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

                            FOR THE TENTH CIRCUIT                      November 25, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
LUZ DEL CARMEN MORONES-
QUINONES,

             Petitioner,
                                                            No. 14-9521
v.                                                      (Petition for Review)

ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.


      An immigration judge determined that Luz Del Carmen Morones-Quinones is

ineligible for cancellation of removal because she has been convicted of a crime

involving moral turpitude. The Board of Immigration Appeals agreed and dismissed

her appeal. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny

Ms. Morones-Quinones’s petition for review because her conviction under the

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Colorado criminal impersonation statute, Colo. Rev. Stat. § 18-5-113(1)(e) (2010), is

categorically a crime involving moral turpitude.

I.    Background

      Ms. Morones-Quinones is a native and citizen of Mexico who entered the

United States without inspection in December 1996. The Department of Homeland

Security issued her a Notice to Appear in March 2011, charging her as removable

because she is an alien present in the United States without having been admitted or

paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Ms. Morones-Quinones conceded

removability, but applied for cancellation of removal under 8 U.S.C. § 1229b(b). An

immigration judge (“IJ”) concluded she was ineligible for that relief. The IJ noted

that an applicant for cancellation of removal must prove (among other things) that

she has not been convicted of certain types of offenses, including a crime involving

moral turpitude (“CIMT”). See id. § 1229b(b)(1)(C) (citing 8 U.S.C. § 1182(a)(2),

which references CIMTs). The IJ concluded that Ms. Morones-Quinones’s

conviction under the Colorado criminal impersonation statute qualifies categorically

as a CIMT. That statute provides, in pertinent part:

      (1) A person commits criminal impersonation if he knowingly assumes
      a false or fictitious identity or capacity and in such identity or capacity
      he:

      ....

      (e) Does any other act with intent to unlawfully gain a benefit for
      himself or another or to injure or defraud another.



                                          -2-
Colo. Rev. Stat. § 18-5-113(1)(e) (2010).1 The IJ held, alternatively, that if a

conviction under that section was not categorically a CIMT, the IJ was unable to

perform a modified categorical analysis based on the limited documentation that

Ms. Morones-Quinones had provided regarding her conviction. The IJ denied her

application for cancellation of removal and ordered her removed to Mexico.

       Ms. Morones-Quinones appealed the IJ’s decision to the Board of Immigration

Appeals (“BIA”). The BIA held that all offenses under § 18-5-113(1)(e) inherently

involve fraud and are therefore categorically CIMTs. It noted that

Ms. Morones-Quinones did not dispute “that when a person knowingly assumes a

false identity and does an act with either (1) an intent to injure or (2) an intent to

defraud, such an offense involves moral turpitude.” Admin. R. at 4. The BIA

therefore considered whether the third basis for a conviction under § 18-5-113(1)(e)

also involves moral turpitude, specifically: “knowingly assum[ing] a false or

fictitious identity or capacity, and in such identity or capacity . . . [doing] any other

act with intent to unlawfully gain a benefit for himself or another.” It concluded this

language also inherently involves fraud because “[t]he person who commits this

offense misrepresents [her] identity to obtain a benefit” and “[t]he individual or

entity that distributes the benefit is deceived.” Admin. R. at 5. The BIA also made

an alternative finding that, under a modified categorical analysis,
1
      Ms. Morones-Quinones was convicted under this version of the statute.
See Admin. R. at 269. A subsequent amendment renumbered § 18-5-113 and made
minor language changes. See Colo. Rev. Stat. § 18-5-113(1)(b)(II) (2011).


                                           -3-
Ms. Morones-Quinones had not satisfied her burden to prove she had been convicted

under a divisible portion of § 18-5-113(1)(e) that does not involve moral turpitude.

The BIA therefore dismissed Ms. Morones-Quinones’s appeal. She filed a timely

petition for review.

II.    Scope and Standard of Review

       Because a single member of the BIA entered a brief order dismissing

Ms. Morones-Quinones’s appeal pursuant to 8 C.F.R. § 1003.1(e)(5), we review the

BIA’s decision as the final order of removal. See Uanreroro v. Gonzales, 443 F.3d

1197, 1204 (10th Cir. 2006). We ordinarily lack jurisdiction to review orders

regarding the granting of relief under § 1229b. See 8 U.S.C. § 1252(a)(2)(B)(i). But

we have jurisdiction to review Ms. Morones-Quinones’s contention that the BIA

erred in concluding that she has been convicted of a CIMT because it raises a

“question[] of law.” Id. § 1252(a)(2)(D); see also Diallo v. Gonzales, 447 F.3d 1274,

1282 (10th Cir. 2006) (holding “question of law” refers to “a narrow category of

issues regarding statutory construction” (internal quotation marks omitted)). “In our

review of the agency’s decision, we decide purely legal questions de novo.” Karki v.

Holder, 715 F.3d 792, 800 (10th Cir. 2013) (internal quotation marks omitted).

III.   Discussion

       “‘[C]rime involving moral turpitude’ is not defined by statute, [but] we have

said that moral turpitude refers to conduct which is inherently base, vile, or depraved,

contrary to the accepted rules of morality and the duties owed between man and man,


                                         -4-
either one’s fellow man or society in general.” Rodriguez-Heredia v. Holder,

639 F.3d 1264, 1268 (10th Cir. 2011) (internal quotation marks and brackets

omitted). “[C]rimes in which fraud [is] an ingredient have always been regarded as

involving moral turpitude.” Id. (internal quotation marks omitted).

      “To determine whether a state conviction is a [CIMT], we ordinarily employ

the categorical approach.” Id. at 1267. Under this approach, we consider only the

statutory definition of the offense, without regard to the particular factual

circumstances of the alien’s conviction. Id.

      Our inquiry focuses on whether the state statute creates a crime outside
      of the generic definition of a listed crime in a federal statute. This
      requires more than the application of legal imagination to a state
      statute’s language. It requires a realistic probability, not a theoretical
      possibility, that the State would apply its statute to conduct that falls
      outside the generic definition of a crime.

Id. (citation and internal quotation marks omitted). A state conviction qualifies as a

CIMT “only if all violations of the statute would qualify, regardless of how the

specific offender might have committed it on a particular occasion.” United States v.

Trent, 767 F.3d 1046, 1052 (10th Cir. 2014) (internal quotation marks and brackets

omitted). In other words, can the statute be violated in a manner that does not

involve moral turpitude?

      If a state conviction is not categorically a CIMT, in some cases we may turn to

what is referred to as the “modified categorical approach.” Id. But “[t]his approach

is warranted [only] when a statute is divisible: that is, when it sets out one or more

elements of the offense in the alternative.” Id. (internal quotation marks omitted).

                                          -5-
Under this approach we “examine[] certain definitive underlying documents to

determine which alternative the [alien’s] conviction satisfied,” id., i.e., whether she

was convicted under alternative elements that qualify as a CIMT or alternative

elements that do not.

       A.     Ms. Morones-Quinones’s Contentions on Appeal

       Ms. Morones-Quinones contends that § 18-5-113(1)(e) can be violated by

conduct that does not involve moral turpitude; therefore, she asserts, that convictions

under that statute are not categorically CIMTs. She points to the language that

criminalizes the knowing assumption of a false or fictitious identity or capacity,

when in such identity or capacity a person “[d]oes any other act with intent to

unlawfully gain a benefit for himself or another.” Id. She maintains that, unlike an

“intent . . . to injure or defraud another,” an “intent to unlawfully gain a benefit,” id.,

does not involve fraud, either explicitly or inherently. If, as Ms. Morones-Quinones

asserts, a conviction under § 18-5-113(1)(e) is not categorically a CIMT, she argues

further that the BIA erred in applying the modified categorical approach in this case

because the statute is not divisible. Finally, if the statute is divisible, she maintains

that she met her burden under the modified categorical approach to show that she was

convicted under the “intent to unlawfully gain benefit” element, establishing that she

was not convicted of a CIMT.




                                           -6-
       We hold that all convictions under § 18-5-113(1)(e) inherently involve fraud

and are therefore categorically CIMTs. Thus, we reject Ms. Morones-Quinones’ first

contention and do not reach her remaining arguments.

       B.     Convictions Under § 18-5-113(1)(e) Are Categorically Crimes
              Involving Moral Turpitude

       According to Ms. Morones-Quinones, a conviction under § 18-5-113(1)(e)

based on an “intent to unlawfully gain a benefit” is not a CIMT because “fraud” is

not explicitly an element of that crime. But we held in Wittgenstein v. INS, 124 F.3d

1244 (10th Cir. 1997), that a New Mexico conviction for “willfully attempting to

evade or defeat any tax or the payment thereof” was a CIMT. Id. at 1246 (internal

quotation marks and brackets omitted). Although “fraud” was not an element of that

offense, see id. (citing N.M. Stat. Ann. § 7-1-72), we reasoned that fraud was “an

essential part of the crime,” id. Hence, we agree with the BIA that, “where fraud is

inherent in an offense, it is not necessary that the statute prohibiting it include the

usual phraseology concerning fraud in order for it to involve moral turpitude.”

Matter of Flores, 17 I. & N. Dec. 225, 228 (BIA 1980). In determining whether an

alien was convicted of a CIMT, other circuits have likewise analyzed whether the

crime inherently involves fraud. See Villatoro v. Holder, 760 F.3d 872, 877-78

(8th Cir. 2014) (following Matter of Flores); Yeremin v. Holder, 738 F.3d 708, 714

(6th Cir. 2013) (“[E]ven if the statute does not explicitly require an intent to defraud

or use the language of fraud, if fraud or deception is inherent in the nature of the

offense, then the crime involves moral turpitude.”); Tijani v. Holder, 628 F.3d 1071,

                                           -7-
1076 (9th Cir. 2010) (holding fraud is implicit in offense of using “a knowing

falsehood [to] obtain[] property, money, or credit”).

      Ms. Morones-Quinones next argues that a conviction under § 18-5-113(1)(e)

based on an “intent to unlawfully gain a benefit” does not inherently involve fraud.

Fraud is “[a] knowing misrepresentation of the truth or concealment of a material fact

to induce another to act to his or her detriment.” Black’s Law Dictionary (9th ed.

2009). Ms. Morones-Quinones acknowledges that all convictions under

§ 18-5-113(1)(e) require a finding of falsity. But she contends that “act[ing] with

intent to unlawfully gain a benefit” does not necessarily induce someone else to act to

his detriment.

      We disagree because the benefit that the perpetrator seeks to gain by deceit

under § 18-5-113(1)(e) must be unlawful. Colorado v. Gonzales, 534 P.2d 626, 629

(Colo. 1975) (holding the statute does not reach “lawful uses of assumed fictitious

identities”; it proscribes only “false impersonations undertaken to accomplish

unlawful purposes”). As the Colorado Supreme Court has explained, “A common

sense reading and application of the [criminal impersonation] statute prohibits

holding oneself out to a third party as being another person” and using that false or

fictitious identity or capacity “under enumerated circumstances, purposes, or results

that manifest completion of the prohibited act of impersonation.” Alvarado v.

Colorado, 132 P.3d 1205, 1207-08 (Colo. 2006). Therefore, under the plain meaning

of § 18-5-113(1)(e), the perpetrator not only must lie about her identity or capacity,


                                          -8-
but she must do so with the intent to gain a benefit from someone else that she cannot

legally obtain. She therefore necessarily intends by her deceit to induce another

person to act to his detriment by providing her the unlawful benefit.

        Ms. Morones-Quinones nonetheless maintains that there is a realistic

probability that § 18-5-113(1)(e) could be violated based on conduct not qualifying

as moral turpitude. See Rodriguez-Heredia, 639 F.3d at 1267 (requiring more than “a

theoretical possibility” that the State would apply its statute to conduct falling

outside the generic definition of a crime).2 She first argues there are circumstances

under which a person could intend to unlawfully gain a benefit without also intending

to induce someone else to act to his detriment. She asserts that, “factually speaking,

even where a person is not lawfully entitled to employment, the use of a false identity

to obtain employment merely allows the employer to hire . . . the best candidate for

the position.” Aplt. Opening Br. at 26. But this hypothetical ignores the

perpetrator’s aim in lying about her identity. She necessarily intends for the

employer to rely on her deceit, to the employer’s detriment, by hiring an applicant

who is not the person she represents herself to be and who is not legally authorized to

work.



2
       Ms. Morones-Quinones asserts that further fact finding on this issue is
necessary because it is unclear from the record what unlawful benefit she intended to
gain when she violated § 18-5-113(1)(e). But in applying the categorical approach,
we do not consider the underlying facts related to her conviction. We examine only
the statutory definition of the crime. See Rodriguez-Heredia, 639 F.3d at 1267.


                                          -9-
      Finally, Ms. Morones-Quinones asserts that the Colorado Supreme Court

upheld the defendant’s conviction under § 18-5-113(1)(e) in Gonzales, 534 P.2d at

627-29, despite a lack of evidence that he made a false statement with the intent to

unlawfully obtain a benefit that did not belong to him. Consequently, she argues that

Gonzales establishes that § 18-5-113(1)(e)3 can be violated based on

non-turpitudinous conduct. Ms. Morones-Quinones misconstrues the facts in

Gonzales, in which the defendant obtained a money order intended for someone

named Nora Gonzales by representing that he was her husband. Id. at 627. Nora

testified at the trial that she was not the defendant’s wife. Id. at 628. He argued on

appeal that he had not assumed a false or fictitious identity or capacity because he

had signed his own name when he received the money order intended for Nora. Id. at

629. The court rejected that contention, indicating that

      [t]here is no dispute that appellant misrepresented himself to be the
      husband of Nora Gonzales and that he received the money in that
      capacity, presumably for her. This was the assumed false or fictitious
      identity which enabled appellant to wrongfully obtain the funds which
      were not his, but were intended for Nora.

Id. Gonzales does not establish a realistic probability that Colorado would apply

§ 18-5-113(1)(e) to conduct outside the definition of a CIMT.

See Rodriguez-Heredia, 639 F.3d at 1267.




3
      Gonzales applied a precursor statute with language nearly identical to
§ 18-5-113(1)(e). See 534 P.2d at 627 n.1, 628.


                                         - 10 -
      C.     We Need Not Reach Ms. Morones-Quinones’s Remaining
             Contentions Regarding the Applicability of the Modified
             Categorical Approach

      The BIA held, alternatively, that Ms. Morones-Quinones had not satisfied her

burden under the modified categorical approach to establish that she was convicted

based on a portion of § 18-5-113(1)(e) that does not involve moral turpitude. She

first argues that § 18-5-113(1)(e) cannot be analyzed using the modified categorical

approach because it is not divisible. She contends that intent “to unlawfully gain a

benefit,” “to injure,” and “to defraud” are “alternative means of satisfying an

element, not alternative elements or separate crimes.” Aplt. Opening Br. at 17;

see Trent, 767 F.3d at 1058-61 (discussing the meaning of alternative “elements” in

the divisibility analysis). But if the statute is divisible, Ms. Morones-Quinones

asserts that she met her burden to show she was convicted based on the

non-turpitudinous element of an “intent to unlawfully gain a benefit.” We need not

reach these contentions because we hold that any conviction under § 18-5-113(1)(e)

inherently involves fraud and is categorically a CIMT. We therefore have no

occasion to decide whether the modified categorical approach is warranted or to

apply that approach in this case.

      The petition for review is dismissed.


                                                  Entered for the Court


                                                  Carolyn B. McHugh
                                                  Circuit Judge

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