting that it precluded cancellation of removal. The IJ granted

Mr. Alonso’s counsel a seven-week continuance to evaluate the effect of the

conviction and informed counsel he would welcome any argument or evidence.

                                             4
When the proceeding reconvened, the IJ gave counsel the opportunity to orally

argue, but counsel made no argument.

      Mr. Alonso’s allegations that the CIMT issue was a surprise also are

contradicted by the record. At the hearing, the government did alert the IJ that the

conviction could qualify as a CIMT. As stated, counsel chose not to submit evidence

or make an argument. Further, when the IJ considered voluntary departure, counsel

conceded that the conviction was a CIMT. And the IJ explicitly found in the first

decision that the conviction qualified as a CIMT.

      As the BIA concluded, Mr. Alonso “was provided ample opportunity to

present his case and was on notice concerning the issues involved.” R. at 5. To the

extent that he suggests that due process required a new hearing and opportunity to

argue after the remand of the first IJ decision for legal error, he cites no authority

establishing any such requirement.

                                    CONCLUSION

      The petition for review is denied. The amended motion to proceed without

prepayment of fees and costs is granted. But because 28 U.S.C. § 1915(a)(1) excuses

only prepayment of fees, Mr. Alonso remains obligated to pay all applicable fees.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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